Bill of Rights

“The legal system reflects the moral worth of society.  The better the society, the less laws (and lawyers) there will be.  The worse the society, the more laws there will be.  In heaven, there will be no law.  In hell, there will be nothing but law and due process will be meticulously observed.”

                        Oliver Wendall Holmes

Bill of Rights

I. Charter of Liberties

A. Federalist view

· Alexander Hamilton

· Rights in the Constitution

- habeas corpus

- no bill of attainder

- no ex post facto

- no titles of nobility

- trial by jury

- treason is defined

B. Anti-Federalist view

· Thomas Jefferson

· Imperfection

· Bill of Rights Pledge

· Reserved Powers

(10^th amend.)

C. Bill of Rights were approved 1791

-17 were proposed by the House

-12 were approved  by the Senate

-10 were ratified by the States

D. “Bill of Liberties”

-personal protection from the government

E. Series of restraints

-substantive liberties

-procedural liberties

-due process of the law

-civil rights

II. Nationalizing the Bill of  Rights

A. 1868,  the 14^th Amend. imposed the Bill of Rights on the States

B. Slow to include all Amendments

C. Until 1961 only the 1^st Amend. and a clause of the 5^th Amend.

were binding in the States.

D. Each is left to the interpretation of the participant.

III. Freedom of Religion: First Amendment

A. Establishment clause

 1.  Separation of Church and State

2. Lemon test set rules:

-had a secular purpose

-its effect was not to promote or inhibit religion

-did not entangle affairs of govt.  or religious institutions

3. Establishment Clause defined in Supreme Court Cases

*Everson v. Board of Educ. (1947)

*Engle v. Vitale (1962)

*School District of Ablington Twp. v. Schempp  (1963)

B. Free exercise clause

1.  Right to believe and practice religion

            2.  Court Cases:

* West Virginia State Board of Education v.  Barnette  (1943)

* Other decisions have involved: Native Americans, polygamy,          

    snake worship, and Amish.

3.  Laws passed-

*  Religious Freedom Restoration Act of 1999

*  School Prayer

IV. Freedom of Speech and the Press

A. Absolutely protected speech

*  All speech is protected by the 1^st Amendment when it is the truth.

*  “True” speech can be regulated only if it:

1) fails clear and present danger test

2) falls below standards

B. Political Speech

1.Court Cases

-Schenk v.  United States  (1919)

-Dennis v. United States (1951)

-Brandenburg v. Ohio (1969)

2.Symbolic Speech, Speech Plus, Assembly, and Petition

-Symbolic Speech Cases

*Tinker v. Des Moines

 (1969)

*Texas v.  Johnson

 (1989)

“speech plus”-picketing, distributing leaflets, and peaceful  assembly

C. Conditionally Protected Speech

1.  Libel and Slander

2. Obscenity and Pornography

3. Fighting Words

 4. Commercial Speech

V. Right to Bear Arms

A. 2^nd Amendment

B. Restrictions

VI. Rights of Accused

A. Due process

B. Searches and Seizures

*Mapp v. Ohio

C. Fifth Amendment

1. Grand Juries

2. Double Jeopardy

*Palko case 1937

3. Self Incrimination

*Miranda Rule

4. Eminent domain

D. Sixth Amendment

1. The right to counsel

*Gideon v. Wainwright

E. Eighth Amendment

1.  No cruel and unusual punishment

 2.   No excessive bail

F. Right to Privacy

1.  9^th Amendment

*Griswold v.  Conn.