What’s the difference? (Protection from govt. versus protection of govt; Liberty versus equality) THREE THEMES a.) gradual nationalization b.) Federal Courts as major policymakers c.) Nothing is absolute

 1.) political freedoms: Amendments I (speech, press, religion, assembly, petition) and II (bear arms)  2.) rights of the accused: IV search & seizure, V self-incrim., VI speedy trial/impartial jury/counsel/witnesses, VIII no exc. Bail or C&U punishment  3.) property rights III (quartering) and V (takings clause)  WHY SO MUCH EMPHASIS ON RIGHTS OF THE ACCUSED?

 ORIGINAL ANSWER: “No” (Barron vs. Baltimore, 1833)  THE CIVIL WAR AMENDMENTS: 13 th (slavery), 15 th (voting rights) and the all- important 14 th  ----Three important but ambiguous phrases in 14 th a.) due process of law b.) privileges and immunities c.) equal protection

 Slaughterhouse Cases (1873): answer still “no”  Gradual incorporation of BoR into state constitutions ----Started with political freedoms (1920s and 1930s) ----Continued with rights of the accused (1950s and 1960s)  Now: mostly ‘Yes’ (3 exceptions)

 FREEDOM OF SPEECH RESTRICTIONS  --Schenck v. US (1919): “clear and present danger” – makes freedom of speech partly contingent on external conditions  --”Fighting words”  -- Slander/libel --- doesn’t apply to political or even public figures --Does symbolic speech count too?

 OBSCENITY Roth v. US: “community standards” and “prurient interest” Miller v. California: community standards, need for specifics, lacking in other value  PRESS ISSUES --No “prior restraint”  --Intra-BoR conflict: what if freedom of the press interferes with rights to fair trial and confront witnesses?

 More intra-BoR conflict: between “establishment” clause and “free exercise” clause  Frequently recurring issues 1.) Govt. aid to religious schools and charities: the Lemon v. Kurzman test (1971)  2.) School prayer and Bible reading: Engel v. Vitale (1962)  3.) Religious displays on govt. property: Commandments, Nativity Scenes, etc.  4.) Can otherwise illegal activities be legalized as part of religious practice?  “Compelling govt interest/least restrictive manner” standard replaced by “neutrality” standard

 What does the 2 nd Amendment really mean?  DC v. Heller (2008)  Fourth Amendment: The Exclusionary Rule (applied to Feds in 1914, states in 1961 w/Mapp v. Ohio)  Fifth Amendment: self-incrimination (Miranda v. Arizona 1966); what double jeopardy means (and doesn’t mean)

 6 th Amendment Evolution of right to counsel, culminating in Gideon v. Wainwright (1963)  8 th Amendment – is the death penalty “cruel and unusual”? No executions took place between ; Gregg v. Georgia created guidelines for valid death penalty laws  Right to privacy: where is it? “penumbras” of 3 rd, 4 th, 5 th, & 9 th Amendments Griswold v. Connecticut (1965) Roe v. Wade (1973); Lawrence v. Texas (2003)