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In fact, they've come often to embrace it, concluding that basically saying the magic words and Mirandizing suspects frees up the police to employ a range of sophisticated strategies to get people to confess anyway. And for this reason, when the Miranda case was reaffirmed, far from being upset, the police in many cases welcomed the certainty that Miranda provides. So for all these reasons, I think it's fair to say just descriptively that Miranda, regardless of the empirical dispute about whether or not it has discouraged confessions, has been accepted by law enforcement by and large. It's been affirmed by the Supreme Court and at least for the immediate future, it's here to stay. So we've learned that the ruling in Miranda versus Arizona arose out of concern that suspects in police custody might confess out of coercion or lack of knowledge about their own rights. The decision in Miranda that suspects must be informed of their rights helps to protect individuals accused of a crime from surrendering their Fifth Amendment right not to self-incriminate. But has Miranda harmed the ability of police to investigate crimes by preventing them from obtaining important information? | Miranda v. Arizona Civil liberties and civil rights US government and civics Khan Academy.mp3 |
It's been affirmed by the Supreme Court and at least for the immediate future, it's here to stay. So we've learned that the ruling in Miranda versus Arizona arose out of concern that suspects in police custody might confess out of coercion or lack of knowledge about their own rights. The decision in Miranda that suspects must be informed of their rights helps to protect individuals accused of a crime from surrendering their Fifth Amendment right not to self-incriminate. But has Miranda harmed the ability of police to investigate crimes by preventing them from obtaining important information? Professor Cassell suggests that the broad application of Miranda has hampered police investigations. By contrast, Jeff Rosen argues that police have adjusted to working within the confines of Miranda and use other techniques to investigate crime. To learn more about Miranda versus Arizona, visit the National Constitution Center's interactive constitution and Khan Academy's resources on US government and politics. | Miranda v. Arizona Civil liberties and civil rights US government and civics Khan Academy.mp3 |
The 10th Amendment was specifically designed to allay those fears. It reads, the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. So what does this actually mean? To learn more, I sought out the help of some experts. Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, and Director of the Georgetown Center for the Constitution. Robert Shapiro is the Asa Griggs Candler Professor of Law, and Dean of Emory Law School. So Professor Barnett, can you tell us a little bit just about what that means? | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
To learn more, I sought out the help of some experts. Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, and Director of the Georgetown Center for the Constitution. Robert Shapiro is the Asa Griggs Candler Professor of Law, and Dean of Emory Law School. So Professor Barnett, can you tell us a little bit just about what that means? It's a little dense. During the ratification debates, there was lots of opposition to the Constitution. In fact, the Constitution only was ratified after the proponents of the Constitution, who called themselves Federalists, promised that amendments would be made to the Constitution because it was the lack of a Bill of Rights and other changes that caused people to oppose it. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
So Professor Barnett, can you tell us a little bit just about what that means? It's a little dense. During the ratification debates, there was lots of opposition to the Constitution. In fact, the Constitution only was ratified after the proponents of the Constitution, who called themselves Federalists, promised that amendments would be made to the Constitution because it was the lack of a Bill of Rights and other changes that caused people to oppose it. And so they said they would put a Bill of Rights on afterwards, and at that point, in these ratification conventions, conventions started proposing amendments to Congress that accompanied their ratification. So they ratified it, and they said, but here are some changes we wanna see made. And one of the changes that several states asked for was wording that was very much like what became the 10th Amendment, a reaffirmation of the fact that the federal government was going to be one of limited and enumerated powers. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
In fact, the Constitution only was ratified after the proponents of the Constitution, who called themselves Federalists, promised that amendments would be made to the Constitution because it was the lack of a Bill of Rights and other changes that caused people to oppose it. And so they said they would put a Bill of Rights on afterwards, and at that point, in these ratification conventions, conventions started proposing amendments to Congress that accompanied their ratification. So they ratified it, and they said, but here are some changes we wanna see made. And one of the changes that several states asked for was wording that was very much like what became the 10th Amendment, a reaffirmation of the fact that the federal government was going to be one of limited and enumerated powers. And the 10th Amendment is an expression of the idea that while there are more powers given to the central government of the United States, it's still the case that the only power that the central government, the national government, can exercise are powers specifically given to it by the Constitution. So the 10th Amendment is an embodiment of the structural principle that the only powers that the national government has are those that are delegated to it in the Constitution, as opposed to the states who have general powers within their boundaries. One of the things that I think we see in the Bill of Rights is many examples of the framers responding to particular historical evils that they had witnessed in England or in Europe more generally. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
And one of the changes that several states asked for was wording that was very much like what became the 10th Amendment, a reaffirmation of the fact that the federal government was going to be one of limited and enumerated powers. And the 10th Amendment is an expression of the idea that while there are more powers given to the central government of the United States, it's still the case that the only power that the central government, the national government, can exercise are powers specifically given to it by the Constitution. So the 10th Amendment is an embodiment of the structural principle that the only powers that the national government has are those that are delegated to it in the Constitution, as opposed to the states who have general powers within their boundaries. One of the things that I think we see in the Bill of Rights is many examples of the framers responding to particular historical evils that they had witnessed in England or in Europe more generally. So was there something in particular they had in mind they're trying to prevent with the 10th Amendment? I think the particular evil they were concerned with was the concern of a distant, powerful, centralized government. That had been the government of King George. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
One of the things that I think we see in the Bill of Rights is many examples of the framers responding to particular historical evils that they had witnessed in England or in Europe more generally. So was there something in particular they had in mind they're trying to prevent with the 10th Amendment? I think the particular evil they were concerned with was the concern of a distant, powerful, centralized government. That had been the government of King George. They wanted to make sure that wasn't the government of President George Washington. And the 10th Amendment states that the national government is not an all-powerful body with general authority to do whatever it wants. It's in line with the structure of the Constitution, which says there are certain powers given to the national government. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
That had been the government of King George. They wanted to make sure that wasn't the government of President George Washington. And the 10th Amendment states that the national government is not an all-powerful body with general authority to do whatever it wants. It's in line with the structure of the Constitution, which says there are certain powers given to the national government. There certainly are definite powers given to them, but only some powers. And that idea of being concerned of a distant, strong government far away from the people is really what underlies the principle of the Constitution. And that's what we see in the 10th Amendment, specifying that the powers not delegated to the United States by the Constitution are reserved to the states. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
It's in line with the structure of the Constitution, which says there are certain powers given to the national government. There certainly are definite powers given to them, but only some powers. And that idea of being concerned of a distant, strong government far away from the people is really what underlies the principle of the Constitution. And that's what we see in the 10th Amendment, specifying that the powers not delegated to the United States by the Constitution are reserved to the states. So what would you say is important about the 10th Amendment? It reaffirms that the basic structure of the Constitution is one of limited and enumerated powers. How limited, of course, is a matter of debate, but the fact that they are limited and that all other powers are reserved to the states respectively or to the people is now a matter of constitutional law. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
And that's what we see in the 10th Amendment, specifying that the powers not delegated to the United States by the Constitution are reserved to the states. So what would you say is important about the 10th Amendment? It reaffirms that the basic structure of the Constitution is one of limited and enumerated powers. How limited, of course, is a matter of debate, but the fact that they are limited and that all other powers are reserved to the states respectively or to the people is now a matter of constitutional law. It's a matter of the text. The other thing that's interesting about the 10th Amendment is that in Congress, they added the phrase, or to the people, at the end. The states did not propose that language. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
How limited, of course, is a matter of debate, but the fact that they are limited and that all other powers are reserved to the states respectively or to the people is now a matter of constitutional law. It's a matter of the text. The other thing that's interesting about the 10th Amendment is that in Congress, they added the phrase, or to the people, at the end. The states did not propose that language. The states proposed the wording of the 10th Amendment, and it just would have stopped where it said, are reserved to the states. And so that made the 9th Amendment less a states' rights provision than the states had wanted and less a states' rights provision than people read it today. So the people have rights. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
