Unit 8: Understanding The Bill Of Rights & Its Implications

UNIT 8: THE BILL OF RIGHTS

Introduction:

• Founding principles of American republic = individual liberty.

• Fundamental rights and freedoms the govt cannot restrict.

• Civil Liberties: Fundamental rights and freedoms protected from infringement by the government.

• Civil Rights: Protections from discrimination as a member of a particular group.

Selective Incorporation:

• The Bill Of Rights did NOT apply to the states.

  • Language specifically protects citizens from the FEDERAL government.

• The Bill Of Rights has been applied to the states over time and selectively.

• 1919 Gitlow v New York.

  • Charged under a New York anarchy law for distributing weekly newspapers criticizing America during WWI.

  • Argued the New York law violated his rights under the 14th amendment.

  • Court ruled with New York, but kick-started selective incorporation.

Applying The Bill Of Rights To State Laws & Actions:

• State laws and actions not subject to the Bill Of Rights.

• The 14th amendment (1868) laid the foundation for extending the protections of the Bill Of Rights to the state laws and actions.

  • Due Process Clause: No state can deny a person “life, liberty, or the property without due process of law.”

  • There are limits to the states.

• Selective Incorporation: The piecemeal process through which the Supreme Court has affirmed that almost all of the protections within the Bill Of Rights also apply to state governments.

Religion: Establishment & Free Exercise:

• Protection for religious freedom and expression laid out in the first amendment. 

• Establishment Clause: Protection against the government requiring citizens to join or support a religion.

• Free Exercise Clause: Protection of the rights of individuals to exercise and express their religious beliefs.

The Establishment Clause & The Supreme Court:

• Engel v Vitale (1962):

  • SCOTUS ruled that school-sponsored prayer violated the establishment clause. 

Current Status Of Prayer In Public Schools:

• Students may not pray during instructional time, but may at their discretion during non-instructional time.

• May participate in organized religious student groups and clubs under the same rules as secular clubs.

• School officials may not encourage or discourage prayer, but may participate when not in their official capacity.

Government Involvement With Religion:

• “Lemon test” was created to set guidelines for what is permissible under the establishment clause.

• Lemon v Kurtzman (1971):

  • Programs that supplemented salaries of teachers and provided educational materials in religiously-based private schools for the purpose of teaching non-religious subjects. 

  • SCOTUS struck down both programs.

    • Money must be secular in purpose.

    • Effects must neither advance nor inhibit religion.

    • Must not foster excessive entanglement between government and religion.

Free Exercise & The Supreme Court:

• Americans can hold any religious belief and practice that belief feely.

• Wisconsin v Yoder:

  • Amish challenged the state of Wisconsin compulsory school attendance law that required children to attend school until the age of 16.

  • Violated their rights under free exercise because they believed that making their children attend high school went against their religion and way of life.

  • SCOTUS ruled with Yoder.

Speech, Press, Assembly & Petition:

• Freedom Of Expression: A fundamental right affirmed in the First Amendment to speak, publish and protest.

• Freedom of speech is not absolute.

  • State and federal governments have to show compelling government interest - a purpose important enough to justify infringement on liberties.

National Security & Political Expression:

• How do governments balance the needs of national security with the fundamental rights of political expression?

  • In times of war, political expression is often suppressed.

  • Espionage Act Of 1917.

• Schenck v United States (1919).

  • Printed and distributed anti-war leaflets encouraging young men to not comply with the military draft.

  • Restrictions on expression under the Espionage Act Of 1917 were permissible.

  • Clear and Present Danger test: Legal standard that speech posing an immediate and serious threat to national security is not protected by the First Amendment.

The Press And National Security:

• Prior Restraint: The suppression of material prior to publication on the grounds that it might endanger national security.

• New York Times v United States (1971).

  • The Nixon administration attempted to prevent the New York Times and Washington Post from publishing classified materials (Pentagon Papers).

  • Free press fulfills an essential role in democracy.

  • The press is to serve the governed, not the governors.

Symbolic Speech:

• Protected expression in the form of images, signs, and other symbols.

• Tinker v Des Moines Independent Community School District (1969).

  • John and Mary-Beth Tinker wore black armbands to their public school to protest the Vietnam War.

  • Administration created a policy that students needed to remove them; if they refused, they would be suspended. The students were suspended as a result of wearing the armbands.

  • SCOTUS struck down the school ban, students’ rights do not stop at the schoolhouse gate.

Restrictions On Free Speech:

• Libel: An untrue written statement that injures a person’s reputation.

• Slander: An untrue spoken expression that injures a person’s reputation.

  • To win cases, an aggrieved party must prove that statements were made with the knowledge that they were untrue.

• New York Times v Sullivan (1964).

  • A Montgomery AL official won a $500,000 lawsuit against the New York Times for a full-page advertisement that the newspaper published accusing AL officials of using excessive force during student protests.

  • SCOTUS overturned the lower court ruling.

  • The advertisement was not published with ‘actual malice’. 

Hate Speech In The Community & On College Campuses:

• Hate speech is speech that has no other purpose but to express hatred, particularly towards members of a group identified by racial or ethnic identity, gender, or sexual orientation.

