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The Bill of Rights

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Influences from English Law

The Magna Carta

• Defined the power of the monarchy

• Protected barons’ rights to property, trial by their peers, and taxation only by consent

Magna Carta (1215)

Glorious Revolution (1689)

• Placed Parliament above the monarchy

• Gave Parliament freedom of speech

• No quartering of troops in people’s homes

• No punishment without cause

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The First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to

assemble, and to petition the government for a redress of grievances.”

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First Amendment:Freedom of Religion

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”Two provisions

• Establishment clause: government cannot establish an official religion

• Free-exercise clause: government cannot prevent anyone from practicing a religion

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First Amendment: Origins of Religious Freedom

• In many 17th-century European countries, Catholicism was the official religion. To worship in any other way was a considered a crime against the state, resulting in a loss of liberties and often punishable by death.

Established religious settlements with little tolerance for religious differences

The Puritans banished those who disagreed with their religious rule and, in some cases, put nonbelievers to death.

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First Amendment: Religious Freedom in Colonial America

• The novel concept of not having any official religion strongly influenced the Framers of the Bill of Rights

• Framers’ views on separation of church and state• Protected religion from government influence• Protected individuals’ right to worship as they

wanted

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First Amendment: Establishment and Free-Exercise Clauses

Two ways the courts view the establishment and free-exercise clauses:

• Broad view: No public aid for any religion by either federal or state governments

• Narrow view: Government prohibited only from giving preference to one religion over another

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Discussion Questions

1. List and describe the two clauses in the First Amendment’s freedom of religion.

2. Why do you think the Puritans became intolerant of other religious beliefs, even though they had been banished from England for their own beliefs?

3. What do you think was the Framers’ intent in writing the establishment and free-exercise clauses in the First Amendment?

4. Today, are people in America tolerant of all religions ?5. Was the passage of Proposition 8 influenced by religion? If so,

does this conflict with the establishment or free-exercise clause?

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First Amendment: Government Limitations on Free Speech

Alien and Sedition Acts passed under John Adams - essentially outlaws criticism of the gov’t. Representative from VT convicted under it.

• Dissenters during Civil War were jailed without a trial (later deemed unconstitutional)

• World War I: Espionage Act of 1917 - prevented anyone from calling for resistance to the U.S. war effort.

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First Amendment: Government Limitations on Free Speech

(continued)• Schenk v. U.S. - Espionage Act

did not violate First Amendment • “Clear and present danger”

requirement in order to limit speech

• “would not protect a man in falsely shouting fire in a theater and causing a panic.”

• After WWI, many states passed laws that criminalized dissent

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First Amendment: Free-Speech Court Decisions

• Expanded from political speech to include symbolic speech

• Tinker v. Des Moines School District (1967): free speech in schools

• suspended from school for refusing to remove the black armbands worn to protest the war - ruled unconstitutional

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First Amendment: Free-Speech Court Decisions (continued)

• Texas v. Johnson (1989): burning the U.S. flag. The court held that the government may not prohibit the expression of an idea simply because it offends society

• United States v. Eichman (1990): reaffirmed right to burn flag as free speech. The ruling reminded Congress that only a constitutional amendment—not the mere passage of a law—can reverse a Supreme Court decision

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First Amendment: Supreme Court Tests of Press Freedom

Libel or informing the public?• New York Times Co. v. Sullivan (1964) small errors of fact

did not justify a libel suit brought by a public official. An official must prove that the publication printed the errors with malice—that is, printing false statements knowingly or without care as to their truthfulness.

Threat to national security or the public’s right to know?• New York Times Co. v. United States (1971)—the

“Pentagon Papers” case - a secret government analysis of the causes of the Vietnam War. Must prove clear and present danger.

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Discussion Questions

• During times of crisis such as war or natural disasters, should people be allowed to criticize the government? When has such expression been restricted in U.S. history?

• Should other types of expression such as burning the flag be protected as free speech? Why or why not?

• Should the government pass laws that criminalize making disparaging or insulting remarks about a particular race, gender, or religion?

