The Unalienable RightsSection PreviewOBJECTIVES WHY IT MATTERS POLITICAL

DICTIONARY1. Explain how Americans' commitment tofreedom led to the creation of the Bill ofRights.

2. Understand that the rights guaranteedby limited government are not absolute.

3. Show how federalism affects individualrights.

4. Describe how the 9th Amendment helpsguarantee individual rights.

The United States was founded, inpart, to ensure individual rightsagainst the power of government.However, these rights can be re-stricted when they come into conflictwith the rights of others. The DueProcess Clause of the 14thAmendment prevents the States fromabridging rights guaranteed in theConstitution's Bill of Rights.

* Bill of Rights* civil liberties* civil rights* alien* Due Process Clause* process of incorporation

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ave you ever heard of Walter Barnette?Probably not. How about Toyosaburo

Korematsu? Dolloree Mapp? Clarence EarlGideon? Almost certainly, you have the sameanswer: No.

Walter Barnette was a Jehovah's Witness whotold his children not to salute the flag or to recitethe Pledge of Allegiance. Toyosaburo Korematsuwas a citizen of the United States interned by theFederal Government during World War II.Dolloree Mapp was fined $25 for possessing"lewd and lascivious books." Finally, ClarenceEarl Gideon was sentenced to prison for break-ing into and entering a poolroom.

You will encounter these names again overthe next few pages. Each of them played animportant part in building and protecting therights of all Americans.

A Commitment to FreedomA commitment to personal freedom is deeplyrooted in America's colonial past. Over manycenturies, the English people had waged a con-tinuing struggle for individual rights, and theearly colonists brought a dedication to thatcause with them to America.

Their commitment to freedom took root here,and it flourished. The Revolutionary War wasfought to preserve and expand these very rights:

Chapter 19 Section 1

the rights of the individual against government. Inproclaiming the independence of the new UnitedStates, the founders of this country declared:

IlWe hold these truths to beself-evident, that all men are

created equal, that they are endowed by theirCreator with certain unalienable Rights, thatamong these are Life, Liberty and the pursuitof Happiness. That to secure these rights,Governments are instituted among Men .... "

-Declaration of Independence

The Framers of the Constitution repeatedthat justification for the existence of govern-ment in the Preamble to the Constitution.

The Constitution, as it was written inPhiladelphia, contained a number of importantguarantees. The most notable of these can befound in Article I, Sections 9 and 10, and inArticle III. Unlike many of the first Stateconstitutions, however, the United StatesConstitution did not include a general listing ofthe rights of the people.

That omission raised an outcry. The objec-tions were so strong that several States ratifiedthe Constitution only with the understandingthat such a tisting would be added immedi-ately. The first session of the new Congress metthat demand with a series of proposed amend-ments. Ten of them, known as the Bill of Rights,

were ratified by the States andbecame a part of the Constitution onDecember 15, 1791. Later amend-ments, especially the 13th and the14th, have added to the Constitution'sguarantees of personal freedom.

The national Constitution guar-antees both rights and liberties tothe American people. The distinc-tion between civil rights and civilliberties is at best murky. Legalscholars often disagree on the mat-ter, and the two terms are quiteoften used interchangeably.

However, you can think of thedistinction this way: In general,civil liberties are protections against govern-ment. They are guarantees of the safety ofpersons, opinions, and property from arbi-trary acts of government. Examples of civilliberties include freedom of religion, freedomof speech and press, and the guarantee of afair trial.

The term civil rights is sometimes reservedfor those positive acts of government that seekto make constitutional guarantees a reality forall people. From this perspective, examples ofcivil rights include the prohibitions of discrim-ination on the basis of race, sex, religiousbelief, or national origin, set out in the CivilRights Act of 1964.

.• Celebrating the Bill of Rights A crowd gathers for Bill of Rights Day in NewYork City, December 15, 1941-eight days after the attack on Pearl Harbor.

Limited GovernmentGovernment in the United States is limitedgovernment.' The Constitution is filled withexamples of this fact. Chief among them areits many guarantees of personal freedom.Each one of those guarantees is either an out-right prohibition or a restriction on the powerof government to do something.

All governments have and use authority overindividuals. The all-important differencebetween a democratic government and a dicta-torial one lies in the extent of that authority. Ina dictatorial regime, the government's powersare practically unlimited. The government regu-larly suppresses dissent, often harshly. In theUnited States, however, governmental authorityis strictly limited. As Justice Robert H. Jacksononce put the point:

" If there is any fixed star inour constitutional constellation,

it is that no official, high or petty, canprescribe what shall be orthodox in politics,nationalism, religion, or any other matter ofopinion or force citizens to confess by wordor act their faith therein. 11

- West Virginia Board of Education v.

Barnette, 1943

Rights Are Relative, Not AbsoluteThe Constitution guarantees many differentrights to everyone in the United States. Still,no one has the right to do anything he or shepleases. Rather, all persons have the right todo as they please as long as they do notinfringe on the rights of others. Thus, eachperson's rights are relative to the rights ofevery other person.

