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Chapter 4 Vocabulary
a law originally created to uphold a religious or moral standard, such as a prohibition against selling alcohol on Sundays
limitations on the power of government, designed to ensure personal freedoms
guarantees of equal treatment by government authorities
a right of the people rooted in legal tradition and past court rulings, rather than the Constitution
a person who claims the right to refuse to perform military service on the grounds of freedom of thought, conscience, or religion
a prosecution pursued twice at the same level of government for the same criminal action
due process clause
provisions of the Fifth and Fourteenth Amendments that limit government power to deny people “life, liberty, or property” on an unfair basis
the right of individuals to obtain, use, and trade things of value for their own benefit
the power of government to take or use property for a public purpose after compensating its owner; also known as the takings clause of the Fifth Amendment
the provision of the First Amendment that prohibits the government from endorsing a state-sponsored religion; interpreted as preventing government from favoring some religious beliefs over others or religion over non-religion
a requirement, from Supreme Court case Mapp v. Ohio, that evidence obtained as a result of an illegal search or seizure cannot be used to try someone for a crime
free exercise clause
the provision of the First Amendment that prohibits the government from regulating religious beliefs and practices
a statement by law enforcement officers informing a person arrested or subject to interrogation of his or her rights
acts or statements that are extremely offensive by contemporary standards
a law passed by Congress in the wake of the 9/11 attacks that broadened federal powers to monitor electronic communications; the full name is the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act)
an agreement between the defendant and the prosecutor in which the defendant pleads guilty to the charge(s) in question or perhaps to less serious charges, in exchange for more lenient punishment than if convicted after a full trial
a government action that stops someone from doing something before they are able to do it (e.g., forbidding someone to publish a book he or she plans to release)
legal standard for determining whether a search or seizure is constitutional or a crime has been committed; a lower threshold than the standard of proof needed at a criminal trial
right to privacy
the right to be free of government intrusion
a legal document, signed by a judge, allowing police to search and/or seize persons or property
the gradual process of making some guarantees of the Bill of Rights (so far) apply to state governments and the national government
an action or statement that admits guilt or responsibility for a crime
a standard for deciding whether a law violates the free exercise clause; a law will be struck down unless there is a “compelling governmental interest” at stake and it accomplishes its goal by the “least restrictive means” possible
a form of expression that does not use writing or speech but nonetheless communicates an idea (e.g., wearing an article of clothing to show solidarity with a group)
undue burden test
The undue burden standard states that a legislature cannot make a particular law that is too burdensome or restrictive of one’s fundamental rights.
Americans have often confronted situations in which government officials appeared not to provide citizens their basic freedoms and rights. Over the last few decades protests have regularly erupted nationwide during interactions with police. Many people were deeply troubled by the revelations of Edward Snowden that U.S. government agencies are conducting widespread surveillance, capturing not only the conversations of foreign leaders and suspected terrorists but also the private communications of U.S. citizens, even those not suspected of criminal activity. These are but a few examples of concerns over civil liberties in the United States.
Situations like these are hardly unique in U.S. history. The framers of the Constitution wanted a government that would not repeat the abuses of individual liberties and rights that caused them to declare independence from Britain. However, laws and other “parchment barriers” (or written documents) alone have not in and of themselves protected freedoms over the years; instead, citizens have learned the truth of the old saying (often attributed to Thomas Jefferson but actually said by Irish politician John Philpot Curran), “Eternal vigilance is the price of liberty.” The actions of ordinary citizens, lawyers, and politicians have been at the core of a vigilant effort to protect constitutional liberties.
But what are those freedoms? And how should we balance them against the interests of society and other individuals? These are the key questions we will tackle in this chapter.
4.1 What Are Civil Liberties?
By the end of this section, you will be able to:
- Define civil liberties and civil rights
- Describe the origin of civil liberties in the U.S. context
- Identify the key positions on civil liberties taken at the Constitutional Convention
- Explain the Civil War origin regarding the concern that the states should respect civil liberties
The U.S. Constitution—in particular, the first ten amendments that form the Bill of Rights—protects the freedoms and rights of individuals. It does not limit this protection just to citizens or adults; instead, in most cases, the Constitution simply refers to “persons,” which over time has grown to mean that even children, visitors from other countries, and immigrants—permanent or temporary, legal, or undocumented—enjoy the same civil liberties when they are in the United States or its territories as adult citizens do. So, whether you are a Russian tourist visiting Disney World or someone who has stayed beyond the limit of days allowed on your visa, you are still owed certain basic lawful protections. In everyday conversation, we tend to treat freedoms, liberties, and rights as being effectively the same thing—similar to how separation of powers and checks and balances are often used as if they are interchangeable, when in fact they are distinct concepts.
