Bill
of Rights—Origins of Civil Liberties in the U.S.
When the Constitution was written:
A. Federalists—opposed to a bill of rights
a.
Bill of
rights would jeopardize rights of states and people not enumerated in the
Constitution (implied rights) because not all rights were specifically
enumerated in the Constitution—they were assumed to be left alone and inviolate
b. Bill of rights would give too much power to the federal government to
trample on states’ and individuals’ rights not specifically spelled out in a
bill of rights; there is no way all rights can be enumerated
c. Believed the central government was given power only to act in accord with
the delegated powers in the Constitution (limited government was the idea
behind the Constitution’s structure); Constitution provided sufficient checks
upon national government’s power because of its silence --it was assumed
that the rights of the people were to be protected by the states or were left
to the people themselves (where Constitution speaks, we speak; where
Constitution is silent, we are silent)
d. Saw the national government as created by the Constitution sufficiently
limited
B.
Anti-Federalists—supported a bill of rights (most states had bills of rights
attached to their constitutions already; states’ rights and individuals’ rights
were important to these keepers of the status quo)
a. Because there were no rights spelled out in the Constitution (because of its silence), government could abuse the states’ or the people’s long-held rights (leaving rights up to implications in the text is dangerous)
b. Government could without a bill of rights argue that it gave and revoked what were usually considered natural rights (this would have been a return to tyranny such as it was under the British Monarchy)
c. Implied rights were not enough because there was no guaranteed safeguard against violation of them; bill of rights would limit government meddling
d. Broad language is more appropriate on the state level (the states were assumed to have broader powers) than on the national level (where the government was believed to be strictly limited)
e. Saw the national government created by the Constitution alone as too powerful
*We see that both parties wanted the same result: a limited national government
with sufficient rights reserved for the states or the people. They just
had different ideas about how to implement it.
*In order to gain promise of ratification of the Constitution, Federalists had
to concede to Anti-Federalists’ demands and promised a bill of rights would be
included once the First Congress was in session.
*Of over 200 suggestions for amendments, Madison, as a congressman from
Virginia, along with a select committee composed of other members of the
1st Congress (1789-91), selected 17 for consideration by the full Congress.
(Madison had been opposed to a bill of rights before influence of Jefferson and
local Virginia citizens got the better of him)
*Of those 17, Congress eliminated 5. One of these would have prohibited
states from infringing on freedom of conscience, press, and jury trial.
State power was not limited until passage of the 14th Amendment and the Supreme
Court gradually incorporated constitutional protections into restrictions on
the States. Two additional amendments were not ratified immediately (one
dealing with legislative apportionment was never ratified and was dealt with by
the Supreme Court and regular legislation; the other was ratified as the 27th
amendment in 1992)
*Bill of Rights was finally formally adopted on 15 December 1791 when Virginia,
the 9th state to do so, ratified them. Today it would take 38 states to
get an amendment ratified.
The Bill of Rights: Major Provisions
A. First Amendment
a. Freedom of Religion
i. Congress may not establish a religion
1. neither advance nor inhibit religion
2. may not endorse religion
3. may not coerce a specific religious belief
ii. Congress may not infringe on free exercise of religion
1. Compelling state interest required (at the National level according to RFRA
and Boerne v. Flores--1997)
2. States are required only to prove that a law is neutral and generally
applicable (see Smith II and Boerne where Supreme Court ruled RFRA was too much
of an intrusion of Congress into states’ rights to make their own laws and to
operate their own courts by their own constitutions)
b.
Freedom of
Speech
i. Cannot yell fire in a crowded theater
ii. Obscenity standards vary
1. I know it when I see it
2. Community standards of decency
iii. Cannot publicly
slander someone (speak in a way that is to intentionally cause damage to
someone’s reputation)
iv. Cannot commit perjury (lying
under oath)
c. Freedom of the press
i. Cannot libel anyone (written form of slander)
ii. Cannot commit copyright infringements
iii. Obscenity standards vary
d. Freedom of assembly
i. Disruptive behaviour excepted
ii. Locations and times may be restricted if neutrally applied and generally
applicable to all
e. Petition the government for redress of grievances
i. Lawsuits
ii. Writing to Congressmen, president, etc.
