The Bill of Rights

The first 10 amendments to

the U. S. Constitution

Who determines what the Bill of Rights mean?

The Supreme Court makes rulings on the meaning

The Founding Fathers laid out the meaning in their papers and during the Constitutional Convention

The Supreme Court balances the rights of the individual with the needs of society

Who comes first – the Individual or Society?

THE FIRST AMENDMENT

Freedom of Speech

Freedom of Religion

Freedom of the Press

Freedom of Assembly

Right to petition the government

“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.”

Five Rights in the Amendment

Freedom of Religion

Origins of the First Amendment

The founding father most concerned--some might say obsessed—with free speech and free religious exercise was Thomas Jefferson, who had already implemented several similar protections in the constitution of his home state of Virginia. It was Jefferson who ultimately persuaded James Madison to propose the Bill of Rights, and the First Amendment was Jefferson's top priority.

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”

The Establishment Clause

The first clause in the First Amendment--"Congress shall make no law respecting an establishment of religion"--is generally referred to as the establishment clause. It is the establishment clause that grants "separation of church and state," preventing--for example--a government-funded Church of the United States from coming into being.

The Free Exercise Clause

The second clause in the First Amendment--"or prohibiting the free exercise thereof"--protects freedom of religion. Religious persecution was for all practical purposes universal during the 18th century, and in the already religiously diverse United States there was immense pressure to guarantee that the U.S. government would not require uniformity of belief.

Establishment and free exercise clause often conflict with each other

In schools, the religion issue is most prevalent

If a student raises his hand and says “teacher, can we say an opening prayer before this test”

If the teacher says:

“Yes”, It looks like establishment of religion

“No”, It is deigning a student free exercise.

GovernmentCan Cannot

Teach about religions in school

Allow voluntary prayer in many examples

Transport students to a religious school

Read Bible for culture or literacy content

Cannot promote religion

Set a state religion

Government cannot order a prayer

Teach religious doctrine in the school

Pay seminary teachers

Teach creationism

The individualCan Cannot

Choose whatever religion

Lead a prayer in most examples

Ask questions about religions

Worship who ever you want

Break the law and claim it is religious belief

Raise children without education

Deprave children of basic needs

Freedom of speech

“Congress shall make no laws abridging the freedom of speech”

Congress is also prohibited from passing laws "abridging the freedom of speech." What free speech means, exactly, has varied from era to era. It is noteworthy that within ten years of the Bill of Rights' ratification, President John Adams successfully passed an act specifically written to restrict the free speech of supporters of Adams' political opponent, Thomas Jefferson.

The individual can: Say any political belief

Protest (without getting out of control)

Say things about someone that are true

Burn the flag

Say racist and hate slogans

Free speech means someone might say something you disagree with

limits on the person

Threaten to blow up airplanes, schools or the president

Sexual harassment

Create too much social chaos

Extremely crude language in a public form

Disrespectful, vulgar language in schools

Hate crimes

Freedom of the press

“Congress shall make no law abridging the freedom of the press.”

During the 18th century, pamphleteers such as Thomas Paine were subject to persecution for publishing unpopular opinions. The freedom of press clause makes it clear that the First Amendment is meant to protect not only freedom to speak, but also freedom to publish and distribute speech.

the pressCan Cannot

Print any political position

Make fun of people, especially politicians

Expose wrongs by the government

Say things you might not agree with

Libel– intentionally injuring a person’s reputation by false facts

Disclose defense-security secrets

Detail how to make a certain weapons

Freedom of Assembly

Congress shall make no law abridging the people to peaceably assemble”

The "right of the people to peaceably assemble" was frequently violated by the British in the years leading up to the American Revolution, as efforts were made to ensure that radical colonists would not be able to foment a revolutionary movement. The Bill of Rights, written as it was by revolutionaries, was intended to prevent the government from restricting future social movements.

Individual Can Cannot

Protest

Parade (with a permit)

Parade chanting hate slogans

Gang members can congregate in public

Protest by throwing rocks and breaking windows

Hang out on private land against owners will—loitering

Teen curfew

Petition the Government

Petitions were a more powerful tool in the revolutionary era than they are today, as they were the only direct means of "redressing ... grievances" against the government; the idea of pursuing lawsuits against unconstitutional legislation was not feasible in 1789. This being the case, the right to petition was essential to the integrity of the United States. Without it, disgruntled citizens would have no recourse but armed revolution.

“Congress shall make no law abridging the people to petition the government for a redress of grievances”

2nd Amendment

“A well-regulated militia, being necessary to the security of a free state, the right of the people to bear arms shall not be infringed.

Origins:

Having been oppressed by a professional army, the founding fathers of the United States had no use for establishing one of their own. Instead, they decided that an armed citizenry makes the best army of all. General George Washington created regulation for the aforementioned "well-regulated militia," which would consist of every able-bodied man in the country.

Third Amendment

Origins:

British soldiers in their own homes. Given the tension that existed between British soldiers and colonial citizens, this was an unpleasant situation that the founding fathers did not want to repeat.

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.

Right to Privacy:

The Third Amendment was one of the amendments cited in Griswold v. Connecticut (1965) as evidence that the Constitution protects an implicit right to privacy.

