The Bill of Rights

Why a Bill of Rights?

Constant Interpretation Evolving Society (Abortion, Gay

Rights, Crime, Human Rights, etc.) Which is more important?

*What the writers of the Bill of Rights exactly meant, or what is deemed best for society today?

The Controversy

Jefferson & Constitutions Some men look at constitutions with

sanctimonious reverence, and deem them like the ark of covenant, too sacred to be touched. They ascribe to the men of the proceeding age a wisdom more than human, suppose what they did to be beyond amendment. I knew that age well and belonged to it….It deserved well of its country….But I know, also that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered, and manners and opinions change of circumstance, institutions must advanced also, and keep pace with the times.

Madison Would not a Government so often revised

become too mutable to retain those prejudices in its favor which antiquity inspires, and which are perhaps a salutary aid to the most rational Government in the most enlightened age?

Would not such a periodical revision engender pernicious factions that might not otherwise come into existence?

Bill of Rights=The first ten amendments (addition/changes) to the Constitution

Who Determines What the Bill of Rights

Means?

Rights of the

Individual vs

Needs of Society

Freedom of Speech Freedom of Religion Freedom of the Press Freedom of Assembly Right to Petition the

Government

5 Rights of the 1st Amendment

“Congress shall make no Laws…abridging the freedom of speech”

Freedom of Speech

: Express any political beliefs Protest within reason Say things about someone

that are true Say racist and hate slogans

Free Speech Allows

Limits on Free Speech Threats (blow up airplanes, schools,

or harm the president). Sexual harassment Cause social chaos (fighting words) Hate Crimes Obscenity

Miller Test (next slide) Offensive language (schools, work)

Depends on state, local laws

Miller Test Whether the average person, applying

contemporary community standards, would find that the work, taken as a whole, appeals to the prurient (unwholesome) interest,

Whether the work depicts/describes, in a patently offensive way, sexual conduct or specifically defined by applicable state law,

Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

REVIEW: FREE SPEECH SCENARIOS

A student comes to a school wearing an anti-war armband. Until the student decided to do this, the school had no specific policy prohibiting armbands. The administration tells the student that they are not allowed to wear the armband and will be suspended if they do. In response the students claim violation of free speech. Who is right & why?

Tinker v. Des Moines

Burn the flag?

The issues: Banning burning or unpopular speech? Many other parts of the code are ignored

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

Two Clauses (parts)1-Establishment Clause 2-Free Exercise Clause

Freedom of Religion

The Two Clauses Conflict If a student raises their hand and asks, “Teacher can we say a prayer before

we take an exam?”

If the teacher says:

“Yes”, it looks like establishment of religion.

“No”, denies free exercise.

Lemon Test States that in order to be constitutional

under the Establishment clause, any practice sponsored within state run schools (or other public, state sponsored activities) must:

1) have a secular (non-religious) purpose 2) must neither advance nor inhibit

religion 3) must not result in an excessive entanglement between government and religion.

Establishment Clause-Cans Teach about religions in

school. Allow voluntary prayer in

many examples. Read religious texts for

culture or literary content.

Establishment Clause-Cannots

Set a state religion Order a prayer Preach religious doctrine Pay religious teachers

Free Exercise Clause-Cans

Choose any religion Lead a prayer most of the

time Ask questions about religions Worship how you prefer

Free Exercise-Cannots Break the law on claims of

religious belief Raise children without an

education Deprive children of the basic

needs

“Congress shall make no law…abridging…

the freedom of the press.”

Freedom of the Press

Freedom of the Press-Cans Print any political position Make fun of people in print Expose wrongs by the

government

Freedom of the Press-Cannot Libel-intentionally harming a person’s

reputation with untrue claims. Most libel cases are civil suits, not

criminal (depends on state—Utah does)

Actual Malice is required for public figures=know it is false or reckless in reporting.

