The Right to Privacy, Self-Determination, and the Freedom of Ideas Learning Outcomes By the end of this section, you will be able to: Outline the components of the rights to privacy, self-determination, and freedom of expression that are deemed essential according to human rights norms. Analyze how different government systems around the world treat the rights to privacy, self-determination, and freedom of expression. Describe the paradox of tolerance. While most constitutions around the world guarantee due process, how the high courts of each state interpret the standard of due process differs considerably from state to state. Victor V. Ramraj, “Four Models of Due Process,” International Journal of Constitutional Law 2, no. 3 (July 2004): 492–524, https://doi.org/10.1093/icon/2.3.492. Most due process clauses provide that no one shall be deprived of life, liberty, or property without due process of law. One often thinks of liberty as freedom from incarceration, but it means much more than that. To have liberty is to have personal autonomy, and to have personal autonomy, one must have the right to make personal decisions. Thus, the most fundamental aspect of civil liberty is privacy, and in most constitutions, liberty includes the right to privacy. The Right to Privacy Merriam-Webster’s Dictionary of Law defines the right to privacy as “the right of a person to be free from intrusion into or publicity concerning matters of a personal nature.” Merriam-Webster’s Dictionary of Law , s.v. “right of privacy,” accessed June 28, 2021, https://www.merriam-webster.com/legal/right%20of%20privacy. Another way to define the right to privacy is “the right to be left alone.” Wex, s.v. “right to privacy,” accessed January 27, 2022, https://www.law.cornell.edu/wex/right_to_privacy. In a liberal democratic system, privacy is a space separate from public life, allowing individual personal autonomy. Privacy is the ability to think, speak, and behave without being monitored or surveilled by another person or the government. Are you permitted to decide whether to have children and how many? To choose whom you marry? Decisions concerning what to wear, what to study in school, what career to pursue, and what religious beliefs to instill in one’s children are all privacy issues. They are all personal decisions or decisions about which there is debate on whether governments can restrict or require certain conduct. In their influential article “The Right to Privacy,” attorney Samuel Warren and US Supreme Court justice Louis Brandeis define privacy as the “right of the individual to be let alone.” Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4, no. 5 (December 15, 1890): 205, https://www.jstor.org/stable/1321160. The right to privacy has been used to assert that liberty exists in a wide range of civil liberties cases in the United States. In Pierce v. Society of Sisters , the Supreme Court found that the 14th Amendment prevents the state from interfering with parents’ choices regarding their child’s education. Pierce v. Society of Sisters, 268 U.S. 510 (1925), https://www.oyez.org/cases/1900-1940/268us510. In Griswold v. Connecticut , Roe v. Wade , and Lawrence v. Texas , the court struck down several laws criminalizing sexual and reproductive decisions between consenting adults in private activities, citing a right to privacy. Griswold v. Connecticut, 381 U.S. 479 (1965), https://www.oyez.org/cases/1964/496; Lawrence v. Texas, 539 U.S. 558 (2003), https://www.oyez.org/cases/2002/02-102; Roe v. Wade, 410 U.S. 113 (1973), https://www.oyez.org/cases/1971/70-18. In Lawrence , Justice Anthony Kennedy wrote: “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.” Lawrence , 539 U.S. Griswold vs. Connecticut: The Most Important Supreme Court Case You’ve Never Heard Of In Griswold v. Connecticut, the US Supreme Court established the Right to Privacy as a liberty implied but not stated in numerous places across the Constitution. Most countries explicitly recognize a right to privacy. For example, the UK Human Rights Act of 1998 states: Right to respect for private and family life Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Human Rights Act 1998, c. 42, § 1(3), sch. 1, art. 8 (UK), https://www.legislation.gov.uk/ukpga/1998/42/schedule/1. The US Constitution does not explicitly mention a right to privacy, but the right to privacy is an essential idea behind several of the rights it specifies. Several US state constitutions do include an explicit right to privacy. See “Privacy Protections in State Constitutions,” National Conference of State Legislatures, last modified January 3, 2022, https://www.ncsl.org/research/telecommunications-and-information-technology/privacy-protections-in-state-constitutions.aspx. The US Supreme Court has recognized the right to privacy as a fundamental right . David D. Bodenhamer, “The Right of Privacy,” in Our Rights (Oxford: Oxford University Press, 2007), ch. 22, https://www.annenbergclassroom.org/resource/our-rights/rights-chapter-22-right-privacy/. As Justice Brandeis wrote in the wiretapping case of Olmstead v. United States (1928), “the right to be let alone [is] the most comprehensive of rights, and the right most valued by civilized men.” Olmstead v. United States, 277 U.S. 438 (1928), https://www.oyez.org/cases/1900-1940/277us438. The First, Third, Fourth, Fifth, Ninth, and 14th Amendments do explicitly state, in what are referred to as enumerated rights , instances for which the US Supreme Court has affirmed that a right to privacy exists. Griswold , 381 U.S. Guarantees of the Right to Privacy Embedded in the US Constitution First Amendment Prohibits restrictions on free speech, peaceful assembly (association), and the free exercise of religion Third Amendment Prohibits the government from requiring individuals to house or feed soldiers in peacetime Fourth Amendment Prohibits the government from unreasonably searching or seizing an individual or their property; requires the government to appear in court and show probable cause before receiving a court order or a warrant to search or seize an individual or their property Fifth Amendment Guarantees the right to remain silent in a police interrogation Ninth Amendment States that rights not explicitly outlined in the Constitution may still exist with the people Fourteenth Amendment Prohibits the government from denying equal protection of the laws to all persons Implicit in the First Amendment protections of free speech, peaceful assembly (association), and free exercise of religion is the right to participate or not participate as an individual decides, Judith Haydel, “Privacy,” The First Amendment Encyclopedia, Middle Tennessee State University, 2009, https://www.mtsu.edu/first-amendment/article/1141/privacy. and the Ninth Amendment states that rights not explicitly outlined in the Constitution may still exist. Like many national constitutions, the Universal Declaration of Human Rights includes an express right to privacy. Article 12 of the declaration states: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. A/RES/217(III), art. 12. Even though member countries have endorsed the UDHR, how each government enacts the right to privacy it contains varies greatly. The UN has appointed a special rapporteur (a person appointed by an organization to report on its meetings) to monitor and report annually on how countries comply with the UN declaration of a right to privacy expressed in the UDHR, especially as it relates to digital surveillance . “Special Rapporteur on the Right to Privacy,” Office of the High Commissioner for Human Rights, United Nations, accessed January 27, 2022, https://www.ohchr.org/en/issues/privacy/sr/pages/srprivacyindex.aspx. When viewed as a civil liberty, the right to privacy erects a barrier between individuals and an overly intrusive government. But when is government intrusion permitted? When Does the Government Restrict Individual Privacy Rights? Restrictions on the right of privacy or personal autonomy vary widely by country. In the United States, same-sex relations are considered private and protected by the US Constitution. In most of Africa, LGBTQ+ relations or orientation are illegal and considered a detriment to the welfare of the community. “Senegalese Lawmakers Draft Tougher Laws against LGBT,” Reuters, December 13, 2021, https://news.yahoo.com/senegalese-lawmakers-draft-tougher-laws-214135599.html; “Mapping Anti-Gay Laws in Africa,” Amnesty International UK, May 31, 2018, https://www.amnesty.org.uk/lgbti-lgbt-gay-human-rights-law-africa-uganda-kenya-nigeria-cameroon; Report: The State of Human Rights for LGBT People in Africa (Washington, DC: Human Rights Campaign Foundation and Human Rights First, 2014), https://www.humanrightsfirst.org/resource/state-human-rights-lgbt-people-africa. In most of Africa, same-sex relationships are considered a detriment to the community, and that detriment to the community is deemed to outweigh the importance of protecting the individual right to privacy. (credit: “Laws regarding same-sex sexuality in Africa” by Haha 169/Wikimedia Commons, Public Domain) Personal privacy boundaries often change as society’s views of personal liberty change. Under a democratic government, it is a society that interprets what is acceptable and if there is a compelling reason for government restrictions on personal decisions. For example, until 1967, many states had laws that declared interracial marriage a crime. In Loving v. Virginia , the US Supreme Court interpreted that due process and a right to privacy require that the choice of whom to love and marry be a personal, private one. Loving v. Virginia, 