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Lesson 27: What Are Bills of Rights and What Kinds of Rights Does the U.S. Bill of Rights Protect?
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Lesson 28: How Does the First Amendment Affect the Establishment and Free Exercise of Religion?
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Lesson 29: How Does the First Amendment Protect Free Expression?
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Lesson 30: How Does the First Amendment Protect Freedom to
Assemble, Petition, and Associate?
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Lesson 31: How Do the Fourth and Fifth Amendments Protect Against
Unreasonable Law Enforcement Procedures?
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Lesson 32: How Do the Fifth. Sixth, and Eight Amendments Protect
Rights within the Judicial System?

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In this unit you will learn why the rights contained in the body of the Constitution, Bill of Rights, and subsequent amendments are so important to
Americans, and why the interpretation and application of these rights is often controversial.

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This lesson provides a foundation for examining rights contained in the Constitution, Bill of Rights, and subsequent amendments.
It also examines four provisions that are sometimes overlooked: the Second, Third, Ninth, and 10 th Amendment.

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Explain what bills of rights are and how they have evolved.
Examine the Constitution and its amendments and identify which of the rights they contain are
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Held by individuals, classes, or categories of individuals, or institutions.
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Personal, economic, or political rights.
Positive or negative rights.
Identify possible conflicts among these rights.
Describe various interpretations of the 2 nd , 3 rd , 9 th , and 10 th
Amendment.
Evaluate, take, and defend positions about the kinds of rights protected by the Constitution and Bill of Rights

autonomy
Independence, freedom, or the right to self-governance.
economic rights
Those rights essential to citizens that allow them to earn a living, to acquire and transfer property, and to produce, buy, and sell goods and services in free markets.
negative rights
Those rights that prohibit government from acting in certain ways; rights that are not to be interfered with.
personal rights
Those rights of individuals in their private capacity, such as the rights to life and liberty, as distinguished from the political rights of citizens, such as the rights to vote and to hold public office.

political rights
All rights of a citizen in a free society that are clearly expressed and guaranteed by the Constitution and implied by natural laws.
positive rights
Those rights that require overt government action, as opposed to negative rights that require government not to act in specified ways.
Examples of positive rights are those to public education and, in some cases, to medical care, old age pensions, food, or housing.
rights
Moral or legal claims justified in ways that are generally accepted within a society or the international community.

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A “Grand Theme of Human History”
◦ Struggle between rights of people and the power of gov’t to interfere with or violate those rights
Magna Carta & English Bill of Rights
◦ Listed rights such as free speech in Parliament and right to petition the government
American Bills of Rights
◦ Instead of ordinary legislation, states included bills of rights directly into their constitutions.
◦ Ex) Virginia Declaration of Rights

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Individuals
◦ Reflects natural rights philosophy that humans are autonomous and self-governing.
◦ Ex) freedom of thought, privacy, and movement
Classes or Categories of Individuals
◦ Most legal systems recognize groups such as children, veterans, disables, professional
(ex. doctors)
Institutions
◦ Ex) schools, governmental institutions, unions, universities, corporations

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Personal Rights
◦ Provide for individual autonomy. Rights to life, liberty, and property “God-given” or based on nature.
◦ Purpose of government is to protect those rights.
Economic Rights
◦ Rights include choosing a profession, acquiring and disposing of property, enter contracts, create copyrights or patents, and joining unions.
Political Rights
◦ Rights that address political participation such as the right to vote and engage in political activity.

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Positive Rights
◦ Requires specific government action
◦ Ex) protection from criminal acts, access to public education
◦ In Bill of Rights
 6 th Amendment right of speedy and public trial
 7 th Amendment right to trial by jury
Negative Rights
◦ Restricts government action
◦ Ex) 1 st Amendment restriction that
“Congress shall make no law” that violates fundamental rights to freedom of speech, religion, press, assembly, and petition

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Contains specific guarantees of various rights
◦ Includes positive, negative, personal, economic, and political rights that protect individuals, classes, and institutions
Example
◦ 2 nd – refrains gov’t from infringing upon the “right of the people to keep and bear arms”
◦ Controversy remains over interpreting this phrase

