The Bill of Rights

The Bill of Rights

“Rights and Responsibilities” • The meaning behind “rights and responsibilities” • Americans’ understanding of the Bill of Rights • What does it all mean?

“Rights and Responsibilities” • Rights and their responsibilities are inseparable • The Framers drew from the past to build for the future • Roman Republic • Enlightenment philosophy • English law • American colonial history • The rights granted evolved over time

The Roman Republic • The Roman Republic’s influence on the Bill of Rights: • Roman law based on laws of nature • Laws established equality and justice • Limited the power of the state • Created laws that protected property, contracts, and promoted equality • Stressed the responsibility of civic virtue

Influences from English Law Magna Carta (1215) • Defined the power of the monarchy • Protected barons’ rights to property, trial by their peers, and taxation only by consent • Glorious Revolution (1689) • Placed Parliament above the monarchy • Gave Parliament freedom of speech • No quartering of troops in people’s homes • No punishment without cause The Magna Carta

Enlightenment Philosophy • Humanists promoted the dignity of the individual and identified the rights of man • Voltaire advocated freedom of speech, religion, and the right to a fair trial • Locke spoke of the right to life, liberty, and property • Government should protect these rights Locke Voltaire

Colonial American Experiences • Experiences before and during the American Revolution • English rights to life, liberty, and property brought to the American Colonies • Most Americans had more equality than the British • Plentiful land and economic opportunities The Pilgrims’ landing

Colonial American Experiences: Rights • Massachusetts Body of Liberties (1641) reflected broadening of rights granted to citizens • Rights not extended to majority of colonial population (women, slaves) • Experiences before and during the American Revolution Seal of Massachusetts Bay Colony

Why a Bill of Rights? • Initially, the Constitution had no bill of rights • Federalists agreed to include a bill of rights in order to gain ratification • Drafted and approved by the first Congress in 1789 • Approved by the states in 1791 through the amendment process James Madison

Discussion Questions • What was the Roman concept of civic virtue and the common welfare? • What were some of the rights granted by English law that are found in the U.S. Bill of Rights? • How did Enlightenment-era humanists view the rights of man and the purpose of government? • How were the rights of Englishmen different for Americans in the 13 colonies? • Were these rights given to all Americans? Why or why not? • Why was the Bill of Rights not included in the original Constitution, and only added later?

The First Amendment • “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.”

First Amendment:Freedom of Religion • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Two provisions • Establishment clause: government cannot establish an official religion • Free-exercise clause: government cannot prevent anyone from practicing a religion

First Amendment: Origins of Religious Freedom • In many 17th-century European countries, Catholicism was the official religion • The Reformation: challenged the relationship between church and state • Pilgrims from England fled to America to avoid persecution • Established religious settlements with little tolerance for religious differences

First Amendment: Religious Freedom in Colonial America • Colonial America more tolerant of religious differences than Europe • The “Great Awakening” expanded religious tolerance and practices • Framers’ views on separation of church and state • Protected religion from government influence • Protected individuals’ right to worship as they wanted

First Amendment: Establishment and Free-Exercise Clauses • Two ways the courts view the establishment and free-exercise clauses: • Broad view: No public aid for any religion by either federal or state governments • Narrow view: Government prohibited only from giving preference to one religion over another

First Amendment: Establishment and Free-Exercise Clauses • Supreme Court interpretation of the establishment clause • Everson v. Board of Education (1947): denied the government from aiding or favoring any religion • Supreme Court interpretation of the free-exercise clause • Westside Community Schools v. Mergens (1990): required public schools to allow student religious groups to meet at school

Discussion Questions • List and describe the two clauses in the First Amendment’s freedom of religion. • Why do you think the Puritans became intolerant of other religious beliefs, even though they had been banished from England for their own beliefs? • What factors led to an increase in religious tolerance in colonial America? • What do you think was the Framers’ intent in writing the establishment and free-exercise clauses in the First Amendment?