388 U.S. 1 (1967). It was not until 2015 that this same right was interpreted to include same-sex marriage. Obergefell , 576 U.S. As society’s interpretation of what is personal and individual and what is necessary for the good of the community changes, the interpretation of the right to privacy changes. Authoritarian governments force the people to acquiesce to the government’s interpretation of personal private conduct. Civil Liberties around the World You can use one of the following online resources to compare which liberties different countries recognize. Can you spot any trends? How do different countries interpret similar types of liberties in different ways? Explore civil liberties around the world at the National Constitution Center . Compare statistical data about human rights at Our World in Data . Read up-to-date reports on the state of human rights at Human Rights Watch . Track trends in freedom using the Cato Institute’s yearly Human Freedom Index . Monitor levels of freedom according to the human rights and rule of law index at TheGlobalEconomy.com . The degree to which governments recognize the right to make personal, private decisions varies widely around the world. In China, the government restricts the number of children couples may have. “China Allows Three Children in Major Policy Shift,” BBC News, May 31, 2021, https://www.bbc.com/news/world-asia-china-57303592. In some countries, forced marriages are still common. “Child, Early and Forced Marriage, Including in Humanitarian Settings,” Office of the High Commissioner for Human Rights, United Nations, accessed June 28, 2021, https://www.ohchr.org/en/issues/women/wrgs/pages/childmarriage.aspx. In some countries, girls are banned from attending school or even suffer violence for attending, and the government does not protect their right to an education, even if their parents want them to attend school. “Girls’ Education,” UNICEF, accessed June 28, 2021, https://www.unicef.org/education/girls-education. Many countries have laws that require women to wear specific clothing in public or prohibit women from wearing certain items of clothing, restricting a woman’s right to make a personal decision. Restrictions on Women’s Religious Attire (Washington, DC: Pew Research Center, April 5, 2016), https://www.pewforum.org/2016/04/05/restrictions-on-womens-religious-attire/; Brenda J. Norton , A Question of Balance: A Study of Legal Equality and State Neutrality in the United States, France, and the Netherlands (Lanham, MD: Lexington Books, 2016). Thus, even in countries that declare that they will protect privacy and individualism, society’s interpretation of what is necessary to create a community can lead to restrictions intended to contribute to the common good. What about privacy in areas where security issues arise? The growing prevalence and sophistication of cyber technologies place increasing pressure on the right to privacy in the context of freedom from surveillance. Cyber Data Issues with Privacy State and federal laws in the United States protect personal cyber data —that is, data stored electronically. The Fair Credit Reporting Act of 1970 protects personal financial information collected by credit reporting agencies. The Privacy Act of 1974 prevents the unauthorized disclosure of personal information held by the federal government. The Financial Services Modernization Act of 1999 requires financial institutions to provide customers with a privacy policy and to safeguard their information. Online users frequently utilize privately owned browsers and social media platforms, such as Facebook and Twitter . These private businesses allow users to choose their level of privacy settings. However, in response to increasing issues with the amount of scrutiny that private businesses provide, the federal government has implemented several laws to regulate private companies’ storage of personal data. The Children’s Online Privacy Protection Act of 1998 (COPPA) , for example, permits parents to control what information websites collect about their children. Children’s Online Privacy Protection Rule, 16 C.F.R. 312 (2013), https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/childrens-online-privacy-protection-rule. European countries have even more robust data privacy laws regarding information about children. Law Library of Congress, Children’s Online Privacy and Data Protection in Selected European Countries (Washington, DC: Library of Congress, April 2021), https://iapp.org/media/pdf/resource_center/us_law_library_of_congress_childrens_online_privacy_data_protection_in_selected_european_countries.pdf. The History of Internet Tracking and the Battle for Privacy Internet tracking may have innocent beginnings, but it has become the subject of major political debate. Another privacy issue is the government’s ability to access an individual’s cyber information. US government agencies’ arguments that they need access to this information in the name of safety and national security have long come up against the US Constitution’s guarantees of the right to privacy. The government asserts that, for the good of the community, it needs access to certain information. Exec. Order No. 14,028, 86 Fed. Reg. 26633 (May 17, 2021), https://www.federalregister.gov/documents/2021/05/17/2021-10460/improving-the-nations-cybersecurity. Individuals argue that their right to privacy of digital personal data is the same as their right to privacy in the form of “houses, papers, and effects” explicitly protected under the Fourth Amendment ; thus, the government must show probable cause and obtain a warrant from a judge to look at that digital information. Individuals contend that they have the right to confront the government and argue the issue in open court. “Foreign Intelligence Surveillance Court (FISC),” Electronic Privacy Information Center, accessed January 27, 2022, https://epic.org/foreign-intelligence-surveillance-court-fisc/. US government intelligence agencies say that protecting the privacy of this personal information compromises safety and national security “About the Foreign Intelligence Surveillance Court,” United States Foreign Intelligence Surveillance Court, accessed January 27, 2022, https://www.fisc.uscourts.gov/about-foreign-intelligence-surveillance-court. and that any intelligence review of a person’s digital data must be secret to avoid tipping off the individual under investigation. This debate is ongoing in the United States and around the world. Countries whose constitutions include a right to privacy differ in how broadly they interpret that right when it comes to data privacy. The European Union has enacted extensive data protection laws applicable to all member countries. General Data Protection Regulation, Regulation (EU) 2016/679 (Apr. 27, 2016), https://gdpr-info.eu/. The EU General Data Protection Regulation (GDPR) provides that data about citizens may only be gathered or processed in specific instances. These rules apply to private businesses and government agencies. The restrictions on collecting information are strictly interpreted, providing comprehensive protection to the individual. The UN Conference on Trade and Development (UNCTAD) actively monitors data privacy issues and laws within its member countries. It has noted that “the collection, use and sharing of personal information to third parties without notice or consent of consumers” has become a significant concern. The UNCTAD Global Cyberlaw Tracker tracks data for 194 states on laws concerning e-transactions, cybercrime, and consumer protection. “Summary of Adoption of E-commerce Legislation Worldwide,” United Nations Conference on Trade and Development, accessed February 22, 2022, https://unctad.org/topic/ecommerce-and-digital-economy/ecommerce-law-reform/summary-adoption-e-commerce-legislation-worldwide. According to UNCTAD, as of February 2022, “137 out of 194 countries had put in place legislation to secure the protection of data and privacy.” “Data Protection and Privacy Legislation Worldwide,” United Nations Conference on Trade and Development, accessed February 22, 2022, https://unctad.org/page/data-protection-and-privacy-legislation-worldwide. Even though the Chinese constitution includes the right to privacy, the Chinese government has found many reasons to interpret the right narrowly. Article 40 of the constitution of the People’s Republic of China provides for both the freedom and privacy of communication. “Freedom and privacy of correspondence of citizens of the People’s Republic of China are protected by law. No organization or individual may, on any ground, infringe upon citizens’ freedom and privacy of correspondence, except in cases where, to meet the needs of State security or of criminal investigation, public security or procuratorial organs are permitted to censor correspondence in accordance with the procedures prescribed by law.” China Const. ch. 2, art. XL. However, in China, persons are subject to surveillance in almost all public places, and all cyber communications are monitored. China uses mass surveillance to “eradicate ideological viruses,” which they identify as the religious and cultural beliefs of certain ethnic groups. Thus, while the Chinese constitution contains a right to privacy, the government broadly interprets the exception for safety and security. In practice, the right to privacy in China is almost nonexistent. “‘Eradicating Ideological Viruses’: China’s Campaign of Repression against Xinjiang’s Muslims,” Human Rights Watch, September 9, 2018, https://www.hrw.org/report/2018/09/09/eradicating-ideological-viruses/chinas-campaign-repression-against-xinjiangs; “China: