GOVT 2301
Civil Liberties and
the Bill of Rights
The final constitutional
principle we will discuss
is individual liberty.
The fancy term we will use is
civil liberty.
Note that other principles are
contained in the constitution, but
these (most notably equality)
were added to the document
after the original document was
ratified.
Here are the goals for this
section. After reading through
the available material and
accessing some of the more
critical links you should be
comfortable with the following:
- What is the definition of civil liberties?
- What is the marketplace of ideas?
- What role did the Magna Carta and the British Bill of Rights have in
establishing the concept of individual liberty?
- Why did the Federalists argue that a Bill of Rights was unnecessary?
- What is a substantive liberty? Which amendments establish them?
- What is a procedural liberty? Which amendments establish them?
- How did the 14th Amendment apply the Bill of Rights to the states?
- How might the Supreme Court decide that a freedom established in
the Bill of Rights might not be enforceable in a specific case?
- What are the arguments for and against interpreting the Constitution
strictly or loosely?
- Describe the “establishment” and “free exercise” clauses.
For past blog posts on relevant
material, click on these
Bill of Rights
civil liberties
establishment clause
first amendment
free exercise
procedural liberty
Two quick definitions of the term “civil
liberty.”
1 - The protections of individuals from
the arbitrary powers of government.
2 - “the freedom of a citizen to exercise
customary rights, as of speech or
assembly, without unwarranted or
arbitrary interference by the
government.”
You can find more expansive
definitions, thoughts and comments
here:
About.com
ACLU: This Week in Civil Liberties
Cato Institute: Civil Liberties
David Hume, Of Civil Liberty
Wikipedia
Note: A civil liberty is not the same as a
civil right.
Freedom of speech is a civil liberty.
The right to equal protection is a civil
right.
We will cover this more fully in the next
section.
Civil liberties are established by
limiting the government.
Specific limits are placed on its
powers.
As we will see, there are tow
ways to do so.
The first is to design the system
so that its various parts check
each other. The second is to
place explicit limits on the
powers of government in a
document called a bill of rights.
The document as ratified
contained the former, but not
the latter.
The Federalists thought the
republican design, in addition to
the checks and balances was
sufficient to limit governing
power, but the Anti-Federalists
needed a further guarantee.
The Bill of Rights places two
general types of limitations on
the powers of the national
government:
Substantive
Procedural
th
14
(Note that prior to the
Amendment, the Bill of Rights
applied only to the national
government.)
As a consequence we can
speak of procedural liberty
(notably due process) and
substantive liberty.
A substantive limit refers to
what government can pass laws
about
(religion, speech, press etc…)
Example: You are free to say
what you wish because
government is limited from
passing laws which restrict
speech.
(we will analyze exceptions to
this in due course)
A procedural limit refers to how
the executive and judicial
powers can be used.
The Due Process of Law
Example: How, and under what
conditions, can someone be
searched? And if one is
accused of a crime, what rights
does one have in a court of
law?
For us, these limits are
contained in the
U.S. Bill of Rights
and the
Texas Bill of Rights
Note that the U.S. Bill of Rights
was added on to the original
document after ratification – in
order to appease the AntiFederalists.
On the other hand, the Texas Bill of
Rights is the subject of the First
Article of the Texas Constitution.
Again, the Federalists believed
that the Bill of Rights was
unnecessary, Hamilton and
Madison thought not.
The overall design of the
constitution was sufficient to
limit it the national government.
A Bill of Rights might also prove
dangerous to individual liberty
because it might not be
expansive enough.
Basic Fact:
The U.S. Bill of Rights has ten
sections – these are the first ten
amendments to the
Constitution. There is no
separate section titled “the bill of
rights.” the term simply refers to
the first ten amendments.
Some useful links regarding the
Bill of Rights.
Its History and Significance
Wikipedia
James Madison and the Bill of
Rights
It is relatively short and vague.
As is the rest of the
Constitution. It is commonly
reinterpreted, often
controversially so.