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9 th and 10 th Amendments do not provide specific guarantees, creating ongoing debate
Theories regarding the 9 th Amendment
◦ Admission of impossible task of listing all rights
◦ Bill of Rights does not increase national gov’t powers in area not mentioned in previous amendments
◦ Commands judges and Congress to affirm rights not mentioned in Constitution
Views of the 10 th Amendment
◦ States nature of American federalism but adds nothing
◦ Protects powers of the states against the national gov’t

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Hamilton argued that Constitution itself is a bill of rights
◦ Designed to prevent gov’t abuse of power and violation of rights
Examples (Art. I, Sec. 9)
◦ Habeas Corpus rights guaranteed
◦ Bills of Attainder Prohibited
◦ Ex Post Facto Laws Prohibited

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Initial Reaction
◦ Luke warm response, little effect on average person who had closer ties to state governments
◦ Baron v. Baltimore (1833) – court rules that Bill of
Rights only applies to national government.
◦ 14 th Amendment and Supreme Court decisions needed to incorporate limits on state governments as well
20 th Century
◦ Increasingly recognized throughout world as one of most important documents expressing fundamental rights
◦ However, many Americans have little knowledge of the document and rights that it protects

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The first two clauses of the 1 st Amendment prohibit Congress from making laws regarding the establishment of religion or prohibiting the free exercise of religion.
The meaning of these clauses has been a topic of fierce debate.
As Jefferson asserted, should there be “a wall of separation between Church and State?” Or were the clauses created solely to prevent religious persecution and the establishment of one national religion?

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Explain the importance of religious freedom in the
United States and to identify primary differences between the establishment and free exercise clauses.
Describe how the Supreme Court has interpreted the clauses, ongoing issues involving the clauses, and how conflicts can arise between them.
Evaluate, take, and defend positions on issues arising from guarantees relating to the establishment and free exercise of religion clauses of the Constitution.

compelling state interest
A public or common good claimed to take precedence over individual interests or, in some cases, rights.
established church
An official, state-sponsored religion, such as those in dozens of countries that have official state religions, including Roman Catholicism, Anglicanism, Lutheranism, Eastern Orthodox... establishment clause
The part of the 1 st Amendment that prohibits the government from declaring an official religion.
free exercise clause
The part of the First Amendment stating that Congress shall make no laws that prevent people from holding whatever religious beliefs they choose or that unfairly or unreasonably limit the right to practice religious beliefs.
separation of church and state
A basic principle of American government that no single religion should be favored by government over other religions, nor should government interfere with the right to practice or not practice religious beliefs. This term was used in 1802 by President Thomas Jefferson to explain his understanding of the protection of religious freedom afforded by the Constitution.

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Reformation period in Europe characterized by bloody conflict between Catholics & Protestants over political power.
General belief held that established (official) religions formed necessary foundation for government.
Although many came fleeing religious persecution, most colonies established their own churches.
◦ Ex) religious persecution commonplace in Anglican VA and
Puritan MA

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Religious Intolerance in America not Universal
◦ Ex) Roger Williams founds RI based upon freedom of conscience, religious toleration, and separation of church and state.

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Great Awakening (Mid 18 th C.) drew many into new religious groups, making it increasingly difficult for one church to dominate.
By the time Constitution was written, general belief that freedom of belief was an essential right and actually strengthened both church and state.
Belief results in religion clauses of 1 st
Amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
- 1 st Amendment

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Establishment clause prohibits Congress from establishing a national religion.
States eventually abandon practice of established religions. (MA last state, 1833)
Debate then shifted to constitutionality of laws providing state aid to religious organizations or requiring prayer in public schools.
◦ Everson v. Board of Education (1947)

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Broad Interpretation
◦ 1st Amendment prevents the gov’t from providing any aid to any religion.
◦ Groups can receive same services everyone else receives, and government may provide assistance that makes it easier to exercise religion. (religious holidays)
Narrow Interpretation
◦ Government is prohibited from giving one religious group preferential treatment.
◦ Gov’t support ok, as long as it does so impartially.
Literal Interpretation
◦ 1 st Amendment only prohibits establishment of an official religion, all else is fair game.

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Free exercise protects the absolute freedom of belief (conscience), but freedom to practice one’s religion is not absolute.
Religious beliefs can be limited to protect other important values and interests.