The states did not propose that language. The states proposed the wording of the 10th Amendment, and it just would have stopped where it said, are reserved to the states. And so that made the 9th Amendment less a states' rights provision than the states had wanted and less a states' rights provision than people read it today. So the people have rights. In fact, nowhere in the Constitution does it say anyone except individuals or persons have rights. It doesn't say states have rights. The 10th Amendment is about reserved powers, and those are the powers that the people have to govern themselves as well as other powers. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
So the people have rights. In fact, nowhere in the Constitution does it say anyone except individuals or persons have rights. It doesn't say states have rights. The 10th Amendment is about reserved powers, and those are the powers that the people have to govern themselves as well as other powers. And what this shows is that the people not only have rights, they also have powers. Perhaps the most important thing, however, is to note that these two are separate provisions, that the Supreme Court has sometimes read the 10th Amendment or the 9th Amendment as meaning basically the 10th Amendment, that the people have reserved powers. But we know they're different because they are put in there separately. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
The 10th Amendment is about reserved powers, and those are the powers that the people have to govern themselves as well as other powers. And what this shows is that the people not only have rights, they also have powers. Perhaps the most important thing, however, is to note that these two are separate provisions, that the Supreme Court has sometimes read the 10th Amendment or the 9th Amendment as meaning basically the 10th Amendment, that the people have reserved powers. But we know they're different because they are put in there separately. And in fact, Madison placed a much higher premium on the importance of the 9th Amendment as opposed to the 10th. The 10th Amendment and the 9th Amendment really speak to the structure of the constitutional system, what it means to have a constitution setting up a national government. So the 10th Amendment is really a statement of the overall structure of what we call federalism, certain powers given to the national government and then powers reserved to the states. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
But we know they're different because they are put in there separately. And in fact, Madison placed a much higher premium on the importance of the 9th Amendment as opposed to the 10th. The 10th Amendment and the 9th Amendment really speak to the structure of the constitutional system, what it means to have a constitution setting up a national government. So the 10th Amendment is really a statement of the overall structure of what we call federalism, certain powers given to the national government and then powers reserved to the states. The 9th Amendment speaks more to the rights side of things. That is, we have certain rights which are set forth in the Bill of Rights, the First Amendment about freedom of speech and religion, the Fourth Amendment about protection against unreasonable searches and seizures. And there was some concern expressed in the late 1700s that if you specified those rights, did that somehow mean that the national government could do whatever else it wanted? | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
So the 10th Amendment is really a statement of the overall structure of what we call federalism, certain powers given to the national government and then powers reserved to the states. The 9th Amendment speaks more to the rights side of things. That is, we have certain rights which are set forth in the Bill of Rights, the First Amendment about freedom of speech and religion, the Fourth Amendment about protection against unreasonable searches and seizures. And there was some concern expressed in the late 1700s that if you specified those rights, did that somehow mean that the national government could do whatever else it wanted? And so the 9th Amendment says, the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. So it's aligned with the idea that the national government has certain powers, but they are limited because other powers are reserved to the states. And the power of the national government may also be limited because there are rights that are reserved to the people. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
And there was some concern expressed in the late 1700s that if you specified those rights, did that somehow mean that the national government could do whatever else it wanted? And so the 9th Amendment says, the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. So it's aligned with the idea that the national government has certain powers, but they are limited because other powers are reserved to the states. And the power of the national government may also be limited because there are rights that are reserved to the people. How do you think the 10th Amendment tells us that the framers intended the federal government and the state governments to relate to each other? The 10th Amendment really is a little more about structure than about specific content. So I think the 10th Amendment embodies the idea that we should think carefully about what are the powers given to the national government, understanding that whatever is given to the national government may take powers away from the states. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
And the power of the national government may also be limited because there are rights that are reserved to the people. How do you think the 10th Amendment tells us that the framers intended the federal government and the state governments to relate to each other? The 10th Amendment really is a little more about structure than about specific content. So I think the 10th Amendment embodies the idea that we should think carefully about what are the powers given to the national government, understanding that whatever is given to the national government may take powers away from the states. And so the 10th Amendment is really a text that embodies the overall principle of federalism that is implicit throughout the United States Constitution. In fact, the 10th Amendment is in some respects kind of a replay of the first sentence of Article I that says that Congress only has the powers herein granted. States have the powers. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
So I think the 10th Amendment embodies the idea that we should think carefully about what are the powers given to the national government, understanding that whatever is given to the national government may take powers away from the states. And so the 10th Amendment is really a text that embodies the overall principle of federalism that is implicit throughout the United States Constitution. In fact, the 10th Amendment is in some respects kind of a replay of the first sentence of Article I that says that Congress only has the powers herein granted. States have the powers. By contrast, the 10th Amendment affirms that states have the powers that are not granted to the federal government, but are granted to them under state constitutions. So just as the federal government has the powers it has under the US Constitution, state governments have the powers they have under state constitutions, and the people reserve all other powers to themselves. So how has the 10th Amendment been interpreted by the Supreme Court over time? | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
States have the powers. By contrast, the 10th Amendment affirms that states have the powers that are not granted to the federal government, but are granted to them under state constitutions. So just as the federal government has the powers it has under the US Constitution, state governments have the powers they have under state constitutions, and the people reserve all other powers to themselves. So how has the 10th Amendment been interpreted by the Supreme Court over time? I imagine there have been some cases about this as the federal government has gotten more powerful. Exactly. So the 10th Amendment, which really is just about the structure of government saying some power is given to the national government, and there's a concern about the power reserved to the states, the understanding of that has really evolved with the understanding of the breadth of the power of the national government. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
So how has the 10th Amendment been interpreted by the Supreme Court over time? I imagine there have been some cases about this as the federal government has gotten more powerful. Exactly. So the 10th Amendment, which really is just about the structure of government saying some power is given to the national government, and there's a concern about the power reserved to the states, the understanding of that has really evolved with the understanding of the breadth of the power of the national government. And what we've seen over the course of history in the United States is that there's been a broader understanding of the power of the government of the United States. That expansion has really come mainly in two forms. One is with regard to the government's power to regulate interstate commerce, and the broad interpretation of the national government's power to regulate commerce. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
So the 10th Amendment, which really is just about the structure of government saying some power is given to the national government, and there's a concern about the power reserved to the states, the understanding of that has really evolved with the understanding of the breadth of the power of the national government. And what we've seen over the course of history in the United States is that there's been a broader understanding of the power of the government of the United States. That expansion has really come mainly in two forms. One is with regard to the government's power to regulate interstate commerce, and the broad interpretation of the national government's power to regulate commerce. We saw that particularly in the context of the Great Depression, when there was viewed to be tremendous social dislocation, tremendous economic problems in the United States, to the point at which some feared that the American democracy might collapse, and the national government then was allowed to exercise more authority over the economy. The Supreme Court in the New Deal declared the 10th Amendment a truism, meaning as long as you find a power, then you can't have a 10th Amendment objection to that power. That's right as a logical matter, except that if you continue to expand your interpretation of those powers, then you are basically violating the spirit, if not the letter of the 10th Amendment. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
One is with regard to the government's power to regulate interstate commerce, and the broad interpretation of the national government's power to regulate commerce. We saw that particularly in the context of the Great Depression, when there was viewed to be tremendous social dislocation, tremendous economic problems in the United States, to the point at which some feared that the American democracy might collapse, and the national government then was allowed to exercise more authority over the economy. The Supreme Court in the New Deal declared the 10th Amendment a truism, meaning as long as you find a power, then you can't have a 10th Amendment objection to that power. That's right as a logical matter, except that if you continue to expand your interpretation of those powers, then you are basically violating the spirit, if not the letter of the 10th Amendment. And finally then, during the Rehnquist Court, until today, the Supreme Court started using the 10th Amendment to enforce the spirit of the Constitution, which preserved the existence of states, even when Congress was claiming powers that went far beyond those that were originally mentioned in the Constitution's text. So in some cases in the early 20th century, you did see the United States Supreme Court interpreting the 10th Amendment to limit to some extent what the national government could do if say the issue were child labor or minimum wage laws, things like that. A question is, is that really something that the national government can do? | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