Example: A recent Supreme
Court case dealt with the
question whether gaming was
constitutionally protected
speech.
Basic Fact:
The Texas Constitution does
have a unique section called the
Bill of Rights. It is the first Article
of the document. It has 33
sections, and has been heavily
amended since it was first
written. Most recently in 2009.
As with the rest of the Texas
Constitution, it is long detailed
and precise.
Bills of Rights were commonly
attached to state constitutions. It
was argued that they were
necessary because the states
had – as we know – powers that
were “many and undefined.”
Federalist argued that the
power of the national
government was most
effectively limited by properly
designing – balancing -governmental institutions and
their powers.
Republicanism, checks and
balances, and federalism all are
argued to allow for individual
freedom by balancing and
limiting governmental power.
The national government was
limited to the delegated powers
granted to it. They were “few
and defined.”
Madison and Hamilton originally
argued that these would be
sufficient to ensure that the
powers of government would be
limited.
The Anti-Federalists were
unconvinced and demanded
that a Bill of Rights be added to
the document to ensure that
specific limits were placed on
the national government.
Five states, including
Massachusetts, ratified the
Constitution on the condition
that such amendments be
added immediately.
James Madison agreed to
introduce and push it through
the House when he became a
member of it.
He thought it was harmless.
The addition of the Bill of Rights
is therefore a product of a
compromise between the
Federalists and the AntiFederalists.
It was the subject of Federalist
#84 (wikipedia).
Federalist #84
Anti Federalist #84
In Federalist #84, Hamilton
argues that a Bill of Rights is not
necessary since the national
government can only exercise
the powers delegated to it.
There is no reason to that
Congress has no power to pass
a law on a subject that it has no
delegated authority over.
State governments did need
Bills of Rights since they
possessed the reserved powers
and could more easily become
tyrannical.
Republicanism, Federalism and
the Checks and Balances
should be sufficient to ensure
that the national government
would not overstep its authority.
Adding a Bill of Rights stating
that Congress could not pass
laws on matters not delegated
to it raised a question regarding
the limits of the rights
individuals possessed.
Noah Webster thought it would
be dangerous to do so.
It is impossible to spell out all
the rights of individuals. To only
list a few would imply that
others did not exist.
Listing six freedoms in the First
Amendment might lead others
to suggest that these are the
only ones that exist.
What about rights not
mentioned in the Constitution?
Privacy?
Travel?
Contract?
Property?
Voting?
For general information: Things
that are not in the Constitution.
If the right is not explicitly
written in the Constitution, it
may be argued that the power
does not exist.
An example.
Clarence Thomas’ Dissenting
Opinion in Lawrence v. Texas.
I join Justice Scalia’s dissenting opinion. I write separately to note that
the law before the Court today “is … uncommonly silly.” Griswold v.
Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I
were a member of the Texas Legislature, I would vote to repeal it.
Punishing someone for expressing his sexual preference through
noncommercial consensual conduct with another adult does not appear
to be a worthy way to expend valuable law enforcement resources.
Notwithstanding this, I recognize that as a member of this Court I am
not empowered to help petitioners and others similarly situated. My
duty, rather, is to “decide cases ‘agreeably to the Constitution and laws
of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can
find [neither in the Bill of Rights nor any other part of the Constitution a]
general right of privacy,” ibid., or as the Court terms it today, the “liberty
of the person both in its spatial and more transcendent dimensions,”
ante, at 1.
There would be no way to make
this argument if there was no
First Amendment.
Was this what Hamilton was concerned
about here? “bills of rights, in the sense and
in the extent in which they are contended
for, are not only unnecessary in the
proposed constitution, but would even be
dangerous. They would contain various
exceptions to powers which are not granted;
and on this very account, would afford a
colorable pretext to claim more than were
granted. For why declare that things shall
not be done which there is no power to do?”
As we know: It was argued that
since many states had bills of
rights, it was necessary for the
national government to have
one as well.
The response was that since
the powers of the state
governments are potentially far
broader than those of the
national government, a Bill of
Rights was necessary to protect
the people from the states.
