Order and Civil Liberties Chapter 15 Daily Dilemma: Should saying the Pledge of Allegiance be mandatory in schools?

The Bill of Rights 0 Imposed limits on the national but not the state governments 0 Civil Liberties– “negative rights.” Freedoms guaranteed to the individual. The guarantees take the form of restraints on government 0 The First Amendment says the the government shall make no law limiting the freedom of speech 0 Civil Rights– “positive rights.” Declare what the government must do or provide. Powers and privileges that are guaranteed to the individual and protected against removal at the hands of government or other individuals. 0 Right to vote and the right to a jury trial are both embedded in the Constitution

Breaking it down… 0 People possess rights 0 Governments possess powers

Freedom of Religion 0 Congress shall make no law respecting an establishment of religion, or prohibiting free exercise thereof 0 Religious freedom was incredibly important to the colonists, obvious by it’s placement as the first of the First Amendment 0 More Americans identify with a particular religious faith than people in most of other developed nations 0 The government can neither promote nor inhibit religious beliefs or practices

Breaking it down… 0 Religion cannot benefit directly from government action but it can benefit indirectly 0 Governments cannot make contributions to churches and synagogues 0 Government CAN supply books on secular subjects to be used in all schools: private, public and parochial

Establishment Clause 0 Congress shall make no law respecting an establishment of religion 0 Bars government sponsorship or support of religious activity 0 Three-pronged test to determine constitutionality of government programs and laws under the establishment clause (the future of this test is uncertain): 1. They must have a secular purpose 2. Their primary effect must not be to advance or inhibit religion 3. They must not entangle the government excessively with religion

School Prayer 0 Official state approval of prayer was an unconstitutional attempt on the part of the state to establish a religion 0 Religious training during public school is out-of- bounds, but religious training after school is now allowed

The Free Exercise Clause 0 Congress shall make now law… prohibiting the free exercise [of religion]

Freedom of Expression 0 Congress shall make no law… 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 0 Free-expression clauses– The press and speech clause of the First Amendment

Freedom of Speech 0 Clear and present danger test– The means by which the Supreme Court has distinguished between speech as the advocacy of ideas, which is protected by the First Amendment, and speech as incitement, which his not protected 0 “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

Breaking it Down… 0 The United States stands alone when it comes to protection for hateful speech. Many democratic nations– including Canada, England, France, Germany and India– have laws or international conventions to ban hate speech. 0 Threatening language is protected unless directed at inciting or producing lawlessness 0 Fighting words– words that “inflict unjust or tend to incite an immediate breach of the peace” – do not convey ideas and thus are not subject to First Amendment protection

Freedom of the Press 0 The First Amendment also guarantees freedom of the press 0 While the Court has ruled that freedom of the press takes precedence over defaming public figures, it also ruled that a principal could remove articles from the school newspaper regarding divorce and teenage pregnancy

The Right to Assemble Peaceably and to Petition the Government 0 Freedom and order conflict when public libraries become targets of community censors, when religious devotion interferes with military service and when individuals and groups express views or hold beliefs at odds with majority sentiment

The Right to Bear Arms 0 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 0 Open issues from District of Columbia v. Heller: 1. The Court left open whether the individual right to keep and hear arms in the Second Amendment should be brought into or incorporated into the Fourteenth Amendment to apply against the states 2. The justices suggested that person handgun possession did not extend to unusual weapons like submachine guns or assault rifles, but that issues was not squarely before them 3. The opinion did not set out the standard that would be used to evaluate future challenges to gun regulations that stop short of prohibition

Applying the Bill of Rights to the States 0 The Fourteenth Amendment– 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 0 Most freedoms protected in the Bill of Rights today function as limitations on the states

The USA-PATRIOT Act 0 The national government decided, after the September 11 attacks, to forgo some liberties in order to secure greater order, through bipartisan passage of the USA-PATRIOT Act 0 Greatly expanded the ability of law enforcement and intelligence agencies to tap phones, monitor Internet traffic, and conduct other forms of surveillance in pursuit of terrorists 0 Detainees and the War on Terrorism 0 The Supreme Court has rolled back some of the executive power claimed under George W. Bush and has confirmed that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens”

The Ninth Amendment 0 The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people 0 Griswold v. Conneticut (1965) Struck down a seldom-enforced law that made birth control a crime 0 Roe v. Wade (1973) declared unconstitutional a Texas law making it a crime to obtain an abortion except for the purpose of saving the woman’s life 0 Homosexuality– Does the right to privacy embrace private homosexual acts between consenting adults? 0 In July 2010 a federal trial court struck down the marriage- defining section of the Defense of Marriage Act (barred effects of homosexual marriage) on the ground that it violated the concept of equality inherent in the Fifth Amendment

Discussion Question… 0 What will the Supreme Court find regarding: 0 Same Sex Marriage 0 Recreational use of Marijuana Make a prediction about the U.S. in 10 years… will these things be legal everywhere? Why or why not?