That's right as a logical matter, except that if you continue to expand your interpretation of those powers, then you are basically violating the spirit, if not the letter of the 10th Amendment. And finally then, during the Rehnquist Court, until today, the Supreme Court started using the 10th Amendment to enforce the spirit of the Constitution, which preserved the existence of states, even when Congress was claiming powers that went far beyond those that were originally mentioned in the Constitution's text. So in some cases in the early 20th century, you did see the United States Supreme Court interpreting the 10th Amendment to limit to some extent what the national government could do if say the issue were child labor or minimum wage laws, things like that. A question is, is that really something that the national government can do? But in the wake of, we say, the New Deal legislation that was put forward by Congress in the Great Depression of the 1930s and approved by the Supreme Court, we've seen the Supreme Court take a much narrower understanding of the 10th Amendment. Or again, we can really see the 10th Amendment in balance with the power of the national government. And as we've understood a broader role for the national government, the role reserved to the states has shrunk. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
A question is, is that really something that the national government can do? But in the wake of, we say, the New Deal legislation that was put forward by Congress in the Great Depression of the 1930s and approved by the Supreme Court, we've seen the Supreme Court take a much narrower understanding of the 10th Amendment. Or again, we can really see the 10th Amendment in balance with the power of the national government. And as we've understood a broader role for the national government, the role reserved to the states has shrunk. This is fascinating. So one thing that interests me about this in terms of US history is the way that later on, the 14th Amendment is interpreted to incorporate the Bill of Rights into the states. So how does the 14th Amendment's protection of equal citizenship rights then intersect with the idea that states have certain individual powers? | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
And as we've understood a broader role for the national government, the role reserved to the states has shrunk. This is fascinating. So one thing that interests me about this in terms of US history is the way that later on, the 14th Amendment is interpreted to incorporate the Bill of Rights into the states. So how does the 14th Amendment's protection of equal citizenship rights then intersect with the idea that states have certain individual powers? So certainly in the wake of the Civil War, we saw the 13th, 14th, and 15th Amendments, the 13th Amendment banning slavery, the 14th Amendment guaranteeing rights of national citizenship and equal protection and due process, and the 15th Amendment guaranteeing the right to vote, all of which expanded the power of the national government. And particularly the 14th Amendment and its guarantee of equal protection of laws and due process of laws were really new national restrictions on state authority, a new empowerment of the national government to protect individuals no matter in what state they were. So since the structure of the 10th Amendment is not about protecting a particular body of power, it would be natural that as the 14th Amendment expands the role of the national government, that there'd be less for the states to do completely immune from federal intrusion. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
So how does the 14th Amendment's protection of equal citizenship rights then intersect with the idea that states have certain individual powers? So certainly in the wake of the Civil War, we saw the 13th, 14th, and 15th Amendments, the 13th Amendment banning slavery, the 14th Amendment guaranteeing rights of national citizenship and equal protection and due process, and the 15th Amendment guaranteeing the right to vote, all of which expanded the power of the national government. And particularly the 14th Amendment and its guarantee of equal protection of laws and due process of laws were really new national restrictions on state authority, a new empowerment of the national government to protect individuals no matter in what state they were. So since the structure of the 10th Amendment is not about protecting a particular body of power, it would be natural that as the 14th Amendment expands the role of the national government, that there'd be less for the states to do completely immune from federal intrusion. The 14th Amendment represents a fundamental change to our system of federalism, precisely because it has a Section 5 in the 14th Amendment, which empowers Congress to enforce the provisions of the previous four sections, including Section 1, which has the Citizenship Clause and the Privileges or Immunities Clause and the Due Process Clause and Equal Protection Clause. So Congress has given an enumerated power to protect individuals from their own state governments violating their fundamental rights under those Section 1 provisions. That's a change in our federalism that is consistent with the 10th Amendment because it's a power that is delegated to Congress by the Constitution, by Section 5 of the 14th Amendment. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
So since the structure of the 10th Amendment is not about protecting a particular body of power, it would be natural that as the 14th Amendment expands the role of the national government, that there'd be less for the states to do completely immune from federal intrusion. The 14th Amendment represents a fundamental change to our system of federalism, precisely because it has a Section 5 in the 14th Amendment, which empowers Congress to enforce the provisions of the previous four sections, including Section 1, which has the Citizenship Clause and the Privileges or Immunities Clause and the Due Process Clause and Equal Protection Clause. So Congress has given an enumerated power to protect individuals from their own state governments violating their fundamental rights under those Section 1 provisions. That's a change in our federalism that is consistent with the 10th Amendment because it's a power that is delegated to Congress by the Constitution, by Section 5 of the 14th Amendment. What happened to that, however, immediately after it was enacted is the Supreme Court decided, and I think quite consciously in their minds, decided that this change in our system of federalism was objectionable. In fact, it was the product of radical Republicans in Congress and it really needed to be undone. And so in one of the earliest examples of what I would call living constitutionalism, a series of cases, in a series of cases, the Supreme Court cut back on the powers of Congress to protect individuals from the rights of their citizens in cases like the Slaughterhouse Cases or United States versus Cruikshank or Plessy versus Ferguson. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
That's a change in our federalism that is consistent with the 10th Amendment because it's a power that is delegated to Congress by the Constitution, by Section 5 of the 14th Amendment. What happened to that, however, immediately after it was enacted is the Supreme Court decided, and I think quite consciously in their minds, decided that this change in our system of federalism was objectionable. In fact, it was the product of radical Republicans in Congress and it really needed to be undone. And so in one of the earliest examples of what I would call living constitutionalism, a series of cases, in a series of cases, the Supreme Court cut back on the powers of Congress to protect individuals from the rights of their citizens in cases like the Slaughterhouse Cases or United States versus Cruikshank or Plessy versus Ferguson. These are cases, or the civil rights cases are more, in which the Supreme Court actually cut back on the scope in order to restore the federalism that existed prior to the Civil War that the justices preferred. I think based on its text and its interpretation over time, we see the 10th Amendment really being a recognition of the federalist structure of the United States Constitution, meaning there will be a national government and there will be states. And that has not changed over time. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
And so in one of the earliest examples of what I would call living constitutionalism, a series of cases, in a series of cases, the Supreme Court cut back on the powers of Congress to protect individuals from the rights of their citizens in cases like the Slaughterhouse Cases or United States versus Cruikshank or Plessy versus Ferguson. These are cases, or the civil rights cases are more, in which the Supreme Court actually cut back on the scope in order to restore the federalism that existed prior to the Civil War that the justices preferred. I think based on its text and its interpretation over time, we see the 10th Amendment really being a recognition of the federalist structure of the United States Constitution, meaning there will be a national government and there will be states. And that has not changed over time. What has changed over time is an understanding about the scope of the role of the national government, how much power the national government needs either to regulate the national economy or to protect individual rights. Certainly the interpretation of the Interstate Commerce Clause and the enactment of the 14th Amendment have been key elements in expanding the role of national power. But all of this expansion of national power is completely consistent with the language of the 10th Amendment, which again, does not specify any particular kind of power reserved to the states. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
And that has not changed over time. What has changed over time is an understanding about the scope of the role of the national government, how much power the national government needs either to regulate the national economy or to protect individual rights. Certainly the interpretation of the Interstate Commerce Clause and the enactment of the 14th Amendment have been key elements in expanding the role of national power. But all of this expansion of national power is completely consistent with the language of the 10th Amendment, which again, does not specify any particular kind of power reserved to the states. It just recognizes that there will be a national government and there will be states. So how have the courts been utilizing the 10th Amendment in recent years? In recent years, the courts have been using the 10th Amendment not so much for what it says, but for its spirit. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