Big Data Program Targets Xinjiang’s Muslims,” Human Rights Watch, December 9, 2020, https://www.hrw.org/news/2020/12/09/china-big-data-program-targets-xinjiangs-muslims. China: “The World’s Biggest Camera Surveillance Network” China’s massive surveillance network uses facial recognition and can track any individual’s movements within China. As the amount of information stored digitally increases, so do the threats of that material being stolen or used by businesses as marketing information without people’s consent. At the same time, governments increasingly seek to regulate access to information that they deem unacceptable or that may pose a threat to their residents’ safety. This is a developing area of tension between individual privacy and government protection or regulation of the community. Freedom of Expression of Ideas Another area of ongoing tension between individuals and the government is the freedom of expression of ideas. This freedom includes the right to free speech and the right to the free exercise of religion. Article 19 of the UDHR states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” A/RES/217(III), art. 19. Article 18 provides that “everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” Ibid., art. 18. The UDHR is not itself legally binding, but the principles it sets out were implemented among UN member countries through the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), both of which were adopted by the UN General Assembly in 1966. Member countries agree to be monitored on their activities under the provisions of the covenants, which echo much of the language of the UDHR, although some provisions are new. Article 27 of the ICCPR, for example, states that members of “ethnic, religious or linguistic minorities . . . shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” UN General Assembly, Resolution 2200A (XXI), International Covenant on Civil and Political Rights, A/RES/2200A(XXI) (Dec. 16, 1966), art. 27, https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx. Together, the UDHR, the ICCPR, and the ICESCR make up what is known as the International Bill of Human Rights. Leah Levin, “Human Rights and the International Community: Twenty Questions,” The UNESCO Courier , October 1978, https://en.unesco.org/courier/october-1978/human-rights-and-international-community-twenty-questions. However, freedom of expression and religion is not absolute. Even in countries with extensive speech protections, certain types of speech are never protected. These include libel, slander, obscenity, fighting words or threats, incitement to lawless conduct, breach of national security or classified information, disclosures that impact the right of privacy, and perjury. Some examples of these were discussed earlier in this chapter. In liberal democracies, the state agrees to tolerate free expression of ideas, and restrictions on expression are minimal; however, many of these countries place restrictions on the expression of specific ideas that do not meet the limited exceptions to protected speech set forth above. This is referred to as the paradox of tolerance . People who hold intolerant ideas argue that the state and society only tolerate those ideas that align with their own viewpoint and that therefore, the government and society are not tolerant of personal ideas and do not respect that degree of personal liberty. Civil Liberties and Social Responsibility While smoking is not illegal in the United States, because secondhand smoke can be damaging to all members of the community, the government can regulate where smoking is allowed. (credit: “No Smoking Sign” by Jonathan Rolande/Flickr, CC BY 2.0). Many people who hear the term civil liberties think about limits on government interference in individuals’ lives, and they may see government acts that limit or direct their behavior as infringements of their liberties. In these instances, it is important to remember that people live in diverse communities made up of many individuals who may have different perspectives, traditions, beliefs, and needs. Each person’s actions have the potential to affect other individuals in the community and the community as a whole. As discussed in this chapter, members of a community have responsibilities to that community. Understanding the differences between groups within a society is often referred to as intercultural competence , and it is a key component of social responsibility. Different countries adopt a variety of strategies to address the varying needs of different groups. Within the United States, the corporate world has recently taken up the banner of “social responsibility.” Whether looking at an issue from a corporate position, an advocacy position (such as from the perspective of an interest group), the position of an attorney representing someone whose rights have been violated, or the position of a concerned citizen, linking the ideas of civil liberties with the larger concept of social responsibility allows one to appreciate how the rights of individuals and the larger community are intertwined and how government actions often seek to balance the freedom of the individual with the needs and desires of the community. For example, in Germany, it is illegal to support the Nazi Party or to deny the Holocaust . Dan Glaun, “Germany’s Laws on Hate Speech, Nazi Propaganda & Holocaust Denial: An Explainer,” Frontline , PBS, July 1, 2021, https://www.pbs.org/wgbh/frontline/article/germanys-laws-antisemitic-hate-speech-nazi-propaganda-holocaust-denial/. Section 130 of the German criminal code “bans incitement to hatred and insults that assault human dignity against people based on their racial, national, religious or ethnic background.” Violations of this code carry a five-year prison sentence. Germany has used section 14 of the law, which bans defiling the memory of the dead, to prosecute Holocaust deniers. Ibid. The German Basic Law provides that “every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.” Germany Const. art. V, ¶ 1. Thus, many argue that the restrictions on expressing particular viewpoints show limited tolerance of ideas in Germany, and a paradox of tolerance exists. Manasi Gopalakrishnan, “Germany Treads Thin Line between Hate Speech and Free Expression,” DW Akademie, April 19, 2016, https://p.dw.com/p/1IYXg. In the United States, hate speech laws encounter the same objection. However, in the United States, speech enjoys broad protections, and hate speech laws are limited to instances where speech involves violence, intimidation, and direct threats. “Is Hate Speech Legal?,” FIRE, March 28, 2019, https://www.thefire.org/issues/hate-speech/. Germany’s Online Hate Speech Laws: Protecting Free Speech While Fighting Online Hate? Germany’s Network Enforcement Act allows people to report criminal hate speech online and requires platforms to take down the content or face stiff fines. The policy has raised questions about whether it inappropriately interferes with constitutional guarantees of a right to free speech. While in Germany particular viewpoints on politics are regulated, in some other countries, all opposition to the government is suppressed. In Belarus, political opponents have been sentenced to prison for opposing the ruling government. Anastasiia Kruope, “New Laws Further Stifle Freedom of Speech in Belarus,” Human Rights Watch, April 7, 2021, https://www.hrw.org/news/2021/04/07/new-laws-further-stifle-freedom-speech-belarus; “Belarus: Opposition Leader Tikhanovsky Jailed for 18 Years over Protests,” BBC News, December 14, 2021, https://www.bbc.com/news/world-europe-59650238. Other countries are taking steps to open up the free exchange of ideas, even those ideas that challenge traditional religious and cultural norms. For example, at a recent international symposium on philosophy in Saudi Arabia, the speakers and audience openly discussed ideas that are usually restricted in the country. Sebastian Usher, “Saudi Arabia Allows Free Thinkers to Talk to Students,” BBC News, December 14, 2021, https://www.bbc.com/news/world-middle-east-59609233. The paradox of tolerance is a frequent issue when it comes to religious expression. The expression of religious beliefs has received special consideration throughout history. Freedom of religion involves two interrelated issues: the free exercise of religion and the government establishment of religion. While it is impossible to separate the two completely, they can be distinguished for learning purposes. The US Constitution contains two separate clauses about religion: one, that “Congress shall make no law respecting an establishment of religion,” known as the establishment clause; and two, that Congress shall make no law “prohibiting the free exercise thereof.” U.S. Const. amend. I. The complicated relationship between religion and the government in the United States is a subject worthy of study in itself; the following is an outline of some of the primary issues. In Everson v. Board of Education , a landmark case with regard to the interpretation of the establishment clause, the US Supreme Court observed that in the United States, no government should aid or hinder any religion. Everson v. Board of Education, 330 U.S. 1, 15–16 (1947). In Everson , the court considered whether a city allowing all K–12 students to ride public transit buses for free was an unconstitutional establishment of religion because some of the students receiving free rides attended parochial schools operated by religious groups. It was argued that this amounted to an establishment of religion because, in addition to regular school classes, these