a.k.a. The Bill of Rights

  Many of the Founders opposed a Bill of Rights because limits had already been established on the government The Federalists promised to pass a Bill of Rights if the Constitution was ratified  The House adopted 17, the Senate 12 and the states ratified 10 by 1791

 The Bill of Rights is a list of “thou shalt not” against the government   “Congress shall make no” “shall not be infringed”  The Bill of Rights applies primarily to the federal government until passage of the 14 th Amendment  Each clause of the Bill of Rights is open to interpretation and the final interpreter is the Supreme Court

 14 th Amendment gives former slaves (and any other person) citizenship  Most importantly it says that “no state” can deprive anyone of their rights, establishing the incorporation doctrine

 Colonial history of the United States based on religious freedom, a fact expressed in Article VI of the Constitution  Clauses designed to prevent government interference in and establishment of religion  Jefferson’s “wall of separation”

 Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and state.

  Engel v. Vitale (1962)  Supreme Court rules school sponsored prayer in schools is unconstitutional– “…religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate…governmentally established religions and religious persecutions go hand in hand” Abington v. Schempp (1963)  Court rules school sponsored bible readings are unconstitutional

 Lemon v. Kurtzman (1971) government aid to religious schools must meet 3 criteria (the Lemon test)    It must have a secular purpose It must neither advance nor inhibit religion Create no entanglement of government with religion  Epperson v. Arkansas (1968) the teaching of evolution in schools  Pledge of Allegiance  Lee v. Weisman (1992) school sponsored graduation prayer

Jackson derided symbols as a “primitive but effective way of communicating ideas,” and chided that “a person gets from a symbol the meaning he puts into  it, and what is one man’s comfort and inspiration is another’s jest and scorn.” West Virginia v. Barnette (1943)  Court upheld the right of Jehovah Witness students to not say the pledge because it violated their religion  “If there is any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” Justice Jackson

 “Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings….We can have intellectual individualism and the rich cultural diversity that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”

  Free exercise can be restricted if the government can show an interest in doing so such as polygamy in Reynolds v. United States (1878)  Religious duty does not exempt people from following the law In Employment Division of Oregon v. Smith (1990) the Court ruled against Smith who was fired for using peyote at a religious ceremony   The Court said an individual’s religious beliefs does not excuse them from an otherwise valid law prohibiting such activity In 2003 Congress passed the Religious Freedom Restoration Act (2003) creating a strict scrutiny test before the government can ban such activity   Wisconsin v. Yoder (1972) -Amish parents allowed to keep their children out of school past the 8 th grade because it violated their free exercise rights Gonzales v. O Centro Espirita Beneficiente Unaio do Vegetal (2006) the Court rules that it is Ok for members to take a hallucinogenic tea

 Freedom of Expression v. Competing Government Interest  Freedom of speech “is the heart of our government”— Justice Hugo Black  But, “a single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration.” Justice Edmund Sanford  “The principle of free thought-not free thought for those who agree with us but freedom for the thought we hate.” Justice Oliver Wendell Holmes  “The freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.” Justice Louis Brandeis

 Political speech  Schenck v. US (1919) in a theatre” -Schenck presented a “clear and present” danger to national security by opposing the draft; Oliver Wendell Holmes explained that speech is not an absolute right so that “a man can falsely shout fire  Gitlow v. New York (1925) incorporates 1 st amendment to states  “It is said that this manifesto was more than a theory, that is was an incitement. Every idea is an incitement.”—Gitlow was not a threat to American society-Holmes dissent

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Abrams v.US

(1919)  Holmes dissent  Imminent action 

Whitney v. California

(1927)  Brandeis dissent 

US v. Schwimmer

(1929)  Holmes dissent (at 88)  Brandenburg v. Ohio (1969) government can limit speech if there is “immediate lawless action”  US v. Obrien (1968) upheld conviction of man burning draft card

 Symbolic speech    Tinker v. Des Moines (1969) process Court upholds right to symbolic speech and student rights by declaring that students do not shed their rights at the schoolhouse gate as long as it does not interfere with the educational Texas v. Johnson (1989) Court defends the right to burn an American flag; "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.“ Justice William Brennan Buckley v. Valeo (1976) symbolic speech Court upholds campaign contributions as a form of

 Pleasant Grove City, Utah v. Summum (2009)   This church wanted its Seven Aphorisms monument placed in park with other city monuments City said no, only wanted monuments relating to its hitory  A unanimous, but fractured court decided (4 concurring opinions) that the City did not violate the 1 st Amendment  Alito noted that “The Free Speech clause restricts government regulation of private speech…it does not regulate government speech

 Press  Near v. Minnesota (1931) -the Court rules against prior restraint, or the government’s attempt to prevent certain information from being published; this case concerned an editorial that criticized public officials  New York Times v. US (1971) the Court rules against the government when they tried to prevent the publication of the Pentagon Papers, documents critical of American involvement in Vietnam and would damage national security

 Libel and slander-statements made with a “reckless disregard of the truth”  New York Times v. Sullivan (1964) the Court rules against Sullivan and says in order for a story to be libel it must be untrue and be a result of “actual malice” and have a “reckless disregard” for the truth which is very difficult to prove  Obscenity and pornography- “I’ll know it when I see it”    Roth v. US (1957) “utterly without redeeming social importance” Miller v. California (1973) 3 part test created to apply “contemporary community standards” to determine if something is obscene Reno v. ACLU (1997) – a 7-2 Court rules that a law making it a crime to make indecent material available to children on the Internet violated the 1 st Amendment

  Fighting Words-language that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. State of New Hampshire (1942) Student speech  Hazelwood School District v. Kuhlmeier (1988) its speech, but doesn’t have to promote it – school can restrict speech when it goes against the purpose of school; citing the Tinker case the Court ruled that schools can’t limit   Bethel v. Fraser (1986) – not unconstitutional to restrict a students student council speech Morse v. Frederick (2007) – Bong Hits 4 Jesus, Court rules that principal in the right to suspend the student for what he termed a nonsensical phrase but was believed to be a message about drug use during a school event

 Association/assembly-Courts accept reasonable time, place, manner restrictions on assembly   Skokie case Boy Scouts v. Dale (2000)

  Individual right or collective right 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.



District of Columbia v Heller

(2008)-the Court establishes the right of an individual to own a gun, but that does not mean the state can’t regulate who shall own them and places to have them, and what he can’t own

 Scalia wrote for the Court: “Undoubtedly some think the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

 Justice Stevens warned that the ruling would launch new judicial involvement in an issue he said should be left to legislators. “I fear the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.”