The Bill of Rights

• December 15, 1791

• First 10 amendments added to the Constitution within three years of its ratification

• Originally written by James Madison

• Civil liberties: protections from the abuse of government power

• Civil rights: protections from discrimination based on race, gender, or other minorities

The Extension of Civil Liberties Through American History

• Barron v. Baltimore (1833): determined that Bill of Rights restricted national government but not state governments

  • Overturned in Gitlow v. New York, citing 14th Amendment restrictions on the states, concerned freedom of speech + press

  • Selective incorporation: court applies Bill of Rights on a case-by-case basis

    • Rights not incorporated and may be restricted by states:

      • Third Amendment, protection against forced quartering of troops in private homes

      • Fifth Amendment, right to indictment by grand jury

      • Seventh Amendment, right to a jury trial in civil cases

      • Eight Amendment, protection against excessive bail and fines

      • All other parts of the Bill of Rights apply equally to state + national government

        • None of the rights in the Bill of Rights is absolute

        • Court has consistently weighed rights of individuals against society’s needs

First Amendment Rights and Restrictions

• Freedom of speech

  • Congress cannot pass a law preventing citizens from expressing their opinions

  • Supreme Court has placed limits on freedoms

    • Clear and present danger test: a person cannot cause panic for a false reason

    • No constitutional protection for slander/libel, obscenity, or speech to incite violence

    • Followed preferred position doctrine since 1940s in determining free speech limits

      • Free speech is fundamental to liberty

      • Any limits must be because of severe/imminent threats to the nation and limited to only constraining those threats

      • Court protects offensive but nonthreatening speech (ex. flag burning)

  • Schenck v. United States (1919): a socialist (Schenck) handing out leaflets telling men not to enlist was arrested, ruled constitutional because his speech posed a “clear and present danger” to the US

    • Unanimous decision, conviction was constitutional and resulting from violation of the Espionage Act of 1917

  • Tinker v. Des Moines (1969): John and Mary Beth Tinker wore black armbands to school to protest the Vietnam War

    • In West Virginia State Board of Education v. Barnette (1943), the Supreme Court ruled that the First Amendment protects minors at school under certain circumstances

    • 7-2 decision, ruled that children in public schools were protected by the First Amendment if their speech did not violate constitutional, specific regulations and does not cause a “substantial disruption”

• Freedom of the press

  • Few instances in which the government can use prior restraint (crossing out parts of an article before it is published)

  • Media has objected to limitations of news/media - usually go to court: ned to be informed vs. security concerns

  • Media’s responsibility to reveal information sources - Supreme Court ruled that reporters are not exempt from testifying and can be asked to name sources

    • Reporters who refuse to reveal sources can be arrested

    • Some state have created shield laws to protect reporters in state cases

  • Miller v. California (1973) established 3-part obscenity test

    • Would the average person judge the piece as appealing primarily to a person’s sexual instincts?

    • Does the work lack other value?

    • Does the work depict sexual behavior offensively?

  • New York Times v. United States (1971): Daniel Ellsberg leaked the Pentagon Papers (about US in Vietnam) to the New York Times, when the Washington Post started to publish the Pentagon Papers, the government sued

    • Said to have violated the Espionage Act of 1917

    • 6-3 decision - Supreme Court ruled that the newspapers could publish the Pentagon Papers because the government had not had the proof necessary to enact prior restraint

    • Established a “heavy presumption against prior restraint” including in cases that involve national security

• Freedom of petitioning the government

• Freedom of assembly

  • Right to assemble peacefully

  • Does not extend to groups/demonstrations that would incite violence

  • Government can restrict crowd gatherings if applied equally to all groups

  • Groups must not interrupt day-to-day life

  • Court ruled that freedom of speech + freedom of assembly implies a freedom of association: government cannot restrict groups people belong to as long as they do not threaten national security

  • Letter from a Birmingham Jail (Martin Luther King Jr.)

    • MLK arrested in Birmingham for organizing marches and sit-ins to protest segregation

    • Wrote a letter to African American religious leaders, outlined key ideas about importance of nonviolent protest through peaceful assembly

• Freedom of religion

  • Free exercise of religion

  • Not absolute - human sacrifice, polygamy, and denial of medical treatment to children are not allowed

  • Ruled that Jehovah’s Witnesses cannot be required to salute the American flag and Amish children may stop going to school after 8th grade

  • Court weighs individual rights to free religion against needs of society

  • Establishment clause: Constitution prevents government from establishing state religion

    • Wall between church and state is not solid

    • Court allowed government money to provide some parochial education

    • Allowed tax credits for non-public school costs

    • Lemon test after Lemon v. Kurtzman (1971)

      • Does the law have a secular purpose?

      • Is the law neutral towards religion?

      • Does the law avoid “excessive entanglement” between church and state?