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Court creates and refines “tests…”
◦ Ex)
 When health of community is balanced against religious beliefs, public health more important.
 When life, health or safety of individual is involved, mentally competent adults able to make own decisions.
The Court’s Current Test
◦ Is the law “object neutral” and does it apply to everyone?
◦ If is does not pass the first test, did the gov’t have a
compelling interest for enacting it, and did the government adopt the least restrictive means for furthering that compelling interest.

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If the Government can meet its burden of proof, then the law does not violate the free exercise clause.
Smith v. Oregon (1990)
Church of the Lukumi Bablu
Aye, Inc. v. City of Hialeah
(1993)

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The 1 st Amendment rights to speech, press, assembly, and petition are together considered the right to freedom of expression.
This lesson examines the benefits that freedom of speech and press offer to the individual and society, why they were important to the Founders, and the circumstances un which the government should be able to limit them.

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Explain the importance of freedom of expression to both the individual and society and its historical importance.
Explain the considerations useful in deciding when the government should be able to place limits on freedom of speech and the press.
Evaluate, take, and defend positions on issues involving the right to freedom of expression.

libel
Published words or pictures that falsely and maliciously defame a person.
seditious libel
Written language that seeks to convince others to engage in the overthrow of a government.
time, place, and manner restrictions
Government regulations that place restrictions on free speech. These regulations, specifying when, where, and in what way speech is allowed, are applied when unrestricted free speech will conflict with the rights of others.

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Founders belief that freedom to express personal opinions is essential to free government.
Although pressure to suppress freedom of expression is widespread and powerful, freedom of expression…
◦ Promotes Individual Growth & Human Dignity
◦ Is Important for Advancement of Knowledge
◦ Is a Necessary Part of Representative Government
◦ Is Vital to Bringing About Peaceful Social Change
◦ Is Essential for the Protection of All Individual Rights

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Common Law suggested that “Sedition Libel” mean defaming or ridiculing the government in a way that would jeopardize peace.
John Peter Zenger’s trial established
◦ truth could be permitted as a defense
◦ The importance of freedom of the press
◦ Jury as a check on arbitrary power
Jefferson’s opposition to Adams’ Sedition
Act helped propel him to presidency
◦ “Our liberty depends on freedom of the press, and that cannot be limited without being lost.

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Throughout many times in history, pressure has risen to suppress unpopular ideas.
◦ Pre-Civil War ban on abolitionist literature
◦ 20 th C. fears of labor movements, socialism, communism, anarchists.
(McCarthy Era)
Since 1960s, fewer attempts have been made to prosecute those with different beliefs.

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The Court’s approach has been “dynamic” and
“unpredictable,” but these general rules apply to laws restricting speech and press…
1)
Laws may not discriminate unfairly on the basis of content of the expression or the speaker
 However, no one has right to publish secret military info or names of US intelligence agents.
2)
Time, place, and manner restrictions must be content-neutral and applied fairly
 Regulations cannot affect content of expression or favor some individuals, groups, or opinions over others.

3)
Regulations on expression cannot be vague
 Ex) rule prohibiting “disrespectful speech that interferes with the public good” is too vague
4)
Regulations must not be overly broad and must be implemented by the “least restrictive means”
 Regulations must solve a specific problem without limiting more expression than is necessary

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Governments often limit free speech and press during wartime / emergencies in the name of defense
◦ Alien & Sedition Act, Civil War restrictions, WWI through McCarthy era
The Bradenburg Test (Bradenberg v. Ohio,
1969)
◦ Gov’t cannot forbid such expression unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

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This lesson focuses on the 1 st Amendment rights to
“peaceably assemble” and “petition the government for redress of grievances.”
It examines the importance and historical background of these rights, and discusses an important related right – the freedom to associate.

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Explain the importance of the rights to assemble, petition, and associate.
Describe the history of these rights and when they can be limited.
Evaluate, take, and defend positions relating to the exercise of these three rights.

gag rule
Any rule restricting open discussion or debate on a particular issue.
public forum
Geographical places in a community, such as streets, parks, or virtual reality sites, where people can express and exchange their views.
right to assemble
The right or legal claim provided for in the First Amendment that allows people to meet to discuss and express their beliefs, ideas, or feelings, especially in a political context.
right to associate
The freedom to meet with others for political or any other lawful purposes.
right to petition
The legal claim that allows citizens to urge their government to correct wrongs and injustices or to take some other action.

