Unit 2 The Bill of
Rights and Civil
Liberties
Bill of Rights
• Adopted in 1792 by the states 2 years after
the ratification of the Constitution.
• Established the civil liberties for
Americans.
• Represents a basic definition of a person’s
civil liberties-those rights of the people
that the government cannot take away.
• Civil liberties differ from civil rights.
Bill of Rights
• Civil liberties protect individuals from
abuses of the government, whereas civil
rights come about as a result of the equal
protection under the law.
• Both civil liberties and civil rights limit the
power of government.
• Bill of Rights protects individuals against
the tyranny of the government.
Individual Rights and the
Constitution
• Bill of Rights turned down by Federalist forces controlling
the convention (was not necessary because the states
under a federal system would protect their citizens).
• Massachusetts, South Carolina, New Hampshire, Virginia,
and New York agreed to support Bill of Rights immediately.
• James Madison wrote in Federalist No. 84, “I go further
and affirm that bill of rights, in the sense and to the extent
in which they are contended for, are not only unnecessary
in the proposed constitution, but would even be
dangerous.”
Dual Citizenship
• Decisions such as Marbury v Madison (1803), McCulloch v
Maryland (1819), Gibbons v Ogden (1824) defined the power
of various components of government.
• Barron v Baltimore (1833), the court ruled that the Bill of
Rights limited only the national government, not the states.
• John Marshall court did extend the Bill of Rights to the
citizens of the states.
• Created a concept of dual citizenship, wherein a citizen was
under the jurisdiction of the national government as well as
the state government.
Dual Citizenship
• After the 14th Amendment was passed in 1868, “No state shall
abridge the privileges and immunities of its citizens…” the people
received the complete protection of the Bill of Rights.
• Southern states passed Jim Crow laws and segregation became an
acceptable practice.
• The Jim Crow laws were state and local laws in the United States
enacted between 1876 and 1965. They mandated de jure racial
segregation in all public facilities in Southern states of the former
Confederacy, with, starting in 1890, a "separate but equal" status
for African Americans. The separation in practice led to conditions
that tended to be inferior to those provided for white Americans,
systematizing a number of economic, educational and social
disadvantages.
Cases to Define/Explain significance
• Dual Citizenship:
Marbury v Madison
McCulloch v Maryland
Gibbons v Ogden
Gitlow v New York
• Speech and Press:
Schneck v United States
Chaplinsky v New Hampshire
NY Times v Sullivan
Tinker v. Des Moines
NY Times v United States
Texas v Johnson
Freedom of Religion
• “Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof….”
• Component of the 1st Amendment, defines
the right of the citizens to practice their
religions without government interference.
• Creates separation between church and
state.
Freedom of Religion
• Some questions raised in this area:
-To what extent does use of the word God in public
institutions violate the separation of church and state?
-Can states directly support parochial schools with public
fund?
-Can states legislate nondenominational prayer, a
moment of silence, creationism as a part of the curriculum,
and equal access to its facilities to religious groups?
-Can clergy recite a blessing at a graduation ceremony?
-Are seasonal displays at public areas allowable?
-Are vouchers and public monies used for private
parochial schools constitutional?
Freedom of Speech & the Press
• “Congress shall make no law… abridging the
freedom of speech or of the press…”
• Protection of the citizens’ right of free expression.
• Speech can be categorized as symbolic and
expressive.
• What is acceptable and what is obscene?
Freedom of Speech continued
• Government has to maintain balance between
order and the ability of its citizens to criticize policy.
• Press is characterized by the written word and the
ability of a publication to print material without
prior review or prior restraint.
• Questions raised:
-Can the government limit free speech and press
during times of war or other national emergency?
Cases Continued
• Freedom of Religion
Engle v Vitale
Lemon v Kurtzman
Lee v Weisman
• Freedom of Assembly
De Jonge v Oregon
• Right to Bear Arms
United States v Miller
Right to Assembly
• “Congress shall make no law respecting…the right of the
people peaceably to assemble, and to petition the
Government for a redress of grievances.”
• Central themes in final clause of the First Amendment:
-Rights of people to gather in places they want and
express their point of view without government
interference.
-Right of association
-By extension the right to present their point of view to a
governmental body
• These rights must be balanced by restrictions such as the
time, manner, and place of assembly.