• Hate speech ordinances prohibiting the burning of crosses or Nazi swastikas have been overturned by the court.

• Campuses instituted hate speech codes for student conduct.

The Difficulty In Defining Obscenity & Pornography:

• Words, images or videos that depict sexual activity in an offensive manner and that lack any artistic manner.

• Roth v United States (1957).

  • Defined the standard for obscenity.

  • “Whether the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.”

• Miller v California (1973).

  • Miller test - three criteria must be met for material to be obscene.

    • Material must be ‘patently offensive’.

    • ‘Utterly without redeeming social value.’

    • ‘Contemporary community standard’.

Regulating Time, Place, and Manner:

• The First Amendment grants special protections to free speech in public.
  Heavy burden placed on government attempts to restrict speech in the public forum.

• The government may impose reasonable restrictions on time, place and manner.

  • File permits before conducting marches.

  • Public order and safety.

The Second Amendment:

• Highly charged topic.

• Meaning not defined by the court until recently.

• District Of Columbia v Heller (2008).

  • Court overturned DC ban on handgun ownership for the purpose of self-defense within an individual’s home.

• McDonald v Chicago (2010).

  • Court overturned a Chicago ban on handgun ownership.

  • The right to bear arms is not less important than the other amendments.

    • “The Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.”

The Rights Of Defendants:

• The Constitution provided some protection to those accused and convicted of crimes.

  • Ex-Post Facto: Laws criminalizing conduct that was legal at the time it occurred.

    • Cannot be punished for something if it wasn’t illegal when you did it.

  • Bills Of Attainder: A law passed by Congress punishing an individual without a trial.

    • Congress is not a court.

  • Writ Of Habeas Corpus: A document setting out reasons for an arrest or detention.

  • Procedural Due Process: A judicial standard requiring that fairness be applied to individuals equally.

The Fourth Amendment: Search, Seizure, Warrants & Evidence:

• The government must obtain a warrant before searching people or places.

  • Warrant: A document issued by a judge authorizing a search.

  • Probable Cause: Reasonable suspicion that a crime has been committed or that there is evidence relevant to a criminal investigation.

• Mapp v Ohio (1961) established the exclusionary rule,  a rule  that evidence obtained without a warrant is inadmissible in court.

• The Fourth Amendment’s protections are not absolute.

  • “Reasonable suspicion.”

  • “In plain sight”.

The Fifth Amendment: The Grand Jury, Double Jeopardy, & Self-Incrimination:

• Procedural due process for criminal defendants. 

  • Grand Jury: A group of citizens who decide whether or not a person should be indicted on criminal charges and subsequently tried in court.

  • Double Jeopardy: Protects an individual acquitted of a crime from being charged with the same crime again in the same jurisdiction. 

• Miranda v Arizona (1966) established Miranda Rights.

  • The right to remain silent and to have an attorney present during questioning; these rights must be given by police to individuals suspected of criminal activity.

The Sixth Amendment: Trials, Juries, & Attorneys:

• Speedy trial, tried in front of an impartial jury, attorney present at trial.

• Right to an attorney extended to anyone unable to afford one in Gideon v Wainwright.

  • Robbery and conviction of Clarence Earl Gideon.

  • The Florida court denied his request for an attorney, and he defended himself.

  • Appealed, saying that the trial court violated his Sixth Amendment Rights. 

  • He won his appeal.

The Eighth Amendment: Bail & Punishment:

• Prohibits excessive bail, an amount of money posted as a security to allow defendants to be freed while awaiting trial, and cruel and unusual punishment.

• Death penalty cases most relevant.

  • Furman v Georgia (1972).

  • Gregg v Georgia (1976).

• Capital punishment is not cruel and unusual, but certain methods and situations could be restricted.

Privacy: The Use Of Contraceptives:

• Griswold v Connecticut (1965):

  • The Constitution protects the right to privacy.

  • Overturned a CT law which prohibited the provision of contraceptives and medical advice about contraceptive techniques.

• The Bill Of Rights implicitly protects privacy.

  • First, Third, Fourth and Ninth amendments.

Abortion As A Privacy Right:

• Opponents: violates their deeply-held religious conviction that terminating a pregnancy is murder of the unborn. 

• Proponents: women should have the right to choose whether or not to terminate a pregnancy.

• Roe v Wade (1973): 

  • Norma McCorvey, a single woman who lived in Dallas, TX, filed a lawsuit against the district attorney of the county.

  • She sought an abortion and to strike down a Texas law criminalizing the act.

  • She wanted a legal abortion but could not get one because her life was not in jeopardy and could not afford to travel somewhere where it was legal.

  • Ruling - the Constitution protects a woman’s right to obtain an abortion in the first three months of pregnancy.

    • “The right to privacy.”

• Dobbs v Jackson County Health (2022):

  • Mississippi law prohibited nearly all abortions after 15 weeks.

  • Question: Was this unconstitutional?

  • Opinion: the Constitution does not refer to a right to an abortion, Roe overturned.

  • Decisions on abortion rights left up to the states.

The Ninth Amendment: Rights Not Specified:

• Addresses one main worry about the Bill Of Rights - some rights might not be listed.

• Individuals have rights in addition to those expressly mentioned.