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Freedom to assemble and to petition the government enhances the First Amendment protection of political rights.
Right to Associate
◦ Associations include political groups, church groups, professional organizations, social clubs, and community service organizations.

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Common Law Tradition
◦ Right to petition recognized in Magna Carta, as did the
English Bill of Rights (1689)
◦ Right to assemble and petition seen by Americans as a basic right of Englishmen and fundamental to a constitutional democracy
◦ Since no representation in Parliament, colonial petitions were important means of communication with British gov’t
◦ Rights to assemble and petition included in the state constitutions and bills of rights.

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1790s
◦ Petitions for pensions or back pay for Revolutionary War widows and orphans
1830s
◦ Abolitionists and suffrage advocates petition Congress to the point that it issues a gag rule for certain topics, such as slavery. (finally lifted in 1844)
Great Depression
◦ Military force used to disperse veteran group demanding early payments, killing 2 and injuring many.

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Women’s Rights
◦ Early 1800s – group petitions MA legislature urging laws limiting work day and improving safety.
◦ 1865 – Petition with 400,000 signatures sent to
Congress urging abolition of slavery. (13 th
Amendment)
Civil Rights Movement
◦ 1963 – Under Martin Luther King Jr.’s leadership, thousands participate in march on Washington for jobs and freedom.
Today
◦ Many groups use right to assemble to attract news media
◦ Faxes, emails, phone calls, letters, and the use of lobbyists are all modern forms of the right to petition government.

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Hague v. Congress of Industrial Organizations
(1939)
◦ Ruled that people have right to assemble in public forum, but gov’t is responsible for ensuring safety and avoidance of unreasonable inconvenience to public.
Time, place, and manner restrictions permissible if:
◦ Gov’t can prove legitimate reason for restriction and does not impose regulation with goal of suppressing speech or assembly
 Ex) preventing riots, keep streets clear during rush hour
◦ Restriction is precisely worded and applied in nondiscriminatory manner.

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Implied Right
◦ Not mentioned, but implied by other 1 st Amendment rights and considered part of living in a free society.
Cases
◦ NAACP v. Alabama (1958)
◦ Barenblatt v. United States (1959)
The Right Not to Associate
◦ Court has ruled that in situations that go beyond personal relationships and involve larger social purposes, gov’t may prevent private organizations from discriminatory practices based on race, gender, or ethnicity.

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Eliminating Unfair Discrimination vs.
◦ Right of Each Individual to Live Their
Life As Free As Possible From
Government Interference
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Toqueville – right to associate essential for preserving free government in the
US. Americans did not need to rely on government to solve all their problems.
(Help achieve the common good)

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The 4 th Amendment limits the powers of government officials to search and seize individuals, their homes, their papers, and other property.
The 5 th Amendment contains protections for criminal defendants, including protection from self-incrimination.
This lesson focuses on these protections and examines how and why they were important to the
Framers.

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Explain the purpose and history of the 4 th
Amendment and issues raised by its interpretation.
Explain the importance of the 5 th Amendment provision against self-incrimination.
Evaluate, take, and defend positions on contemporary issues involving the 4 th Amendment and self-incrimination.

affidavit
A formally sworn statement.
exclusionary rule
The rule established by the U.S. Supreme Court that evidence unconstitutionally gathered by law enforcement officers may not be used against a defendant in a trial.
probable cause
Reasonable grounds for presuming that a crime has been or is in the process of being committed.
Provided for in the Fourth Amendment.
reasonableness
Quality of what a rational and fair-minded person might say.
right against self-incrimination
A guarantee found in the Fifth Amendment against being compelled in any criminal case to be a witness against oneself.

search
In the context of American constitutional law, intrusion into someone's privacy.
seizure
In the context of U.S. constitutional law, interference with a person's property or freedom of movement.
use immunity
A guarantee government prosecutors give to a witness to not use the witness's self-incriminating compelled testimony as evidence against the witness in a subsequent criminal prosecution. A witness who receives use immunity may still be prosecuted, but based only on evidence not gathered from the protected testimony.
warrant
An order by a judge authorizing a police officer to make an arrest or search or perform some other designated act.