DEFINING CIVIL LIBERTIES
To be more precise in their language, political scientists and legal experts make a distinction between civil liberties and civil rights, even though the Constitution has been interpreted to protect both.
We typically envision civil liberties as being limitations on government power, intended to protect freedoms that governments may not legally intrude on. For example, the First Amendment denies the government the power to prohibit “the free exercise” of religion; the states and the national government cannot forbid people to follow a religion of their choice, even if politicians and judges think the religion is misguided, blasphemous, or otherwise inappropriate. You are free to create your own religion and recruit followers to it (subject to the U.S. Supreme Court deeming it a religion), even if both society and government disapprove of its tenets. That said, the way you practice your religion may be regulated if it impinges on the rights of others. Similarly, the Eighth Amendment says the government cannot impose “cruel and unusual punishments” on individuals for their criminal acts. Although the definitions of cruel and unusual have expanded over the years, as we will see later in this chapter, the courts have generally and consistently interpreted this provision as making it unconstitutional for government officials to torture suspects.
Civil rights, on the other hand, are guarantees that government officials will treat people equally and that decisions will be made on the basis of merit rather than race, gender, or other personal characteristics. Because of the Constitution’s civil rights guarantees, it is unlawful, for example, for a school or university run by a state government to treat students differently based on their race, ethnicity, age, sex, or national origin. In the 1960s and 1970s, many states had separate schools where only students of a certain race or gender were able to study. However, the courts decided that these policies violated the civil rights of students who could not be admitted because of those rules.
The idea that Americans—indeed, people in general—have fundamental natural rights and liberties was at the core of the arguments in favor of their independence. In writing the Declaration of Independence in 1776, Thomas Jefferson drew on the ideas of John Locke to express the colonists’ belief that they had certain inalienable and natural rights that no ruler (or government) had the power or authority to deny to his or her subjects.
The Declaration was a scathing legal indictment of King George III for violating the colonists’ liberties. Although the Declaration of Independence does not itself guarantee specific freedoms, its language was instrumental in inspiring many of the states to adopt protections for civil liberties and rights in their own constitutions, and in expressing the timeless principles of the founding era that have resonated in the United States since its independence. In particular, Jefferson’s words “all men are created equal” became the centerpiece of struggles for the rights of women and minorities.
CIVIL LIBERTIES AND THE CONSTITUTION OF THE UNITED STATES
The Constitution as written in 1787 did not include a Bill of Rights, although the idea of including one was proposed and, after brief discussion, dismissed in the final week of the Constitutional Convention. The framers of the Constitution faced much more pressing concerns at that moment than the codified protection of civil rights and liberties. Most notably keeping enough of a consensus to hold the newly born and very fragile union together in the light of internal unrest as well as many potential continued external threats.
Moreover, the framers believed that they had already adequately covered rights issues in the main body of the document. Indeed, the Federalists did include in the Constitution some protections against legislative acts that might restrict the liberties of citizens, based on the history of real and perceived abuses by both British kings and parliaments as well as royal governors. In Article I, Section 9, the Constitution limits the power of Congress in three ways: prohibiting the passage of bills of attainder, prohibiting ex post facto laws, and limiting the ability of Congress to suspend the writ of habeas corpus.
A bill of attainder is a law that convicts or punishes someone for a crime without a trial. This arbitrary and unfair tactic was used fairly frequently in England against the king’s enemies. Prohibition of such laws means that the U.S. Congress cannot simply punish people who are unpopular, hold ‘wrong beliefs’, or seem to be guilty of crimes not proven in court.
An ex post facto law is a law that makes behavior that has been engaged in prior to the passage of the law a crime that can be punished by government. It has what is known as a retroactive effect because it can be used to punish crimes that were not crimes at the time they were committed, or it may increase the severity of punishment after the fact.
Finally, the writ of habeas corpus is a document or legal instrument that can be used to demand that a neutral judge decide whether someone has been unlawfully detained or jailed. Particularly in times of war, or in response to perceived threats against national security, the government has held suspected enemy agents without access to civilian courts – sometimes without access to lawyers or defense counsel, seeking instead to try them before military tribunals or detain them indefinitely without trial. For example, during the Civil War, President Abraham Lincoln detained suspected Confederate saboteurs and sympathizers in Union-controlled states and attempted to have them tried in military courts, leading the Supreme Court to rule in Ex parte Milligan that the government could not bypass the civilian court system in states where it was operating.
