• Although some sought to add a Bill of Rights to the Constitution at the Constitutional Convention, Alexander Hamilton and other Federalists argued against its adoption, claiming that a Bill of Rights was unnecessary and even potentially dangerous to the rights of the people.
• Recognizing the need to appease Antifederalist complaints, James Madison fought for amending the Constitution to include specific rights protections.
• Eventually the Bill of Rights was adopted and ratified, defining the limits of government and the essential liberties of American citizens.
• The Bill of Rights actually contains provisions that are better understood as civil liberties, the protections of citizens from improper governmental action.
• Civil rights, the claims citizens are entitled to make on governmental protection, became part of the Constitution in 1868 with the adoption of the Fourteenth Amendment, which promised all citizens the “equal protection of the laws.”

2. Civil Liberties: Nationalizing the Bill of Rights What role has the Bill of Rights played throughout American political history? Does the Bill of Rights protect citizens from both the national and state governments? By what process was the Bill of Rights “nationalized”?

• The rights in the Bill of Rights are better understood as “civil liberties” because they protect citizens' freedom from improper government action. The Bill of Rights guaranteed a private sphere of personal liberty free of governmental restrictions, but the question remained: Did the Bill of Rights restrain the state governments as well as the national government?
• In Barron v. Baltimore (1833), the Supreme Court established the principle of “dual citizenship,” holding that persons were citizens of the national government and state government separately and that the Bill of Rights thus did not apply to the states.
• Ratified in 1868, the Fourteenth Amendment held that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United Sates; nor shall any State deprive any person of life, liberty, or property, without due process of law.” Despite this language, in the Slaughter-House cases, the Supreme Court continued to apply the concept of “dual citizenship,” setting up a process of selective incorporation whereby the Court would selectively “incorporate” rights from the Bill of Rights into the Fourteenth Amendment, thus nationalizing that particular right, but only on a case-by-case basis.
• By the 1960s, the Supreme Court had nationalized many rights, including the right to privacy, expanding the reach and power of the national government vis-à-vis the states.

3. The Bill of Rights Today How are the liberties and rights embodied in the Bill of Rights applied today? What are the most salient controversies involving each of these provisions? And how has the Supreme Court ruled?

• In regard to religion, the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
  • The establishment clause has been interpreted in at least three different ways: (1) that the government cannot establish an official church; (2) that the government cannot take sides among competing religions but can provide assistance to religious institutions so long as it shows no favoritism for any particular religion; and (3) that the government should observe a strict “wall of separation” between church and state.
  • The First Amendment’s free exercise clause also guarantees citizens’ rights to believe and practice whatever religion they choose, though here too the Supreme Court has reserved for itself the right to balance religious claims against public policy.
• The First Amendment also provides free speech and freedom of the press protections. When difficult choices arise regarding, for example, speech that constitutes “clear and present danger,” symbolic speech, libel and slander, obscenity, “fighting words,” and “hate speech,” the judiciary establishes precedents and rules that determine what speech is or is not constitutionally protect.
• The Second Amendment is a point of great controversy in contemporary American politics. Although it has largely been fought in the legislative arena and the actual constitutional provision rarely has been decided by the courts, in District of Columbia v. Heller (2008) the Supreme Court overruled a District of Columbia gun control ordinance.
• Many of the rights in the Bill of Rights concern individuals accused of a crime.
  • The Fourth Amendment provides for citizens’ rights against unreasonable searches and seizures, which the court has taken to mean that illegally obtained evidence cannot be used at trial.
  • The Fifth Amendment ensures: that grand juries play important roles in federal criminal cases; that individuals are protected against double jeopardy (that is, they cannot be tried twice for the same crime); allows citizens to “take the Fifth” and refuse to testify against themselves; and protects property rights in its eminent domain clause.
  • The Sixth Amendment ensures, among other things, that citizens have the right to counsel in criminal trials.
  • The Eighth Amendment prohibits “excessive bail,” “excessive fines,” and “cruel and unusual punishment.”
• In Griswold v. Connecticut, the Supreme Court held that the Bill of Rights contained a “penumbral” right to privacy that would protect a sphere of private activities including birth control, abortion, the rights of homosexuals, and the right to die in physician-assisted suicides.
• The difficulties of balancing state interests with citizens’ many liberties and rights have increased since the September 11, 2001, terrorist attacks as the Patriot Act has been perceived as a threat to liberty and as questions over the use of military tribunals, the president’s power to declare individuals “enemy combatants,” and habeas corpus rights have been heard before federal courts.

4. Civil Rights What roles has the national government played in providing citizens with the “equal protection of the laws” in the African American civil rights movements and in recognizing other rights claims? How has this changed the balance of federal power? How has it altered the relationship between the government and the individual?

• In Plessy v. Ferguson (1896), the Supreme Court held that laws that enforced segregation of black and white citizens satisfied the Fourteenth Amendment protections so long as the facilities were equal; this “separate but equal” rule was the precedent that dominated civil rights law during the first half of the twentieth century.
• During the first half of the twentieth century, the Supreme Court extended the Plessy ruling but defined more strictly the criterion of what constituted “equal” facilities. The “separate but equal” ruling was eventually overturned in Brown v. Board of Education, wherein the court ruled that separate facilities were “inherently unequal.”
• Although there was a great deal of resistance to the Brown decision (especially in the South), after that ruling, the national government was poised to intervene with strict regulatory policies against the discriminatory actions of state or local governments and the private sector.
• Moreover, the Brown decision inspired greater activism in the civil rights movement’s civil disobedience and passive resistance efforts, eventually sparking congressional action to expand civil and voting rights for African Americans.
• Since the passage of major civil rights legislation in 1964, the civil rights struggle has been expanded to questions of employment discrimination and universalized to include women, Latinos, Asian Americans, Native Americans, the disabled, and the aged, as well as gays and lesbians.
• Many of the political battles concerning civil rights now center on the issue of affirmative action (that is, compensatory action to overcome the consequences of past discrimination and to encourage greater diversity). In 1978, the Supreme Court challenged the constitutionality of affirmative action on the grounds that, under some circumstances, it constituted reverse discrimination. This is still a very active issue as the Supreme Court continues to examine educational admission standards and refines its definition of what is and what is not constitutional.