To illustrate the point: Everyone in the UnitedStates has a right of free speech, but no oneenjoys absolute freedom of speech. A person canbe punished for using obscene language, or forusing words in a way that causes another personto commit a crime-for example, to riot or todesert from the military. The Supreme Courtdealt with this point in a recent case,ApolloMedia Corporation v. United States,1999. There, it unanimously upheld a federallaw that makes it illegal for anyone to sendobscene and intentionally annoying e-mail viathe Internet.

Justice Oliver Wendell Holmes put therelative nature of each person's rights this way:

Civil Liberties: First Amendment Freedoms 533 r...-£Ei

liThe most stringen~protection of free speech would

not protect a man in falsely shouting fire in atheatre and causing a panic. "

-Schenck v. United States, 1919

When Rights ConflictSometimes different guarantees of rights come intoconflict with one another. One common example:freedom of the press versus the right to a fair trial.

In one famous case, Dr. Samuel Sheppard ofCleveland, Ohio, had been convicted of murder-ing his wife. His lengthy trial was widely coveredin the national media. On appeal, Sheppardclaimed that the highly sensational coverage haddenied him a fair trial. The Supreme Courtagreed. In Sheppard v. Maxwell, 1966, the Courtrejected the free press argument, overturnedSheppard's conviction, and ordered a new trial.

To Whom Are Rights Guaranteed?Most constitutional rights are extended to allpersons. The Supreme Court has often heldthat "persons" covers aliens as well as citizens.Aliens are people who are not citizens of thecountry in which they live. Not all rights aregiven to aliens, however. Thus, the right to travelfreely throughout the country is guaranteed to allcitizens.' But the travel of aliens can be restricted.

After the bombing of Pearl Harbor by Japan,all persons of Japanese descent living on thePacific Coast were evacuated-forcibly moved-

.• The Fugitive Sheppard v. Maxwell gave rise to a popular movie,starring Tommy Lee Jones (above) as a police officer who relentlesslypursues an escaped prisoner and former surgeon (played by HarrisonFord) accused of murdering his wife. The story of Dr. Sheppard alsoinspired an action-adventure television series during the 1960s.

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inland. Many suffered economic and other hard-ships. In 1944 the Supreme Court reluctantlyupheld the forced evacuation as a reasonablewartime emergency measure.! Still, the relocationwas strongly criticized over the years. In 1988 theFederal Government admitted that the wartimerelocation had been both unnecessary and unjust.Congress voted to pay $20,000 to each livinginternee. It also declared: "On behalf of thenation, the Congress apologizes."

Today's war on terrorism has created a politi-cal climate not unlike that of the early days ofWorld War II. Did the treatment of JapaneseAmericans then teach us something for today?Will the rights of Muslims and others of MiddleEastern descent be respected by government as itfights terrorism here and abroad?

Federalism and Individual RightsFederalism is a complicated governmentalarrangement. It produces any number of prob-lems-including a very complex pattern of guar-antees of individual rights in the United States.

The Bill of RightsRemember, the first ten amendments were origi-nally intended as restrictions on the new NationalGovernment, not on the already existing States.And that remains the fact of the matter today.'

To illustrate this important point: The 5thAmendment says that no person can becharged with "a capital, or otherwise infa-mous crime" except by a grand jury. As a partof the Bill of Rights, this provision appliesonly to the National Government. The Statesare free to use the grand jury to bring accusa-tions of serious crime-or, if they prefer, theycan use some other process for that purpose.In fact, the grand jury is a part of the criminal

"see the two Privileges and Immunities clauses, in Article IV,Section 2, and the 14th Amendment. The guarantee does not extendto citizens under some form of legal restraint-for example, in jailorout on bail awaiting trial.

2Korematsu v. United States, 1944. However,on the same day theCourtheld, in Exparte Endo, that once the loyaltyof any citizen interneehad been established,no restriction could be placed on that person'sfreedom to travel that was not legally imposedon all other citizens.

3The Supreme Court first held that the provisions of the Bill ofRights restrict only the National Government in Barron v. Baltimore,1833. This was the first case in which the point was raised.The Courthas followed that holding (precedent) ever since.

• This part of The Great Wall of Los Angeles, a half-mile-Iong mural, depicts Japanese internment duringWorld War II. Critical Thinking How does the artist convey the conditions and feelings of the internees?

justice system in only about half of the Statestoday; see pages 577-578 and 704.

The Modifying Effectof the 14th AmendmentAgain, the provisions of the Bill of Rights applyagainst the National Government, not againstthe States. This does not mean, however, that theStates can deny basic rights to the people.

In part, the States cannot do so because eachof their own constitutions contains a bill ofrights. In addition, they cannot deny these basicrights because of the 14th Amendment's DueProcess Clause. It says:

C;;:,;;;.;:,ti"on IINo State shall ... depriveany person of life, liberty, or

property, without due process of law .... II-United States Constitution

The Supreme Court has often said that the14th Amendment's Due Process Clause meansthis: No State can deny to any person any rightthat is "basic or essential to the Americanconcept of ordered liberty."