During World War II, the Roosevelt administration interned Japanese Americans and had other suspected enemy agents—including U.S. citizens—tried by military courts rather than by the civilian justice system, a choice the Supreme Court upheld in Ex parte Quirin.
In the wake of the 9/11 attacks on the World Trade Center and the Pentagon, the Bush and Obama administrations detained suspected terrorists captured both within and outside the United States and sought, with mixed results, to avoid trials in civilian courts. Hence, there have been times in our history when national security issues trumped individual liberties.
Debate has always swirled over these issues. The Federalists reasoned that the limited set of enumerated powers of Congress, along with the limitations on those powers in Article I, Section 9, would suffice, and no separate bill of rights was needed. Alexander Hamilton, writing as Publius in Federalist No. 84, argued that the Constitution was “merely intended to regulate the general political interests of the nation,” rather than to concern itself with “the regulation of every species of personal and private concerns.” Hamilton went on to argue that listing some rights might actually be dangerous, because it would provide a pretext for people to claim that rights not included in such a list were not protected. (This has sadly proven true in modern times as politicians and courts partake in this sort of exercise regularly.) Later, James Madison, in his speech introducing the proposed amendments that would become the Bill of Rights, acknowledged another Federalist argument: “It has been said, that a bill of rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions.”4 For that matter, the Articles of Confederation had not included a specific listing of rights either.
However, the Anti-Federalists argued that the Federalists’ position was incorrect and perhaps even insincere. The Anti-Federalists believed provisions such as the elastic clause in Article I, Section 8, of the Constitution would allow Congress to legislate on matters well beyond the limited ones foreseen by the Constitution’s authors; thus, they held that a bill of rights was necessary. One of the Anti-Federalists, Brutus, whom most scholars believe to be Robert Yates, wrote: “The powers, rights, and authority, granted to the general government by this Constitution, are as complete, with respect to every object to which they extend, as that of any state government—It reaches to everything which concerns human happiness—Life, liberty, and property, are under its control. There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the state governments.” The experience of the past two centuries has suggested that the Anti-Federalists may have been correct in this regard; while the states retain a great deal of importance, the scope and powers of the national government are much broader today than in 1787—likely beyond even the imaginings of the Federalists themselves.
The struggle to have rights clearly delineated and the decision of the framers to omit a bill of rights nearly derailed the ratification process. While some of the states were willing to ratify without any further guarantees, in some of the larger states—New York and Virginia in particular—the Constitution’s lack of specified rights became a serious point of contention. The Constitution could go into effect with the support of only nine states, but the Federalists knew it could not be effective without the participation of the largest states. To secure majorities in favor of ratification in New York and Virginia, as well as Massachusetts, they agreed to consider incorporating provisions suggested by the ratifying states as amendments to the Constitution.
Ultimately, James Madison delivered on this promise by proposing a package of amendments in the First Congress, drawing from the Declaration of Rights in the Virginia state constitution, suggestions from the ratification conventions, and other sources, which were extensively debated in both houses of Congress and ultimately proposed as twelve separate amendments for ratification by the states. Ten of the amendments were successfully ratified by the requisite 75 percent of the states and became known as the Bill of Rights.
|Rights and Liberties Protected by the First Ten Amendments|
|First Amendment||Right to freedoms of religion and individual speech; right to assemble and to petition the government for redress of grievances|
|Second Amendment||Right to keep and bear arms by individual citizens|
|Third Amendment||Right to not house soldiers during time of war|
|Fourth Amendment||Right to be secure from unreasonable search and seizure|
|Fifth Amendment||Rights in criminal cases, including due process and indictment by grand jury for capital crimes, as well as the right not to testify against oneself|
|Sixth Amendment||Right to a speedy trial by an impartial jury|
|Seventh Amendment||Right to a jury trial in civil cases|
|Eighth Amendment||Right to not face excessive bail, excessive fines, or cruel and unusual punishment|
|Ninth Amendment||Other rights are retained by the people, even if they are not specifically enumerated by the Constitution|
|Tenth Amendment||States’ rights to other powers not specifically delegated to the federal government|
Debating the Need for a Bill of Rights
One of the most serious debates between the Federalists and the Anti-Federalists was over the necessity of limiting the power of the new federal government with a Bill of Rights. As we saw in this section, the Federalists believed a Bill of Rights was unnecessary—and perhaps even dangerous to liberty, because it might invite violations of rights that weren’t included in it—while the Anti-Federalists thought the national government would prove adept at expanding its powers and influence and that citizens couldn’t depend on the good judgment of Congress alone to protect their rights.
