4.2 Securing Basic Freedoms

Bill of Rights Overview

The provisions of the Bill of Rights are broadly categorized into three main categories, each reflecting specific rights and protections:

1. Basic Individual Freedoms

   • Amendments Involved: First, Second, Third, Fourth

   • Description: These amendments guarantee essential liberties that protect the individual from governmental interference in personal beliefs and actions.

2. Rights of the Accused and Civil Litigation

   • Amendments Involved: Fourth (partially), Fifth, Sixth, Seventh, Eighth

   • Description: This category safeguards the rights of those suspected or accused of crimes as well as those involved in civil legal matters, setting procedural standards for justice.

3. Broader Rights and State Roles

   • Amendments Involved: Ninth and Tenth

   • Description: The final category emphasizes that the Bill of Rights does not constitute an exhaustive catalog of human rights, allowing for the recognition of additional unenumerated rights while also clarifying the role of state and federal powers.

Venn Diagram Categories of Rights and Protections

To visualize the relationships between the rights and protections, a Venn Diagram can be used:

• Criminal: The center portion, where all three circles overlap, holds the Fifth and Sixth Amendments, which address rights relevant to criminal defendants.

• Procedural: In this region lies the Fourth and Tenth Amendments, relating to procedures in law and governance.

• Individual Freedoms: This section includes the First, Seventh, and Eighth Amendments, as well as the Second, Third, and Ninth Amendments, dedicated to personal liberties and rights.

First Amendment

The First Amendment is one of the most celebrated provisions in the Bill of Rights, enshrining fundamental principles of freedom. Specifically, it entails protections for religious practices, speech, press, assembly, and petitioning the government.

Breakdown of Major Parts:

1. Religious Freedom:

   • The amendment prohibits the government from imposing specific religious beliefs and simultaneously protects individuals from governmental restrictions on their personal religious practices.

Establishment Clause

• Asserts that Congress cannot create or favor a national religion, a response to historical pressures from countries with established churches and the religious strife that resulted in such governance. For example, historic events in Europe, including the Protestant-Catholic conflicts, informed this clause, given that many U.S. settlers sought refuge from similar turmoil.

• In modern interpretations, the establishment clause is used to maintain a separation between church and state—meaning that the government must remain neutral in matters of faith. Legislative examples include various Supreme Court cases such as Lemon v. Kurtzman, where the Lemon Test was established to evaluate government actions regarding religion:

  • Three Criteria of the Lemon Test:

    1. No excessive government entanglement with religion.

    2. The law cannot inhibit or advance religious practice.

    3. There must be a secular purpose behind the law.

• Example: A school voucher program permitting public funds to be used for religious school tuition raises questions about entanglement and secular purpose, as would a ban on government funding for religious institutions.

2. Free Exercise Clause:

   • This clause limits how government practices may inhibit religious expressions. It emphasizes the right to practice one's religion openly without governmental restriction.

   • An example of its application is shown in the 1943 case West Virginia State Board of Education v. Barnette, where students' rights to abstain from saluting the flag due to their religious beliefs were upheld.

   • Historical cases involving Jehovah’s Witnesses also illustrate tensions between free exercise and societal rules—people were penalized for refusing to salute the flag, but eventually legal challenges upheld their rights.

Freedom of Expression

• This encompasses the rights associated with free speech, press, assembly, and petition. Over time, these rights have grown to include various forms of expression, such as symbolic speech (e.g., flag burning).

• Historical Context: Censorship was typically prevalent up until the 20th century. For instance, during World War I, citizens faced severe penalties for expressing anti-war sentiments.

• Recognized Supreme Court cases:

  • Schenck v. United States exemplified the clear and present danger test for speech that incites illegal action.

  • Brandenburg v. Ohio later broadened free speech protections by ruling that only speech advocating imminent lawless action could be restricted.

  • A significant case, Texas v. Johnson, established flag burning as protected symbolic speech under the First Amendment, leading to ongoing legislative efforts to limit such expression through the Flag Protection Act.

Second Amendment

• The Second Amendment succinctly states:"A 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."

• The controversy regarding the Second Amendment primarily revolves around whether it protects a collective right associated with state militias or an individual right to bear arms.

• Historical Perspective: During the 19th century, the interpretation focused on militia duties, particularly regarding the implications of the post-Civil War era when legislation limited access to firearms for formerly enslaved individuals.

• Key Supreme Court rulings include:

  • United States v. Miller, which upheld federal regulation of certain firearms by emphasizing the militia context, and

  • District of Columbia v. Heller, which shifted the interpretation to affirm an individual’s right to firearm possession for lawful purposes such as self-defense within the home.

  • Followed by McDonald v. Chicago, which connected this right to the states, reinforcing that individual rights to bear arms could not be arbitrarily limited by state legislation.

Third Amendment

• The Third Amendment states:"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

• While the amendment may seem outdated, it reflects historical grievances concerning British troops quartering in colonist homes during conflicts, illustrating the respect for personal privacy and property rights.

• Its relevance can be seen as a broader principle advocating for the sanctity of a citizen’s home against unwarranted government intrusion, similar to the principles underlying the Fourth Amendment.

Fourth Amendment

• The Fourth Amendment provides:"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause..."

• This amendment serves as a crucial safeguard against arbitrary government intrusion into personal privacy,

• Legal concepts include the necessity of warrants based on probable cause coupled with specific descriptions of what is to be searched or seized.

• A significant Supreme Court case, Mapp v. Ohio, established the exclusionary rule, preventing illegally obtained evidence from being used in court. The metaphorical concept of "fruit of the poisonous tree" explains that if evidence results from an illegal search, it cannot be legally utilized against an individual.

Key Concepts:

• Warrants: Warrants may not be necessary when consent is given, in plain view exceptions, or during exigent circumstances such as the imminent destruction of evidence.

• United States v. Jones and Carpenter v. United States encompassed modern interpretations extending protections against warrantless tracking via GPS or cell phone data, ensuring that privacy expectations are upheld in contemporary contexts.