But all of this expansion of national power is completely consistent with the language of the 10th Amendment, which again, does not specify any particular kind of power reserved to the states. It just recognizes that there will be a national government and there will be states. So how have the courts been utilizing the 10th Amendment in recent years? In recent years, the courts have been using the 10th Amendment not so much for what it says, but for its spirit. The idea that it reaffirms the importance of states in our constitutional structure. What's happened since the New Deal is the powers of Congress under its enumerated powers have been so broadly or expansively interpreted that if they were all to be applied to states the way they are applied to private individuals and private companies, essentially Congress could basically run all the states using its commerce power combined with its necessary improper clause power, et cetera. What the Supreme Court has done in recent years is says this violates the first principles of our constitutional order, which says states are important, the 10th Amendment affirms that, and therefore they've created certain carve out or special protections for states from these broadly or expansively read congressional powers. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
In recent years, the courts have been using the 10th Amendment not so much for what it says, but for its spirit. The idea that it reaffirms the importance of states in our constitutional structure. What's happened since the New Deal is the powers of Congress under its enumerated powers have been so broadly or expansively interpreted that if they were all to be applied to states the way they are applied to private individuals and private companies, essentially Congress could basically run all the states using its commerce power combined with its necessary improper clause power, et cetera. What the Supreme Court has done in recent years is says this violates the first principles of our constitutional order, which says states are important, the 10th Amendment affirms that, and therefore they've created certain carve out or special protections for states from these broadly or expansively read congressional powers. None of this is really stemming from the original meaning of the 10th Amendment, because what's already happened is the original meaning of the enumerated powers has already been exceeded, but what it's attempting to do is to keep in place the balance between federal and state powers that the 10th Amendment represented, but doing so in a way that's basically modern. It's adding the states to a list of protected entities, protected from expansive federal power. So we've learned that the 10th Amendment reaffirms that the federal government of the United States will be a limited government with enumerated powers, but as the scope of the federal government has grown, so has debate over the interpretation of the 10th Amendment. | The Tenth Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
Hi, this is Kim from Khan Academy, and today we're learning more about Brown v. Board of Education of Topeka. Decided in 1954, Brown v. Board was a landmark case that opened the door for desegregation and the modern civil rights movement. In Brown, the Supreme Court ruled that segregated schools for white and black children, which had been prevalent throughout the American South since the 1896 decision in Plessy v. Ferguson legalized segregation, were in fact inherently unequal. The named plaintiff in this case, Oliver Brown, was the father of Linda, a third grader who had to take a bus to a segregated elementary school that was much farther from her home than the nearby school for white children. To learn more about the Brown case, I sought out the help of two experts. Theodore Shaw is the Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights at the University of North Carolina School of Law. Michael McConnell is the Richard and Frances Mallory Professor and Director of the Constitutional Law Center at Stanford Law School and a Senior Fellow at the Hoover Institution. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
The named plaintiff in this case, Oliver Brown, was the father of Linda, a third grader who had to take a bus to a segregated elementary school that was much farther from her home than the nearby school for white children. To learn more about the Brown case, I sought out the help of two experts. Theodore Shaw is the Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights at the University of North Carolina School of Law. Michael McConnell is the Richard and Frances Mallory Professor and Director of the Constitutional Law Center at Stanford Law School and a Senior Fellow at the Hoover Institution. So Professor Shaw, could you just kind of set the stage for us? What was the overall social and political context behind this case? Well, Brown was decided in the Cold War era. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
Michael McConnell is the Richard and Frances Mallory Professor and Director of the Constitutional Law Center at Stanford Law School and a Senior Fellow at the Hoover Institution. So Professor Shaw, could you just kind of set the stage for us? What was the overall social and political context behind this case? Well, Brown was decided in the Cold War era. I think that's important for reasons that I'll come back to. But it also was decided, I guess it was 58 years after the Supreme Court ruled in Plessy versus Ferguson that separate but equal railway cars were constitutional. Of course, that extended to all walks of life in the South. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
Well, Brown was decided in the Cold War era. I think that's important for reasons that I'll come back to. But it also was decided, I guess it was 58 years after the Supreme Court ruled in Plessy versus Ferguson that separate but equal railway cars were constitutional. Of course, that extended to all walks of life in the South. And so what you had was Jim Crow segregation sustained and set in place by law. And Brown was the case that cracked the edifice of Jim Crow segregation. So it was an enormously important case. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
Of course, that extended to all walks of life in the South. And so what you had was Jim Crow segregation sustained and set in place by law. And Brown was the case that cracked the edifice of Jim Crow segregation. So it was an enormously important case. It came after a long campaign by the NAACP Legal Defense Fund to overturn Plessy. One thing that I think is really confusing about Plessy versus Ferguson is how it interacts with the 14th Amendment. So immediately after the Civil War, Congress passed and the states ratified the 14th Amendment, which gives equal protection under the law to all citizens. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
So it was an enormously important case. It came after a long campaign by the NAACP Legal Defense Fund to overturn Plessy. One thing that I think is really confusing about Plessy versus Ferguson is how it interacts with the 14th Amendment. So immediately after the Civil War, Congress passed and the states ratified the 14th Amendment, which gives equal protection under the law to all citizens. But then Plessy versus Ferguson, just a couple decades later, legalizes segregation. Can you talk a little bit more about how the equal protection clause of the 14th Amendment has been interpreted in Plessy and then later in Brown versus Board? The doctrine of separate but equal was itself a departure from the prior understanding of what the 14th Amendment meant. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
So immediately after the Civil War, Congress passed and the states ratified the 14th Amendment, which gives equal protection under the law to all citizens. But then Plessy versus Ferguson, just a couple decades later, legalizes segregation. Can you talk a little bit more about how the equal protection clause of the 14th Amendment has been interpreted in Plessy and then later in Brown versus Board? The doctrine of separate but equal was itself a departure from the prior understanding of what the 14th Amendment meant. In the immediate wake of the 14th Amendment, segregation was understood to be a violation of equal rights. The Congress of the United States passed the Civil Rights Act of 1875, which prohibited mandatory segregation of among other things, railroads. Now that was struck down in 1883, I believe it was, 1886, but for reasons not related to separate but equal or segregation. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
The doctrine of separate but equal was itself a departure from the prior understanding of what the 14th Amendment meant. In the immediate wake of the 14th Amendment, segregation was understood to be a violation of equal rights. The Congress of the United States passed the Civil Rights Act of 1875, which prohibited mandatory segregation of among other things, railroads. Now that was struck down in 1883, I believe it was, 1886, but for reasons not related to separate but equal or segregation. But it's only in the late 1880s and 1890s that states begin passing Jim Crow legislation, like the law in Plessy versus Ferguson. I think Plessy very likely would have been, would have come out a different way had it come up 25 years earlier. It's really very difficult to understand the logic of Plessy because Plessy takes the point of view that segregation is okay because it treats everyone the same way and the sense of inferiority or insult that comes from segregation, the court just ignored. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
Now that was struck down in 1883, I believe it was, 1886, but for reasons not related to separate but equal or segregation. But it's only in the late 1880s and 1890s that states begin passing Jim Crow legislation, like the law in Plessy versus Ferguson. I think Plessy very likely would have been, would have come out a different way had it come up 25 years earlier. It's really very difficult to understand the logic of Plessy because Plessy takes the point of view that segregation is okay because it treats everyone the same way and the sense of inferiority or insult that comes from segregation, the court just ignored. You can read the opinion different ways and people do and have read the opinion different ways. A portion of the opinion makes it sound as though this is a kind of social science conclusion that segregation breeds a feeling of inferiority that has a deleterious effect on the black students' performance in school. There's a famous footnote in Brown versus Board of Education, footnote 11, in which some social scientists, and particularly Dr. Kenneth Clark, did a series of tests, the doll tests, in which they showed black and white dolls who were otherwise identical to little children, little black children, and they asked, who was the good doll, who was the bad doll, who was the pretty doll, who was the ugly doll? | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
It's really very difficult to understand the logic of Plessy because Plessy takes the point of view that segregation is okay because it treats everyone the same way and the sense of inferiority or insult that comes from segregation, the court just ignored. You can read the opinion different ways and people do and have read the opinion different ways. A portion of the opinion makes it sound as though this is a kind of social science conclusion that segregation breeds a feeling of inferiority that has a deleterious effect on the black students' performance in school. There's a famous footnote in Brown versus Board of Education, footnote 11, in which some social scientists, and particularly Dr. Kenneth Clark, did a series of tests, the doll tests, in which they showed black and white dolls who were otherwise identical to little children, little black children, and they asked, who was the good doll, who was the bad doll, who was the pretty doll, who was the ugly doll? And the black children would invariably choose the white dolls as the better dolls and the black dolls as the inferior dolls. And then finally, the bombshell question, which one looks like you? And they would stop and choose the black doll and many times tears would come to their eyes. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