As George Washington’s call for a bill of rights in his first inaugural address suggested, while the Federalists ultimately had to add the Bill of Rights to the Constitution in order to win ratification, and the Anti-Federalists would soon be proved right that the national government might intrude on civil liberties. In 1798, at the behest of President John Adams during the Quasi-War with France, Congress passed a series of four laws collectively known as the Alien and Sedition Acts. These were drafted to allow the president to imprison or deport foreign citizens he believed were “dangerous to the peace and safety of the United States” and to restrict speech and newspaper articles that were critical of the federal government or its officials; the laws were primarily used against members and supporters of the opposition Democratic-Republican Party.
State laws and constitutions protecting free speech and freedom of the press proved ineffective in limiting this new federal power. Although the courts did not decide on the constitutionality of these laws at the time, most scholars believe the Sedition Act, in particular, would be unconstitutional if it had remained in effect. Three of the four laws were repealed in the Jefferson administration, but one—the Alien Enemies Act—remains on the books today. Two centuries later, the issue of free speech and freedom of the press during times of international conflict remains a subject of public debate.
Should the government ever be able to restrict or censor unpatriotic, disloyal, or critical speech in times of international conflict? How much freedom should journalists have to report on stories from the perspective of enemies or to repeat propaganda from opposing forces?
EXTENDING THE BILL OF RIGHTS TO THE STATES
In the decades following the Constitution’s ratification, the Supreme Court declined to expand the Bill of Rights to curb the power of the states, most notably in the 1833 case of Barron v. Baltimore. In this case, which dealt with property rights under the Fifth Amendment, the Supreme Court unanimously decided that the Bill of Rights applied only to actions by the federal government. Explaining the court’s ruling, Chief Justice John Marshall wrote that it was incorrect to argue that “the Constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their [Federal] government.”
In the wake of the Civil War, however, the prevailing thinking about the application of the Bill of Rights to the states changed. Soon after slavery was abolished by the Thirteenth Amendment, state governments—particularly those in the former Confederacy—began to pass “Black codes” that restricted the rights of former slaves and effectively relegated them to second-class citizenship under their state laws and constitutions. Angered by these actions, members of the Radical Republican faction (a specialized part of the Republican Party), in Congress demanded that the laws be overturned. In the short term, they advocated suspending civilian government in most of the southern states and replacing politicians who had enacted the Black codes. Their long-term solution was to propose two amendments to the Constitution to guarantee the rights of freed slaves on an equal standing with White people; these rights became the Fourteenth Amendment, which dealt with civil liberties and rights in general, and the Fifteenth Amendment, which protected the right to vote in particular.
With the ratification of the Fourteenth Amendment in 1868, civil liberties gained more clarification. First, the amendment says, “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” which is a provision that echoes the privileges and immunities clause in Article IV, Section 2, of the original Constitution ensuring that states treat citizens of other states the same as their own citizens. (To use an example from today, the punishment for speeding by an out-of-state driver cannot be more severe than the punishment for an in-state driver).
Legal scholars and the courts have extensively debated the meaning of this privileges or immunities clause over the years; some have argued that it was supposed to extend the entire Bill of Rights (or at least the first eight amendments) to the states, while others have argued that only some rights are extended.
In 1999, Justice John Paul Stevens, writing for a majority of the Supreme Court, argued in Saenz v. Roe that the clause protects the right to travel from one state to another. More recently, Justice Clarence Thomas argued in the landmark 2010 McDonald v. Chicago Supreme Court decision that the individual right to bear arms in the US Constitution’s second amendment applies to the states because of the privileges or immunities clause of the 14th amendment.
Do NOT skip the following important video which details in only 3 minutes exactly how rights enumerated under the Bill of Rights are protected on a STATE level by the 14th amendment. This understanding of the 14th amendment’ Equal Protection under Law is crucial going forward.
The second provision of the Fourteenth Amendment that pertains to applying the Bill of Rights to the states is the due process clause, which says, “[…]nor shall any State deprive any person of life, liberty, or property, without due process of law.” This provision is similar to the Fifth Amendment in that it also refers to “due process,” a term that generally means people must be treated fairly and impartially by government officials (or with what is commonly referred to as substantive due process).