  • Engel v. Vitale (1962): families sued their children’s school district for forcing prayer in the classroom

    • Violated First Amendment’s establishment cause

    • 6-1 decision ruled that school prayer violated First Amendment

  • Wisconsin v. Yoder (1972): three Amish families were fined for taking their children out of school after eighth grade

    • 8-1 decision ruled that Amish families were allowed to take their children out of school after the eighth grade (free exercise clause)

The Second Amendment

• McDonald v. Chicago (2010): McDonald wanted to buy a gun for self-defense but couldn’t because of city restrictions on handgun registrations, said it violated 14th Amendment’s due process clause

  • 5-4 decision ruled that states cannot impede their citizens’ rights to keep and bear arms

• United States v. Lopez (1995): Alfonso Lopez arrested for taking a gun to school, convicted for violating Gun-Free School Zones Act of 1990

  • 5-4 decision ruled that GFSZA was unconstitutional because it was under the commerce clause but didn’t relate to commerce

The Third Amendment

• Forbids quartering of soldiers and direct public support of armed forces

• Most antiquated amendment

The Fourth Amendment

• Restricts government agencies in criminal/civil procedural investigations, protects a person’s belongings from “unreasonable searches and seizures”

• Police must go before a judge to justify a search of private property

  • Probable cause: judge believes that the search will find evidence of a crime

  • Search warrant: issued by a judge, limits where police search and what they can take as evidence

    • Exclusionary rule: all evidence illegally taken by police cannot be used as evidence

      • Objective good faith exception (1984): established by the Supreme Court, allows for convictions in cases where an illegal search occurred but was performed under the assumption that it was legal

      • Inevitable discovery rule: illegally seized evidence that eventually would have been found legally is admissible in court

    • Police may conduct a search without a warrant

      • May conduct a search of private property after a legal arrest, if the owner consents, if evidence is found in plain view, or if they have probable cause to believe they will find evidence of crime, especially when there are exigent circumstances (reason to believe evidence would disappear after a warrant was received)

• Challenged by how the government can collect citizens’ data, especially digitally (wiretapping, collection of phone records, computer hacking)

The Fifth Amendment

• Does the most to protect a citizen from the broad powers of the federal government

• Guarantee of grand jury when a suspect is held for a capital/”infamous” crime

• Prevents a person from being prosecuted repeatedly for the same crime by prohibiting double jeopardy

• Establishes right of government to seize property for the public under auspices of eminent domain if the seizure can be compensated

• Federal government cannot deprive a person of “life, liberty, or property by any level unless due process of law is applied”

• Rights granted to the accused

• Controversial rights

  • Some say they make it too hard to capture, try, and arrest criminals

• Gideon v. Wainwright (1963): Earl Gideon was accused of breaking-and-entering, theft, and destruction of property but was not given an attorney

  • Unanimous decision that Florida violated 6th Amendment right to an attorney

Protection from Self-Incrimination

• Defendant cannot be forced to testify at a trial

• Jury is not supposed to infer guilt if a defendant refuses to testify

• Defendant must be informed of their right to remain silent, their right to a lawyer, and protection against self-incrimination when they arrested

  • “Mirandized”

The Sixth Amendment

• Allows the accused to be prosecuted by an impartial jury

  • Right to be informed of charges, confront witnesses, subpoena witnesses for defense, and have a lawyer

• Forms basis for habeas corpus

  • Protects against illegal imprisonment, ensures a person cannot be held indefinitely without being charged in front of a judge/in court or without a legal reason to extend detention

• Extended to misdemeanor cases if they could result in jail time

• Right to a speedy trial

  • 100-day limit between arrest and trial start

  • Prosecutors and defense attorneys can request an extension to prepare cases

The Seventh Amendment

• Allows for trial by jury in common-law cases

The Eighth Amendment

• Bans excessive bail/fines and cruel or unusual punishments

• Not required to offer bail to all defendants

  • Bail Reform Act (1984): lets federal judges deny bail to dangerous defendants or those likely to flee the country

    • States are allowed to set bail as high as state law permits

• Cruel and unusual punishment clause is the cause of debate over the death penalty

  • Court has placed limits on its applications

  • Court has upheld the constitutionality of the death penalty when used properly

  • The court has moved to make it easier for states to carry out the death penalty by limiting the nature and number of appeals allowed by convicted murderers on death row

  • Some states have enacted moratoriums on the death penalty - methodology problems, ethical objections, flawed trial processes

The Ninth Amendment

• Limited federal government

• Rights not mentioned in the Constitution are still protected

• Implied right to privacy and other rights

The Right of All Americans to Privacy

• Supreme Court ruled that Bill of Rights contained implied right to privacy in Griswold v. Connecticut

  • Combination of 1st, 3rd, 4th, 5th, 9th, and 14th amendments