The Bill of Rights
Protecting Our Freedoms
What is the Bill of Rights?
• The Bill of Rights is made up of the
first 10 amendments to the
Constitution.
• The Bill of Rights defines US citizens
freedoms and protects them from the
powers of the US government.
• The B of R was passed as a group of
10 in 1791
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 of the right of people to
peaceably to assemble, and to
petition the government for a
redress of grievances.
The First Amendment: List of Rights
• Congress cannot:
• establish a religion
• interfere with my choice of religion
• limit my free speech
• limit my free press
• limit my right to assemble
• limit my right to petition the government
Key Event: Bethel School District v Fraser
1986
• Bethel School District v Fraser
• Background
• Question:
Does the First Amendment prevent a
school district from disciplining a high
school student for giving a lewd speech
at a high school assembly?
Key Event: Bethel School District v Fraser
1986
Bethel School District v Fraser
• Decision
• 7-2
• No. The Court found that it was appropriate
for the school to prohibit the use of vulgar
and offensive language. Chief Justice Burger
distinguished between political speech which
the Court previously had protected in Tinker
v. Des Moines Independent Community
School District (1969) and the supposed
sexual content of Fraser's message at the
assembly.
NOTES:
Establishment Clause verses Free Exercise Clause
• Establishment Clause
• Government may not establish an official
religion, nor favor one religion.
• Government may not support religious
activities.
• Free Exercise Clause
• Government cannot interfere with your
exercise of religious beliefs.
• Can these 2 clauses conflict with each
other?
Key Event 2: Lemon v Kurtzman 1971
• A Pennsylvania Law called the
Nonpublic Elementary and Secondary
Education Act reimbursed all private
schools for teacher pay, books,
instructional materials.
• Is it a violation of the establishment
clause?
Lemon v Kurtzman 1971:
The Lemon Test
• The government's action must have a
secular legislative purpose;
• The government's action must not
have the primary effect of either
advancing or inhibiting religion;
• The government's action must not
result in an "excessive government
entanglement" with religion.
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.
The Second Amendment: List of Rights
• I can own a weapon.
• States can form a well regulated
militia.
Second Amendment
• First Thoughts
• Questions?
• Do you plan to or currently own a gun?
Key Issue
• If you do not include the part before
the comma after the word State, does
it change the meaning?
• Does 2nd Amendment Protect…
•State’s right to raise a militia…?
•Individual right to bear arms…?
Key Event: Washington DC v Heller (2008)
http://www.oyez.org/cases/2000-2009/2007/2007_07_290/
• DC v Heller 2008
• Background
• Question:
Does the District of Columbia’s law
banning hand-gun ownership and limiting
use by licensed officials violate the 2nd
Amendment?
Key Event: Washington DC v Heller (2008)
http://www.oyez.org/cases/2000-2009/2007/2007_07_290/
• DC v Heller 2008
• Decision
• 5-4
• The DC Law does violate a
Constitutional right to own a
handgun for self-protection.
DC v Heller (2008)
• From Justice Scalia’s majority opinion:
“that the operative clause of the
Second Amendment—"the right of
the people to keep and bear Arms,
shall not be infringed"—is controlling
and refers to a pre-existing right of
individuals to possess and carry
personal weapons for self-defense.”
Third Amendment
No Soldier shall be
in time of peace be quartered
in any house, without the
consent of the owner,
nor in time of war,
but in a manner
prescribed by law.
3rd Amendment: List of Rights
• I cannot be forced to provide food and
shelter to a soldier during peacetime.
• I can be forced to provide food and
shelter during war time, if there is a
law passed by Congress that says so.
Key Issues possible expanded meanings
• Part of implied intention by our
founders to allow for less
individual freedom during times of
war.
• Suspension of habeas corpus during Civil War,
suspension of free speech during WW1, and
Japanese Internment Camps during WWII
• Part of an implied right to privacy?
• Griswold v Connecticut, 1965 contraceptive case
• Part of a penumbra of rights that are implied by
the Bill of Rights.
3rd amendment key event:
Engblom v. Carey, 1982
• The case was decided in US Court of
Appeals, NOT Supreme Court.
• Background: Prison guards went on strike
in New York state at Mid-Orange
Correctional Facility. The guards lived in
dorms on prison grounds, for most guards
this was their only home. During the strike
they were locked out of their rooms and
the rooms were given to National
Guardsmen called in to man the prison
during the strike.
Engblom v. Carey, 1982
• Questions before the Court:
1. Are National Guardsmen legally
considered as soldiers under the
Third Amendment?
2. Does the amendment applies to
state as well as federal authorities?
3. Does the protection of this
amendment extends beyond home
owners?
Engblom v. Carey, 1982
• Decisions:
• The National Guardsmen legally qualify
as soldiers.
• The amendment applies to state as well
as federal authorities. (Incorporation)
• Yes, the protection of this amendment
extends beyond home owners. Tenants,
renters, and any other non-owner is
protected.
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.
Rights Protected
I am…
• Secure in persons, houses, and effects.