First Amendment: Freedom of Speech • Freedom of speech is an essential part of democracy • “…or abridging the freedom of speech,…” • Promotes intellectual growth and human dignity • Allows for the communication of new and better ideas • Essential to the operation of representative democracy • Vital for bringing about peaceful change • Also safeguards individual rights

First Amendment: Origins of Free Speech • First protected in the American colonies in the Massachusetts Body of Liberties (1641) • Not found in Magna Carta • Not found in the original U.S. Constitution • Incorporation a condition for ratification

First Amendment: Government Limitations on Free Speech • Sedition Act (1798) • Dissenters during Civil War (later deemed unconstitutional) • World War I: Espionage Act of 1917

First Amendment: Government Limitations on Free Speech (continued) • Schenk v. U.S. • “Clear and present danger” requirement • After WWI, many states passed laws that criminalized dissent

First Amendment: Free-Speech Court Decisions • Expanded from political speech to include symbolic speech • Tinker v. Des Moines School District (1967): free speech in schools

First Amendment: Free-Speech Court Decisions (continued) • Texas v. Johnson (1989): burning the U.S. flag • United States v. Eichman (1990): reaffirmed right to burn flag as free speech

First Amendment: Origins of Press Freedom • “…or of the press,…” • Invention of the printing press • The John Peter Zenger trial • Pamphlets and papers during the Revolution • Not mentioned in the original Constitution Minute sheet from the trial of John Peter Zenger

First Amendment: Extent of Press Freedom • “…or of the press,…” • Original intent of Framers was to protect political speech • Results of Supreme Court decisions • Placed limitations on freedom of the press • Protections against clear and present danger and libel • “Prior restraint” • Near v. Minnesota

First Amendment: Supreme Court Tests of Press Freedom • Libel or informing the public? • New York Times Co. v. Sullivan (1964) • Threat to national security or the public’s right to know? • New York Times Co. v. United States (1971)—the “Pentagon Papers” case

Discussion Questions • Do you feel people should be allowed to make statements that call for an elimination of the Bill of Rights? Why or why not? • Explain how freedom of speech and of the press helped bring about the American Revolution. • During times of crisis such as war or natural disasters, should people be allowed to criticize the government and demand a change in leadership? When has such expression been restricted in U.S. history? • What types of expression would constitute a “clear and present danger” to the nation and thus not receive free speech protections? • Should other types of expression such as burning the flag be protected as free speech? Why or why not? Should the government pass laws that criminalize making disparaging or insulting remarks about a particular race, gender, or religion?

First Amendment: Freedoms of Assembly and Petition • “…or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” • Freedoms of assembly and petition linked to freedom of speech and press • These freedoms serve many diverse causes and groups

First Amendment: Origins of Assembly and Petition • Magna Carta itself (1215) • English Petition of Right (1628) • American colonists notrepresented in Parliament • Initially not part of the Constitution; later included in the Bill of Rights The Engligh Petition of Right

First Amendment: Historical Restrictions on Assembly and Petition • “Gag rule” banning congressional discussion of anti-slavery petitions (1836) • Denying assembly and petition to homeless (1890s/1930s) • Breaking up peaceful demonstrations during civil rights movement (1950s and 1960s) 1830s political cartoon about the congressional “gag rule”

First Amendment: Assembly and Petition—Supreme Court Decisions • DeJonge v. Oregon (1937): Incorporating freedom of assembly to the states • Cox v. New Hampshire (1941): Time, place, and manner of assembly may be restricted but not eliminated • Lloyd Corporation v. Tanner (1972): Private property exempt from freedom of assembly • Feiner v. New York (1951): Limitations on the right to assembly

First Amendment: Assembly and Petition vs. Government Responsibility • Government has a responsibility to keep the peace • The right to assemble extends to meetings in public areas • Government has a right to impose restrictions based on time, place, and manner of assembly • Restrictions must not make it impossible to express ideas Soldiers stand guard at a demonstration against the Vietnam War

Discussion Questions • Explain how the freedoms of assembly and petition are closely tied to the rights of free speech and a free press. • Explain how the rights of assembly and petition facilitate the exercise of democracy and benefit both the government and the people. • Review the three examples of government limitation or denial of the rights to assemble or petition (slide 30). Why do you think the government imposed these restrictions during these times? • What obligations does the government have in imposing any restrictions on the rights of assembly and petition? Why does it have these obligations? • Why do you think the Framers thought it important to include the rights of assembly and petition in the Bill of Rights to serve the needs of all classes of people?