students took classes in religion and were thus taught particular religious beliefs. According to this argument, the government assisted in the religious indoctrination by providing free transportation, thus putting a stamp of approval on the religious instruction. The court found that the bus rides did not violate the establishment clause because the law was neutral and beneficial for all K–12 students. If the law had only given free rides to parochial school students, it probably would have been found to violate the establishment clause, as the government would have been treating a religious institution differently and preferentially. Conversely, suppose that free rides had been denied to parochial school students and given only to students attending schools that did not teach religion. In that case, the action could be interpreted as a violation of the free exercise of religion and parental privacy in children’s education. It would violate free exercise because it would explicitly target and place restrictions on schools based on religion. This example illustrates the degree of complication in this area of the law. One must look at specific government action and ask whether it is neutral and general or explicitly benefits or intrudes on a religion. Not all religious practices are acceptable, even in an individualist government. For example, in the United States, religious practices that are deemed abusive to children are prohibited. One current controversy in this area is conversion therapy, or intervention by religious practitioners intended to “cure” children of LGBTQ+ sexual orientations or gender identities. See “Conversion ‘Therapy’ Laws,” Movement Advancement Project, last updated July 16, 2021, https://www.lgbtmap.org/img/maps/citations-conversion-therapy.pdf. Those who hold views anathema to most of society, such as White supremacist churches, are allowed to operate as long as they keep the expression of their opinions nonviolent and within the church. An area of controversy arises when a person running a business refuses to comply with a customer request because it violates their personal religious views, thus putting into direct conflict the constitutional protection of the free exercise of religion and the constitutional requirement for equal treatment of all persons. The US Civil Rights Act of 1964 prohibits any business that is open to the public from engaging in discrimination on the basis of race, sex, or religion. When the Civil Rights Act went into effect, some for-profit businesses argued that it violated their personal and religious principles of White supremacy by prohibiting them from barring minorities from their business or refusing to hire employees based on their race. In the early years after the act was passed, courts across the United States upheld the act against the religious arguments for White supremacy. They found a more significant community good in supporting nondiscrimination than in this view of the free exercise of religion. Today, controversies continue, with some business owners complaining that serving LGBTQ+ customers violates their religious beliefs and that to require them to serve LGBTQ+ customers would violate their right to free exercise of religion. This controversy is ongoing in the United States and around the world. Paul J. Angelo and Dominic Bocci, “The Changing Landscape of Global LGBTQ+ Rights,” Council on Foreign Relations, January 29, 2021, https://www.cfr.org/article/changing-landscape-global-lgbtq-rights. In western European countries, similar issues arise. All have constitutional provisions similar to the US Constitution’s religious clauses, but some have officially recognized state religions. Anglicanism, as represented by the Church of England, is the official religion of England. Up until the 20th century, people were persecuted for not adhering to the official doctrine; however, now individuals are free to practice any religion they want as long as it complies with England’s generally applicable neutral laws. “Parliament, Church and Religion,” UK Parliament, accessed June 28, 2021, https://www.parliament.uk/about/living-heritage/transformingsociety/private-lives/religion/overview/church-and-religion/. Around the world, restrictions on religion have been increasing. These restrictions can take two forms: government preference for a particular religion and government restriction on religious practices. Many Islamic majority countries limit freedom of religion and require residents to adhere to an established religion. A Pew Research study noted: “Government restrictions have risen in several different ways. Laws and policies restricting religious freedom (such as requiring that religious groups register in order to operate) and government favoritism of religious groups (through funding for religious education, property and clergy, for example) have consistently been the most prevalent types of restrictions globally and in each of the five regions tracked in the study: Americas, Asia-Pacific, Europe, Middle East-North Africa and sub-Saharan Africa. Both types of restrictions have been rising; the global average score in each of these categories increased more than 20% between 2007 and 2017.” A Closer Look at How Religious Restrictions Have Risen around the World (Washington, DC: Pew Research Center, July 15, 2019), 6, https://www.pewforum.org/2019/07/15/a-closer-look-at-how-religious-restrictions-have-risen-around-the-world/. (emphasis in original) Iran's Dilemma: Should Women Wear a Hijab or Not? Women in Iran who appear in public without wearing an Islamic hijab can be imprisoned or fined. In recent years, some Iranians have pushed back against this policy. The growing tendency toward government restrictions on religion may be in opposing directions. For example, French law prohibits women from wearing certain items of clothing that express their religious beliefs, and the government disfavors religion. Norton, A Question . In contrast, in Qatar, Islam is the official state religion, and laws require women to wear religious dress in public. Additionally, Qatar has enacted laws that restrict non-Islamic faiths by limiting worship services and prohibiting the display of non-Islamic religious symbols. “Qatar,” in 2017 Report on International Religious Freedom (Washington, DC: US Department of State, 2018), https://www.state.gov/reports/2017-report-on-international-religious-freedom/qatar/. In China, specific religious groups have been subjected to severe restrictions, even internment in prison reeducation camps, as religious practices are considered detrimental to the country’s communist goals. Lindsay Maizland, “China’s Repression of Uyghurs in Xinjiang,” Council on Foreign Relations, last updated March 1, 2021, https://www.cfr.org/backgrounder/chinas-repression-uyghurs-xinjiang. Thus, in both impairing religion and fostering an established religion, some countries have opted to observe localized interpretations of civil liberties with regard to religion, rather than aligning with the norms described in the Universal Declaration of Human Rights . The most fundamental aspect of civil liberty is the right to privacy—that is, the right to be free from interference in thought, speech, and actions. Each society interprets what is acceptable and when there is a compelling reason for the government to place restrictions on personal decisions. Interpretations of the right to privacy change over time and vary widely around the world. The right to free expression of ideas includes the right to free speech and the right to the free exercise of religion. Freedom of expression and religion are not absolute. Even in countries with extensive speech protections, certain types of speech, including libel, slander, obscenity, fighting words or threats, inciting lawless conduct, breach of national security or classified information, disclosures that impact the right of privacy, and perjury, are not protected. While liberal democracies tolerate the free expression of ideas, many such countries place restrictions on the expression of ideas that are considered intolerant and in conflict with the public good. This intolerant stance on views that a government deems intolerant is referred to as the paradox of tolerance. privacy in a liberal democratic system, a space separate from public life where the individual has personal autonomy to think, speak, and behave without being monitored or surveilled by another person or the government

Social Sciences


