Review

A Brief History of the Bill of Rights

A bill of rights had been proposed during the Constitutional Convention in 1787, but there was considerable disagreement regarding the need for such protections. Anti-Federalists, such as James Madison, believed that the great object of the Constitution was to preserve popular government while protecting individuals from "unjust" majorities. Federalists, like Alexander Hamilton, believed that a bill of rights was unnecessary. The states ratified ten of the Amendments in 1791.

I. Does the Bill of Rights put limits only on the national government or does it limit the state governments as well?

• The purpose of the Bill of Rights is to limit governmental power over the individual, to place personal liberty beyond the reach of government.
• Each individual’s rights to life, liberty, and property; due process of law; and equal protection under the law are not subject to majority rule.
• Substantive liberties are restraints limiting what the government shall have the power to do, such as restricting freedom of speech, of religion, or of the press.
• Procedural liberties are restraints on how the government can act. For example, citizens are guaranteed due process of law when they are charged with a crime.
• The Bill of Rights states, “Congress shall make no law . . .” and thus only the powers of the national government are directly limited by the Bill of Rights.
• In 1833, the Supreme Court ruled that the Bill of Rights should not apply to state actions.

II. How and when did the Supreme Court nationalize the Bill of Rights?

• The U.S. Supreme Court began applying the Bill of Rights to state actions in 1897 by using the Fourteenth Amendment to prohibit states from taking private property for public use without just compensation. Not until 1925 did the Supreme Court apply the Bill of Rights to states for protecting individual liberties by ruling that freedom of speech is guaranteed at the state level.
• In 1937, the Supreme Court decided on “selective incorporation,” which means that only some of the liberties protected by the Bill of Rights applied to states and that each right would be considered individually.

The First Amendment and Freedom of Religion

I. How does the First Amendment guarantee the nonestablishment and free exercise of religion?

• The establishment clause provides that Congress shall make no law respecting an establishment of religion. This has created a “wall of separation” between church and state.
  • The Supreme Court has outlawed school prayer and Bible readings in public schools.
  • In 1971, the Supreme Court created the Lemon Test to decide under what conditions government funding of parochial schools would be accepted.
• The free exercise clause protects an individual’s right to believe and practice whatever religion he or she chooses.
  • The Supreme Court has never interpreted the free exercise clause to protect all conduct. Individuals must comply with laws, and thus polygamy and drug use (such as peyote) are prohibited.

II. In what way has the free exercise of religion become a recent political issue?

• Congress in 1993 passed the Religious Freedom Restoration Act (RFRA), which set out to undo the Supreme Court’s decision to restrict freedom of religion to law-abiding practices. The Supreme Court ruled RFRA unconstitutional.

The First Amendment and Freedom of Speech and the Press

• “Congress shall make no law . . . abridging the freedom of speech, or of the press.”
• Strict scrutiny places the burden on the government to prove that a restriction on speech or the press is constitutional.
• Political speech, symbolic speech (such as flag burning), speech plus (such as making a speech and handing out literature), and the rights of assembly and petition fall under the Strict Scrutiny Test and are strongly protected.
• Speech that presents a clear and present danger is not protected by the First Amendment. Today, political speech has been consistently protected, even when it is deemed “insulting” or “outrageous.”
• Libel and slander are not protected, obscenity is not protected, and commercial speech or advertising is not protected.

The Second Amendment and the Right to Bear Arms

I. Is the right to bear arms guaranteed by the Bill of Rights? How is its exercise restricted?

• The Bill of Rights states, “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.”
• American citizens have the right to bear arms, but this right can be regulated by state and federal law.

Rights of the Criminally Accused

I. What is due process?

• Due process has never been defined precisely. The Supreme Court has used it to mean “the gradual process of judicial inclusion and exclusion.”

II. How do the Fourth, Fifth, Sixth, and Eighth Amendments provide for the due process of law?

• The Fourth Amendment protects people against improper searches and seizures and arrest without a probable cause. It also bars evidence obtained from an illegal search from a trial.
• The Fifth Amendment gives people the right to remain silent, the right to a grand jury, and the right not to incriminate themselves during arrest or trial. It also prevents an individual from being tried twice for the same crime.
• The Sixth Amendment provides the right to counsel, the right to question witnesses, the right to a quick and impartial trial, and the right to know what the charges are.
• The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishment.

The Right to Privacy

I. What is the right to privacy? How has it been derived from the Bill of Rights?

• The right to privacy is the right to be let alone. This has been interpreted by the Supreme Court to entail that membership lists of organizations cannot be used to investigate people for criminal charges and that women should have access to birth control and abortions.
• The right to privacy is not mentioned in the Constitution or the Bill of Rights. Rather the right to privacy has been taken from the “zone of privacy” created by a combination of the Third, Fourth, and Fifth Amendments

II. What forms does the right to privacy take today?

• The right to privacy now includes issues such as abortion and birth control rights, gay and lesbian rights, and the right to die.

The Future of Civil Liberties

I. What is the likelihood that the Supreme Court will try to reverse the nationalization of the Bill of Rights?

• The Rehnquist Court has not actually reversed important decisions made by the Warren or Burger Courts.
• The current balance of justices makes any significant reversals unlikely.