Disclose security secrets Details on weapon building

Situation A high school student reacted to the

taunts and harassment of his classmates by creating a Web site and posting a home page laced with obscenities and vulgar accusations about the principal, teachers, other school staff and various students. As a result, Lake spent seven days in juvenile detention — after having been arrested and having his computer confiscated.

http://www.splc.org/news/report_detail.asp?id=945&edition=23

http://www.splc.org/news/report_detail.asp?id=945&edition=23

FREEDOM OF ASSEMBLY Cans1-Protest2-Parade with a permit3-Groups cancongregate in public.

Cannots1-Protest by causingdestruction2-Loiter

Some Assembly Examples#1 Virginia v. Hicks, the city of Richmond made the streets and sidewalks of a housing project off-limits to unauthorized people to curb drugs and other crime in the area. Kevin Hicks, a visitor who was arrested, claimed his rights of association and free speech were violated.

#2=Chicago’s Gang Congregation Ordinance prohibit[ed] "criminal street gang members" from loitering in public places. Under the ordinance, if a police officer observes a person whom he reasonably believes to be a gang member loitering in a public place with one or more persons, he shall order them to disperse. Anyone who does not promptly obey such an order has violated the ordinance..

-Chicago vs Morales On Private Property? Curfews? –End Bell Work http://www.firstamendmentcenter.org/category/assembly

=Your right to present issues/ requests to the government without punishment (letters, emails, protests, signature campaigns).

=You may sue the government.=You cannot be punished for

exposing the government.

PETITION THE GOVERNMENT

2nd Amendment “A well-

regulated militia, being necessary to the security of a free state, the right to bear arms shall not be infringed.”

The Issues What the 2nd Amendment

means? “Bear Arms”=Militia vs. Firearms?

Upholding the 2nd Amendment while keeping guns from criminals.

What types of weapons are we entitled to under the 2nd Amendment?

The government cannot force you to shelter soldiers in your home in times of war or peace.

Third Amendment

Amendments 4-8, The Rights of the Accused

“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 the oath or affirmation , and particularly describing the place to be searched, and the person and things to be seized.”

4th Amendment

4th Amendment- In order to conduct a search or a seizure, the

police are required to have probable cause in order to obtain a warrant.

Levels of Suspicion1-Reasonable Suspicion-some facts lead to possibility that criminal act occurred.

Allows for brief detention by police & search if

weapon is thought to be possessed.2-Probable Cause-significant reason to believe a crime has been committed.

Allows for search and seizure. 3-Conviction-enough evidence to prove guilty in court of law

The Big Questions What constitutes a search?

-Ex: FrisksPolice may stop a person if they have a reasonable suspicion that the person has committed or is about to commit a crime, and may frisk the suspect for weapons if they have reasonable suspicion that the suspect is armed and dangerous, without violating the Fourth Amendment prohibition on unreasonable searches and seizures.

The Big Questions

What constitutes a seizure?Ex: Questioning, Citizen’s Arrest,

Recent Cases: Drug Dogs, GPS devices on cars, Intrusive Drug Searches.

Plain View Open Area (but not area around a

home) Vehicle Exception Public Schools Related to Arrest

Exceptions to a Warrant

5th Amendment 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 offense 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.

A Grand Jury hears evidence in serious cases before a trial.

You cannot be tried for the same crime twice-Double Jeopardy.

You do not have to testify against yourself (Self-incrimination).

You are guaranteed due process of the law.

The government cannot take your land without payment.

Fifth Amendment

6th Amendment 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 defense

Right to a speedy trial by an impartial jury=not favoring either side

You must be told of charges. Accusers have to testify. You must be provided with a

lawyer if you cannot afford one.

Self-representation

Sixth Amendment

No excessive bail No cruel and unusual punishment

Debate (Death Penalty): -Mentally Retardation (ruled unconstitutional 2002) -Mentally Ill

-Juveniles (ruled unconstitutional in 2005)

Eighth Amendment

The Seventh Amendment: The right to trial by jury if sued.

Ninth Amendment: A right cannot be taken just because it is

not mentioned in the Constitution. 10th Amendment:

Powers not given to federal gov’t belong to the states and the people.

The Other Amendments

Beyond the Bill of Rights 27 total amendments

14th-All citizens are guaranteed equal protection under the law & citizenship by birth.

16th-income tax 13th and 19th-Right to vote for all 22nd-limits presidential terms to two