The Bill of Rights

Americans wanted a Bill of Rights added to the Constitution to ensure that they could not be mistreated, as they were by Great Britain. They also wanted to ensure a protection of civil

liberties and civil rights. Civil liberties – protections against government, such as,

freedom of speech and freedom of religion. Civil rights – positive acts of government that seek to

make constitutional guarantees a reality for all people.

Incorporation

Originally, the Bill of Rights were only restrictions applied to the Federal Government. It did not apply to states. Not until the Due Process Clause of the 14th Amendment was

written, that stated, “no STATE shall deprive any person of life, liberty, or property, without due process of law.

Applying the BoR to the states became called the process of incorporation. This process moves one amendment at a time, and still, not all of the Bill of Rights applies to the states.

Gitlow v. New York was the first incorporation case, applying freedom of speech and press to the states.

Amendments not yet incorporated include the 2nd amendment, 3rd amendment, the grand jury clause of the 5th amendment, and the 7th amendment.

Freedom of Religion

The Constitution contains two clauses in the first amendment that are designed to protect religious freedom The Establishment Clause (any religion can be

created.) The Free Exercise Clause (you are free to practice

your religion.)

Religion and Education

Everson v. Board of Education – the court upheld a state law that provided public busing of students attending any school in the state, including religious private schools. Court said it was a safety issue, no matter what

type of school the student might attend.Engle v. Vitale – the Court outlawed the

use of a prayer written by the New York Board of Regents. The Court generally believes that public schools

cannot sponsor religious exercises. It has not held that individuals cannot pray when and as they choose in schools or in any other place.

Religion and Education

Equal Access Act of 1984 Declares that any public high school that receives

federal funds must allow student religious groups to meet in the school on the same terms that it sets for other student organizations.

The Lemon Test The Court case Lemon v. Kurtzman created a

three-pronged test that determines if state money can be given to religious schools The purpose of the aid must be clearly secular (not

religious) Primary affect must neither advance nor inhibit religion It must avoid an excessive entanglement of government

with religion.

The Free Exercise Clause

Reynolds v. United States – the court ruled that Reynolds’s religious practice of polygamy was illegal. This decision was made, even though his religion

allowed it, because polygamy hurts social order.Wisconsin v. Yoder – In this case, the court

ruled that Amish parents may remove their children from school following the 8th grade because the lifestyle essential to their religious faith is threatened by modern education.

Freedom of Speech and Press

The 1st and 14th amendments serve two fundamentally important purposes To guarantee each person a right to free expression To guarantee to all persons a full, wide-ranging

discussion of public affairs.

The 1st and 14th amendments give all people the right to have their say and the right to hear what others have to say.

Libel and Slander

No person has the right to libel or slander another. Libel – the false and malicious use of printed words. Slander – the false and malicious use of spoken words These forms of speech are not permitted because they

cause harm to others.

Sedition

Sedition is the crime of attempting to overthrow the government by force or to disrupt its lawful activities by violent acts.

The act of making sedition illegal was upheld by Schenck v. United States and the creation of the “clear and present danger” rule. States that words can be weapons. If the words

threaten the peace and put others in danger, the words are illegal.

Obscenity

Miller v. California The Court laid down a three-part test to determine

what material is obscene and what is not. Material is obscene if it

Excites lust Describes or depicts offensive act Lacks serious literary, artistic, political, or scientific

value

Prior Restraint

Prior restraint – the government cannot curb ideas before they are expressed.

Near v. Minnesota – the Court struck down a state law that prohibited the publication of any malicious, scandalous, and defamatory periodical.

New York Times v. United States – the Court ruled that the NYT may publish the Pentagon Papers because their printing would not endanger the nation’s security.

Symbolic Speech

Symbolic speech – expression by conduct; communicating ideas through facial expressions, body language, or by carrying a sign or wearing an arm band.

Tinker v. Des Moines – the Court ruled that school officials could not suspend students for wearing armband to protest the Vietnam War because their acts were not hurting anyone.

Buckley v. Valeo – found that campaign contributions are a symbolic form of speech and support.

Texas v. Johnson – the Court ruled that flag-burning is a form of symbolic speech and protected by the Constitution.

Due Process of Law

Due process – the government must act fairly and in accord with established rules in all that it does. Substantive due process – the government must

create fair policies and laws. Procedural due process – the government must

employ fair procedures and methods.Remember, that the provisions of the Bill of

Rights (the first 10 amendments) apply only to the National Government

The 14th amendment applies these protections to the states.

Police Power

Police power – the authority of each state to act to protect and promote the public health, safety, morals, and general welfare.

Schmerber v. California – the Court ruled that police officers may direct doctors to draw blood from suspected drunk drivers who refuse a breath test. This decision was made because drunk drivers

pose a threat to the rest of the public.

Privacy

Griswold v. Connecticut – the Court ruled that a state law prohibiting birth control counseling and devices was illegal The Court believes that what two people do in the

privacy of their own bedroom was no one else’s business.

Roe v. Wade – the Court struck down a Texas law that made abortions illegal A woman’s right to privacy gives her the ability to

make decisions regarding her body.

Security of Home and Person

Probable cause – reasonable grounds, a reasonable suspicion of a crime

Minnesota v. Carter – the Court ruled that evidence in plain sight is allowed as probable cause.

An officer needs no warrant to search an automobile because they are considered movable crime scenes.

Exclusionary Rule

Exclusionary rule – evidence gained as the result of an illegal act by police cannot be used at the trial of the person from whom it was seized.

Mapp v. Ohio – the court ruled that the exclusionary rule would be applied to the states to protect against illegal searches and seizures.

Rights of the Accused

Writ of habeas corpus – a court order which prevents unjust arrests and imprisonments

Bill of attainder – a legislative act that inflicts punishment without a court trial

Ex post facto laws – a law applied to an act committed before its passage

Grand jury – the formal device by which a person can be accused of a serious crime

Indictment – a formal complaint before a grand jury which charges the accused with one or more crimes

Double jeopardy – part of the 5th amendment that states a person cannot be tried for the same crime twice.

Right to Adequate Defense

The 6th amendment gives 4 rights to accused persons: To be informed of the charges To have witnesses to the crime To provide witnesses in your favor To have a lawyer present

Gideon v. Wainwright – the Court ruled that an attorney must be provided to a defendant who cannot afford one.

Self Incrimination

Miranda rule – Created in Miranda v. Arizona, states that police must read the suspect their rights before questioning can occur. Exists so people know what they should and should

not say, and how they should and should not act. You have the right to remain silent, anything you say

can and will be used against you in a court of law. You have the right to an attorney, if you cannot afford

one the court will appoint you one. Do you understand these rights I have read you?