The Big ONE 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 the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

14 th Amendment

Dual Federalism (Barron) to Cooperative Federalism (14 th ) Barron v. Baltimore (1833) – Bill of Rights did not apply to the states. Barron v. Baltimore (1833) – Bill of Rights did not apply to the states. Barron decision remains unchallenged until the Civil War: The 14 th Amendment Barron decision remains unchallenged until the Civil War: The 14 th Amendment Two Key Clauses: “No State shall deprive...” 1. Life liberty or property without DUE PROCESS - Civil Liberties 2. Equal Protection - Civil Rights

Incorporation Doctrine changes the Equation 14 th Amendment and the Bill of Rights No State shall deprive you of life, liberty or property without due process... No State shall deprive you of life, liberty or property without due process... Liberty can not exist without fundamental rights. Liberty can not exist without fundamental rights. Free Speech is a fundamental right- liberty can not exist if it is denied. Free Speech is a fundamental right- liberty can not exist if it is denied. Therefore no state shall deny freedom of speech, because they would be denying liberty- contrary to the 14 th Amendment. Therefore no state shall deny freedom of speech, because they would be denying liberty- contrary to the 14 th Amendment.

14 th Amendment Incorporation Doctrine

College Board Cases (1 st Amendment) Schenck and Abrams (1919) – “Clear and Present Danger” Brandenburg v. Ohio (1969) - Free Speech New York Times v. US (1971) – Pentagon Papers Everson v. Board of Education (1947) - Wall of Separation Engel v. Vitale (1962) - No School Prayer Lemon v. Kurtzman - (1971) Lemon Test Incorporation Doctrine (14 th and...) Mapp v. Ohio (1961) 4 th Amendment Gideon v. Wainwright (1963) 6 th Amendment Miranda v. Arizona (1965) 5 th Amendment Furman v. Georgia (1972) 8 th Amendment Griswold v. Connecticut (1965)– Privacy (Informal Amendment – Penumbras Theory) Roe v. Wade (1973) – Privacy and Abortion

Establishment Clause (Religion) The clause against establishment of religion by law was intended to erect "a wall of separation between Church and State.“ Everson v. Board of Education (1947). The clause against establishment of religion by law was intended to erect "a wall of separation between Church and State.“ Everson v. Board of Education (1947). School Prayer: Engel v. Vitale (1962) - The case involved a prayer written by the New York Board of Regents. Though the prayer was non- denominational, Justice Black wrote, "it is no part of the official business of government to compose official prayers for any group of American people to recite as part of a religious program carried out by the Government." School Prayer: Engel v. Vitale (1962) - The case involved a prayer written by the New York Board of Regents. Though the prayer was non- denominational, Justice Black wrote, "it is no part of the official business of government to compose official prayers for any group of American people to recite as part of a religious program carried out by the Government."

The Lemon Test In Lemon v. Kurtzman (1971), the Supreme Court ruled that government may not "excessively entangle" with religion. Example: funding religion. In Lemon v. Kurtzman (1971), the Supreme Court ruled that government may not "excessively entangle" with religion. Example: funding religion. The case involved two state laws: one permitting the state to "purchase" services in secular fields from religious schools, and the other permitting the state to pay a percentage of the salaries of private school teachers, including teachers in religious institutions. The case involved two state laws: one permitting the state to "purchase" services in secular fields from religious schools, and the other permitting the state to pay a percentage of the salaries of private school teachers, including teachers in religious institutions. The Supreme Court found that the government was "excessively entangled" with religion, and thereby invalidated the statutes in question. The excessive entanglement test, together with the secular purpose and primary effect tests, form the Lemon Test. The Supreme Court found that the government was "excessively entangled" with religion, and thereby invalidated the statutes in question. The excessive entanglement test, together with the secular purpose and primary effect tests, form the Lemon Test.

Free Exercise Clause (Religion) Reynolds v. United States (1879) – no polygamy; "Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices." Reynolds v. United States (1879) – no polygamy; "Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices." West Virginia State Board of Education v. Barnette (1943) - "One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote." West Virginia State Board of Education v. Barnette (1943) - "One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote." Wisconsin v. Yoder (1972) - the Court ruled that a law that "unduly burdens the practice of religion" without a compelling interest, even though it might be "neutral on its face," would be unconstitutional. Wisconsin v. Yoder (1972) - the Court ruled that a law that "unduly burdens the practice of religion" without a compelling interest, even though it might be "neutral on its face," would be unconstitutional. Other Decisions: people could become conscientious objectors to war on religious grounds; the Air Force can tell a cadet no yarmulkes; Indians- no peyote

To Summarize the 1 st Amendment and Religion Free Exercise Clause – you can believe whatever you want to believe, but you often can not do whatever you want to do, to exercise your religious freedom. Free Exercise Clause – you can believe whatever you want to believe, but you often can not do whatever you want to do, to exercise your religious freedom. Establishment Clause – there must be a “wall of separation” dividing church and state. The government may not establish an official religion of the state. Establishment Clause – there must be a “wall of separation” dividing church and state. The government may not establish an official religion of the state.

Review Freedom of Religion FreeResp07Scoring.pdf

NY Times Co. v. United States (1971) Richard Nixon had claimed executive privilege to force The Times to suspend publication of classified information in its possession. Richard Nixon had claimed executive privilege to force The Times to suspend publication of classified information in its possession. The question before the court was whether freedom of the press under the First Amendment was subordinate to a claimed Executive need to maintain the secrecy of information. The question before the court was whether freedom of the press under the First Amendment was subordinate to a claimed Executive need to maintain the secrecy of information. The Supreme Court ruled that First Amendment did protect The New York Times' right to print the Pentagon Papers because it would NOT cause a “direct and immediate harm” to national security. The Supreme Court ruled that First Amendment did protect The New York Times' right to print the Pentagon Papers because it would NOT cause a “direct and immediate harm” to national security.

Symbolic Speech Tinker v. Des Moines (1969) - wearing armbands to protest Vietnam did not cause disruption; the students’ activity represented constitutionally protected symbolic speech. Tinker v. Des Moines (1969) - wearing armbands to protest Vietnam did not cause disruption; the students’ activity represented constitutionally protected symbolic speech. Texas v. Johnson (1989) - flag burning is protected as symbolic speech. Texas v. Johnson (1989) - flag burning is protected as symbolic speech. Again, one must view Supreme Court decisions as an informal way of amending the Constitution.