Freedom of Movement Learning Outcomes By the end of this section, you will be able to: Outline the components of freedom of movement that are deemed essential according to human rights norms. Analyze how different government systems treat freedom of movement around the world. Freedom of movement can be divided into two categories: the freedom to move about within one’s home country and the freedom to move internationally. Article 13 of the Universal Declaration of Human Rights recognizes both rights: Everyone has the right to freedom of movement and residence within the borders of each state. Everyone has the right to leave any country, including his own, and to return to his country. A/RES/217(III), art. 13. How each country interprets and applies the right to freedom of movement varies widely. The US Constitution protects travel within the United States as an unenumerated fundamental right. Crandall v. Nevada, 73 U.S. 35 (1868); United States v. Wheeler , 254 U.S. 281 (1920). The US Supreme Court has identified three aspects of the right of persons to travel within the United States: the right to enter and leave each state, fundamental to the founding of the United States; the right to be treated equally to residents of each state, protected by article 4, section 2 of the Constitution; and the right to be treated equally to native-born citizens: “Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment . . . it has always been common ground that this Clause protects the third component of the right to travel.” Saenz v. Roe, 526 U.S. 489 (1999), https://www.law.cornell.edu/supct/html/98-97.ZO.html. While general interstate travel is a fundamental right, many federal statutes restrict activities that may utilize interstate travel. For example, the Mann Act , enacted in 1910, bans interstate transport of females for “immoral purposes.” The act has since been amended to be gender neutral and to apply solely to sexual activity that is separately illegal, such as prostitution or sex with a minor. In addition, the Supreme Court has struck down state laws requiring one-year residency requirements for access to state services and voting. Still, it has upheld shorter minimal residency requirements for certain activities. The court struck down one-year residency requirements as interfering with the right to interstate travel but did hold that shorter residency requirements may be permissible in certain circumstances. Shapiro v. Thompson, 394 U.S. 618 (1969); Dunn v. Blumstein, 405 U.S. 330 (1972); Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974); Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898 (1986); Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371 (1978). Sweden’s constitution, the Basic Laws of Sweden, contains a guarantee that “everyone shall have access to the natural environment in accordance with the right of public access.” Sweden Const., art. XV, https://wipolex.wipo.int/en/legislation/details/16262. This right allows travel inside the country and access to private property to experience nature as long as an individual does not cause damage to the property. Thus, the Swedish constitution’s guarantee in this respect is even broader than the US right to interstate travel, which does not allow access to private property without the property owner’s specific permission except in certain states and for particular types of property, usually beach or lakeshore access. China’s hukou (household registration) system prevents many internal migrants from enjoying full legal status as residents in the cities where they work. “China,” Freedom in the World 2021: Democracy under Siege , Freedom House, last modified March 2, 2021, https://freedomhouse.org/country/china/freedom-world/2021. Other Chinese citizens face obstacles to freedom of internal movement due to police checkpoints throughout the country that restrict the movement of certain ethnic groups. “China,” Amnesty International, accessed June 28, 2021, https://www.amnesty.org/en/countries/asia-and-the-pacific/china/. In addition, the government has implemented a “social credit system” by which individuals must earn points to be allowed to travel within the country or internationally. “China,” Freedom in the World 2020: A Leaderless Struggle for Democracy , Freedom House, last modified May 5, 2021, https://freedomhouse.org/country/china/freedom-world/2020. International Travel While the UDHR applies the same standard to travel within a country that it applies to international travel, the latter is more strictly regulated around the world. In the United States before World War II, passport requirements came and went, and immigration controls targeted particular racial or ethnic groups. Beginning with the Immigration and Nationality Act of 1952, all US citizens have been required to obtain a government-issued passport to leave or enter the country. Immigration and Nationality Act of 1952, 8 U.S.C. § 1185, https://www.law.cornell.edu/uscode/text/8/1185. A citizen is entitled to due process via a hearing if the government refuses to provide the requested passport. In Kent v. Dulles , the Supreme Court held: “The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment. . . . If a citizen’s liberty to travel is to be regulated, it must be pursuant to the law-making functions of Congress. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be . . . as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.” Kent v. Dulles, 357 U.S. 116 (1958), https://caselaw.findlaw.com/us-supreme-court/357/116.html. Most countries utilize passports as a control mechanism for their citizens to exit or reenter the country. Conditions for obtaining a passport vary widely. Even if a person has a passport, countries may still impose restrictions on their ability to leave the country. For example, it is common for a person under criminal investigation to not be allowed to leave the country. If a person is on a terrorist watch list, they will not be allowed to leave the country. In some countries, specific groups of people may not be allowed to leave the country due to disfavor by the government. In China, the Uyghurs must get permission to travel, and that permission is rarely granted. “Xinjiang’s Government Gives Uyghurs Passports, Only to Take Them Away Later,” Radio Free Asia, 2017, https://www.rfa.org/english/news/special/uyghur-oppression/ChenPolicy4.html; Gary Sands, “Xinjiang: Uighurs Grapple with Travel Restrictions,” Eurasianet, December 28, 2016, https://eurasianet.org/xinjiang-uighurs-grapple-travel-restrictions. Many countries require foreigners to obtain official authorization, in the form of visas, to enter or even to leave. Further restrictions are placed on citizens immigrating to another country. Migration and Immigration Law Migration differs from international travel because the traveler does not intend to return to their starting point. Migration involves a number of legal issues, including general immigration laws, refugee status, and a political concept called open borders. The UDHR states: Article 14 Everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. Article 15 Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. A/RES/217(III), art. 14–15. Every country has laws regulating who can leave the country permanently and who can enter and stay. UN Department of Economic and Social Affairs, Population Division, International Migration Policies: Data Booklet (United Nations, 2017), ST/ESA/SER.A/395, https://www.un.org/en/development/desa/population/publications/pdf/policy/international_migration_policies_data_booklet.pdf. In many countries, failure to comply with immigration laws is treated as a crime, and a person can be sentenced to prison for violating the laws. Law Library of Congress, Criminalization of Illegal Entry around the World (Washington, DC: Library of Congress, August 2019), https://www.loc.gov/item/2019685473/. Some countries welcome immigrants, “10 Countries That Take the Most Migrants,” U.S. News & World Report , last updated August 24, 2021, https://www.usnews.com/news/best-countries/slideshows/10-countries-that-take-the-most-immigrants. while others actively discourage them. “Hardest Countries to Immigrate To,” World Population Review, accessed June 28, 2021, https://worldpopulationreview.com/country-rankings/hardest-countries-to-immigrate-to. Though the UDHR affirms human migration rights, many countries enact laws restricting the permanent movement of people. Refugees are one area of considerable controversy. Refugees leave areas in extreme crisis and flee to safety in other countries, not necessarily in compliance with emigration or immigration laws. “Refugees are persons who are outside their country of origin for reasons of feared persecution, conflict, generalized violence, or other circumstances that have seriously disturbed public order and, as a result, require international protection. The refugee definition can be found in the 1951 Convention and regional refugee instruments, as well as UNHCR’s Statute.” Source: “Definitions,” Refugees and Migrants, United Nations, last modified July 22, 2016, https://refugeesmigrants.un.org/definitions. Specific UN programs aid refugees , and some countries assist. “Our Partners,” UNHCR: The UN Refugee Agency, accessed June 28, 2021, https://www.unhcr.org/en-us/governments-and-partners.html. A sudden influx of people with no means of caring for themselves is a significant issue for most countries in which refugees seek asylum. Conflicts within these countries arise around the number of people who can be accommodated, how long they will be allowed to stay, and whether or not the residents of the country feel threatened by their presence. There is an ongoing debate about changing the world to one of open borders , where people are free to move about the world as they want. When there are open borders, there are no restrictions on emigration or immigration, except for safety and criminal issues. Shelley Wilcox, “The Open Borders Debate on Immigration,” Philosophy Compass 4, no. 5 (September 2009): 813–821, https://www.researchgate.net/publication/227662852_The_Open_Borders_Debate_on_Immigration. Emigration and immigration issues are complex, and society’s acceptance of emigrating and immigrating peoples varies widely depending on a country’s political climate. Freedom of movement can be divided into two categories: the freedom to move about within one’s home country and the freedom to move internationally. Around the world, international travel is more strictly regulated than domestic travel. Migration differs from international travel because the individual does not intend to return to their starting point. Immigration laws, refugee status, and open borders are all areas of intense debate surrounding the freedom of movement.