Although the text of the provision does not mention rights specifically, the courts have held in a series of cases that it indicates there are certain fundamental liberties that cannot be denied by the states. For example, in Sherbert v. Verner (1963), the Supreme Court ruled that states could not deny unemployment benefits to an individual who turned down a job because it required working on the Sabbath.
Beginning in 1897, the Supreme Court has found that various provisions of the Bill of Rights protecting these fundamental liberties must be upheld by the states, even if their state constitutions and laws do not protect them as fully as the Bill of Rights does—or at all. This means there has been a process of selective incorporation of the Bill of Rights into the practices of the states; in other words, the Constitution effectively inserts parts of the Bill of Rights into state laws and constitutions, even though it doesn’t do so explicitly. When cases arise to clarify particular issues and procedures, the Supreme Court decides whether state laws violate the Bill of Rights and are therefore unconstitutional.
For example, under the Fifth Amendment a person can be tried in federal court for a felony—a serious crime—only after a grand jury issues an indictment indicating that it is reasonable to try the person for the crime in question. (A grand jury is a group of citizens charged with deciding whether there is enough evidence of a crime to prosecute someone.) But the Supreme Court has ruled that states don’t have to use grand juries as long as they ensure people accused of crimes are indicted using an equally fair process.
Selective incorporation is an ongoing process. When the Supreme Court initially decided in 2008 that the Second Amendment protects an individual’s right to keep and bear arms, it did not decide then that it was a fundamental liberty the states must uphold as well. It was only in the McDonald v. Chicago case two years later that the Supreme Court incorporated the Second Amendment into state law. Another area in which the Supreme Court gradually moved to incorporate the Bill of Rights regards censorship and the Fourteenth Amendment. In Near v. Minnesota (1931), the Court disagreed with state courts regarding censorship and ruled it unconstitutional except in rare cases.
Eventually, as with McDonald’s incorporation of the Heller 2nd Amendment decision and Near v. Minnesota, it is anticipated by many court observers that the entirety of the Bill of Rights will be incorporated via case law and future Supreme Court decisions into the laws of ALL states rather than just select portions.
4.2 Securing Basic Freedoms
By the end of this section, you will be able to:
- Identify the liberties and rights guaranteed by the first four amendments to the Constitution
- Explain why in practice these rights and liberties are limited
- Explain why interpreting some amendments has been controversial
- We can broadly divide the provisions of the Bill of Rights into three categories. The First, Second, Third, and Fourth Amendments protect basic individual freedoms; the Fourth (partly), Fifth, Sixth, Seventh, and Eighth protect people suspected or accused of criminal activity or facing civil litigation; and the Ninth and Tenth, are consistent with the framers’ view that the Bill of Rights is not necessarily an exhaustive list of all the rights people have and guarantees a role for state as well as federal government.
The First Amendment protects the right to freedom of religious conscience and practice and the right to free expression, particularly of political and social beliefs. The Second Amendment—perhaps the most controversial today—protects the right to defend yourself as well as the collective right to protect the community. The Third Amendment prohibits the government from commandeering people’s homes to house soldiers. Finally, the Fourth Amendment prevents the government from searching our persons or property or taking evidence without a warrant issued by a judge, with certain exceptions.
THE FIRST AMENDMENT
The First Amendment is perhaps the most famous provision of the Bill of Rights; it is arguably also the most extensive, because it guarantees both religious freedoms and the right to express your views in public. Specifically, the First Amendment says:
“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.”
Given the broad scope of this amendment, it is helpful to break it into its two major parts.
The first portion deals with religious freedom. However, it actually protects two related sorts of freedom: first, it protects people from having a set of religious beliefs imposed on them by the government, and second, it protects people from having their own religious beliefs restricted by government authorities.
The Establishment Clause
The first of these two freedoms is known as the establishment clause. Congress is prohibited from creating or promoting a state-sponsored religion (this now includes the states too). When the United States was founded, most countries around the world had an established church or religion, an officially sponsored set of religious beliefs and values. In Europe, bitter wars were fought between and within states, often because the established church of one territory was in conflict with that of another; wars and civil strife were common, particularly between states with Protestant and Catholic churches that had differing interpretations of Christianity. Even today, the legacy of these wars remains, most notably in Ireland, which has been divided between a mostly Catholic south and a largely Protestant north for nearly a century.