B. Second Amendment
a. States may maintain a militia (“people” in this case means “states”)
b. States may regulate use of firearms among the citizenry
C. Third
Amendment
a. Peacetime—troops may not for any reason be quartered in a private house
without owner’s consent
b. Wartime—Congress may decide how troops will be housed during wartime (lack
of any real wars since the Civil War on the homefront has made this amendment somewhat
of an anachronism)
D. Fourth
Amendment (created to prevent issuance of general warrants as had been the
practice under Great Britain and some colonial governments)
a. No private residence shall be searched without a warrant, duly issued by a
judge upon probable cause describing the place to be searched
b. Nothing may be seized except as described in the warrant
c. Exceptions have been applied to motor vehicles, especially with suspicious
things in plain sight.
d. Persons may be searched reasonably so long as there is sufficient probable
cause
e. “Exclusionary Rule” became norm after 1914 for Federal Law—before this time,
despite the 4th amendment, evidence seized even without a search warrant was
admissible in court. It still was not clear at that time if it was a
personal right of criminal defendants or a deterrent against illegal government
seizures.
f. “Exclusionary Rule” made effective against states in 1961—Mapp v. Ohio
(Mapp was prosecuted for possession of lewd books, photos, etc. after her house
was searched, without a warrant, for a bombing suspect—a totally unrelated
matter)
g. Right to privacy found in this amendment (cf. Roe v. Wade)
E. Fifth
Amendment
a. Indictment by a Grand Jury required
before someone may be tried for a capital crime or felony (excepting Military
officers and personnel during time of war or public danger)
b. Double Jeopardy prohibited (once acquitted of a crime, you cannot be retried
for that crime)
c. Right against self-incrimination (you do not have to testify against
yourself; you have a right to defend yourself)
d. Due Process of law required before sentencing can be carried out (see 14th
amendment making this applicable to the states)
i. Procedural due process—follows the letter of the Constitution, goes through
the motions, may or may not protect all rights and privileges. Follows the law
ii. Substantive due process—rights-based, adheres to the spirit of the
Constitution, ensures fair and equal treatment of all people. Ensures
equity in the law (correction of that wherein the law, by reason of its
universality, is deficient.—e.g., marijuana is an illegal substance, but many
doctors may now prescribe it in some states for strictly medicinal
purposes. The prohibition is a universal blanket, but exceptions are made
on a case-by-case basis)
e.
Private property may not be taken by the government without compensation equal
to its worth
F. Sixth Amendment
a. Speedy and public trial for criminal prosecutions
b. Impartial jury trial (may be waived if defendant consents)
c. Jury members must be citizens of the state and county/city where the crime
was committed and trial takes place
d. Right to know the charges against you
e. Right to confront the witnesses against you
f. Right to subpoena your own witnesses in your favour
g. Right to legal counsel in aid of defense (not fully elaborated until Gideon
v. Wainright in 1963; states must provide an attorney for you if you request
one. Before that, if you could pay for it, you could have it; if you
could not, you didn’t.)
G. Seventh Amendment
a. Jury trial for all civil suits in disputes wherein the value in question
exceeds $20. (rights to jury trial may be waived if both parties consent)
b. Facts in civil suits may not be re-examined in other courts of the United
States except according to rules of common law (The trial court determines the
facts of the case; the appeals courts weigh decisions on the merits of the
case—how the case was tried, was the decision fair, was the decision
constitutional? Appeals courts may send cases back to trial courts for
retrial or further testimony)
H. Eighth Amendment
a. No excessive bail (payment to the court in guarantee you will appear for
your trial date)
b. No excessive fines
c. No cruel or unusual punishment (torture, etc. is prohibited; some states
interpret the death penalty to be in violation of this amendment, others do
not; punishment should be consistent with the seriousness of the crime)
I. Ninth Amendment
a. Constitution does not contain all the rights of the people
b. Therefore, it shall be assumed that those rights are not denied or impaired
but rather are retained (Madison’s way of putting to rest Federalist fears that
bill of rights would allow federal government to become too powerful because it
enumerated some rights to the exclusion of others)
J. Tenth Amendment
a. Constitution has delegated specific powers to the national government
b. All other powers not therein delegated are reserved to the states or to the
people
I. Bill of Rights (First Ten Amendments to the Constitution, effective 15 December 1791)
a. The Bill of Rights is a broad/general document, and relatively SHORT.