Right to Assembly
• Questions raised:
-What constitutes equitable time, manner, and
place restrictions on groups?
-To what extent can these demonstrates take
place on public and private property?
-If a group or individual plans to associate with or
advocates violence, can the government restrict
association and the right to petition?
Right to Keep and Bear Arms
• “The right of the people to keep and bear arms, shall
not be infringed.”
• Interpreted as the right of individuals to own
weapons.
• National Rifle Association has become a primary
interest group.
Right to Arms
• Questions raised:
-Should registration and a waiting period be
required for a person to own recreational
guns?
-Should certain types of arms such as
assault weapons be banned?
Right of Privacy
• Quartering of soldiers “in time of peace” shall be illegal
“without the consent of the owner”
• “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches, seizures, shall not be violated, and no
warrants shall issues, but upon probable cause…”
• The first of three amendments that deal with the due
process rights of individuals, those procedural rights
that protect individuals from governmental
interference.
Right of Privacy
• Questions raised/major issues related to Fourth
Amendment:
-To what extent can police conduct a search without a
warrant and obtain evidence found to prosecute an
individual?
-What methods can law officials use to obtain evidence?
-Can the right of privacy extend to social issues such as
abortion?
Essay Questions
• Complete an outline or rough draft for the following
questions that may (hint hint) be on the quiz tomorrow:
-The Supreme Court has attempted to balance society’s
needs for protecting its citizens and guaranteeing due
process to the accused.
(a) Choose one of the following cases: Mapp v. Ohio (1961)
or Gregg v. Georgia (1976)
(b) Evaluate how the Court’s decision affected society and
the accused by describing the facts of he case, the
constitutional issues, and the significance of the decision.
Right to Procedural Due Process
• “No person shall be held to answer for a capital…crime, unless on
a presentment or indictment of a Grand Jury…nor shall any
person be subject for the same offense to be twice put in
jeopardy…nor shall be compelled…to be a witness against
himself, nor be deprived of life, liberty, or property without due
process of law…”
• “In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial…and to be informed of the nature and
cause of the accusation; to be confronted with the witness
against him; to have…process for obtaining witnesses…and to
have the Assistance of Counsel for his defense.”
• “…the right of trial by jury shall be preserved…”
Right to Procedural Due
Process
• Viewed as a series of steps established by the
Fifth, Sixth, and Seventh Amendments that
protect the rights of the accused at every step of
the investigation and limit how governmental
power may be exercised.
• Habeas corpus: the charges made by the police
upon arrest ( a right that cannot be taken away
by government, found in the body of
Constitution)
Eighth Amendment
• “Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”
• Part of the procedural due process, an accused has the
right to post bail.
• Excessive fines and cruel and unusual punishment are
covered under this
• Questions:
-What constitutes excessive bail?
-Is the death penalty cruel and unusual punishment?
Undefined Rights
• “The enumeration in the Constitution of certain rights, shall not
be construed to deny…others retained by the people.”
• “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.”
• The Ninth and Tenth Amendments to the Constitution further
define rights not listed in the Constitution to the people and
states.
• Questions raised:
-Does an individual have the right to die?
-How do the courts resolve the conflict between state-developed
laws and issues raised by the Bill of Rights?
Court Cases Continued
• Right to Privacy:
-Planned Parenthood v Casey
• Right of Procedural Due Process:
-Hamdi v Rumsfeld
• Eight Amendment
-Gregg v Georgia
• Undefined Rights
-United States v Lopez
-Gonzales v Oregon
American Polity
• Read Gideon’s Trumpet by Anthony Lewis pg.
345 and answer questions
• Read Miranda v. Arizona pg. 355 and answer
questions
Chapter 4 Civil Liberties
Discussion (read chapters 4 &5)
• Although the Supreme Court has ruled that
obscenity is not protected by the First
Amendment, it has been difficult to
determine precisely what is obscene.
• Try your hands at writing a definition that
could be used by a court or a censorship
panel to distinguish obscenity from legally
protected art.
Essay for Test Grade Next Week
• Using the following headline and your knowledge of United
States politics, answer the questions.