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English Common Law
◦ Americans inherit principle that a “man’s home is his castle.”
◦ Common law prohibited open-ended general warrants known as “hunting licenses.”
Colonial Experience
◦ Parliament issued general warrants to collect taxes, recover stolen goods, and persecute smugglers (Hancock)
◦ Colonial objections helped spur Revolution
◦ Anti-Federalists protest lack of protection against such general warrants in body of
Constitution.

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Components
◦ Prohibits general warrants
◦ Probable cause necessary to obtain a warrant
◦ Requires judge to determine whether probable cause exists
◦ Requires applications for warrants to “particularly” describe the “place to be searched and persons or things to be seized.”
Importance
◦ Prohibits the “most effective weapon in the arsenal of every arbitrary government.” - Justice Robert Jackson
◦ Protects reasonable expectations of privacy

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An Ongoing Challenge
◦ Striking a balance between society’s need for order/safety and the individual’s right to autonomy / privacy
◦ Importance considerations:
 When is a warrant required?
 What is probable cause and when is it required?
 How should 4 th Amendment be enforced?

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Protecting Individuals From Arbitrary Actions
◦ Officials must submit a detailed affidavit to judge
◦ Probable cause means enough evidence for a reasonable person to believe it is likely that an illegal act is being or has been committed.
 But does not require absolute certainty
Examples of Exceptions to Warrant Requirements
◦ Police are at the scene of a violent crime or robbery in progress (“In Hot Pursuit”)
◦ If person consents to search or seizure
◦ Evidence is “in plain sight” of official

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What if Official Break the Law Regarding Warrants?
◦ Weeks v. US (1914)
 Prevents use of illegally obtains evidence during trial
◦ Exclusionary rule discourages officers from breaking the law
◦ Mapp v. Ohio (1961)
 Exclusionary rule extended to criminal trials in state courts
 Critics argue it ties the hands of police and is too high a price to pay for violations of 4 th amendment.
◦ Modifications since 1961
 If officials relied in good faith upon defective search warrant
 “Inevitable discovery” rule

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Proposals To Replace Exclusionary Rule
◦ Departmental Discipline
 Independent boards investigate and impose discipline
◦ Civilian Review Boards
 Appointed by local gov’t, investigates, then recommends appropriate action to agency or suggests prosecution
◦ Civil Suits
 Individuals who feel rights have been violated can sue officers or agencies for money damages in civil court.

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Warrants “Unsuited to School Environment”
◦ School officials are guardians of students, not law enforcement officers.
◦ Searches in schools must be determined reasonable
 Specific facts, together with rational inferences from those facts, justified the intrusion
 Search was reasonably related in scope to circumstances
justifying it (TLO v. New Jersey, 1985)
“Reasonableness” Standard in Other Settings
◦ Random drug testing of public employees and students participating in extracurricular sports.
◦ Searches of homes of people on probation

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The Right Not To Incriminate Oneself
◦ Defendant cannot be forced to testify at trial.
◦ If they choose to, must answer all questions asked.
◦ Other who testify do not have to answer questions that would incriminate themselves unless offered use immunity
◦ Gov’t carries the burden of proof, so defendant should not be forced to reveal incriminating facts.
◦ Protection applies in any public proceeding in which info obtained could tie a person to criminal activity.
◦ Unless there is a privilege the law respects (doctor-patient), no one can refuse to testify on grounds that it might incriminate someone else.

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Under Miranda, officers must warn suspects that
◦ They have the right to remain silent
◦ They have right to an attorney when being questioned
◦ Anything they say may be used against them in court
◦ If they can’t afford an attorney, one will be provided
If Miranda Rule is Violated, Evidence is Excluded
Dickerson v. US, 2000
◦ Reaffirmed Miranda ruling, could not be overruled by an act of Congress

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This lesson explores how the 5 th , 6 th , and 8 th
Amendments protect the rights of accused criminals before and during trial.
This lesson also explores the rights of those who have been convicted of crimes.

