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Standard and Short Edition:
1 American Political Culture
2 The Founding and the Constitution
3 Federalism
4 Civil Liberties
5 Civil Rights
6 Public Opinion
7 The Media
8 Political Participation and Voting
9 Political Parties
10 Campaigns and Elections
11 Groups and Interests
12 Congress
13 The Presidency
14 Bureaucracy In A Democracy
15 The Federal Courts
16 Government and Economy
17 Social Policy
18 Foreign Policy and Democracy
Texas Edition:
19 The Political Culture, People, and Economy of Texas
20 The Texas Constitution
21 Parties and Elections in Texas
22 Interest Groups, Lobbying, and Lobbyists
23 The Texas Legislature
24 The Texas Executive Branch
25 The Texas Judiciary
26 Local Government in Texas
27 Public Policy in Texas

Chapter 4: Civil Liberties

Chapter Review

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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.  In order to gain ratification, Federalists agreed to add a bill of rights.   The first Congress proposed twelve amendments and the states ratified ten of them 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.
  • 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 scope of individual freedoms and the limits of governmental power have changed over the past 200 years.
  • One important question that arose almost immediately was whether the bill of rights applies only to the national government or to the states, as well.
  • The First Amendment states that “Congress shall make no law . . .,” but is the only amendment that specifically mentions any level of government. In Barron v Baltimore (1833), the Supreme Court ruled that the Bill of Rights   applies only to the national government and does NOT limit state actions.

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

  • The Fourteenth Amendment, ratified in 1868, was an attempt to extend the Bill of Rights to the states.
  • Through a process of “selective incorporation,” the Supreme Court began to incorporate, or apply, parts of the Bill of Rights to the states.
  • 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.

 

The First Amendment and Freedom of Religion

I.    How does the First Amendment guarantee the non-establishment 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, and these restrictions were “incorporated” to limit states since the 1960s.
    • The Supreme Court has consistently applied the “wall of separation” approach when it comes to public schools, but has been less strict in other areas.
    • In 1971, the Supreme Court created the strict Lemon Test to decide under what conditions government funding of parochial schools would be accepted.
    • However, recent court rulings allowing public vouchers (taxpayer money) to go towards religious schools suggests that the court may be backing away from a strict separation of church and state.

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

  • The free exercise clause protects an individual’s right to believe in  whatever religion he or she chooses.
    • However, 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) can be prohibited by the government.
  • Congress in 1993 passed the Religious Freedom Restoration Act (RFRA), which set out to limit the power of state and local government to infringe on religious freedom. The Supreme Court ruled RFRA unconstitutional, however.

 

The First Amendment and Freedom of Speech and the Press

I.    What forms of speech are protected by the First Amendment? What forms are not protected?

  • The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech, or of the press.”
  • The Court ruled in 1938 that any attempt to limit speech would receive “strict scrutiny” from the court.
  • 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. Spending money for political advocacy is speech, but can be limited to curb the appearance of corruption.
  • 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.
  • With the exception to the broadcast media, the rules for freedom of speech applies to the press.
  • The media has the right to limit its own speech, as was illustrated by the cancellation of Bill Maher’s Politically Incorrect show after he said some politically incorrect statements about US policy.

 

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?

  • “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.”
  • The right to keep and bear Arms is based on an association with participation in state militias.
  • No gun control law has ever been declared a violation of the Second Amendment.

 

Rights of the Criminally Accused

I.    What is due process?

  • Due process are the procedural safeguards that protect the rights of the accused. 

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.
  • In Mapp v Ohio (1961), the Supreme Court ruled that evidence obtained by illegal searches should be excluded from 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.
  • Since 1976, the Court has consistently upheld state laws providing for capital punishment.  However, some argue that the large discrepancy between sentencing of whites and blacks who commit the same crimes is still a violation of the Eight Amendment.

 

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 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, Fifth and Ninth Amendments.
  • The Right to Privacy was established in 1965.  Connecticut convicted a Planned Parenthood director of providing medical advice about birth control, and the Supreme Court ruled that unconstitutional.

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

  • The right to privacy now includes most sexual freedom issues, such as the right to use birth control and to have an abortion and the right to engage in consensual homosexual activities (but not gay marriage),  The right to die is still a debated question, but the Court has ruled that there is not a right to assisted-suicide.

Thinking Critically About the Future of Civil Liberties and the War on Terror

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

  • The Rehnquist Court did not reverse many decisions made by the Warren or Burger Courts, but significantly limited their impact by reinterpreting precedent.

II. How has the Court ruled on rights of suspects in the War on Terror?

  • Despite being controlled by Conservative jurists, the Supreme Court has ruled against President Bush on some key areas regarding treatment of prisoners.
  • Which policies will be explicitly ruled unconstitutional will be decided in future court cases.

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