What’s the difference?
(Protection from govt. versus protection
of govt; Liberty versus equality)
THREE THEMES
a.) gradual nationalization
b.) Federal Courts as major
policymakers
c.) Nothing is absolute
 1.)
political freedoms: Amendments I
(speech, press, religion, assembly, petition)
and II (bear arms)
 2.) rights of the accused: IV search &
seizure, V self-incrim., VI speedy
trial/impartial jury/counsel/witnesses, VIII
no exc. Bail or C&U punishment
 3.) property rights III (quartering) and V
(takings clause)
 WHY SO MUCH EMPHASIS ON RIGHTS OF
THE ACCUSED?
 ORIGINAL
ANSWER: “No” (Barron vs.
Baltimore, 1833)
 THE CIVIL WAR AMENDMENTS: 13th
(slavery), 15th (voting rights) and the allimportant 14th
 ----Three important but ambiguous
phrases in 14th
a.) due process of law
b.) privileges and immunities
c.) equal protection
 Slaughterhouse
Cases (1873): answer
still “no”
 Gradual incorporation of BoR into state
constitutions
----Started with political freedoms (1920s
and 1930s)
----Continued with rights of the accused
(1950s and 1960s)
 Now: mostly ‘Yes’ (3 exceptions)
 FREEDOM
OF SPEECH RESTRICTIONS
 --Schenck v. US (1919): “clear and
present danger” – makes freedom of
speech partly contingent on external
conditions
 --”Fighting words”
 -- Slander/libel --- doesn’t apply to
political or even public figures
--Does symbolic speech count too?
 OBSCENITY
--1957 Roth v. US: “community standards”
and “prurient interest”
--1973 Miller v. California: community
standards, need for specifics, lacking in
other value
 PRESS
ISSUES
--No “prior restraint”
 --Intra-BoR conflict: what if freedom of the
press interferes with rights to fair trial and
confront witnesses?
More intra-BoR conflict: between “establishment”
clause and “free exercise” clause
 Frequently recurring issues
1.) Govt. aid to religious schools and charities: the
Lemon v. Kurzman test (1971)
 2.) School prayer and Bible reading: Engel v. Vitale
(1962)
 3.) Religious displays on govt. property:
Commandments, Nativity Scenes, etc.
 4.) Can otherwise illegal activities be legalized as
part of religious practice?
 “Compelling govt interest/least restrictive manner”
standard replaced by “neutrality” standard

 What
does the 2nd Amendment really mean?
 DC v. Heller (2008)
 Fourth
Amendment: The Exclusionary Rule
(applied to Feds in 1914, states in 1961
w/Mapp v. Ohio)
 Fifth
Amendment: self-incrimination
(Miranda v. Arizona 1966); what double
jeopardy means (and doesn’t mean)
 6th
Amendment
Evolution of right to counsel, culminating in
Gideon v. Wainwright (1963)
 8th Amendment – is the death penalty “cruel
and unusual”?
No executions took place between 19721976; Gregg v. Georgia created guidelines
for valid death penalty laws
 Right to privacy: where is it? “penumbras”
of 3rd, 4th, 5th, & 9th Amendments
Griswold v. Connecticut (1965)
Roe v. Wade (1973); Lawrence v. Texas (2003)