• Protected from unreasonable searches
and seizures.
• Protected from warrants being issued
to search my property without
probable cause.
Key Event: Illinois v Wardlow 2000
http://www.oyez.org/cases/1990-1999/1999/1999_98_1036/
• Illinois v Wardlow 2000
• Background?
• Is a person's sudden and unprovoked
flight from identifiable police officers,
patrolling a high crime area,
sufficiently suspicious to justify the
officers' stop of that person?
Illinois v. Wardlow Decision
• Court does not issue a decision
either for or against flight being
enough to justify a stop and
search. ONLY says it can be an
important factor in determining if
the stop and search is necessary.
• US v. Arvizu (2002)
• “totality of circumstances”
KEY ISSUE: EXCLUSIONARY RULE
• Any evidence obtained during an illegal
search or seizure is inadmissible in a
trial.
• “the criminal is to go free because the
constable has blundered”;
• Do we need this?
• It only protects the guilty…
Fun Bonus Facts:
Allowable warrentless searches
1. During a lawful arrest
2. In Plain View (in car seat or public
view)
3. Hot Pursuit
4. Cars
5. Exigent Circumstances (emergency)
Fifth Amendment
• No person shall be held to answer dory
capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand
Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual
service in time of War or public danger; nor
shall any person be subject For the Same
Offense to be twice put in jeopardy of life or
the limb; nor shall be compelled in any
criminal case, to be witness against himself,
nor to be denied right to life, liberty, and
property, without due process of law; nor
shall private party be taken for public use
without just compensation.
Listed rights
• Capital crimes are charged by Grand
Jury.
• Protected from being charged twice for
the same crime.
• You can’t be forced to incriminate
yourself.
• Protected by due process
• Just compensation for property taken
by government.
5th Amendment: Key Issue
• Just compensation and Due Process
with regard to property.
• The issue here is, what is a legitimate
government interest in seizing private
property. We all agree that homes must
be taken for roads, parks, etc…
• But, Can a government use eminent
domain to seize a home for, say, a movie
theater or Wal-Mart?
KEY EVENT: Miranda v Arizona (1966)
http://www.oyez.org/cases/1960-1969/1965/1965_759/
• Miranda v Arizona (1966)
• Background?
• Question: Does the police
practice of interrogating
individuals without notifying them
of their right to counsel and their
protection against selfincrimination violate the Fifth
Amendment?
Miranda v Arizona (1966)
• Decision
• 5-4
• The Court held that prosecutors could not use
statements stemming from custodial
interrogation of defendants unless they
demonstrated the use of procedural safeguards
"effective to secure the privilege against selfincrimination." The Court specifically outlined the
necessary aspects of police warnings to suspects,
including warnings of the right to remain silent
and the right to have counsel present during
interrogations.
SIXTH AMENDMENT
In All Criminal Prosecutions, the accused
shall enjoy the right to a speedy and
public trial, by an impartial jury of the
state and district wherein the crime shall
have been committed; which district shall
have been previously ascertained by law,
and to be informed of the nature and cause
of the accusation; to be confronted with
the witness against him; to have
compulsory process for obtaining witnesses
in his favor, and to have assistance of
counsel for his defense.
You have the right to…
• Speedy trial
• Public trial
• Impartial jury in community
• Be informed of your accusation
• Face your accuser
• Power to bring witnesses
• Right to have counsel (lawyer)
Key Issue: Strict or Loose Interpretation?
• TEXT: “In All Criminal Prosecutions , the
accused shall enjoy the right to…be
confronted with the witness against him…”
• Does “ALL” mean ALL?
• Or can we make exceptions for child victims?
Key Issue: An example of precedents
Establishment of ‘right to counsel’
It is important to understand that the Supreme Court often works slowly toward protecting rights, each of these cases
improves the right to counsel provision toward giving us our key event.
• Powell v Alabama (1932)
• 9 black men, accused of raping 2 white women on a train,
given a one day trial, all sentenced to death, met their
lawyers after cases were heard.
• In capital cases, states must provide counsel for your trial.
• Johnson v Zerbst (1938)
• At FEDERAL level, every person charged with a
felony is required to have a lawyer appointed to
represent them.
• Betts v Brady (1942)
• At state level, in noncapital cases the defendant
is only entitled to a public defender if the
defendant is mentally handicapped.
KEY EVENT: Gideon v Wainwright
(1963)
• Gideon
• Background?
• Questions:
• Did the state court's failure to appoint counsel
for Gideon violate his right to a fair trial and
due process of law as protected by the Sixth
and Fourteenth Amendments?
KEY EVENT: Gideon v Wainwright
(1963)
• “lawyers in criminal cases are
necessities, not luxuries”
• Establishes right to counsel for
defendants in all felony cases at state
level, not just capital.
• Gideon had spent 2 years in prison for
a crime he did not commit.
SEVENTH AMENDMENT
• In suits at common law, where the
value in controversy shall exceed
twenty dollars, the right of trial by
jury shall be preserved, and no
fact tried by a jury shall be
otherwise re-examined in any
Court of the United States, than
according to the rule of common
law.