• If you believe what the government is doing is wrong, should you be able to protest?

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The Second Amendment

“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.”

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Second Amendment:Varying Interpretations

“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.”

• Who has the right to bear arms?

• Does the Second Amendment provide each individual with the right to own a gun, or merely allow each state to maintain a well-regulated militia?

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Second Amendment:Court Decisions

• U.S. v. Miller (1939): The federal government has the right to require that firearms be registered.

• Quilici v. Morton Grove (1982): A city in Illinois made a law prohibiting the possession of handguns in the home. Court refused to hear the case.

A sawed-off shotgun, similar to the type under question in U.S. v. Miller. Ruled

not part of a well regulated militia

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The Third Amendment

“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.”

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Third Amendment: Today• Troops can be quartered in private homes during wartime.

• No Supreme Court decisions directly concerning quartering troops in people’s homes

• Courts have cited the Third Amendment as a further protection of the right to privacy from government intrusion

Union troops were quartered in private homes during the Civil War

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The Fourth Amendment

“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,

supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or

things to be seized.”

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Fourth Amendment:Tests and Trials

• Supreme Court cases have limited what searches may entail:• Katz v. United States (1967):

the “reasonable expectation of privacy” doctrine. It’s reasonable to expect privacy while you’re on the phone.

• California v. Greenwood (1988): garbage bags are fair game for seizure

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Fourth Amendment: Exclusionary Rule

Supreme Court cases have further clarified the meaning of unreasonable search or seizure:

• Weeks v. United States (1914): established the “exclusionary rule” - evidence gathered illegally cannot be used as evidence

• Silverthorne Lumber Co. v. United States (1920): “fruit of the poisonous tree” doctrine - any confession obtained from using illegally seized evidence is inadmissible

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Fourth Amendment: Exceptions to the Exclusionary Rule

• United States v. Leon (1984): “good faith” doctrine - if police were unaware they were violating a right

• Nix v. Williams (1984): “inevitable discovery” doctrine - if it isn’t listed in a warrant but was in plan view - it’s okay

• The exclusionary rule is not intended to let criminals go free, but to penalize police for misconduct

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Fourth Amendment: *Other Exceptions to the

Exclusionary Rule - no warrant needed

Automobiles

Border searches

Exigent circumstances

Can be searched with probable cause

Perceived emergency (screams), crime committed in plan view

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Fourth Amendment: Other Exceptions to the

Exclusionary Rule (continued)

Plain view

Stop and frisk

If you’re acting suspiciously, it’s

okay to frisk without a warrent

Student searches

Don’t need probable cause to search your

locker or backpack/purse - if they think it will turn

up evidence of crime

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Discussion Questions1. What types of things does the Fourth Amendment protect from

unreasonable searches? How does the amendment limit the power of the government?

2. What are some advantages and disadvantages of the exclusionary rule?

3. Do you think exceptions to the exclusionary rule are justified? Why or why not?

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The Fifth Amendment

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law; nor shall private property be taken for

public use, without just compensation.”

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Fifth Amendment:Common Legal Terms

• Infamous crime: a serious criminal offense

• Double jeopardy: being tried twice for the same crime

• “Taking the fifth”: invoking the right against self-incrimination

• Due process of law

• Substantive - the law needs to be fair

• Procedural - the process needs to be fair

• Just compensation for imposing “eminent domain”

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Fifth Amendment: Supreme Court Decisions

• Miranda v. Arizona (1966): right against self-incrimination

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The Sixth Amendment

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.”

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Sixth Amendment: Due Process and Rights

• Preserves procedural due process

• The six provisions• Right to a speedy and public trial

• Right to a jury trial in the same locale as the crime

• Right to be informed of all charges

• Right to confront accusers in court

• Right to produce supporting evidence or witnesses

• Right to legal counsel

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Sixth Amendment: Confrontation of Witnesses

“…to be confronted with the witnesses against him;…”

• Facing opposing witnesses helps provide for honest testimony

• Also enables the accused to challenge witnesses’ testimony

• In certain sensitive matters, testimony may be given through electronic means

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Seventh Amendment

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved, and no fact tried by a jury, shall be

otherwise reexamined in any court of the United States, than according to the rules of the common law.”