There's a famous footnote in Brown versus Board of Education, footnote 11, in which some social scientists, and particularly Dr. Kenneth Clark, did a series of tests, the doll tests, in which they showed black and white dolls who were otherwise identical to little children, little black children, and they asked, who was the good doll, who was the bad doll, who was the pretty doll, who was the ugly doll? And the black children would invariably choose the white dolls as the better dolls and the black dolls as the inferior dolls. And then finally, the bombshell question, which one looks like you? And they would stop and choose the black doll and many times tears would come to their eyes. And so this whole notion of the inferiority, that segregation imbued in black schoolchildren, was important and the Supreme Court had some very eloquent language about that. Everyone knew that the only reason to have laws requiring black and white to be separate was because of the feeling on the part of the dominant white group that the African race was inferior. I think it was a failure of political will, really, rather than a matter of constitutional or legal logic that led to that. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
And they would stop and choose the black doll and many times tears would come to their eyes. And so this whole notion of the inferiority, that segregation imbued in black schoolchildren, was important and the Supreme Court had some very eloquent language about that. Everyone knew that the only reason to have laws requiring black and white to be separate was because of the feeling on the part of the dominant white group that the African race was inferior. I think it was a failure of political will, really, rather than a matter of constitutional or legal logic that led to that. And then it took, what, almost 60 years before the Supreme Court would turn itself around. The late A. Leon Higginbotham, who sat on the Court of Appeals for the Third Circuit in Philadelphia, he used to say that Plessy was wrong the day it was decided. And I believe he was right about that. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
I think it was a failure of political will, really, rather than a matter of constitutional or legal logic that led to that. And then it took, what, almost 60 years before the Supreme Court would turn itself around. The late A. Leon Higginbotham, who sat on the Court of Appeals for the Third Circuit in Philadelphia, he used to say that Plessy was wrong the day it was decided. And I believe he was right about that. If you go back and look at the rationale stated in Plessy, it doesn't hold up. It's not an intellectually honest decision. And having said that, if you look at Brown, it really did not overrule Plessy on its face with respect to segregation and Jim Crow across the board. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
And I believe he was right about that. If you go back and look at the rationale stated in Plessy, it doesn't hold up. It's not an intellectually honest decision. And having said that, if you look at Brown, it really did not overrule Plessy on its face with respect to segregation and Jim Crow across the board. What it did was say that in the field of public education, separate but equal is unconstitutional. Separate schools cannot be equal. And what followed Brown was a series of cases in all kinds of areas in which the court, sometimes without much of an opinion, cited Brown but struck down segregation in public libraries and public accommodations and transportation, et cetera. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
And having said that, if you look at Brown, it really did not overrule Plessy on its face with respect to segregation and Jim Crow across the board. What it did was say that in the field of public education, separate but equal is unconstitutional. Separate schools cannot be equal. And what followed Brown was a series of cases in all kinds of areas in which the court, sometimes without much of an opinion, cited Brown but struck down segregation in public libraries and public accommodations and transportation, et cetera. The case that settled the long-running boycott in Montgomery, Alabama that catapulted Martin Luther King into the national and world stage, it was decided, it was resolved finally, the boycott was important, but it was resolved by this case that the Supreme Court decided and it cited Brown. So Thurgood Marshall and the Legal Defense Fund had kind of been chipping away at the edges of segregation and then they turned directly to school segregation in the Brown cases. So what kind of arguments did they use to challenge the system of school segregation? | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
And what followed Brown was a series of cases in all kinds of areas in which the court, sometimes without much of an opinion, cited Brown but struck down segregation in public libraries and public accommodations and transportation, et cetera. The case that settled the long-running boycott in Montgomery, Alabama that catapulted Martin Luther King into the national and world stage, it was decided, it was resolved finally, the boycott was important, but it was resolved by this case that the Supreme Court decided and it cited Brown. So Thurgood Marshall and the Legal Defense Fund had kind of been chipping away at the edges of segregation and then they turned directly to school segregation in the Brown cases. So what kind of arguments did they use to challenge the system of school segregation? Thurgood Marshall and his co-counsel in the NAACP established a very careful strategy of one case at a time, sort of pushing the envelope of this idea that segregation is inconsistent with the demands of equal protection. And the interesting thing about Brown itself, the case challenging segregation in Topeka, Kansas, why Topeka, Kansas? Why was this such an excellent place to raise the challenge? | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
So what kind of arguments did they use to challenge the system of school segregation? Thurgood Marshall and his co-counsel in the NAACP established a very careful strategy of one case at a time, sort of pushing the envelope of this idea that segregation is inconsistent with the demands of equal protection. And the interesting thing about Brown itself, the case challenging segregation in Topeka, Kansas, why Topeka, Kansas? Why was this such an excellent place to raise the challenge? And the reason is that the schools in Topeka were very substantially equal in quality. In Topeka, they actually had integrated high schools and middle schools. It was only the elementary schools that were segregated and the district court found and the Supreme Court did not disagree that in terms of their material advantages, that the black school was essentially just as good as the white school. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
Why was this such an excellent place to raise the challenge? And the reason is that the schools in Topeka were very substantially equal in quality. In Topeka, they actually had integrated high schools and middle schools. It was only the elementary schools that were segregated and the district court found and the Supreme Court did not disagree that in terms of their material advantages, that the black school was essentially just as good as the white school. And that's why the NAACP wanted to go after Topeka because then it went to the principle of the thing. It's one thing to attack a segregation when separate but equal is really just a fiction, but when separate but equal is a reality, at least pretty close to it, as in Topeka, you have to go after the actual principle that segregation is wrong in principle and not just wrong because it tends most of the time to lead to a material disadvantage. Brown was actually five cases. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
It was only the elementary schools that were segregated and the district court found and the Supreme Court did not disagree that in terms of their material advantages, that the black school was essentially just as good as the white school. And that's why the NAACP wanted to go after Topeka because then it went to the principle of the thing. It's one thing to attack a segregation when separate but equal is really just a fiction, but when separate but equal is a reality, at least pretty close to it, as in Topeka, you have to go after the actual principle that segregation is wrong in principle and not just wrong because it tends most of the time to lead to a material disadvantage. Brown was actually five cases. The Brown case itself came from Topeka, Kansas. In many ways, the Supreme Court might've chosen to lead with the Brown case because it wasn't part of the South. And so in some ways, it might've been viewed as taking pressure off of the South, but there were five cases altogether. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
Brown was actually five cases. The Brown case itself came from Topeka, Kansas. In many ways, the Supreme Court might've chosen to lead with the Brown case because it wasn't part of the South. And so in some ways, it might've been viewed as taking pressure off of the South, but there were five cases altogether. There was a case out of South Carolina, a case out of Virginia, a case out of Delaware, a case out of Washington, D.C., and then the Topeka case. And the Brown family was actually not even the only family named Brown in the Topeka case. And the other Brown case did not have their father available as the lead voice, and they wanted a man. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
And so in some ways, it might've been viewed as taking pressure off of the South, but there were five cases altogether. There was a case out of South Carolina, a case out of Virginia, a case out of Delaware, a case out of Washington, D.C., and then the Topeka case. And the Brown family was actually not even the only family named Brown in the Topeka case. And the other Brown case did not have their father available as the lead voice, and they wanted a man. And so Oliver Brown was the one they chose. They stipulated that the schools were in fact equal in all respects, and of course they weren't. It was never possible to make separate but equal equal. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
And the other Brown case did not have their father available as the lead voice, and they wanted a man. And so Oliver Brown was the one they chose. They stipulated that the schools were in fact equal in all respects, and of course they weren't. It was never possible to make separate but equal equal. But they stipulated that these schools were equal, the black and the white schools, because they wanted the court to be able to, or to have to, confront the issue of whether separate but equal per se was unconstitutional. Interesting, so it's this place where they're hoping not to have a ruling that, for example, oh, the schools for black children need to be brought up to code to be the same as white children, but they're trying to strike down the idea of segregation altogether. And indeed, they rule unanimously that separate but equal facilities are inherently unequal. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
It was never possible to make separate but equal equal. But they stipulated that these schools were equal, the black and the white schools, because they wanted the court to be able to, or to have to, confront the issue of whether separate but equal per se was unconstitutional. Interesting, so it's this place where they're hoping not to have a ruling that, for example, oh, the schools for black children need to be brought up to code to be the same as white children, but they're trying to strike down the idea of segregation altogether. And indeed, they rule unanimously that separate but equal facilities are inherently unequal. The Supreme Court in Brown says, well, whatever may have been the status of education as a civil right back then, back in the 19th century, by now it surely is a civil right, and therefore there can be no discrimination with regard to it. Then one other thing that changed that I think the Supreme Court doesn't refer to, but many historians think was surely in the back of their minds, has to do with foreign policy, of all things. That during this time, the United States, in the wake of World War II, was playing a very major role in opposing colonialism, opposing communism, and trying to spread the gospel of liberty around the world. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