The Second Amendment • “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.”

Second Amendment: Two Problematic Clauses • “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.”

Second Amendment: Origins • British army occupied the colonies to enforce order • Americans resented a standing army of foreign troops • Colonial militia became known as “minutemen” Minutemen at the battle of Lexington

Second Amendment:Varying Interpretations • “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.” • Who has the right to bear arms? • Does the Second Amendment provide each individual with the right to own a gun, or merely allow each state to maintain a well-regulated militia?

Second Amendment:Court Decisions • U.S. v. Miller (1939): The federal government has the right to require that firearms be registered • Quilici v. Morton Grove (1982): U.S. Court of Appeals ruled right to bear arms does not apply to individuals A sawed-off shotgun, similar to the type under question in U.S. v. Miller

Discussion Questions • Why did colonial Americans resent a “standing army” of British soldiers? • Explain how a gun-ownership advocate might interpret the Second Amendment. • Explain how a gun-control advocate might interpret the Second Amendment. • In U.S. v. Miller, what did the Supreme Court say about the Federal Firearms Act of 1934? • What did the U.S. Court of Appeals say about Morton Grove’s law banning firearms? How do you think this case would be decided if the Supreme Court chose to rule on it? Explain your answer.

The Third Amendment • “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.”

Third Amendment: Origins • Protection against quartering dates back to 12th century • Grievance in Parliament’s Petition of Right (1628) • Established firmly in English law by English Bill of Rights (1689) King James II King Charles I

Third Amendment:Colonial Experiences • Thousands of British troops came to North America during the French and Indian War • Troops stayed to enforce laws of taxation • Citizens confronted British soldiers in the Boston Massacre The Boston Massacre, by Paul Revere (1770)

Third Amendment:Early American Developments • Quartering of soldiers was one of the grievances stated in the Declaration of Independence • Prohibition on quartering of troops not mentioned during Constitutional Convention • Included in the Bill of Rights in 1791 Patrick Henry

Third Amendment: Today • Troops can be quartered in private homes during wartime. • No Supreme Court decisions directly concerning quartering troops in people’s homes • Courts have cited the Third Amendment as a further protection of the right to privacy from government intrusion Union troops were quartered in private homes during the Civil War

The Fourth 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.”

Fourth Amendment: Origins • Semayne’s Case (1603) acknowledged need for balance between privacy and the duties of law enforcement • Writs of assistance allowed government officers wide latitude in searching private homes • James Otis’s court challenge (1761) James Otis

Fourth Amendment:Later Colonial Experiences • Purpose is to prevent arbitrary actions and protect persons from invasions of privacy • Violations by the Continental Congress during the Revolutionary War • Framers incorporated colonial experiences and English heritage into the Fourth Amendment • Amendment’s restrictions create tension between government’s duty and citizen’s privacy

Fourth Amendment: Two Clauses • First clause • “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” • Second clause • “…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.”

Fourth Amendment:Tests and Trials • The original wording has fared well over time • Supreme Court cases have limited what searches may entail: • Olmstead v. United States (1928): listening devices • Katz v. United States (1967): the “reasonable expectation of privacy” doctrine • California v. Greenwood (1988): garbage bags

Fourth Amendment: Exclusionary Rule • Supreme Court cases have further clarified the meaning of unreasonable search or seizure: • Weeks v. United States (1914): established the “exclusionary rule” • Silverthorne Lumber Co. v. United States (1920): “fruit of the poisonous tree” doctrine • Mapp v. Ohio (1961): extended exclusionary rule to states through the Fourteenth Amendment

The Bill of Rights