Social Sciences


The Rights of the Accused Learning Outcomes By the end of this section, you will be able to: Outline the components of the rights of the accused that are deemed essential according to human rights norms. Analyze how different government systems treat the rights of the accused around the world. If the government accuses a person of a crime, the Universal Declaration of Human Rights and many national constitutions guarantee that person the fair implementation of due process before the government can restrict their liberties. The rights of the accused are intended to protect individuals if their freedom is at stake. Chapter 11: Courts and Law will explore these rights in greater depth. Rights upon Arrest In rule-of-law countries, police must advise individuals of certain rights at the time of their arrest. These include the right to have an attorney assist them with their case and the right to be cautioned that anything they say can be used against them in court. A 2016 report by the Law Library of Congress found that 108 countries require these warnings, Kelly Buchanan, “You Have the Right to Remain Silent . . . ,” In Custodia Legis: Law Librarians of Congress , Library of Congress, July 18, 2016, https://blogs.loc.gov/law/2016/07/you-have-the-right-to-remain-silent/. and the European Convention on Human Rights and the UDHR both contain similar provisions. Council of Europe, European Convention on Human Rights , amend. and supp. (Strasbourg: European Court of Human Rights, 2021), https://www.echr.coe.int/documents/convention_eng.pdf; A/RES/217(III), art. 10–11. These rights include: the right to remain silent; a warning that anything one says can be used against one in court; the right to consult legal counsel; and the right to defend oneself in court. Search and Seizure Another way rule-of-law systems defend the rights of individuals is through protection against unreasonable searches and seizures . This means that law enforcement may perform reasonable searches and seizures, and much of the litigation in this area deals with the reasonableness of the search and seizure. The UN has created recommendations for best policing practices for all countries, including limiting the police’s right to search individuals, their homes, or their belongings to this standard. However, many countries do not adhere to these limitations. In those countries, the police can search an individual’s home or belongings or interrogate them at any time. Right to Privacy: Mapp v. Ohio In this Civics 101 podcast, Vince Warren, executive director for the Center for Constitutional Rights, and Boston University School of Law professor Tracey Maclin discuss the US Supreme Court’s decision in Mapp v. Ohio (1961), which decided that the Fourth Amendment to the US Constitution prohibits the government from using any illegally obtained evidence against someone in a court of law. Writ of Habeas Corpus and the Right to Appear before the Court In all rule-of-law countries, a person held in jail has the right to demand to be brought into court and told why they are being jailed. In some countries, this process is referred to as a petition for a writ of habeas corpus . In countries where this right is not recognized, a person can be held indefinitely incommunicado without any right to seek their freedom or to demand that the government prove the charges against them. The rights of the accused are intended to protect individuals if their freedom is at stake. In rule-of-law countries, police must advise individuals at the time of their arrest that they have the right to remain silent, anything they say can be used against them in court, they have a right to legal counsel, and they have a right to defend themselves in court. In all rule-of-law countries, a person held in jail has a right to demand to be brought into court and told why they are being jailed.

Social Sciences


The Right to a Healthy Environment The Right to a Healthy Environment By the end of this section, you will be able to: Outline the components of the right to a healthy environment that are deemed essential according to human rights norms. Analyze how different government systems treat the right to a healthy environment around the world. Many human rights organizations are now asserting that environmental damage, including climate change , is a violation of human rights because it impacts the ability of people to live safe and healthy lives. Office of the High Commissioner for Human Rights, “Understanding Human Rights and Climate Change” (submission, 21st Conference of the Parties to the United Nations Framework Convention on Climate Change, 2015), https://www.ohchr.org/Documents/Issues/ClimateChange/COP21.pdf. The UN Framework Principles on Human Rights and the Environment sets forth “basic obligations of States under human rights law as they relate to the enjoyment of a safe, clean, healthy and sustainable environment” and lists “potential benefits of recognizing the right to a healthy environment,” including: Stronger environmental laws and policies Improved implementation and enforcement Greater public participation in environmental decision-making Reduced environmental injustices A level playing field with social and economic rights Better environmental performance UN General Assembly, Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, A/73/88, ¶¶ 8, 55 (July 19, 2018), https://undocs.org/A/73/188. More than 100 countries have added the right to a healthy environment to their national constitutions. “What Are Your Environmental Rights?,” UN Environment Programme, accessed June 28, 2021, https://www.unep.org/explore-topics/environmental-rights-and-governance/what-we-do/advancing-environmental-rights/what-0. In the United States, pending lawsuits assert that failure to follow good environmental practices is causing damages to individuals. Juliana v. United States is one such landmark suit. This suit, brought by a group of children, alleges that the US government’s failure to address environmental and climate change issues is damaging their future lives and that the government can be held accountable for damages. The case is being closely watched worldwide. Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020), https://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/17/18-36082.pdf; “ Juliana v. United States : Ninth Circuit Court Holds That Developing and Supervising Plan to Mitigate Anthropogenic Climate Change Would Exceed Remedial Powers of Article III Court,” Harvard Law Review 134, no. 5 (March 2021), https://harvardlawreview.org/2021/03/juliana-v-united-states/; “Juliana v. United States,” Our Children’s Trust, accessed February 20, 2022, https://www.ourchildrenstrust.org/juliana-v-us; “Juliana v. United States,” Climate Change Litigation Databases, Sabin Center for Climate Change Law, last modified December 6, 2021, http://climatecasechart.com/climate-change-litigation/case/juliana-v-united-states/. Juliana v. United States : The Climate Lawsuit The plaintiffs in Juliana v. United States have presented such compelling evidence of the damaging effects of climate change, and of the United States’ government’s decades-long knowledge of the threats of climate change, that they have forced those who once dismissed the suit as frivolous to take it seriously. Still, how the case will unfold remains unclear. As climate change becomes an increasingly urgent issue, the implications for human rights will be a growing area of political and legal debate. The UN is actively addressing the problem and has issued guidance on the protection of climate change refugees, although the UN High Commissioner for Refugees (UNHCR) does not endorse the term climate refugee and notes that “it is more accurate to refer to ‘persons displaced in the context of disasters and climate change.’” The UNHCR further states: “The impacts of climate change are numerous and may both trigger displacement and worsen living conditions or hamper return for those who have already been displaced. Limited natural resources, such as drinking water, are becoming even scarcer in many parts of the world that host refugees. Crops and livestock struggle to survive where conditions become too hot and dry, or too cold and wet, threatening livelihoods. In such conditions, climate change can act as a threat multiplier, exacerbating existing tensions and adding to the potential for conflicts. Hazards resulting from the increasing intensity and frequency of extreme weather events, such as abnormally heavy rainfall, prolonged droughts, desertification, environmental degradation, or sea-level rise and cyclones[,] are already causing an average of more than 20 million people to leave their homes and move to other areas in their countries each year.” “Climate Change and Disaster Displacement,” UNHCR: The UN Refugee Agency, accessed June 28, 2021, https://www.unhcr.org/en-us/climate-change-and-disasters.html. Climate change and disasters have forced some people to cross borders, and these people may need international protection in some circumstances. UN member countries send aid through UN organizations and may even send personnel to act under UN administration. Refugee and human rights laws, therefore, have an essential role to play in this area. Ibid. Climate change is a growing concern, and countries will increasingly have to address the issue of whether to recognize the right to a healthy environment. Many human rights organizations assert that environmental damage, including climate change, is a violation of human rights because it impacts the ability of people to live safe and healthy lives. As climate change becomes an increasingly urgent issue, the implications for human rights will be a growing area of political and legal debate. Suggested Readings Comparative Constitutions Project. https://comparativeconstitutionsproject.org/. Costigan, Ruth, and Richard Stone. Civil Liberties & Human Rights . 11th ed. Oxford: Oxford University Press, 2017. Donnelly, Jack, and Daniel J. Whelan. International Human Rights . 6th ed. New York: Routledge, 2020. Douglass, Bruce. “The Common Good and the Public Interest.” Political Theory 8, no. 1 (February 1980), 103–117, https://www.jstor.org/stable/190769. Freedom House. “Freedom in the World.” https://freedomhouse.org/report/freedom-world. Merino, Neal, ed. Civil Liberties . Detroit: Greenhaven Press, 2013. Rossum, Ralph, and Alan Tarr. American Constitutional Law . 10th ed. Vol. 2, The Bill of Rights and Subsequent Amendments . Boulder, CO: Westview Press, 2017. United Nations General Assembly. Resolution 217 A. Universal Declaration of Human Rights. A/RES/217(III), December 10, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights. United States Constitution. https://www.archives.gov/founding-docs/constitution.