b. It addresses in broad terms the rights of individuals in relation to the federal government (and later on, by virtue of the 14th amendment and subsequent jurisprudence, it was applied to the states as well)
c. Civil Liberties—those limitations on government outlined in the Bill of Rights and in the Constitution proper (some are expanded upon by Congressional statutes, executive orders, and judicial case law) and generally deal with individuals’ freedoms, i.e., restraint against government infringement upon individuals’ freedoms.
i. Broad expression in the Constitution and Bill of Rights (free exercise of religion, free speech, right to an attorney, right against self-incrimination, right against illegal search and seizure)
ii. Congress enacts specific legislation (by virtue of the necessary and proper clause that gives it the power to do so) to ensure these rights are protected
iii. The president and executive bureaucracy enforce these rights (e.g., the EEOC protects workers’ rights to employment regardless of race, sex, creed, sexual orientation, etc. because of the 14th amendment’s guarantee of equality before the law and Congressional statutes passed to protect people from discrimination)
iv. The judiciary rules in cases of law and equity and ensures that the laws of Congress, etc. are applied fairly and without undue infringement on individuals’ rights/liberties (goal is to maximize freedom for everyone in relation to everyone else)
II. Does the Bill of Rights affect State Governments?
a. States were originally excluded from the Bill of Rights—the freedoms within the first ten amendments were designed to be guaranteed only in an individual’s relation to the national government
i. Most states already had bills of rights in their own constitutions
ii. State governments were closer to home and thus easier for the people to control directly
iii. Fear of national tyranny like that of Great Britain prompted the proponents of the Bill of Rights to limit only the national government’s powers in relation to individuals
iv. Each state had its own judicial system that interpreted rights differently
b. Fourteenth Amendment (1868)—“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.”
i. What is “Due Process”?
1. procedural due process—all the proper rulemaking mechanisms have been followed and the courts have followed all the proper procedures
2. substantive due process—guaranteeing equity, ensuring that the law is applied fairly, that certain mitigating factors are weighed and considered, that exceptions are made where necessary to guarantee individuals’ freedom.
ii. Notice the similarity of the amendment’s wording to that of the Fifth Amendment—due process clause
iii. Originally, the 14th amendment was designed to guarantee the rights of freed slaves, which in the first clause, it had made citizens of the United States and of the state in which they resided. Southern States had constantly attempted to limit the rights of freed slaves within their borders, and the national government saw a constitutional amendment as the only way to limit some of these abuses.
iv. After the 14th amendment’s ratification, the Bill of Rights was slowly “incorporated” to the states—i.e., it was made to apply to the states as well as to the National government, such that sooner or later, the states had to guarantee freedom of religion, press, assembly, due process, trial by jury, attorneys in their courts, etc. just as the national government had had to do, because of the due process clause of the 14th amendment.