Nevertheless, a bill of rights was
proposed during the
Constitutional Convention
(August 20).
But it is also argued that a
statement of the specific
liberties held by the people is
essential to the formation of a
free society.
It clearly establishes the
importance of these rights.
Every time we read the First
Amendment, for example, we
are reminded of the importance
of religious liberty as well as
that of speech, press, assembly
and petition.
They attain a unique status
among all liberties.
Some History
The rights listed in the Bill of
Rights evolved over time.
Some of this history we have
discussed so this concept
should be familiar by now.
We have noted four specific
predecessors to the Bill of
Rights.
The Charter of Liberties
Magna Carta
The Petition of Right
The English Bill of Rights
The Charter of Liberties (1100)
was issued by Henry I in order
to convince the nobility and the
church that he would abide by
the law.
These were a bit random, and
were soon forgotten. But they
would become the model for the
Magna Carta which established
specific procedural limits on the
power of the monarchy.
Magna Carta (1215)
As we know, Magna Carta was
forced upon John by the
nobility. It was intended to
minimize arbitrary rule.
For our purposes, the most
important result of the document
was that it established that no
freeman could be punished
unless it was in accordance with
the law of the land.
A handful of its provisions
establish what we now know as
the rule of law – or procedural
liberty as we are calling it now.
38. No bailiff for the future shall,
upon his own unsupported
complaint, put anyone to his
"law", without credible witnesses
brought for this purposes.
39. No freemen shall be taken
or imprisoned or disseised or
exiled or in any way destroyed,
nor will we go upon him nor
send upon him, except by the
lawful judgment of his peers or
by the law of the land.
40. To no one will we sell, to no
one will we refuse or delay, right
or justice.
Respectively these establish the
idea that convictions must be
based on eyewitness testimony,
convictions must be rendered
by a jury, and that justice is
available to all.
Much of the 6th Amendment –
which establishes the
procedural liberties of criminal
defendants - is based on this.
The Petition of Right (1628)
The Petition of Right was written
to remind Charles I of the
“ancient rights and liberties”
agreed to in Magna Carta.
The petition was written by
Edward Coke who modified
Magna Carta to apply to all
subject of the crown, not just the
nobility.
All subjects of the crown should
have liberties from the arbitrary
actions of the government.
Charles was unconvinced and
suspended Parliament as a
result.
But he would be executed soon
enough, and the Scottish
Stuarts would be removed in the
Glorious Revolution, which led –
as we know to:
The English Bill of Rights (1689)
This document, backed by a
powerful Parliament, would not
only ensure that the procedural
limitations placed on the power
of the monarch would be
secure, but it also added
substantive liberties as well.
A Small Sampling:
The English Bill of Rights
• . . . it is the right of the subjects to petition the king,
and all commitments and prosecutions for such
petitioning are illegal;
• . . . the subjects which are Protestants may have arms
for their defence suitable to their conditions and as
allowed by law;
• . . . the freedom of speech and debates or
proceedings in Parliament ought not to be impeached
or questioned in any court or place out of Parliament;
• . . . excessive bail ought not to be required, nor
excessive fines imposed, nor cruel and unusual
punishments inflicted;
Aspects of the First, Second, and
Eighth Amendment can be found here.
But notice that religious liberty is not
honored. Protestants are privileged
over Catholics (this is something to
think about prior to our discussion of
equal protection and civil rights).
The Declaration of
Independence (1776)
The Declaration of
Independence would establish
that the liberties of Englishmen
should apply to the white,
property owning, male
inhabitants of the colonies.
Note: we cover the expansion of
liberties to other groups in
society when we discuss civil
rights.
The Declaration is based on
John Locke’s argument in the
Second Treatise on
Government. We covered this
material previously so it should
be familiar to you.
Liberty was considered to be
among the unalienable rights,
and a government should be
evaluated based on how well it
was securing individual liberty.