And indeed, they rule unanimously that separate but equal facilities are inherently unequal. The Supreme Court in Brown says, well, whatever may have been the status of education as a civil right back then, back in the 19th century, by now it surely is a civil right, and therefore there can be no discrimination with regard to it. Then one other thing that changed that I think the Supreme Court doesn't refer to, but many historians think was surely in the back of their minds, has to do with foreign policy, of all things. That during this time, the United States, in the wake of World War II, was playing a very major role in opposing colonialism, opposing communism, and trying to spread the gospel of liberty around the world. And when we had segregation at home, this looked like rank hypocrisy. This was the Cold War period. These soldiers came home from fighting a form of racism in Europe, Nazi Germany, the Holocaust. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
That during this time, the United States, in the wake of World War II, was playing a very major role in opposing colonialism, opposing communism, and trying to spread the gospel of liberty around the world. And when we had segregation at home, this looked like rank hypocrisy. This was the Cold War period. These soldiers came home from fighting a form of racism in Europe, Nazi Germany, the Holocaust. And when they came back, they came back to segregated America. And there are many stories that are painful about what their experiences were. But meanwhile, the United States is having this Cold War with the Soviet Union, and the Soviet Union was exploiting this inconsistency in what America said it was and what it was. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
These soldiers came home from fighting a form of racism in Europe, Nazi Germany, the Holocaust. And when they came back, they came back to segregated America. And there are many stories that are painful about what their experiences were. But meanwhile, the United States is having this Cold War with the Soviet Union, and the Soviet Union was exploiting this inconsistency in what America said it was and what it was. And though the Supreme Court never said a word about that in the Brown cases, that was very much context for that decision. So what did it take for desegregation to really come about? Do you think we've achieved desegregation? | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
But meanwhile, the United States is having this Cold War with the Soviet Union, and the Soviet Union was exploiting this inconsistency in what America said it was and what it was. And though the Supreme Court never said a word about that in the Brown cases, that was very much context for that decision. So what did it take for desegregation to really come about? Do you think we've achieved desegregation? Yes and no. There was a long battle to implement Brown. And in fact, for the most part, Brown was not implemented fully, to the extent it ever was until the early 1970s, when the Supreme Court decided a case called Swan v. Charlotte Mecklenburg Board of Education in North Carolina, and sanctioned the use of busing. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
Do you think we've achieved desegregation? Yes and no. There was a long battle to implement Brown. And in fact, for the most part, Brown was not implemented fully, to the extent it ever was until the early 1970s, when the Supreme Court decided a case called Swan v. Charlotte Mecklenburg Board of Education in North Carolina, and sanctioned the use of busing. This does not depend upon what social scientists might think about how people do in school. This is a much more fundamental principle of equality under the law, that our law must treat black and white the same, that for the government to draw racial distinctions is fundamentally unequal and unconstitutional and wrong and unjust. Fundamentally so, and not just as a matter of social science evidence. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
And in fact, for the most part, Brown was not implemented fully, to the extent it ever was until the early 1970s, when the Supreme Court decided a case called Swan v. Charlotte Mecklenburg Board of Education in North Carolina, and sanctioned the use of busing. This does not depend upon what social scientists might think about how people do in school. This is a much more fundamental principle of equality under the law, that our law must treat black and white the same, that for the government to draw racial distinctions is fundamentally unequal and unconstitutional and wrong and unjust. Fundamentally so, and not just as a matter of social science evidence. I don't wanna sound despairing, but I think if anybody looks at our public schools today and many of our communities and our towns and cities and our counties, we have to acknowledge, honestly, that there's still a great deal of segregation. And there are many schools that are identifiably white or identifiably black, and now Latinos, Hispanics, large degree of segregation there also. And even voluntary desegregation efforts have been found by the Supreme Court a few years ago to be largely unconstitutional and illegal, and that's tragic. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
Fundamentally so, and not just as a matter of social science evidence. I don't wanna sound despairing, but I think if anybody looks at our public schools today and many of our communities and our towns and cities and our counties, we have to acknowledge, honestly, that there's still a great deal of segregation. And there are many schools that are identifiably white or identifiably black, and now Latinos, Hispanics, large degree of segregation there also. And even voluntary desegregation efforts have been found by the Supreme Court a few years ago to be largely unconstitutional and illegal, and that's tragic. But that doesn't mean that Brown wasn't significant. I was born in the year Brown versus Board of Education. The America that I grew up in is a very different country. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
And even voluntary desegregation efforts have been found by the Supreme Court a few years ago to be largely unconstitutional and illegal, and that's tragic. But that doesn't mean that Brown wasn't significant. I was born in the year Brown versus Board of Education. The America that I grew up in is a very different country. Then the one that preceded it, in spite of our flaws and our warts, no Brown versus Board of Education, no civil rights movement, I would say. And ultimately no desegregation of our society to the extent that we've accomplished it, and we have to a great degree, no Barack Obama. So I think Brown stands, as I said, as a distinct and so I think Brown stands, as I said, as a dividing point in America, but we can do better. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
The America that I grew up in is a very different country. Then the one that preceded it, in spite of our flaws and our warts, no Brown versus Board of Education, no civil rights movement, I would say. And ultimately no desegregation of our society to the extent that we've accomplished it, and we have to a great degree, no Barack Obama. So I think Brown stands, as I said, as a distinct and so I think Brown stands, as I said, as a dividing point in America, but we can do better. So we've learned that under the leadership of Thurgood Marshall and the NAACP Legal Defense Fund, the decision in Brown versus Board of Education struck a major blow to the system of segregation. After World War II, amidst the ideological struggle of the Cold War, the Supreme Court overturned the precedent set in Plessy versus Ferguson and ruled that segregated education constituted a violation of the Equal Protection Clause of the 14th Amendment. To learn more about Brown versus Board, visit the National Constitution Center's Interactive Constitution and Khan Academy's resources on US government and politics. | Brown v. Board of Education of Topeka US government and civics Khan Academy.mp3 |
It reads, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. To learn more about the First Amendment, I talked to two experts. Erwin Chemerinsky is the Jesse H. Chopra Distinguished Professor of Law and Dean of Berkeley Law. Michael McConnell is the Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution. Professor Chemerinsky, there's a lot going on in the First Amendment. Can you tell us a little bit more about why the framers chose to protect these rights in particular? The historical background of the First Amendment of the Constitution shows why the framers wanted to be sure that all of the liberties in the First Amendment were safeguarded. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
Michael McConnell is the Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution. Professor Chemerinsky, there's a lot going on in the First Amendment. Can you tell us a little bit more about why the framers chose to protect these rights in particular? The historical background of the First Amendment of the Constitution shows why the framers wanted to be sure that all of the liberties in the First Amendment were safeguarded. Let's focus on freedom of speech and freedom of the press. In England, there was, after the printing press developed, licensing, so that anyone who wanted to be able to publish anything needed to have a license from the government, such licensing was seen to be inconsistent with freedom of speech, freedom of the press, for that matter, freedom of thought, freedom of inquiry. Interesting, okay, so there are a lot of essential freedoms that are packed into this First Amendment, so much that it's almost amazing that we're gonna attempt to talk about them all in one video. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
The historical background of the First Amendment of the Constitution shows why the framers wanted to be sure that all of the liberties in the First Amendment were safeguarded. Let's focus on freedom of speech and freedom of the press. In England, there was, after the printing press developed, licensing, so that anyone who wanted to be able to publish anything needed to have a license from the government, such licensing was seen to be inconsistent with freedom of speech, freedom of the press, for that matter, freedom of thought, freedom of inquiry. Interesting, okay, so there are a lot of essential freedoms that are packed into this First Amendment, so much that it's almost amazing that we're gonna attempt to talk about them all in one video. But if we dial into freedom of speech, Professor McConnell, what is freedom of speech? Does that encompass some things and not others? Well, freedom of speech was actually less important to the framers than the freedom with which it was coupled, which is the freedom of the press. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
Interesting, okay, so there are a lot of essential freedoms that are packed into this First Amendment, so much that it's almost amazing that we're gonna attempt to talk about them all in one video. But if we dial into freedom of speech, Professor McConnell, what is freedom of speech? Does that encompass some things and not others? Well, freedom of speech was actually less important to the framers than the freedom with which it was coupled, which is the freedom of the press. And the reason for this is that speech that can reach large audiences is much more important to the individual, but also dangerous to the state than mere speech. When you speak, only those people within hearing range can hear you, but when you are able to use Gutenberg's fantastic new technology to publish your sentiments and distribute them widely, maybe even over the entire country or across the Atlantic and reaching hundreds and thousands of people, now that is powerful. And no wonder, so you think about how the American Revolution was won, this required spreading the word, required gaining converts and telling people what their grievances were. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