v. The Supreme Court was slow in “incorporating” the rights within the Bill of Rights and applying them to the state governments as well. Some examples:
1. 1925—Gitlow v. New York, right of free speech must be guaranteed by state governments
2. 1940— Cantwell v. Connecticut, right of free exercise of religion
3. 1947—Everson v. Board of Education, states may not establish a religion (though no state had formally done so since 1833)
4. 1963—Gideon v. Wainright, right to an attorney in all criminal felony cases
5. 1961—Mapp v. Ohio, evidentiary exclusionary rule
6. 1969—Benton v. Maryland, no double jeopardy
III. Freedom of Religion
a. “Congress shall make no law respecting the establishment of religion…” (establishment clause)
i. Jefferson (Letter to the Danbury Baptist Association, c. 1801)—this creates a “wall of separation between church and state”
1. 1947, Everson v. Board of Education—a “wall high and impregnable.” (see p. 113 for a direct quote from Everson)
ii. Other theories of what this clause means
1. Congress cannot collect taxes to support religion
2. Congress cannot establish a national church (i.e, it cannot, for example, name the Protestant Episcopal Church the “official Church” of the nation)
3. Congress cannot make a law requiring anyone to attend a church or other religious service
4. Congress cannot favor religion generally over non-religion
5. Congress cannot finance any religious activity such as parochial schools, teaching of creationism, prayer rallies, etc.
6. Congress must grant tax exemptions for religious organizations to ensure that those organizations are free from government interference
iii. Application of Establishment Clause
1. Aid to Parochial and Religious Schools
a. Supreme Court has allowed states to use tax money to pay for private school students’ lunches, transportation to school, standardized tests, diagnostic services, textbooks
b. Supreme Court has NOT allowed state money to go toward financing parochial school field trips, achievement test development or subsidizing direct religious instruction; see Lemon v. Kurtzman (1971)—secular purpose, neither advance nor inhibit religion, must not foster excessive government entanglement with religion. Lemon set precedent for numerous cases thereafter, not without criticism (see Lamb’s Chapel v. Center Moriches School District, (1993), Scalia concurring.)
c. School Vouchers—case law is still relatively uncertain in this area, but since the recent Zellman decision (2002), some school voucher programs are permissible within certain parameters—failing district, real options between parochial or secular private schools exist, state money goes in voucher form to the parents first and only then to the school of their choice.
2. School Prayer—Does the state have a right to promote religion in general?
a. Engle v. Vitale (1962), restricted governments from writing prayers that students should say or listen to before the school day. The prayer in question was “Almighty God, we acknowledge our dependence upon thee, and we beg thy blessings upon us, our parents, our teachers, and our Country.” The prayer had been implemented in several New York schools before the Court struck it down as unconstitutional.
b. Abington School District v. Schempp (1963)—Supreme Court banned daily Bible readings and recitation of the Lord’s Prayer in public schools
c. Wallace v. Jaffree (1985)—Supreme Court struck down an Alabama law requiring a moment of silence before the school day (law had no clear “secular purpose”—used the words of the state legislator who had sponsored the bill against him)
d. Lee v. Weisman (1992)—having a rabbi (or any other minister) deliver a non-sectarian prayer before a graduation ceremony was unconstitutional as it “coerced” people to participate
e. Santa Fe v. Doe (2000)—student prayer before a school function (in this case, a football game) is in violation of the establishment clause because it involved use of the school’s public address system and a district-sanctioned method of selecting who would pray before the games.
3. Evolution and Creationism
a. Epperson v. Arkansas (1968)—Supreme Court held a state law that forbid the teaching of evolution was unconstitutional as it imposed religious beliefs upon its students (the creation account in Genesis was the only alternative)
b. Edwards v. Aguillard (1987)—Supreme Court struck down a Louisiana law that required teaching creationism alongside evolution theory, because the law’s primary purpose was to promote religion.
4. Additional Church-State issues
a. Rosenberger v. University of Virginia (1995)—Supreme Court upheld a Christian student group’s right to receive funding from the University (that had granted funding to over 100 other groups) to publish a newsletter, as part of their right to free religious speech.—such funding was deemed “neutral” payment directed to all student groups equally, from money collected from student fees, not general taxes
b. Aguilar v. Felton (1985)—Supreme Court held that using federal funds to pay for special ed. Services at parochial schools violated establishment clause—laws using federal funds for such purposes were struck down
c. Augostino v. Felton (1997)—Supreme Court reversed its 1985 decision and allowed the state to fund special ed. Services at parochial schools “because our understanding of the establishment clause has changed.”