The document does not lay out
all unalienable rights, but aside
from mentioning life, liberty and
the pursuit of happiness, it lists
grievances which suggest what
types of incursions they thought
unacceptable.
Two other useful documents:
The Virginia
Declaration of Rights
The Declaration of the Rights of
Man and of the Citizen
The Virginia Declaration of
Rights was also written by
Jefferson and was intended to
serve as Virginia’s Bill of Rights.
The Declaration of the Rights of
Man was France’s Bill or Rights,
written during their revolution.
Each document is far more
forceful, than the U.S. Bill of
Rights, in how they state these
rights. Certain things are
inherent in the individual and
must be guaranteed.
The Bill of Rights does not
make similar statements. It is
really less about the rights of
individuals than it is about
limiting the power of
government.
The document assumes that
people have certain liberties,
and establishes them by
negating the power of
government to interfere with
those liberties.
Two useful terms:
Negative Liberty
Positive Liberty
Negative Liberty
A liberty established by the
negation of the power that can
suppress it.
The First Amendment, for
example, starts with the phrase
“Congress shall make no law.”
The subject of the document is
not the people and what they
can do, but government and
what it cannot do.
This is distinct from a positive
liberty which places an
obligation on a governing
authority to actively provide for
the right.
This is a good definition
of a civil right.
For example, many people
consider education to be a right,
which means that we are
obligated to provide it.
Five points about
the Bill of Rights
1 - It is undemocratic.
It establishes that, for example,
certain laws cannot be passed,
even if the majority supports it.
This minimizes the ability of the
majority to impose its will on the
minority
“Congress can make no law...”
Even if the majority wants it to?
This is meant to save the
minority from the majority, but it
does so by limiting the majority.
This explains why the
implementation of these
limitations can be very
unpopular.
2 - Civil Liberties are not
absolute.
They can be limited if doing so
secures the greater interest of
society.
Example:
Freedom of Speech does not
protect you from being punished
for falsely shouting fire in a
crowded theater.
The most stringent protection of free speech
would not protect a man falsely shouting fire
in a theater and causing a panic. [...] The
question in every case is whether the words
used are used in such circumstances and
are of such a nature as to create a clear and
present danger that they will bring about the
substantive evils that Congress has a right
to prevent.
– Oliver Wendell Holmes, Schenck v. U.S.
A related concept:
Ordered Liberty
People are free to act within the
confines of what it takes to have
an orderly society.
Another example:
“The Constitution is not a
suicide pact” - Eric Posner
Can restrictions on searches
and seizures be too restrictive
on the ability of government to
enforce the law?
Controversy: What factors
justifiably limit constitutional
liberties?
How do we define the greater
interest of society?
This is an ongoing source of
controversy, but it is generally
held that liberties have their
limits. Establishing those limits
is an ongoing source of
controversy.
3 – Civil Liberties can
come into conflict
Some liberties in the Bill of
Rights can come into conflict
with others.
The Freedom of the Press can
conflict with The Right to a Fair
Trial.
The Right Against Self
Incrimination vs. the Right to
Obtain Witnesses in Your Favor
4 – The specific recognition of
rights is up to the Supreme
Court.
This involves controversies over
how the Constitution is to be
interpreted and what role the
court should have in overturning
legislation.
Examples of rights established
by Supreme Court Decisions:
The Right to Privacy
One Person One Vote
Miranda Warnings
Rights of Corporations
The Right to Privacy
The Supreme Court recognized
in Griswold v. Connecticut
within the broad language of the
Constitution, a right to privacy.
One Person One Vote
in Baker v Carr the Supreme
Court ruled against the
existence of uneven districts
because they violated an
implicit guarantee that votes be
equal.
Miranda Warnings
In Miranda v Arizona the court
argued that the Fifth
Amendment right against self
incrimination had to be made
clear to criminal suspects.
Rights of Corporations
In Citizens United v. FEC the
Supreme Court argued that
corporations have the same
speech rights as citizens.
Controversy: How expansively
should rights be inferred from
the document?
How should the Constitution
be interpreted?