Well, freedom of speech was actually less important to the framers than the freedom with which it was coupled, which is the freedom of the press. And the reason for this is that speech that can reach large audiences is much more important to the individual, but also dangerous to the state than mere speech. When you speak, only those people within hearing range can hear you, but when you are able to use Gutenberg's fantastic new technology to publish your sentiments and distribute them widely, maybe even over the entire country or across the Atlantic and reaching hundreds and thousands of people, now that is powerful. And no wonder, so you think about how the American Revolution was won, this required spreading the word, required gaining converts and telling people what their grievances were. To a very great extent, this was done through the mechanism of the printing press. When you ask the question of what's freedom of speech, there's implicit within it the issue of what do we mean by speech? Ultimately, the answer to your question is that the First Amendment in protecting speech broadly safeguards a right to express one's ideas, but it's not absolute. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
And no wonder, so you think about how the American Revolution was won, this required spreading the word, required gaining converts and telling people what their grievances were. To a very great extent, this was done through the mechanism of the printing press. When you ask the question of what's freedom of speech, there's implicit within it the issue of what do we mean by speech? Ultimately, the answer to your question is that the First Amendment in protecting speech broadly safeguards a right to express one's ideas, but it's not absolute. The government can restrict expression if there's a compelling interest. Interesting, can you say more about that? The Supreme Court always has been clear that freedom of speech is not absolute. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
Ultimately, the answer to your question is that the First Amendment in protecting speech broadly safeguards a right to express one's ideas, but it's not absolute. The government can restrict expression if there's a compelling interest. Interesting, can you say more about that? The Supreme Court always has been clear that freedom of speech is not absolute. The court has said that there are certain categories of speech that are unprotected by the First Amendment. Incitement of illegal activity is a category of unprotected speech. The court has said this requires showing that the speech was directed at causing imminent illegal activity, and there was a substantial likelihood of imminent illegal activity. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
The Supreme Court always has been clear that freedom of speech is not absolute. The court has said that there are certain categories of speech that are unprotected by the First Amendment. Incitement of illegal activity is a category of unprotected speech. The court has said this requires showing that the speech was directed at causing imminent illegal activity, and there was a substantial likelihood of imminent illegal activity. Another example, obscenity is unprotected by the First Amendment. The court struggled for years with trying to define what is obscenity. Maybe the low point in that was when Justice Potter Stewart said, I can't define it, but I know it when I see it. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
The court has said this requires showing that the speech was directed at causing imminent illegal activity, and there was a substantial likelihood of imminent illegal activity. Another example, obscenity is unprotected by the First Amendment. The court struggled for years with trying to define what is obscenity. Maybe the low point in that was when Justice Potter Stewart said, I can't define it, but I know it when I see it. There are also these categories of speech where the government can prohibit and even punish the expression. That's where most of the limitations on the freedom of speech and of the press come from, is in order to make sure that we don't hurt other people's rights through the use of our own. So an example of that, the government can prohibit speech, which incites violence against someone. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
Maybe the low point in that was when Justice Potter Stewart said, I can't define it, but I know it when I see it. There are also these categories of speech where the government can prohibit and even punish the expression. That's where most of the limitations on the freedom of speech and of the press come from, is in order to make sure that we don't hurt other people's rights through the use of our own. So an example of that, the government can prohibit speech, which incites violence against someone. So if you're making a speech and calling upon the crowd to attack somebody's house or their person, that can be punished and prevented as an incitement to violence. And you can see how that follows from the logical idea of freedom of speech being a natural right and therefore limited by the rights of other people. So let's turn our attention toward the freedom of religion part of the First Amendment. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
So an example of that, the government can prohibit speech, which incites violence against someone. So if you're making a speech and calling upon the crowd to attack somebody's house or their person, that can be punished and prevented as an incitement to violence. And you can see how that follows from the logical idea of freedom of speech being a natural right and therefore limited by the rights of other people. So let's turn our attention toward the freedom of religion part of the First Amendment. So the first thing that the amendment says is about establishment. So what does this establishment clause prevent? The language of the First Amendment is important. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
So let's turn our attention toward the freedom of religion part of the First Amendment. So the first thing that the amendment says is about establishment. So what does this establishment clause prevent? The language of the First Amendment is important. It says that Congress may make no law respecting the establishment of religion. Since 1947, the Supreme Court has said that that also applies to state and local governments. And the Supreme Court has said this means that the government cannot act with the purpose of advancing religion. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
The language of the First Amendment is important. It says that Congress may make no law respecting the establishment of religion. Since 1947, the Supreme Court has said that that also applies to state and local governments. And the Supreme Court has said this means that the government cannot act with the purpose of advancing religion. To the founders, this was a very clear legal concept, namely it was the established Church of England. In the statute books, in the law, the Church of England was referred to as, and I quote, the church by law established. And what did it mean to be established? | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
And the Supreme Court has said this means that the government cannot act with the purpose of advancing religion. To the founders, this was a very clear legal concept, namely it was the established Church of England. In the statute books, in the law, the Church of England was referred to as, and I quote, the church by law established. And what did it mean to be established? First of all, it meant that the doctrines of the church, the 39 articles of faith of the Church of England were voted upon by parliament. So the doctrines, the liturgy, the text were all adopted by law. The established church was the government's church, and it could be used, and from time to time was used as an instrument of government or as an instrument of politics. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
And what did it mean to be established? First of all, it meant that the doctrines of the church, the 39 articles of faith of the Church of England were voted upon by parliament. So the doctrines, the liturgy, the text were all adopted by law. The established church was the government's church, and it could be used, and from time to time was used as an instrument of government or as an instrument of politics. And this is a way in which the government is able to have a powerful influence on the way in which values and opinions are inculcated. It's one of the most important ideas of the established church, especially in the 18th century, was to teach that there's actually a religious obligation to obey the law and to recognize the king as the supreme leader in matters of both church and state. And the framers' experience with this was extremely powerful. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
The established church was the government's church, and it could be used, and from time to time was used as an instrument of government or as an instrument of politics. And this is a way in which the government is able to have a powerful influence on the way in which values and opinions are inculcated. It's one of the most important ideas of the established church, especially in the 18th century, was to teach that there's actually a religious obligation to obey the law and to recognize the king as the supreme leader in matters of both church and state. And the framers' experience with this was extremely powerful. That's because the framers were aware of the religious persecution that had gone on in other countries. They were aware of the evils that occur when the government becomes aligned with a particular religion. The principal reason why many of the colonists had come to these shores to begin with was to escape the oppressions of the established Church of England back home and to come to a place where they would be able to exercise the freedom of religion for themselves. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
And the framers' experience with this was extremely powerful. That's because the framers were aware of the religious persecution that had gone on in other countries. They were aware of the evils that occur when the government becomes aligned with a particular religion. The principal reason why many of the colonists had come to these shores to begin with was to escape the oppressions of the established Church of England back home and to come to a place where they would be able to exercise the freedom of religion for themselves. And the main opponents of the established church were not anti-Christian or anti-religious people. They were the most religious people, and their view was the government should stay out of our church, that we will decide what we believe for ourselves, we will control our own church, we will write our own liturgy, we'll decide what version of the Bible we're going to use, we'll choose our own ministers, thank you very much, government, stay out of it. Leave us free to practice our religion without having this kind of an establishment. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