b. “…or prohibiting the free exercise thereof…” (free exercise clause)
i. People are allowed to hold any religious belief they want to hold (there are no “thought police” that will investigate matters of conscience)
ii. However, when religious practice adversely affects the public good, government may act
1. States may require vaccinations for children or blood transfusions for children, even if the parents’ religious beliefs do not allow them
2. Public school students may be required to study from textbooks approved by the state or district, despite some religious objections
IV. Freedom of Speech/Press/Expression
a. Clear and Present Danger (Schenck v. United States (1919)) (the law in this case was the Espionage Act; a socialist had been accused of violating it)
i. Remarks must present a “clear and present danger” to the public order or peace if they are to be curtailed
ii. Evidence must exist that such remarks would cause an actual or imminent condition that Congress has authority to prevent (e.g., rebellion, sedition, imminent danger to someone else’s physical or mental well-being)
iii. “cannot yell ‘Fire!’ in a crowded theater if there is no fire.”
iv. Modified in 1951 Dennis v. United States—“Grave and probable danger rule” such that “the gravity of the ‘evil’ discounted by its improbability justifies such invasion of free speech as is necessary to avoid the danger.” (the law in question in this case made it illegal to teach, advocate or organize violent overthrow of any government in the US.)
b. “Bad-Tendency Rule”
i. speech or press may be curtailed if there is a possibility that such expression might lead to some “evil” (Gitlow v. New York, 1925: a left-wing anarchist was convicted under New York criminal anarchy law for publishing a pamphlet urging violent overthrow of U.S. government; Supreme Court ruled that the state had such a right to prevent publication of such materials because it had a right to prevent rebellion, which Gitlow’s pamphlet may have incited.)
c. No Prior Restraint
i. Prior restraint is putting limits on activities before they occur—e.g., censorship of publications before they are released; requiring of permits before giving speeches; permits for publishing; permits for movies or TV shows’ release
ii. 1976, Nebraska Press Association v. Stuart, Supreme Court ruled that “A prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutionality…. The government thus carries a heavy burden of showing justification for the enforcement of such a restraint.” In this case, a gag order from a local judge was lifted and the right of the press to publish certain pretrial information was upheld
iii. 1971, New York Times v. United States (Pentagon Papers Case), Supreme Court ruled that the newspapers (Times and Washington Post) had a right to publish the documents despite the illegal manner in which they were obtained and subsequently presented to the papers.
d. Symbolic Speech
i. 1969, Tinker v. Des Moines School District, Supreme Court ruled that students may wear black armbands as a sign of protest against the Vietnam War and because of their right to free speech. (School district had not proven the wearing of armbands was a disruption to the ordinary activities of the school day; school policy was discriminatory in that it banned only that one form of symbolic speech and allowed others—e.g., crosses, fraternity rings, etc.)
ii. 1989, Texas v. Johnson, Supreme Court ruled that state laws could not prohibit burning of the American Flag as part of a peaceful protest. Congress responded with a Flag Protection Act of 1989 that was subsequently struck down as unconstitutional in 1990 decision United States v. Eichman. Subsequent attempts to create an anti-flag-burning amendment have failed.
iii. 1992, R.A.V. v. City of St. Paul, Supreme Court ruled that a city ordinance banning “bias-motivated disorderly conduct” (e.g., burning a cross in someone else’s yard) was unconstitutional.
iv. 1995, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Supreme Court ruled the St. Patrick’s Day parade organizers could exclude homosexuals legally based on the right of free speech. Attempts to force their inclusion were unconstitutional.
e. Commercial Speech
i. Advertising statements—before the 1970s, Supreme Court had ruled that such speech was not protected by First Amendment
ii. 1976, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Supreme Court held “Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product for what reason and at what price.”
