Chapter Study Outline

A Brief History of the Bill of Rights

  1. Civil liberties are protections from improper government action. Some of these restraints are substantive liberties, which put limits on what the government shall and shall not have power to do. Other restraints are procedural liberties, which deal with how the government is supposed to act. Civil liberties require a delicate balance between governmental power and governmental restraint.
  2. Despite the insistence of Alexander Hamilton that a bill of rights was both unnecessary and dangerous, adding a list of explicit rights was the most important item of business for the 1st Congress in 1789.
  3. The Bill of Rights, generally considered to be the first ten amendments to the Constitution, is made up of provisions that protect citizens from improper government action.
  4. In 1833, the Supreme Court found that the Bill of Rights limited only the national government and not state governments.
  5. Although the language of the Fourteenth Amendment seems to indicate that the protections of the Bill of Rights apply to state governments as well as to the national government, for the remainder of the nineteenth century the Supreme Court (with only one exception) made decisions as if the Fourteenth Amendment had never been adopted.
  6. As of 1961, only the First Amendment and one clause of the Fifth Amendment had been “selectively incorporated” into the Fourteenth Amendment. After 1961, however, most of the provisions of the Bill of Rights were gradually incorporated into the Fourteenth Amendment and applied to the states.

The First Amendment and Freedom of Religion

  1. The establishment clause of the First Amendment has been interpreted in several ways, one being the strict separation of church and state. But there is significant disagreement about how high that wall is and of what materials it is composed.
  2. The Supreme Court’s test from Lemon v. Kurtzmann determined that government aid to religious schools would be accepted as constitutional if (1) it had a secular purpose, (2) its effect was neither to advance nor to inhibit religion, and (3) it did not entangle government and religious institutions in each other’s affairs.
  3. The free exercise clause protects the right to believe and to practice whatever religion one chooses; it also involves protection of the right to be a nonbeliever. The Supreme Court has taken pains to distinguish between religious beliefs and actions based on those beliefs.

The First Amendment and Freedom of Speech and the Press

  1. Freedom of speech and the press have a special place in American political thought. Democracy depends on the ability of individuals to talk to each other and to disseminate information and ideas.
  2. The extent and nature of certain types of expression are subject to constitutional debate. The Supreme Court must balance the protection of political speech with issues such as national security and fairness in campaign finance.
  3. Among the forms of speech that are absolutely protected are the truth, political speech, symbolic speech, and “speech plus,” which is speech plus a physical activity such as picketing. The forms of speech that are currently only conditionally protected include libel and slander; obscenity and pornography; fighting words and hate speech; and commercial speech.
  4. Freedom of speech generally implies freedom of the press. With the exception of the broadcast media, which are subject to federal regulation, the press is protected under the doctrine of prior restraint (efforts by a governmental agency to block the publication of material it deems libelous or harmful in some other way; in other words, censorship).

The Second Amendment and the Right to Bear Arms

  1. In constitutional terms, the Second Amendment may protect a citizen’s right to bear arms, but this right can be regulated by both state and federal law.
  2. In 2008, the Supreme Court struck down a District of Columbia law that was designed to make it nearly impossible for private individuals to legally purchase firearms. The Court declared in the Heller case that the Second Amendment protects an individual’s right to possess a firearm for private use.
  3. In June 2010, the Supreme Court incorporated the Second Amendment and applied it to the states when it announced its verdicts in the cases of McDonald v. Chicago. The Court declared that the right to keep and bear arms was protected from state as well as federal action.

Rights of the Criminally Accused

  1. The Fourth, Fifth, Sixth, and Eighth amendments, taken together, are the essence of the due process of law, the right of every citizen against arbitrary action by national or state governments.
  2. The purpose of due process is to equalize the playing field between the accused individual and the all-powerful state. Due process helps define the limits of government action against the personal liberty of every citizen.
  3. One of America’s traditional and most strongly held juridical values is that “it is far worse to convict an innocent man than to let a guilty man go free.”
  4. The Fourth Amendment protects against unreasonable searches and seizures. One of the most important procedures that has grown out of the Supreme Court’s interpretation of the Fourth Amendment is the exclusionary rule, which prohibits evidence obtained during an illegal search from being introduced in a trial.
  5. The Fifth Amendment requires a grand jury for most crimes, protects against double jeopardy, and provides that you cannot be forced to testify against yourself.
  6. Miranda v. Arizona advanced the civil liberties of accused persons not only by expanding the scope of the Fifth Amendment clause covering coerced confessions and self-incrimination but also by confirming the right to counsel, a provision of the Sixth Amendment.
  7. The other fundamental clause of the Fifth Amendment is the takings clause, which extends to each citizen a protection against the “taking” of private property “without just compensation.” The purpose of the takings clause is to put limits on the power of eminent domain through procedures that require a showing of a public purpose and the provision of fair payment for the taking of someone’s property.
  8. The Sixth Amendment requires a speedy trial and the right to witnesses and counsel.
  9. The Eighth Amendment prohibits cruel and unusual punishment. One of the greatest challenges in interpreting this provision consistently is that what is considered “cruel and unusual” varies from culture to culture and from generation to generation.

The Right to Privacy

  1. In the case of Griswold v. Connecticut, the Supreme Court found a right of privacy in a combination of the Third, Fourth, and Fifth amendments to the Constitution. This right was confirmed and extended in 1973 in the case of Roe v. Wade.
  2. Cases concerning the scope of right to privacy have included debates over birth control, abortion, gay and lesbian rights, and withdrawal of life-sustaining medical support.

Thinking Critically about the Future of Civil Liberties

  1. The tension between liberty and national security is evident in debates over government action in the wake of 9/11.