Strict interpretation
Loose interpretation
Strict Interpretation
original intent
textualism
Loose interpretation
Living Constituion
One with a loose interpretation
of the Constitution is likely to
see rights embedded within the
document that are not
acknowledged by those with a
strict interpretation
Example: Privacy / Abortion
Competitive elections often
include statements regarding a
candidate’s viewpoint
concerning how the Constitution
should be interpreted.
5 – Originally the Bill of Rights
applied only to the national
government, but the 14th
Amendment made it applicable
to the states.
“All persons born or naturalized in the
United States, and subject to the
jurisdiction thereof, are citizens of the
United States and of the State wherein
they reside. No State shall make or
enforce any law which shall abridge the
privileges or immunities of citizens of
the United States …”
This made the restriction placed on
the national government applicable
to state and local governments as
well.
States could not deny liberties to
American citizens. Their citizens
were also American citizens, so the
conflict was inevitable.
Controversy followed since states
were no longer able to deny certain
liberties to their citizens.
They were freer to speak, organize
and use the press. They also had
freedoms against the arbitrary use
of law enforcement.
Supreme Court cases the apply
national civil liberty restrictions
to state governments contain
language stating that the
national limit applies to the
states through the 14th
Amendment.
The doctrine of “equal
protection of the laws” was also
established in the 14th
Amendment, but we cover that
when we discuss civil rights.
Next Topic
The Content of the Bill of Rights
Responding to demands by the
states ratifying conventions,
James Madison introduced
several constitutional
amendments to the House of
Representatives when it first
met.
Twelve would be sent to the
states, ten would be ratified.
One of the rejected
amendments was a right to
conscience.
“No State shall violate the
equal rights of conscience, or
the freedom of the press, or the
trial by jury in criminal cases.”
It was rejected by the Senate.
To repeat a point made above:
There are two types of liberties
established in the Bill of Rights,
substantive and procedural.
We will review each.
Substantive Liberties
The “what” of government
These are contained in
Amendments 1, 2, 3, 9, and 10
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.
It establishes Six Liberties:
Establishment
Free Exercise
Speech
Press
Peaceful Assembly
Petition
More attention is paid to this
amendment than to any other.
We will dig into these
controversies soon.
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.
Until several years ago, the
Supreme Court had never clarified
the meaning of the opening phrase.
Is the right to bear arms absolute or
conditional upon the existence of a
militia (which a standing army has
made unnecessary)?
In the case DC v. Heller, the
court ruled 5-4, that it was an
absolute right.
McDonald v. Chicago made this
applicable – through the 14th
Amendment – to the states.
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.
There is very little jurisprudence
associated with this
amendment.
Ninth Amendment: The
enumeration in the Constitution,
of certain rights, shall not be
construed to deny or disparage
others retained by the people.
Establishes, controversially, that
other rights may exist, but it
does not explain how these
rights might be justified.
This amendment was used to
help establish the right to
privacy.
There is debate regarding how
often, and how, it ought to be
used.
Tenth 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.
As we already know, this
amendment defines the
terminology
of federalism.
Procedural Liberties
The “how” of government
Amendments 4 - 8
As suggested above, together
these amendments define the
parameters of what we know as the
Due Process of Law.
The legal system – from beginning
to end – has to follow certain
guidelines to keep it from being an
agent of arbitrary power.
Given the power government
has to remove an individual’s
life, liberty and property, these
amendments restrict the
potential that this power can be
used in a discretionary or
arbitrary manner.
These are what some people
derisively call “technicalities.”
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.
After the First Amendment, this
gets more attention form the
courts than almost any other
amendment.
It places limits on the
investigative power of law
enforcement.
A search must be justified.
Police cannot go on “fishing
expeditions” casting their nets
wide to see what they can
catch.
Searches have to be based on
probable cause and be based
on a warrant which states what
they are looking for and where
they think they will find it.
But: how broadly will the court
define “probable cause?”
What level is suspicion is
necessary to justify a search?