Social Sciences


Introduction A man holds up a sign at a Black Lives Matter protest in New York City in 2020. (credit: modification of work by “Black Lives Matter Protest Times Square New York City June 7 2020” by Anthony Quintano/Flickr, CC BY 2.0 ) On February 26, 2012, an unarmed high schooler wearing a hoodie walked home from a convenience store and was shot dead by a neighborhood watch volunteer. The high schooler’s name was Trayvon Martin , and the shooter was George Zimmerman . A special prosecutor, appointed by the governor of Florida, charged Zimmerman with Martin’s death. A jury acquitted him on the grounds of self-defense, and Zimmerman was freed. While there was furious debate over the legal justifications for the acquittal and whether the jury made the right decision, Martin’s death ignited a groundswell of support for his family and sparked a public reckoning with questions about institutional racism and how it should be addressed in the United States. The outcry over the trial led to the establishment of the Black Lives Matter movement, a decentralized political and social movement “whose mission is to eradicate white supremacy and build local power to intervene in violence inflicted on Black communities by the state.” “About,” Black Lives Matter, last modified October 16, 2020, https://blacklivesmatter.com/about/. Now known as “a grassroots , member-led network dedicated to ending anti-black racism and preventing violence against black communities,” Black Lives Matter has 40 chapters throughout the United States, Canada, and the United Kingdom that work to raise public awareness of issues such as police accountability, working conditions, and access to health care and to advocate for civil rights. Oluwakemi Aladesuyi, “How Black Lives Matter Went Global, by Co-founder Patrisse Cullors,” Financial Times , December 4, 2020, https://www.ft.com/content/c6eac3c7-3f38-49be-9caa-f3aa1248184a. A majority of US adults (55 percent as of September 2020, down from 67 percent in June of that year) support Black Lives Matter, particularly after repeated publicized incidents of police brutality against minorities. Deja Thomas and Juliana Menasce Horowitz, “Support for Black Lives Matter Has Decreased since June but Remains Strong among Black Americans,” Pew Research Center, September 16, 2020, https://www.pewresearch.org/fact-tank/2020/09/16/support-for-black-lives-matter-has-decreased-since-june-but-remains-strong-among-black-americans/. Black Lives Matter , which is a broad movement that includes protests, advocacy, and public awareness campaigns, is an example of how people participate in politics. This chapter will examine the various manifestations of political participation as well as how we measure people’s opinions about their political beliefs.

Social Sciences


What Is Political Participation? Learning Outcomes By the end of this section, you will be able to: Define political participation. Discuss how political participation is related to self-government. Explain why voting is an important type of political participation. Describe US voting rates. Compare US voting rates to those in other countries. “You might think it upset me that Paul Metzler had decided to run against me, but nothing could be further from the truth. He was no competition for me; it was like apples and oranges. I had to work a little harder, that’s all. You see, I believe in the voters. They understand that elections aren’t just popularity contests; they know this country was built by people just like me who work very hard and don’t have everything handed to them on a silver spoon.” —Tracy Flick, from the movie Election The 1999 movie Election , based on a novel by Tom Perrotta, is an enduring classic and dark comedy that follows high school junior Tracy Flick (played by Reese Witherspoon) as she does anything she can to win her school election for student government president. While Tracy’s actions as a political candidate lead her down an unethical path, school elections play a significant role in helping us become engaged citizens. Australian National University Professor Lawrence J. Saha and University of Sydney Professor Murray Print found that “participation in school elections serves as a beneficial experience in the preparation of students for life as an active adult citizen,” Lawrence J. Saha and Murray Print, “Student School Elections and Political Engagement: A Cradle of Democracy?,” International Journal of Educational Research 49, no. 1 (2010): 22. and a review of 75 studies on the topic also supported the idea that running for, voting in, or otherwise taking part in student elections all had positive outcomes for future civic participation on some level. Ibid., 22. While student elections may seem relatively trivial, they are an important way for students to learn how to make politically informed decisions, understand democratic values and systems, and feel like worthy participants in the democratic process. Political Participation and Self-Government Political participation is defined as action that expresses an individual’s political will. Throughout this chapter, we will discuss the many forms these actions can take. However, it is first important to discuss the idea of self-government . Self-government is when the people of a given country are the ones who grant the power to govern that country, through either direct or indirect representation. Without self-government, there can be no political participation on the part of the individual. The notion of self-government has been apparent since the founding of our country, as evident in Federalist , no. 39, where James Madison writes that it is necessary that the country’s government “derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it.” James Madison, Federalist , no. 39, in The Federalist Papers , by Alexander Hamilton, John Jay, and Madison (Project Gutenberg, 2009), https://www.gutenberg.org/files/1404/1404-h/1404-h.htm#link2H_4_0039. As James Madison and his colleagues wrote the Constitution that provides the framework of the American government, Madison felt that public officials must come from society itself, not from a particular class, as they had for years in Britain. French historian Alexis de Tocqueville agrees with this idea of self-government as elemental to American political life, writing in Chapter 9 of Democracy in America (1835–1840), “In America the people appoints the legislative and the executive power, and furnishes the jurors who punish all offences against the laws. The American institutions are democratic, not only in their principle but in all their consequences.” Alexis de Tocqueville, Democracy in America , trans. Henry Reeve, vol. 1 (London: Saunders and Otley, 1835; Project Gutenberg, 1997), chap. IX, https://www.gutenberg.org/files/815/815-h/815-h.htm#link2HCH0023. To be democratic means that the people, and not kings or other authoritarian figures, decide how their government and judicial system will function. Around the world today, some nations have only recently adopted or continue to strive for self-government. Modern Japanese democracy and universal suffrage (voting rights for citizens, both women and men) did not emerge until after the Second World War, which makes Japan a relatively young democracy. In Canada, self-governance for Indigenous peoples remains an ongoing discussion. Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) works as an intermediary between Canada and First Nations , Inuit , and Métis peoples, the three main Indigenous groups in Canada. While Indigenous groups have persevered to create more autonomy for their people, their struggle to achieve self-governance continues. As Canadian author and researcher Jenny Higgins writes: “Many Indigenous people . . . see self-government as a way to preserve their culture and attain greater control over their land, resources, and administration of laws and practices that affect their lives. Indigenous groups argue they have an inherent right to self-government because they were the first people to govern Canada and did not willingly surrender their autonomy to European settlers; this argument is supported by the Canadian Constitution and was acknowledged by the federal government in 1995.” Jenny Higgins, “Indigenous Self-Government,” Newfoundland and Labrador Heritage Website, 2009, updated July 2021, https://www.heritage.nf.ca/articles/politics/indigenous-self-government.php. While the Métis Nations of Alberta, Ontario, and Saskatchewan came to a self-governance agreement with the Canadian government in 2019, many people and nations still have not achieved self-government, and without this, complete political participation cannot be realized. The next sections will discuss the various avenues of participation that exist for people within democratic governments. Métis in Canada Granted Right for Self-governance In this short video, Canadian Minister of Crown-Indigenous Relations Carolyn Bennett signs three agreements granting the the Métis peoples the right to self-government. Why Is Voting Such an Important Form of Political Participation? Self-government also means that the people are considered sovereign , meaning there is no power above the people. In self-governing states, the people elect public officials to government positions so those officials can represent the people’s beliefs and craft policies to express their will. In this way, voting is an important manifestation of both self-government and political participation—the most important, some argue, because it is the primary mechanism by which the people ensure that their government represents them. Another way to put it is to say that voting is what makes government fair , despite the many forces that prevent it from being fully representative. As Supreme Court justice Earl Warren wrote in his decision regarding Reynolds v. Sims (1964) , the right to direct representation is a bedrock of our democracy. Reynolds v. Sims, 377 US 533 (1964), https://www.oyez.org/cases/1963/23. In this case, the Supreme Court ruled in an 8–1 majority decision that electoral