But what specific rights are "basic or essen-tial"? The Court has answered that question ina long series of cases in which it has held thatmost (but not all) of the protections in the Billof Rights are also covered by the 14th Amend-ment's Due Process Clause, and so applyagainst the States. In deciding those cases, theCourt has engaged rin what has come to becalled the process of incorporation. It has incor-

porated-merged, combined-most of theguarantees in the Bill of Rights into the 14thAmendment's Due Process Clause.

The Court began that historic process inGitlow v. New York in 1925. That landmarkcase involved Benjamin Gitlow, a communist,who had been convicted in the State courts ofcriminal anarchy. He had made several speech-es and published a pamphlet calling for the vio-lent overthrow of government in this country.

On appeal, the Supreme Court upheldGitlow's conviction and the State law underwhich he had been tried. In deciding the case,however, the Court made this crucial point:Freedom of speech and press, which the 1stAmendment says cannot be denied by theNational Government, are also "among thefundamental personal rights and liberties pro-tected by the Due Process Clause of the 14thAmendment from impairment by the States."

Soon after Gitlow, the Court held each ofthe 1st Amendment's guarantees to be coveredby the 14th Amendment. It struck down Statelaws involving speech (Fiske v. Kansas, 1927;Stromberg v. California, 1931), the press (Nearv. Minnesota, 1931), assembly and petition(Dejonge v. Oregon, 1937), and religion(Cantwell v. Connecticut, 1940). In each ofthose cases, the Court declared a State lawunconstitutional as a violation of the 14thAmendment's Due Process Clause.

In the 1960s, the Court extended the scope ofthe 14th Amendment's Due Process Clause even

Civil Liberties: First Amendment Freedoms 535 tn'J

Process of Incorporation

Provisions of the Bill of Rights Incorporated into the14th Amendment's Due Process Clause

Year IAmendment 1 Provision 1 Case1925 1st Freedom of speech Gitlow v. New York1931j 1st IFreedom of the press INearv. Minnesota1937 _ 1st Freedom of assembly, petition DeJonge v. Oregon19401 1st 1Free Exercise Clause ICantwel/v. Connecticut1947 1st Establishment Clause Everson v. Board

of EducationIUnreasonable searches, seizures IMapp v. Ohio. Cruel, unusual punishments IRobinson v. California

Right to counsel Gideon v. WainwrightSelf-incrimination Malloyv. HoganConfront witnesses Pointerv. Texas

ISpeedy trial Klopfer v.

North CarolinaObtain witnesses I Washington v. Texas

ITrial by jury in criminal cases Duncan v. LouisianaDouble jeopardy I Benton v. Maryland

Provisions NOTIncorporated into the14th Amendment's Due Process Clause

IAmendment I Provision 12nd Right to keep, bear arms3rd 1 Quartering of troops I~..-----5th Grandjury

~.-!._,_7t_h ITrial by jury in~iI cases _ C_...._Interpreting Tables This table shows which rights the Supreme Court has"nationalized," by incorporating them into the Due Process Clause of the14th Amendment. 00 you think any of the rights "NOT incorporated"should be nationalized in the future? Why?

1961/

1962

j19631964

1

19651967

1967 t196819691

4th8th6th5th6th6th

6th6th5th

Section '11Assessment tKey Terms and Main Ideas1. What is the difference between civil rights and civil

liberties?2. What is the Bill of Rights, and how did it come to be added

to the Constitution?3. How does federalism affect the guarantees of individual rights?4. What is the process of incorporation? What guarantees in

the Bill of Rights are not now covered by the 14thAmendment's Due Process Clause?

Critical Thinking5. Identifying Assumptions For what reason(s) do you think

the Supreme Court found that the right to a fair trial

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further. The key cases are set out in the table atleft. Due Process now covers nearly all of theguarantees set out in the Bill of Rights. In effect,the Supreme Court has "nationalized" them byholding that the Constitution guarantees themagainst the States through the 14th Amendment.You will look at each of the guarantees that areinvolved here shortly-the 1st Amendment rightsin this chapter and the others in Chapter 20.

The 9th AmendmentAs you know, the Constitution contains manyguarantees of individual rights. However,nowhere in the Constitution-and, indeed,nowhere else-will you find a complete catalogof all of the rights held by the American people.

The little-noted 9th Amendment declares thatthere are rights beyond those set out in so manywords in the Constitution:

FROM THE liThe enumeration in theConstitution C .. f .. honstitutton, 0 certain rzg ts,

shall not be construed to deny or disparageothers retained by the people. 11

-United States Constitution

Over the years, the Supreme Court has foundthat there are, in fact, a number of other rights"retained by the people." They include theguarantee that an accused person will not betried on the basis of evidence unlawfully gained,and the right of a woman to have an abortionwithout undue interference by government.

outweighed freedom of the press in Sheppard? Do youagree with this decision? Why or why not?

6. Predicting Consequences How do you think the UnitedStates might be different today if the Supreme Court had notapplied the process of incorporation to the Due Process Clause?

7. Read several current news articles relating to 1stAmendment rights. Choose two articles that deal with thesame freedom (of religion, speech, press, assembly, orpetition), and write a paragraph comparing the issues inthe articles. Use the links provided in the Social Studiesarea at the following Web site for help in completing thisactivity. www.phschool.com