a.k.a. The Bill of Rights

Your Civil Liberties

The Bill of RightsMany of the Founders

opposed a Bill of Rights because limits had already been established on the government

The Federalists promised to pass a Bill of Rights if the Constitution was ratifiedThe House adopted 17,

the Senate 12 and the states ratified 10 by 1791

A Constitutional 10 CommandmentsThe Bill of Rights is a

list of “thou shalt not” against the government“Congress shall

make no”“shall not be

infringed”The Bill of Rights

applies primarily to the federal government until passage of the 14th Amendment

Each clause of the Bill of Rights is open to interpretation and the final interpreter is the Supreme Court

14th Amendment : All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

14th Amendment gives former slaves (and any other person) citizenship

Most importantly it says that “no state” can deprive anyone of their rights, establshing the incorporation doctrine

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof;

Jefferson, “wall of separation”

Colonial history of the United States based on religious freedom, a fact expressed in Article VI of the Constitution

Clauses designed to prevent government interference in religion

Establishment clauseEngel v. Vitale (1962)

Supreme Court rules school sponsored prayer in schools is unconstitutional– “…religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate…governmentally established religions and religious persecutions go hand in hand”

Abington v. Schempp (1963)Court rules school sponsored

bible readings are unconstitutional

Lemon v. Kurtzman (1971)-government aid to religious schools must meet 3 criteria (the Lemon test)It must have a secular purposeIt must neither advance nor inhibit religionCreate no entanglement of government with

religionEpperson v. Arkansas (1968)-the teaching of

evolution in schoolsPledge of AllegianceLee v. Weisman (1992)-school sponsored

graduation prayer

Establishment clause cont'd

Free exercise clause

West Virginia v. Barnette (1943)Court upheld the right of

Jehovah Witness students to not say the prayer because it violated their religion

“If there is any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” Justice Jackson

Jackson derided symbols as a “primitive but effective way of communicating ideas,” and chided that “a person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn.”

Compelling governmental interestFree exercise can be restricted if

the government can show an interest in doing so such as polygamy in Reynolds v. United States (1878)

In Oregon v. Smith (1990) the Court abolished the compelling interest test only to have Congress counter their decision by passing the Freedom Restoration Act of 1993-now the burden of proof is on the government to restrict free exercise

Gonzales v. O Centro Espirita Beneficiente Unaio do Vegetal (2006) the Court rules that it is Ok for members to take a hallucinogenic tea

Wisconsin v. Yoder (1972)-Amish parents allowed to keep their parents out of school past the 8th grade because it violated their free exercise rights

Have we taken political correctness too far

Freedom of Expression v. Competing Government Interest

Freedom of speech “is the heart of our government”—Justice Hugo Black

But, “a single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration.” Justice Edmund Sanford

“The principle of free thought-not free thought for those who agree with us but freedom for the thought we hate.” Justice Oliver Wendell Holmes

“The freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.” Justice Louis Brandeis

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.

Absolutely protected speechPolitical speech

Schenck v. US (1919)-Schenck presented a “clear and present” danger to national security by opposing the draft; Oliver Wendell Holmes explained that speech is not an absolute right so that “a man can falsely shout fire in a theatre”

Gitlow v. New York (1925)-incorporates 1st amendment to states

Brandenburg v. Ohio (1969)-government can limit speech if there is “immediate lawless action”US v. Obrien (1968)-upheld

conviction of man burning draft card

Absolutely protected speechSymbolic speech

Tinker v. Des Moines (1969)-Court upholds right to symbolic speech and student rights by declaring that students do not shed their rights at the schoolhouse gate as long as it does not interfere with the educational process

Texas v. Johnson (1989)-Court defends the right to burn an American flag; "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.“ Justice William Brennan

Buckley v. Valeo (1976)-Court upholds campaign contributions as a form of symbolic speech

Press Near v. Minnesota (1931)-the Court rules against prior

restraint, or the government’s attempt to prevent certain information from being published; this case concerned an editorial that criticized public officials

New York Times v. US (1971)-the Court rules against the government when they tried to prevent the publication of the Pentagon Papers, documents critical of American involvement in Vietnam and would damage national security

Absolutely protected speech

Libel and slander-statements made with a “reckless disregard of the truth”New York Times v. Sullivan (1964)-the Court rules against

Sullivan and says in order for a story to be libel it must be untrue and be a result of “actual malice” and have a “reckless disregard” for the truth which is very difficult to prove

Obscenity and pornography- “I’ll know it when I see it”Roth v. US (1957)- “utterly without redeeming social

importance”Miller v. California (1973)- 3 part test created to apply

“contemporary community standards” to determine if something is obscene

Reno v. ACLU (1997) – a 7-2 Court rules that a law making it a crime to make indecent material available to children on the Internet violated the 1st Amendment

Conditionally protected speech

Fighting Words-language that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. State of New Hampshire (1942)

Student speech-Hazelwood School District v. Kuhlmeier (1988) – school

can restrict speech when it goes against the purpose of school; citing the Tinker case the Court ruled that schools can’t limit its speech, but doesn’t have to promote it

Bethel v. Fraser (1986) – not unconstitutional to restrict a students student council speech

Morse v. Frederick (2007) – Bong Hits 4 Jesus, Court rules that principal in the right to suspend the student for what he termed a nonsensical phrase but was believed to be a message about drug use during a school event

Conditionally protected speech

Association/assembly-Courts accept reasonable time, place, manner restrictions on assembly Skokie caseBoy Scouts v. Dale (2000)

Conditionally protected speech

Individual right or collective rightA well regulated Militia, being necessary to

the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

District of Columbia v Heller (2008)-the Court establishes the right of an individual to own a gun, but that does not mean the state can’t regulate who shall own them and places to have them

2nd Amendment: right to bear arms