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Explain the 5 th and 6 th Amendment guarantees regarding indictments, double jeopardy, and due process.
Identify the rights protected by the 6 th Amendment, particularly the right to counsel.
Describe the 8 th Amendment provisions about bail and punishment.
Evaluate, take, and defend positions on the death penalty.

bail
Money or other security given to obtain an arrested person's release from legal custody, which is forfeited if the individual subsequently fails to appear before the court for trial.
capital punishment
The use of the death penalty by a judicial system.
cruel and unusual punishment
A criminal sanction or penalty that is not in accord with the moral standards of a humane and compassionate society. The Eighth Amendment prohibits such punishments.
double jeopardy
The provision in the Fifth Amendment to the U.S. Constitution that a person may not be tried twice for the same crime.

grand jury
A panel of jurors designated to inquire into alleged violations of the law in order to ascertain whether the evidence is sufficient to warrant trial. Contrasted with the "petite jury," usually composed of twelve people, of an ordinary trial.
indictment
A formal charge by a grand jury accusing a person of having committed a crime.
plea agreement
Pleading guilty to a lesser crime than that charged by a prosecutor.
right to counsel
Part of the right to a fair trial, allowing for the defendant to be assisted by an attorney, and if the defendant cannot afford counsel, requiring that the state appoint an attorney or pay the defendant's legal fees.

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A Fundamental Premise
◦ Person accused of a crime is innocent until government proves guilt beyond a reasonable doubt.
◦ Procedural rules designed to protect the innocent.
◦ Although some guilty remain free, it is considered a small price to pay to avoid mistakenly convicting the innocent.
◦ Procedural right important because criminal law pits the power of the government against the individual.

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Pretrial Protections
◦ Indictment
 Formal statement of charges requires so defendant knows how to prepare a defense (unless reach plea agreement)
 Grand jury decides whether gov’t has strong enough case to proceed with trial. (applies only to cases in federal court)
 Most states rely on preliminary hearings where judge decides
◦ Bail
 Release before trial helps them prepare for defense and avoids punishing innocent suspects. (not all suspects granted bail)
 8 th Amendment prohibits “excessive bail”

◦ Counsel
 6 th Amendment guarantees right to counsel during questioning, while preparing for trial, and during trial.
 Gideon v. Wainwright, 1963
 Counsel provided if suspect cannot afford to pay
 Complexity of adversarial system requires use of lawyers
 Extending the Right to Counsel
 Every person accused of a felony
 Those too poor to afford them

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A Speedy, Public Trial
◦ Diminishes the possibility that evidence will disappear or witnesses memories will fade
◦ Safeguards against courts being used as instruments of persecution
◦ Grants opportunity for public to become more informed
◦ However, judge can order some proceedings closed if it makes it impossible for defendant to receive a fair trial.
Right to Counsel
◦ Although, defendant can waive right to counsel

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Compulsory Process and
Confrontation
◦ Defendants can require accusers to appear in court and be questioned. Crossexamining witnesses tests the truth of their written statements.
Impartial Jury in State & District
Where Crime Was Committed
◦ Jury trial protects against unfounded charges and biased/complacent/eccentric judges.

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Jury trials not required for petty offenses.
Historically 12 members, but Court has permitted juries as small as 6 in cases not involving death penalty.
Court has upheld state laws that require less-thanunanimous (12-member) verdicts if no death penalty involved.
Court has struck down laws discriminating against prospective jurors on basis of gender, race, and religion.

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No Double Jeopardy
◦ If acquitted, gov’t cannot prosecute again for the same crime.
However, can be tried in both Fed & State court if conduct violates laws of both.
No Excessive Fines
◦ Fines must be reasonable in relation to crime and must not deprive defendant of equal protection of the laws. (14 th )
No Cruel & Unusual Punishment
◦ Prohibits tortuous punishments of 18 th c.
◦ Trop v. Dulles (1958) – cannot strip citizenship from natural born citizens.

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Court has ruled that death penalty is constitutionally acceptable.
Cases of interest…
◦ Furman v. Georgia (1972)
 Standards needed for jury
◦ Coker v. Georgia (1977)
 Death penalty for rape unconstitutional
◦ Roper v. Simmons (2005)
 Death penalty for those under 18
(when crime committed) is unconstitutional

http://www.amnestyusa.org/deathpenalty/death-penalty-instates/page.do?id=1101153