The United States Bill of Rights

Michael ThurstonWinslow High School

Unit TopicsEssential Questions About Our

Rights

1) Why does the 1st Amendment limit the government’s power over religion?

2) How does the 1st Amendment protect freedom of expression?

3) How does the 1st Amendment protect freedom of assembly, petition, and association?

4) What exactly does the 2nd Amendment mean?

5) What is the importance of procedural due process?

6) How do the 4th and 5th Amendments protect us against unreasonable law enforcement procedures?

7) How do the 5th through 8th Amendments protect our rights within the judicial system?

The 1st Amendment & The Establishment

ClauseMichael Thurston

Winslow High School

Two Religious Clauses

• Free Exercise Clause

• Establishment Clause

• What did the framers believe about separation of church and state?

• How does the 1st Amendment prohibit state establishment of religion?

Interpreting the Establishment Clause

• Area of agreement:

• NO OFFICIAL RELIGION!

• Area of disagreement:

• HOW FAR DOES THAT GO?

• Three ways to look at the establishment clause:

• Broad interpretation

• Narrow interpretation

• Literal interpretation

Critical Thinking Exercise Cases

• Lemon v. Kurtzman (1971)• “Lemon Test” – to be Constitutional:

1) It must have a secular purpose

2) It must neither promote or interfere with religion

3) Cannot cause an excessive entanglement of government & religion

• Zorach v. Clauson (1952)

• Eagle v. Vitae (1962)

• Lynch v. Donnelly (1984)

Free Exercise Clause

• What does it mean?

• Two parts to freedom of religion:

1) Freedom to believe

2) Freedom to practice

Conflicting Clauses

• Establishment v. Free Exercise

• Consider the following:

• Armed forces chaplains

• Prison chaplains

• Jewish students

• Equal Access Act

Balancing Free Exercise with State Interest

• SCOTUS has determined through many cases that free exercise can be limited – if there is a compelling state interest:

• Public good vs. individual right

• Blood transfusions

• Saluting the flag

• Marijuana

1st AmendmentFreedom of Expression

Michael ThurstonWinslow High School

What Makes Freedom of Expression So Important?

I. Promotes individual growth & dignity

II. Important for the advancement of knowledge

III. Necessary in a democracy

IV. Helps bring peaceful social change

V. Essential in the protection of individual rights.

Limits to Expression

1. Time, place, and manner restrictions

2. Hate speech

3. Clear and present danger

4. Libel, slander, defamation

5. “Fighting words”

6. Incitement of illegal activity

7. Commercial speech

8. Obscene / lewd / offensive

Question 1: Falsely shouting “Fire!” in a crowded theater

Question 2: Burning the American flag

Question 3: Burning a cross

Question 4: Calling for the overthrow of the government

Question 5: Punishing on-campus speech

Question 6: Punishing off-campus speech

Question 7: Banning hate groups from holding

rallies/demonstrations

Assembly, Association, Petition

• Importance• Democracy works best

when there is dissent

• Must be peaceable and on public property

• Government cannot discriminate

• Government can limit with a compelling reason (could you march through the halls of this public school while in session?)

• Association

The 2nd Amendment is Incorporated

• What does it say – what does that mean?

• DC v Heller (2008)

• McDonald v Chicago (2010)

• Restrictions?

The Importance of Procedural Due Process

• Substantive v. Procedural

• Historical background

• Very important in an adversary legal system

• Where do we find procedural protections?

• 4,5,6,8 = American Rule of Law

The 4th Amendment

• 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.

• Probable cause: A fair probability that contraband or evidence of a crime will be found in a particular place. With the facts at hand, would a reasonable person believe evidence of a crime would be located there?

• Privacy?

School Searches

• Loco parentis

• New Jersey v. T.L.O

• School searches based on reasonable suspicion – inception and scope must be reasonable

• What is allowed with reasonable suspicion? Lockers/containers Vehicles Persons Interviewing

The Exclusionary Rule

• “The fruit of the poisonous tree is also poisonous.”• Tree = illegal search

• Fruit = evidence obtained through the illegal search

• Why?

• To deter police misconduct

• Mapp v. Ohio (1961)

Continuum of Certainty

• 0% No information

• Hunch

• Reasonable Suspicion

• 50% Probable Cause

• Preponderance of the Evidence

• 100% Beyond a Reasonable Doubt

Exceptions to the Search Warrant Requirement

• Incident to arrest

• Stop & frisk

• Consent search

• Plain view/touch

• Vehicle

• Exigent circumstances / hot pursuit

• Border

1. Incident to Arrest

2. Stop and Frisk

3. Consent Search

4. Plain View/Touch

5. Vehicle

6. Exigent Circumstances / Hot Pursuit

7. Border

The Case of Billy Greenwood

The Billy Greenwood Decision

• By a 6-2 vote (Justice Kennedy took no part in the case), the Court held that under the Fourth Amendment, no warrant was necessary to search the trash because Greenwood had no reasonable expectation of privacy. Although Greenwood had hidden the trash from view by using opaque plastic bags and expected it to be on the street only a short time before it would be taken to the dump, the Court believed it to be “common knowledge” that garbage at the side of the street is “readily accessible to animals, children, scavengers, snoops, and other members of the public.” Moreover, Greenwood had left the trash there expressly so that the trash collector, a stranger, could take it. Quoting Katz v. United States, the court concluded that “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”

The 5th Amendment

• Self-incrimination

• Miranda v. Arizona

• Limitations:• Personal right

• Immunity

• Grand Jury

• Double jeopardy

• Due process

• “Takings” clause

6th Amendment

• 6th Amendment• Procedural due process• All incorporated through 14th

• Speedy trial• Public trial• Impartial Jury• Trial location• Information on charges• Confronting witnesses• Favorable witnesses• Assistance of counsel

8th amendment

• 8th Amendment• Limits the judiciary and legislatures• Right to bail• No excessive fines• No “cruel and unusual” punishment