Rights Protected:
• Trial by Jury in nearly all civil cases.
• Judges can never overturn decision of
a jury
Key Issue: Lack of Incorporation
• REMEMBER: The Bill of Rights was written to protect
you and I from the National Government, since the
14th Amendment was ratified with its due process
clause that applies to the States, we have had the B
of R, applied to State piece by piece, yet a few
remain including the 7th
• The right to a jury trial in civil cases has never been
applied to the states. States do not have to give you
a trial by jury in civil cases.
Key Event: Colgrove v Battin (1973)
http://www.oyez.org/cases/1970-1979/1972/1972_71_1442/
• Colgrove v Battin (1973)
• Background? Montana Federal Judge
allows for a 6 person jury in a trial, rather
than a 12 person jury.
• Question:Does the Seventh Amendment
guarantee the size of a jury?
Key Event: Colgrove v Battin (1973)
http://www.oyez.org/cases/1970-1979/1972/1972_71_1442/
• Colgrove v Battin (1973)
• No. The Seventh Amendment does not guarantee the
size of a jury.
• The Court held that the framers of the Constitution
intended the Seventh Amendment to preserve the right
to trial by jury in civil cases at law, but not the various
incidents of trial by jury, and that the Constitution does
not bind the federal courts to the exact procedural
details of jury trial according to the common law in
1791.
• The Court held that the right to a 12 member jury was
not a substantive aspect of the right of trial by jury. The
Montana rule did not violate the right of a jury trial at
common law and it did not conflict with Rule 48.
8th Amendment
Excessive bail shall not be
required, nor excessive fines
imposed, nor cruel and unusual
punishment be inflicted.
8th Amendment Rights Protected:
I have the right not to…
• be forced to pay excessive bail
• pay excessive fines
• be punished cruelly/unusually
• EVOLVING STANDARD***
Key Issue: Bail
• You do not have a right to bail.
• Excessive would be more than an
amount necessary to ensure accused
presence at a trial
• Can be denied bail by anticipation of
possibility that accused may flee in
capital cases.
Cruel and Unusual Punishment?
What is
Cruel
and
Unusual
Punishment?
Modern Death Penalty Enforcement
• Lethal Injection
• Gas Chamber
• Electrocution
• Hanging
• Firing Squad
Key Issue 2: Death Penalty since 1976
• 3 People killed by Federal Government
• Timothy McVeigh is most recent
• 1,119 people executed by State
Governments (38 of 50 have D.P.)
• 463 by Texas, 108 by Virginia, 23 by
Arizona (13th Place)
• Over 600,000 Americans have been
murdered in same time period
• Over 3,300 Americans on Death Row
Today
• Race of Homicide
Victims in Cases
Resulting in an
Execution since
1976
•
Crimes receiving Death Penalty in
American History (last time used)
1. Rape – 1964
2. Kidnapping – 1960
3. Assault – 1962
4. Espionage – 1953
5. Arson – 1884
6. Burglary – 1941
7. Horse Theft - 1851
8. Forgery – 1840
9. Treason – 1862
10.Witchcraft - 1779
11.Murder - 2013
Key Event: Roper v Simmons 2005
• Roper v Simmons 2005
• Background?
• Question:
• Does the execution of minors violate the
prohibition of "cruel and unusual
punishment" found in the Eighth
Amendment and applied to the states
through the incorporation doctrine of the
14th Amendment?
9th Amendment
The Enumeration in the
Constitution of Certain Rights
shall not be construed to deny or
disparage others retained by the
people.
Rights Protected?
• This is the catch all amendment.
• Americans have rights not listed in
the Bill of Rights.
• Remember Federalists?
KEY EVENT: Griswold v Connecticut
(1965)
• Background:
• 1879 Connecticut law:
prohibited the use of "any drug,
medicinal article or instrument
for the purpose of preventing
conception."
• Estelle Griswold opens a
Planned Parenthood clinic. Is
arrested under this law,
convicted in a trial, and fined
$100.
• http://en.wikipedia.org/wiki/Im
age:Egriswold.jpg
• How would you decide?
KEY EVENT: Griswold v Connecticut
(1965)
• 7-2 decision
• Majority 4: Cite a penumbra of rights
suggested by 3rd,4th, and 5th Amends.
• Concurring 3: 9th Amendment includes
possibility that right to privacy in
bedroom is a Constitutional right.
• Dissent 2: Allow state legislatures to
make laws they think are appropriate
to govern local affairs.
10th Amendment
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.
Rights Protected?
• Protects states OR people from
excessive federal government power.
• Federalism!
Key Issue: State’s Rights
• The 10th Amendment assigns powers to
the States. (Education, Transportation,
Morality, Marriage, Birth)
KEY EVENT: Arizona v United States
• Arizona and the US
Government have
clashed over:
• Immigration
(SB1070)
• The Border
• Public Lands
• Obamacare
• Birth Certificate