Posse Comitatus:

The Posse Comitatus Act of 1878 prohibits federal troops from engaging in domestic operations except when authorized to do so by Congress or the Constitution. Although the Third Amendment does not directly address the principle of posse comitatus, it does provide a natural ideological precedent to it.

Fourth Amendment

The Fourth Amendment was written directly in response to British general warrants (called Writs of Assistance), in which the Crown would grant general search powers to British law enforcement official. These officials could search virtually any home they liked, at any time they liked, for any reason they liked or for no reason at all. Since many of the founding fathers were smugglers, this was an especially unpopular concept in the colonies.

“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.”

In practical terms, there is no means by which the government can exercise prior restraint on law enforcement officials. If an officer in Jackson, Mississippi wants to conduct a warrantless search without probable cause, the judiciary is not present at the time and can't prevent the search. This meant that the Fourth Amendment had little power or

relevance until 1914. In Weeks v. United States (1914), the Supreme Court established what has

been known as the exclusionary rule. The exclusionary rule states that evidence obtained through unconstitutional means is inadmissible in court and cannot be used as part of the prosecution's case. Before Weeks, law enforcement officials could violate the Fourth Amendment without being punished for it, secure the evidence, and use it at trial. The exclusionary rule establishes consequences for violating a suspect's Fourth

The Supreme Court has held that searches and arrests can be performed without a warrant under some circumstances. Most notably, arrests and searches can be performed if the officer personally witnesses the suspect committing a misdemeanor, or has reasonable cause to believe that the suspect has committed a specific, documented felony.

Although the implicit privacy rights established in Griswold v. Connecticut (1965) and Roe v. Wade (1973) are most often associated with the Fourteenth Amendment, the Fourth Amendment contains an explicit "right of the people to be secure in their persons" that is also strongly indicative of a constitutional right to privacy.

Fifth Amendment

Nobody can go to trial for a serious crime, except in a military setting, without first being indicted by a grand jury.

“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.”

The Fifth Amendment also mandates that defendants, once acquitted on a charge, may not be tried again for the same offense at the same jurisdictional level. Defendants may be tried again if the previous trial ended in a mistrial or hung jury, if there is evidence of fraud in the previous trial, or if the charges are not precisely the same--for example, the police officers who beat Rodney King, after being acquitted on state charges, were convicted on federal charges for the same offense.

The best known clause in the Fifth Amendment ("No person ... shall be compelled in a criminal case to be a witness against himself") protects suspects from forced self-incrimination. When a suspect invokes his or her Fifth Amendment right to remain silent, this is referred to in the vernacular as "pleading the Fifth." It should not by any means be taken as a sign of guilt, but it is generally portrayed as such in courtroom television dramas.

Just because a suspect has rights doesn't mean that a suspect knows about those rights. Officers have often used, and sometimes still use, a suspect's ignorance regarding his or her own civil rights to build a case. This all changed with Miranda v. Arizona (1966), the Supreme Court case that created the statement officers are now required to issue upon arrest--beginning with the words "You have the right to remain silent..."

Sixth Amendment

The "speedy trial" clause is intended to prevent long-term incarceration and detention without trial--which amounts to a prison sentence without a guilty verdict. The Sixth Amendment does not apply to the detainees at Guantanamo Bay, which serves as a good example of what some law enforcement communities might have considered doing to entire communities of low-income Americans were it not for the speedy trial clause.

“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 defence. “

Although public trials would ordinarily seem to be a condition that would work against the defendant, given the likely humiliating effect, they also ensure that the proceedings are not conducted in an underhanded way. One question currently under debate in the court system is whether televised trials are a good idea--do they further protect this right, or do they just exploit it?

Seventh Amendment

The Seventh Amendment requires jury trials in civil lawsuits where ordinary damages are sought.

The references to "common law" rely on a distinction found in the British court system between suits of common law, which were resolved by juries with damages awarded, and suits filed in the court of equity, which were resolved by judges with action taken to correct an unjust situation.

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of 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. “

Eighth Amendment

Defendants who are not released on bail have greater difficulty preparing their defense. They are also, in effect, punished with imprisonment for the duration that they are forced to remain in prison. For this reason, decisions regarding bail should not be made lightly. Bail is extremely high, and sometimes denied, if the client is being charged with an extremely serious offense and poses a flight risk and/or great potential danger to the community, but in the majority of criminal trials bail should be available and affordable.

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

NINTH AMENDMENT

When the Bill of Rights was first proposed, the major argument against it was that by specifying some rights that the government was not free to violate, there would be the implication that the government was free to violate any rights not specifically protected in the Constitution. The Ninth Amendment was written to address this concern.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

TENTH AMENDMENT

When the Tenth Amendment was originally proposed, the Bill of Rights did not apply to the states; it applied only to federal law. States had their own constitutions and their own bills of rights. Some states also had slavery, which was protected under the Tenth Amendment. The American Civil War made it clear that this wasn't a workable system, so the Fourteenth Amendment extended the Bill of Rights and made it applicable to both state and federal law. For this reason, the Tenth Amendment, while still relevant, no longer holds as much power as it once did.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

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