iii. Restrictions on commercial speech or advertising are valid so long as:
1. they seek to implement a substantial government interest
2. they directly advance that interest
3. they go no further than is necessary to accomplish that objective
4. e.g., the recent requirements that drug advertisements include information about possible side affects; restrictions on television ads for cigarettes, and until recently, hard liquor
f. Unprotected Speech
i. Obscenity—1964, Jacobellis v. Ohio, Justice Stewart declared “I know it when I see it.” Definitions of obscenity change over time
1. Definitional problems: 1973, Miller v. California, Supreme Court ruled that in order for speech/expression to be considered obscene, the following criteria must be met:
a. The average person must find that it violates contemporary community standards
b. The work as a whole appeals to a prurient (indecent, vulgar) interest in sex
c. The work shows patently offensive sexual conduct
d. The work lacks serious redeeming literary, artistic, political, or scientific merit
i. “Prurient interest” is not easily defined, for one may have an interest in sex from a medical or artistic perspective that is not particularly indecent or vulgar to them but to someone else is.
ii. “Prurient interest” is defined by community standards—but who defines what a community standard is?
iii. Result of the Miller decision has been even more confusion and mixed opinions on matters of obscenity.
2. 1990, Osborne v. Ohio, Supreme Court ruled that states may ban possession of child pornography even in private homes, because owning the material would perpetuate a trade in such material that is produced through the exploitation of children. Other rulings have upheld bans on sales of child pornography.
3. 1997, Reno v. American Civil Liberties Union, Supreme Court declared the Communications Decency Act of 1996 to be unconstitutional because it provided too much restraint on protected adult speech (the law regulated sales of internet pornography, making it a criminal act to post such material online and make it available to people under 18). Subsequent attempts by Congress to regulate such online indecency have been blocked by the Courts as well. –There is a difficulty in determining what the “community standards” are in cyberspace.
ii. Slander and Libel
1. Defamation of character is prohibited—no one may wrongfully hurt another’s good reputation (i.e., one cannot legally make intentionally false, defamatory statements about other people)
2. Slander is spoken defamation, public uttering of defamatory statements made to or within earshot of persons other than the defamed party. (Be careful what you say in public and to whom you say it, because even if accidentally overheard, the courts have ruled that it is public utterance and constitutes slander)
3. Libel is written defamation of a person’s character, reputation, business, or property rights. To some degree, the press is protected from libel suits.
a. Libel (or slander) of public figures (those who are generally in the public spotlight—viz., public officials, movie or television stars, pro sports athletes, and other people who become known to the public because of their positions) is generally tougher to prove
b. Public figures have access to media that private individuals do not have, so they are more easily able to defend themselves; statements made about public figures typically are related to matters of general public interest and are made about people who in some way or another affect us all. (hence, political ads can usually avoid slander/libel suits)
c. For libel of a public figure to stand up, the public figure must prove that there was actual malice (spread of willful and knowing falsehood or a reckless disregard for the truth) before they can collect damages (1964, New York Times v. Sullivan)
iii. Fighting Words and Hecklers’ Veto
1. Fighting words are any inflammatory utterances that may incite immediate breach of the peace or arouse an average person to violence—e.g., racial slurs, religiously bigoted statements, ethnic slurs, etc. (usually do not count as fighting words unless made in the presence of the offended party; hence a KKK rally is protected by its freedom of speech as is former Southern Baptist Convention President Jerry Vines’ comment in 2002 that Mohammad was a “demon-possessed pedophile.”)
2. Hecklers’ veto—boisterous and generally disruptive behaviour by listeners to public speeches that, in effect, vetoes the right of the public speaker to speak. (hence we see often people arrested for protesting at certain gatherings because they have created a nuisance)
iv. Campus Speech Codes
1. A University of Michigan speech code was found unconstitutional by a federal appeals court because it prohibited students’ right to free speech by restricting any speech that attacked persons on the basis of ethnicity, race, religion, gender, sexual orientation, creed, national origin, ancestry, age, marital status, handicap, or Vietnam veteran status.
2. Several universities still have speech codes (see book, page 124 for further examples that remain in force)
3. Critics of campus speech codes fear that campus censorship encourages only the liberal agenda’s definition of “good speech” to be protected while anything contrary to that liberal agenda is “bad speech” to be banned unduly.
4.
Proponents of these codes argue that they are necessary
to ensure equality among races, ethnic groups, genders, and so on.