The principal reason why many of the colonists had come to these shores to begin with was to escape the oppressions of the established Church of England back home and to come to a place where they would be able to exercise the freedom of religion for themselves. And the main opponents of the established church were not anti-Christian or anti-religious people. They were the most religious people, and their view was the government should stay out of our church, that we will decide what we believe for ourselves, we will control our own church, we will write our own liturgy, we'll decide what version of the Bible we're going to use, we'll choose our own ministers, thank you very much, government, stay out of it. Leave us free to practice our religion without having this kind of an establishment. So for instance, a county in Kentucky required that the Ten Commandments be posted in all county buildings. The Supreme Court said, the Ten Commandments are religious scripture. There's no secular purpose for having the Ten Commandments posted in county buildings. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
Leave us free to practice our religion without having this kind of an establishment. So for instance, a county in Kentucky required that the Ten Commandments be posted in all county buildings. The Supreme Court said, the Ten Commandments are religious scripture. There's no secular purpose for having the Ten Commandments posted in county buildings. The court declared it unconstitutional. The Supreme Court has said the government can't act where the primary effect is to advance or to inhibit religion. So for example, there can't be prayer in public schools. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
There's no secular purpose for having the Ten Commandments posted in county buildings. The court declared it unconstitutional. The Supreme Court has said the government can't act where the primary effect is to advance or to inhibit religion. So for example, there can't be prayer in public schools. Even a voluntary prayer in public schools is impermissible because the court has said that the primary effect of having prayer in public schools is to advance religion. The court has explained that children will inevitably feel pressured to participate. This coercion violates the Constitution. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
So for example, there can't be prayer in public schools. Even a voluntary prayer in public schools is impermissible because the court has said that the primary effect of having prayer in public schools is to advance religion. The court has explained that children will inevitably feel pressured to participate. This coercion violates the Constitution. So the First Amendment then prevents that kind of intermingling of the government and the church. This is I guess the key idea of separation between church and state. But it also says that the Congress shall make no law prohibiting the free exercise of religion. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
This coercion violates the Constitution. So the First Amendment then prevents that kind of intermingling of the government and the church. This is I guess the key idea of separation between church and state. But it also says that the Congress shall make no law prohibiting the free exercise of religion. So what does that mean? Free exercise of religion was the right to practice your own religion. It didn't keep the government from setting up a church, but it did keep the government from requiring you to attend that church, maybe even to contribute to the church, but also kept the government from preventing you from worshiping elsewhere. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
But it also says that the Congress shall make no law prohibiting the free exercise of religion. So what does that mean? Free exercise of religion was the right to practice your own religion. It didn't keep the government from setting up a church, but it did keep the government from requiring you to attend that church, maybe even to contribute to the church, but also kept the government from preventing you from worshiping elsewhere. So the Establishment Clause by and large prevents the government from forcing people to participate in religion, and the Free Exercise Clause by and large prohibits the government from preventing people from practicing their religion. Those two things work together to enable everyone to worship God in accordance with their own conscience. Interesting. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
It didn't keep the government from setting up a church, but it did keep the government from requiring you to attend that church, maybe even to contribute to the church, but also kept the government from preventing you from worshiping elsewhere. So the Establishment Clause by and large prevents the government from forcing people to participate in religion, and the Free Exercise Clause by and large prohibits the government from preventing people from practicing their religion. Those two things work together to enable everyone to worship God in accordance with their own conscience. Interesting. All right, so we mentioned a little bit about freedom of the press, but there are two other aspects of the First Amendment the right of the people peaceably to assemble and to petition the government for a redress of grievances. So what is included with the right to peaceably assemble? Are there any situations where that might be restricted? | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
Interesting. All right, so we mentioned a little bit about freedom of the press, but there are two other aspects of the First Amendment the right of the people peaceably to assemble and to petition the government for a redress of grievances. So what is included with the right to peaceably assemble? Are there any situations where that might be restricted? The Supreme Court has said that under freedom of speech, there's a right to use government property for speech purposes. This is also something that tells the freedom of assembly. And the Supreme Court has said that there's certain government properties that the government is required to make available for speech. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
Are there any situations where that might be restricted? The Supreme Court has said that under freedom of speech, there's a right to use government property for speech purposes. This is also something that tells the freedom of assembly. And the Supreme Court has said that there's certain government properties that the government is required to make available for speech. Sidewalks in parks. There's other places where the government has more latitude to regulating speech. School facilities, evenings and weekends. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
And the Supreme Court has said that there's certain government properties that the government is required to make available for speech. Sidewalks in parks. There's other places where the government has more latitude to regulating speech. School facilities, evenings and weekends. There's places where the government can close entirely to speech. Military bases, areas outside prisons and jails. All of these cases could have been litigated under freedom of assembly. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
School facilities, evenings and weekends. There's places where the government can close entirely to speech. Military bases, areas outside prisons and jails. All of these cases could have been litigated under freedom of assembly. Some of the earlier cases explicitly mentioned freedom of assembly. But subsequent cases combine freedom of assembly into the protection of freedom of speech. I guess that makes sense. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
All of these cases could have been litigated under freedom of assembly. Some of the earlier cases explicitly mentioned freedom of assembly. But subsequent cases combine freedom of assembly into the protection of freedom of speech. I guess that makes sense. But what about something like a march, for example, that might say block traffic? That's perhaps a clear case when there is this tension between freedom of speech and assembly and say public safety if they're blocking say an ambulance. How do you resolve that tension? | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
I guess that makes sense. But what about something like a march, for example, that might say block traffic? That's perhaps a clear case when there is this tension between freedom of speech and assembly and say public safety if they're blocking say an ambulance. How do you resolve that tension? Sometime in roughly the 1970s, the court began using a quite different way of looking at the free speech question in which they said that laws which regulate or prohibit speech on the basis of the content of the speech are generally speaking unconstitutional, absent a very important governmental purpose. But the laws that are content neutral and regulate speech on the basis of its time, place or manner are permitted. So the basic idea here is that government has regulatory authority over speech, but not over what you say, but just over when you say it, where you say it, how you say it. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
How do you resolve that tension? Sometime in roughly the 1970s, the court began using a quite different way of looking at the free speech question in which they said that laws which regulate or prohibit speech on the basis of the content of the speech are generally speaking unconstitutional, absent a very important governmental purpose. But the laws that are content neutral and regulate speech on the basis of its time, place or manner are permitted. So the basic idea here is that government has regulatory authority over speech, but not over what you say, but just over when you say it, where you say it, how you say it. All right, so the last thing in the First Amendment is the phrase petitioning the government for a redress of grievances. Congress shall make no law abridging that freedom. What does this mean? | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
So the basic idea here is that government has regulatory authority over speech, but not over what you say, but just over when you say it, where you say it, how you say it. All right, so the last thing in the First Amendment is the phrase petitioning the government for a redress of grievances. Congress shall make no law abridging that freedom. What does this mean? How would one petition the government for a redress of grievances? There are of course many ways that people can petition government for redress of grievances. It's the ability to go and testify before a legislative body. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
What does this mean? How would one petition the government for a redress of grievances? There are of course many ways that people can petition government for redress of grievances. It's the ability to go and testify before a legislative body. It's the ability to communicate with one's legislators or representatives about change. It's basically the ability to go to the government and ask it to change its policy. There are relatively few cases just about the right to petition government for redress of grievances. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |
It's the ability to go and testify before a legislative body. It's the ability to communicate with one's legislators or representatives about change. It's basically the ability to go to the government and ask it to change its policy. There are relatively few cases just about the right to petition government for redress of grievances. Again, I think the reason for that is it's been so subsumed into the protection of freedom of speech. Everything one would do by way of petitioning government for redress of grievances is through speech and expression. And so the larger protection of speech and expression is meant that the court hasn't needed to focus so much on this particular right. | The First Amendment The National Constitution Center US government and civics Khan Academy.mp3 |