An additional area of
controversy:
The Exclusionary Rule
Can evidence gathered in an
unreasonable search be
excluded from being introduced
in court?
Fifth Amendment: No person shall be held to
answer for a 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 offence to be twice put in
jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be
taken for public use, without just compensation
This places limits on the
arbitrary actions of district
attorneys.
Trials can only be justified if an
indictment is issued by a grand
jury, they only have one crack at
finding a defendant guilty, and
defendants can’t be tortured in
order to get evidence.
Areas of Controversy:
Double Jeopardy
Eminent Domain
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 where
in 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 witnesses against
him; to have compulsory process for
obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defence.
This applies to trials. Judges
must ensure that defendant
know what they are accused of,
can challenge accusers, have
access to a lawyer, and have
access to a speedy and public
trial before a jury of their peers.
This limits the arbitrary power of
judges.
Again there are significant areas
of controversy:
Assistance of Counsel
How competent must public
defenders be?
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 rules of the common
law.
Eight Amendment: Excessive
bail shall not be required, nor
excessive fines imposed, nor
cruel and unusual punishments
inflicted.
This is almost word for word
what exists in the English Bill of
Rights.
Punishments must be
proportional to the crime
Ongoing area of controversy:
Is the death penalty cruel and
unusual?
The
th
14
Amendment
th
14
The
Amendment makes
these procedures mandatory to
the states.
At least in theory.
th
14
The
Amendment was
written after the Civil War to
negate Dred Scott decision. The
Supreme Court ruled that Scott
was not a citizen and had no
right to sue in the courts.
th
14
The
Amendment ruled that
anyone born in the US was a
citizen and states could not
violate their rights (their
privileges and immunities) as
Americans.
This included access to the
courts.
“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”
The question soon became
whether this argument applied
to all other matters raised in the
Constitution as well, including
the liberties guaranteed in the
Bill of Rights.
Over time these limitations on
national power were applied to
the states (incorporated) on a
case by case basis.
This process was called
selective incorporation
The Selective Incorporation of
the Bill of Rights to the States.
- Wikipedia.
- Exploring Constitutional
Conflicts.
- Free Legal Encyclopedia.
This idea was rejected early on
however:
The Slaughter House Cases.
Beginning in early 20th Century
a series of cases began to use
th
the 14 Amemdment to protect
American citizens from the
actions of the states.
Gitlow v New York
The freedom of speech is
applied to the states
Mapp v. Ohio
Applied the right against
unreasonable searches and
seizures to the states
McDonald v Chicago
Applied the right to keep and
bear arms to the states.
What is the current status of
incorporation?
From Exploring Constitutional Conflicts:
1st Amendment: Fully incorporated.
2nd Amendment: Fully incorporated.
3rd Amendment: No Supreme Court decision; 2nd Circuit
found to be incorporated.
4th Amendment: Fully incorporated.
5th Amendment: Incorporated except for clause
guaranteeing criminal prosecution only on a grand jury
indictment.
6th Amendment: Fully incorporated.
7th Amendment: Not incorporated.
8th Amendment: Incorporated with respect to the protection
against "cruel and unusual punishments," but no specific
Supreme Court ruling on the incorporation of the
"excessive fines" and "excessive bail" protections.
The Texas Bill of Rights
A far more detailed and specific
document,
The Texas Bill of Rights
guarantees certain rights not
guaranteed by the U.S. Bill of
Rights.
Sections 3 and 3a
Equal Rights Amendment
Sec. 3. EQUAL RIGHTS. All free men, when they
form a social compact, have equal rights, and no
man, or set of men, is entitled to exclusive
separate public emoluments, or privileges, but in
consideration of public services.
Sec. 3a. EQUALITY UNDER THE LAW. Equality
under the law shall not be denied or abridged
because of sex, race, color, creed, or national
origin. This amendment is self-operative.
Religion is covered in four
sections: 4 – 7.
Sec. 4. RELIGIOUS TESTS. No religious test shall ever be
required as a qualification to any office, or public trust, in
this State; nor shall any one be excluded from holding
office on account of his religious sentiments, provided he
acknowledge the existence of a Supreme Being.