• Abortion Advocates Call Attacks on Roe v Wade the Battle for
All Mothers
(a) Explain the point of view taken in the headline.
(b) Identify three laws states have passed in response to Roe v
Wade.
(c) How did the Planned Parenthood v Casey respond to the
point of view taken by the headline.
Civil Rights
• Equal protection to all
“No State shall make or enforce any law
which shall abridge the privileges or
immunities of citizens of the United States;
nor shall any State deprive any person of life,
liberty, or property without due process of
law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
Civil Rights
• The history of the civil rights movement parallels
the nationalization of the Fourteenth
Amendment of the Constitution.
• Even though the Civil War solved the problem of
slavery and established the legitimacy and
dominance of the federal government, the fact
remained that many states still passed Jim Crow
laws (legislation that legalized segregation even
after the adoption of the Fourteenth
Amendment).
Civil Rights
• Segregation existed in America, and the Supreme Court in the
Plessy decision stated “separate but equal” was an acceptable
standard.
• It took the landmark Brown v Board of Education decision for
the movement to see results.
• Other minority groups such as women, immigrant groups,
Native Americans, homosexuals, senior citizens, and the young
have faced discrimination.
• Congressional legislation and Supreme Court decision have
used affirmative action programs as a means of providing
equality under the law.
Fourteenth Amendment
• Aimed to nationalize the meaning of civil rights.
• Supreme Court ruled that the intent of the
Fourteenth Amendment was to protect the
freed slaves, not incorporate the Bill of Rights.
• Fourteenth Amendment applied only to the
states “operating under cover of the law.”
Fourteenth Amendment
• How did the Fourteenth Amendment finally become the
basis of the civil rights movement?
• It took the Supreme Court over 50 years to finally reverse
Plessy.
• Brown v Board of Education signaled the beginning of
equal protection under the law for African-Americans.
• There were, however, other significant First Amendment
and due process cases before Brown, which started the
process of incorporation.
Key Court Cases that started
the process of incorporation
• Gitlow v New York (1925)- freedom of speech
• Near v Minnesota (1931)- freedom of the press
• Powell v Alabama (1932)- access to a lawyer in capital cases
• DeJonge v Oregon (1937)- freedom of assembly
• Cantwell v Connecticut (1940)- freedom of religion
• Wolf v Colorado (1949)- unreasonable search and seizure
Fourteenth Amendment
• After the Brown decision, an activist Supreme
Court used the principle of incorporation in
many of their decisions to promote 14th
Amendment due process rights and equal
protection under the law.
• The criteria they used were threefold:
(see next slide)
Criteria
• Reasonable classification, the distinctions drawn
between persons and groups;
• The rational basis test, if the legislative intent of a
law is reasonable and legitimate and serves the
public good; and
• The strict scrutiny test, which places the burden
on the states to prove that laws that discriminate
fulfill a “compelling governmental interest.”
Civil Rights Continued
• Women
-Most point to Seneca Falls Convention in 1848 as
beginning of the fight for equality
-Took passage of Nineteenth Amendment in 1920 for
women to gain right to vote
- 1920-1960’s women’s movement was stagnant
- Case Muller v Oregon (1908) spoke about inherent
differences between men and women in the
workplace was the prevalent viewpoint.
Feminist Movement
• The Feminine Mystique written by Betty Friedan in
1963 was the birth of feminism.
• (Now) National Organization for Women and
National Women’s Political Caucus
• Proposed Amendment to Constitution, Equal Rights
Amendment
• Equal Pay Acts of 1963
• Lilly Ledbetter Act
Feminist Continued
• Civil Rights Act of 1964 had anti-sex discrimination
provision
• Title IX made sex discrimination in federally
funded education programs illegal
• Cases to research:
Reed v. Reed
Craig v. Boren
UAW v. Johnson Controls
Rights for Homosexuals
• Attempts by gay activists and federal and state legislatures
to guarantee equal protection for homosexuals have fallen
short.
• Amendment 2 in Colorado: state could not adopt any laws
providing protected status for homosexuals.
• Don’t Ask Don’t Tell executive order by Bill Clinton: gays
allowed to serve in military as long as they don’t disclose
fact
• Gay marriage is a state issue: 6 states allow it, 30 states
have constitutional amendments banning it