districts have to be of equal population to ensure equal representation, reinforcing the idea of one man, one vote (or rather, one person, one vote). The ideas that each person has a vote in American democracy, that their vote is equal in power to another person’s vote, and that each person should exercise their vote are considered not only normal but normative (desirable.) Voter Turnout in the United States Considering how important it is to vote, why don’t more Americans vote? Voter turnout refers to the percentage of eligible voters , or voters who meet the requirements of their localities or states, who cast a ballot in an election. Many consider voter turnout to be low in the United States compared to other industrialized nations (see chart below), though the 66 percent of eligible voters who cast a ballot in the recent 2020 election represented the highest recorded voter turnout in a US election since the 1980s. Drew DeSilver, “Turnout Soared in 2020 as Nearly Two-Thirds of Eligible US Voters Cast Ballots for President,” Pew Research Center, January 28, 2021, https://www.pewresearch.org/fact-tank/2021/01/28/turnout-soared-in-2020-as-nearly-two-thirds-of-eligible-u-s-voters-cast-ballots-for-president/. Suffrage in the United States This graph of turnout rates among the voting eligible population (VEP) in the United States shows that a major shift occurred in the first half of the 19th century with regard to the emphasis voters’ placed on presidential elections. (source: United States Election Project; attribution: Copyright Rice University, OpenStax, under CC BY NC-SA 4.0 license) Looking at the graph of turnout in the United States, one can see that it has not been consistent over time. This is due to factors such as the expansion of suffrage , or the right to vote. At the time of the country’s founding, only White landowners over the age of 21 could cast a ballot unless otherwise specified by individual states. By 1856, landowning requirements had been eliminated, expanding voting rights to all White male citizens. In 1870, the 15th Amendment recognized the right of all men to vote regardless of race, but it was not until 1965 that the Voting Rights Act addressed persistent race-based barriers to voting, such as literacy tests and poll taxes . The crusade for full voting rights for women in the United States solidified at a convention in Seneca Falls, New York, in 1848. It was not until 1890 that states began granting women the right to vote in national elections in piecemeal fashion. Before becoming a state, Wyoming granted women unrestricted voting rights in 1869. However, this only applied to territorial matters, not national elections. Upon achieving statehood in 1890, Wyoming affirmed voting rights for women in its state constitution. Finally, in 1920, the passage of the 19th Amendment secured full suffrage for women. Four years later, the Indian Citizenship Act granted Native Americans full citizenship, making them theoretically eligible to vote, although they remained disenfranchised in practice in many states. Asian Americans were not granted citizenship and voting rights until the passage of the McCarran-Walter Act in 1952. Finally, in 1971, the 26th Amendment lowered the voting age from 21 to 18. In the Constitution, the second article of the 14th Amendment specifies voting rights for male citizens older than 21. During the United States’ involvement in the Vietnam War, young men were eligible for the draft beginning at age 18; the 26th Amendment was introduced to allow US citizens aged 18 and older the right to vote based on the principle that it was grossly unfair for the country to ask men to fight in a war when they could not vote on the representatives who were sending them into battle. Jocelyn Benson and Michael T. Morley, “Common Interpretation: The Twenty-Sixth Amendment,” The Interactive Constitution, National Constitution Center, accessed April 20, 2021, https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xxvi/interps/161. Despite the historical expansion of the number of eligible voters in the United States, forces that hinder full voter participation persist. External factors can affect voter turnout . After a voter turnout peak in the early 20th century, events such as World War I, the influenza pandemic of 1918, World War II, and the Vietnam War affected not only how many people could vote but also whether they could access the ballot box. Geoffrey Skelley, “This Isn’t the First Time America Has Weathered a Crisis in an Election Year,” FiveThirtyEight, ABC News, March 23, 2020, https://fivethirtyeight.com/features/this-isnt-the-first-time-america-has-weathered-a-crisis-in-an-election-year/. Historically speaking, absentee voting , in which people cast a ballot by some method other than reporting to their usual polling place, was not as common as it is today. Off-year elections, when a president is not on the ballot, also tend to result in lower voter turnout. Later parts of this chapter will more fully examine individual and institutional-level causes of low voter turnout in the United States. Voter Turnout in Other Countries How does US voter turnout compare to turnout in other countries? In 2016, out of 35 Organization for Economic Cooperation and Development (OECD) countries, the United States ranked 30th out of 35 in terms of turnout. Drew DeSilver, “In Past Elections, US Trailed Most Developed Countries in Voter Turnout,” Pew Research Center, November 3, 2020, https://www.pewresearch.org/fact-tank/2020/11/03/in-past-elections-u-s-trailed-most-developed-countries-in-voter-turnout/. Why do other countries tend to have higher levels of participation? European University Institute and Trinity College Professor Mark N. Franklin , in his analysis of European and American voters, found that political salience, or the ability of voters to connect their actions (voting) with a political outcome, affected voter turnout and that both the United States and those European countries with lower voter turnout, such as Switzerland, exhibited low political salience. Mark N. Franklin, “Electoral Engineering and Cross-National Turnout Differences: What Role for Compulsory Voting?,” British Journal of Political Science 29, no. 1 (January 1999): 205–216, https://www.jstor.org/stable/194302. In other words, people do not vote if they don’t feel like their vote will have any effect. Conversely, when voters feel that their vote does have power, they are more likely to vote. In his study of voter turnout in industrial democracies, University of California Professor Robert W. Jackman provides a multiplicity of reasons for higher turnout in countries other than the United States, including unicameralism (a government with a single legislative body) and compulsory voting , in which citizens face penalties for not voting. Robert W. Jackman, “Political Institutions and Voter Turnout in the Industrial Democracies,” American Political Science Review 81, no. 2 (June 1987): 405–423, https://www.jstor.org/stable/1961959. Other scholars have suggested that proportional representation , a system in which parties gain seats in proportion to the number of votes cast for them, also raises voter turnout because voters feel as though they have a better chance of being represented within government. Jeffrey A. Karp and Susan A. Banducci, “Political Efficacy and Participation in Twenty-Seven Democracies: How Electoral Systems Shape Political Behaviour,” British Journal of Political Science 38, no. 2 (April 2008): 311–334, https://www.jstor.org/stable/27568347. Scholars have likewise identified a correlation between higher levels of social capital and political participation in South Korea Aie-Rie Lee, “The Quality of Social Capital and Political Participation in South Korea,” Journal of East Asian Studies 10, no. 3 (September–December 2010): 483–505, https://www.jstor.org/stable/23418868. as well as in Argentina, Mexico, Chile, and Peru. Joseph L. Klesner, “Social Capital and Political Participation in Latin America: Evidence from Argentina, Chile, Mexico, and Peru,” Latin American Research Review 42, no. 2 (2007): 1–32, https://www.jstor.org/stable/4499368. Social capital, or the social networks that optimally connect people and work with one another, has been dropping since the 1950s in the United States, and this trend has correlated steadily with, among other things, lower voter turnout. Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (New York: Simon & Schuster, 2000). As this graph shows, between 2015 and 2020 voter turnout rates in the United States lagged behind those in many other OECD (Organization for Economic Co-operation and Development) member nations. (source: US News & World Report; attribution: Copyright Rice University, OpenStax, under CC BY NC-SA 4.0 license) Political participation is defined as action that expresses an individual’s political will, and self-government is when the people of a given country are the ones who grant the power to govern that country, through either direct or indirect representation. Voting is considered one of the most important forms of political participation because it is the primary mechanism by which the people ensure that their government represents them. Compared to other countries, the United States does not have high voter turnout. At roughly 66 percent, voter turnout in the 2020 election was high relative to other years, but compared to countries such as Sweden, South Korea, and Turkey, which have rates close to 80 percent, US elections have room for improvement. eligible voters voters who meet the requirements of their localities or states to cast a ballot in an election political participation activities that express opinions on public officials and public policy; the ways in which people can influence political outcomes self-government when the people of a given country are the ones who grant the power to govern that country, through either direct or indirect representation suffrage the right to vote in political elections voter turnout the percentage of eligible voters who cast a ballot in an election

Social Sciences