Sec. 5. WITNESSES NOT DISQUALIFIED BY
RELIGIOUS BELIEFS; OATHS AND AFFIRMATIONS. No
person shall be disqualified to give evidence in any of the
Courts of this State on account of his religious opinions, or
for the want of any religious belief, but all oaths or
affirmations shall be administered in the mode most binding
upon the conscience, and shall be taken subject to the
pains and penalties of perjury.
Sec. 6. FREEDOM OF WORSHIP. All men have a natural
and indefeasible right to worship Almighty God according to
the dictates of their own consciences. No man shall be
compelled to attend, erect or support any place of worship,
or to maintain any ministry against his consent. No human
authority ought, in any case whatever, to control or interfere
with the rights of conscience in matters of religion, and no
preference shall ever be given by law to any religious
society or mode of worship. But it shall be the duty of the
Legislature to pass such laws as may be necessary to
protect equally every religious denomination in the
peaceable enjoyment of its own mode of public worship.
Sec. 7. APPROPRIATIONS FOR
SECTARIAN PURPOSES. No money
shall be appropriated, or drawn from
the Treasury for the benefit of any sect,
or religious society, theological or
religious seminary; nor shall property
belonging to the State be appropriated
for any such purposes.
Freedom of Speech is
presented as more an individual
guarantee then it is in the First
Amendment.
Sec. 8. FREEDOM OF SPEECH AND PRESS; LIBEL.
Every person shall be at liberty to speak, write or publish
his opinions on any subject, being responsible for the
abuse of that privilege; and no law shall ever be passed
curtailing the liberty of speech or of the press. In
prosecutions for the publication of papers, investigating the
conduct of officers, or men in public capacity, or when the
matter published is proper for public information, the truth
thereof may be given in evidence. And in all indictments for
libels, the jury shall have the right to determine the law and
the facts, under the direction of the court, as in other cases.
Due Process Rights are very
specific. See Bail for example:
Section 11.
Examples:
Section 11c
Family Violence
Sec. 11c. VIOLATION OF AN ORDER FOR EMERGENCY
PROTECTION INVOLVING FAMILY VIOLENCE. The
legislature by general law may provide that any person who
violates an order for emergency protection issued by a
judge or magistrate after an arrest for an offense involving
family violence or who violates an active protective order
rendered by a court in a family violence case, including a
temporary ex parte order that has been served on the
person, or who engages in conduct that constitutes an
offense involving the violation of an order described by this
section may be taken into custody and, pending trial or
other court proceedings, denied release on bail if following
a hearing a judge or magistrate in this state determines by
a preponderance of the evidence that the person violated
the order or engaged in the conduct constituting the
offense.
Section 15 a
Commitment of Persons of
Unsound Mind
Sec. 15-a. COMMITMENT OF PERSONS OF UNSOUND
MIND. No person shall be committed as a person of
unsound mind except on competent medical or psychiatric
testimony. The Legislature may enact all laws necessary to
provide for the trial, adjudication of insanity and
commitment of persons of unsound mind and to provide for
a method of appeal from judgments rendered in such
cases. Such laws may provide for a waiver of trial by jury,
in cases where the person under inquiry has not been
charged with the commission of a criminal offense, by the
concurrence of the person under inquiry, or his next of kin,
and an attorney ad litem appointed by a judge of either the
County or Probate Court of the county where the trial is
being held, and shall provide for a method of service of
notice of such trial upon the person under inquiry and of his
right to demand a trial by jury.
Section 17
Regards government taking
property for “public use.” Written
in response to Kelo v New
London.
Section 24
Military Subordinate to Civil
Authority
Sec. 24. MILITARY
SUBORDINATE TO CIVIL
AUTHORITY. The military shall
at all times be subordinate to
the civil authority.