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The Eighth Amendment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.”

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Eighth Amendment: Changing Interpretations

• Standards for “cruel and unusual” punishment have changed

• Inconsistent application of capital punishment The infamous “ball and chain”—once

common, now considered “cruel and unusual punishment”

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Eighth Amendment: Changing Interpretations (continued)

• Capital punishment questioned in the 1960s• No evidence that capital punishment

deters crime

• Inconsistent and sometimes racist sentencing by juries

• Cost of appeals and execution greater than of life in prison

• Recent discoveries of innocence due to DNA analysis

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Eighth Amendment: Supreme Court Decisions

• punishment standards evolve with society - “evolving standards of decency”

• Furman v. Georgia (1972): capital punishment as it then existed violated Eighth Amendment

• Gregg vs. Georgia (1976): death penalty not necessarily unconstitutional, though automatic sentencing is

Does the death penalty qualify

as “cruel and unusual

punishment”?

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Eighth Amendment: More Supreme Court Decisions• Coker v. Georgia (1977): struck down laws that

automatically gave the death penalty to rape convictions

• Stanford v. Kentucky (1989): permits executing 16- and 17-year-old minors.

• Atkins v. Virginia (2002): bars executing the mentally challenged

• Roper v. Simmons (2005): court reverses itself on executing minors

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Discussion Questions

1. What does the phrase “evolving standards of decency” mean?

2. How have the standards defining cruel and unusual punishment changed over the years? Why do you think this has happened?

3. Why has capital punishment become so controversial since the 1960s?

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The Ninth Amendment

“The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others

retained by the people.”

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Ninth Amendment: Differing Views

Two views of the Ninth Amendment

The courts should protect people’s rights

The legislature should protect people’s rights

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Ninth Amendment: History

• Debate at Convention of 1787: how to include all of the people’s rights in Constitution

• Actual listing of rights rejected as impractical

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Ninth Amendment: Debate and Controversies

• Enumerated rights (those written): religion, speech, due process

• 9th amendment implies and protects unenumerated rights: privacy, travel, voting

• Protections for unenumerated rights implied by other parts of the Bill of Rights

• Opponents state the Ninth Amendment doesn’t create rights where they don’t exist

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Ninth Amendment: Supreme Court Decisions

• Kent v. Dulles (1958): right to travel - man refused passport to England because he was associated with the communist party

• Griswold v. Connecticut (1965): right to privacy for consenting adults. Struck down law prohibiting the use of contraceptives by married couples.

• Harper v. Virginia Board of Elections (1966): voting rights. Struck down poll tax laws

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The Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are

reserved for the States respectively, or to the people.”

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Tenth Amendment: Supreme Court Cases (continued)

• Brown v. Board of Education (1954): desegregated public schools

• United States v. Lopez (1995): power of state over federal government to regulate gun possession. Struck down Gun-Free School Zones Act of 1990

Thurgood Marshall (center), chief lawyer for the NAACP in the Brown

case

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Discussion Questions

1. What is the purpose of the Ninth Amendment? Why do you think the Bill of Rights includes this amendment?

2. Explain and give examples of enumerated and unenumerated rights. Describe the controversy over the court’s recognition of unenumerated rights.

3. Explain how the Tenth Amendment differs from the previous nine amendments in its protection of power.

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Discussion Questions (continued)

5. What is the relationship between the Tenth Amendment and federalism? How can federalism cause tension between the federal and state governments?

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The Promise in the Bill of Rights

• Written rights don’t guarantee rights

• The Bill of Rights continued the dialogue on liberty and freedom discussed at the Federal convention

• 14th amendment: Federal and state governments are held accountable to not violate people’s rights

• Democracy is best practiced by people defending their rights

• The Supreme Court serves as the forum for continued dialogue over people’s rights and freedoms