Section 26
Perpetuities and Monopolies
Sec. 26. PERPETUITIES AND
MONOPOLIES; PRIMOGENITURE OR
ENTAILMENTS. Perpetuities and
monopolies are contrary to the genius
of a free government, and shall never
be allowed, nor shall the law of
primogeniture or entailments ever be in
force in this State.
Section 30 and 31
Rights of Crime Victims and
Compensation of Victims of
Crime
Section 32
Marriage
(a) Marriage in this state shall consist
only of the union of one man and one
woman.
(b) This state or a political subdivision
of this state may not create or
recognize any legal status identical or
similar to marriage.
Section 33
Access and Use of Public
Beaches
Detail on Religious Liberties
Congress shall make no law
respecting an establishment of
religion, or prohibiting the free
exercise thereof;
Some background on the
phrase “wall of separation
between church and state.
An overview from Findlaw.
Two letters:
- Danbury Baptist Association of
Connecticut to Thomas
Jefferson.
- Jefferson’s Reply.
establishment of religion
Links
- Wikipedia.
- Exploring Constitutional
Conflicts.
- First Amendment Center.
- The Founder’s Constitution.
- FindLaw.
What does ”establishment”
mean?
''[F]or the men who wrote the
Religion Clauses of the First
Amendment the 'establishment'
of a religion connoted
sponsorship, financial support,
and active involvement of the
sovereign in religious activity.''
- findlaw.
Over time, it has involved a
variety of other questions.
Public Funding
School Prayer
Public Displays
Creationism
Engle v. Vitale: Governmentdirected prayer in public schools
violates the Establishment Clause
of the First Amendment, even if the
prayer is denominationally neutral
and students may remain silent or
be excused from the classroom
during its recitation.
Lemon v. Kurtzman: For a law to
be considered constitutional under
the Establishment Clause of the
First Amendment, the law must
have a legitimate secular purpose,
must not have the primary effect of
either advancing or inhibiting
religion, and must not result in an
excessive entanglement of
government and religion.
Marsh v. Chambers: The
practice of hiring a chaplain for
the Nebraska state legislature
did not violate the
Establishment Clause of the
First Amendment.
Van Orden v. Perry: A Ten
Commandments monument
erected on the grounds of the
Texas State Capitol did not violate
the Establishment Clause, because
the monument, when considered in
context, conveyed a historic and
social meaning rather than an
intrusive religious endorsement.
Kitzmiller v. Dover Area School District:
Teaching intelligent design in public
school biology classes violates the
Establishment Clause of the First
Amendment to the Constitution of the
United States (and Article I, Section 3
of the Pennsylvania State Constitution)
because intelligent design is not
science and "cannot uncouple itself
from its creationist, and thus religious,
antecedents."
free exercise
Links:
- Wikipedia.
- Exploring Constitutional
Conflicts.
- First Amendment Center.
- FindLaw.
What does “free exercise”
mean?
When is it appropriate to place
limits on the free exercise of
religion?
Areas of recent dispute:
Medical Assistance for Children
Peyote Use
Animal Sacrifices
Reynolds v. United States:
Religious duty was not a
suitable defense to a criminal
indictment.
Employment Division, Department of
Human Resources of Oregon v. Smith:
The Free Exercise Clause permits the
State to prohibit sacramental peyote
use and thus to deny unemployment
benefits to persons discharged for such
use." Neutral laws of general
applicability do not violate the Free
Exercise Clause of the First
Amendment.
Church of Lukumi Babalu Aye v.
City of Hialeah: The states
cannot restrict religiouslymandated ritual slaughter of
animals, regardless of the
purpose of the slaughter.
A final point:
Test Cases
Some of the more important
decisions that have established
the nature of civil liberty
protections have resulted from
test cases, which are cases
deliberately designed to force
the Supreme Court to rule on a
law limiting a particular action.
Some of the cases mentioned
above were test cases.
Griswold v Conn
Heller v DC
A lawsuit, or a deliberate
violation of the law was initiated
with the expectation that the
person accused of the crime
would have the standing
necessary to challenge the
constitutionality of the law in
court.