Many settlers in the United States found themselves on this continent as refugees from such wars; others came to find a place where they could follow their own religion with like-minded people in relative peace. So as a practical matter, even if the early United States had wanted to establish a single national religion, the diversity of religious beliefs would already have prevented it. Nonetheless the differences were small; most people were of European origin and professed some form of Christianity. So, for much of U.S. history, the establishment clause was not particularly important—the vast majority of citizens were Protestant Christians of some form, and since the federal government was relatively uninvolved in the day-to-day lives of the people, there was little opportunity for conflict. That said, there were some citizenship and office-holding restrictions on Jews within some of the states.
Concern about state sponsorship of religion in the United States began to reemerge in the latter part of the nineteenth century. An influx of immigrants from Ireland and eastern and southern Europe brought large numbers of Catholics, some states, fearing the new immigrants and their children would not assimilate, passed laws forbidding government aid to religious schools. New religious organizations, such as The Church of Jesus Christ of Latter-day Saints (the Mormon Church), Seventh-day Adventists, Jehovah’s Witnesses, and many others, also emerged, blending aspects of Protestant beliefs with other ideas and teachings at odds with the more traditional Protestant churches of the era. At the same time, public schooling was beginning to take root on a wide scale. Since most states had traditional Protestant majorities and most state officials were Protestants themselves, the public school curriculum incorporated many Protestant features; at times, these features would come into conflict with the beliefs of children from other Christian sects or from other religious traditions.
The establishment clause today tends to be interpreted far more broadly than in the past; it not only forbids the creation of a “Church of the United States” or “Church of Ohio” it also forbids the government from favoring one set of religious beliefs over others or favoring religion (of any variety) over non-religion. Thus, the government cannot promote, say, Islamic beliefs over Sikh beliefs or belief in God over atheism or agnosticism.
Many of the court’s cases dealing with the establishment clause have involved education, particularly public education. Perhaps no subject affected by the First Amendment has been more controversial than the issue of allowing prayer in public schools. Discussion about school prayer has been particularly fraught because some believe that it brings the two religious liberty clauses into conflict with each other. The free exercise clause guarantees the right of individuals to practice their religion without government interference—and while the rights of children are not as extensive in all areas as those of adults, the courts have consistently ruled that the free exercise clause’s guarantee of religious freedom applies to children as well.
At the same time, however, government actions that require or, as some have argued, even encourage particular religious practices might infringe upon children’s rights to follow their own religious beliefs and thus, in effect, be unconstitutional establishments of religion.
Can a teacher, an athletic coach, or even a student recite a prayer in front of a class or as part of the organized school activity? A school cannot prohibit voluntary, non-disruptive prayer by its students, because that would impair the free exercise of religion. The blanket statement that “prayer in public schools is illegal” or unconstitutional is incorrect. Of course, homeschoolers and those attending or instructing private or religious schools – particularly if they receive no government funding – are free to fully exercise their religious liberties.
An important court case known as Kennedy v. Bremerton School District was a landmark decision handed down in 2022 by the United States Supreme Court in which the Court held, 6–3, that the government, while following the Establishment Clause, may not suppress an individual from engaging in personal religious observance, as doing so would violate the Free Speech and Free Exercise Clauses of the First Amendment.
The case involved Joseph Kennedy, a high school football coach in the public school system of Bremerton, Washington. Kennedy had taken the practice of praying at the middle of the field immediately after each game. The practice was soon joined by the players and others. The school board were concerned the practice would be seen as infringing on the Establishment Clause separating church and state. The school board attempted to stop Kennedy from praying in this manner and attempted to negotiate with Kennedy to pray elsewhere or at a later time. However, Kennedy continued the practice. His employment contract was not renewed, leading Kennedy to sue the board. Lower Courts, including the Ninth Circuit, ruled in favor of the school board and their argument regarding the Establishment Clause and the case made its way to the United States Supreme Court.
The majority opinion from the Supreme Court found that the Establishment Clause does not allow a government body to take a hostile view of religion in considering personal rights under the Free Speech and Free Exercise Clauses. The court ruled that the school board acted improperly by not renewing Kennedy’s contract. The decision overturns Lemon v. Kurtzman (1971) and the subsequent “Lemon test”, which had been used to evaluate government actions within the scope of the Establishment Clause but had been falling out of favor in the decade prior.
As Joe Liberman wrote in an article for Fox News:
If government action does not compromise freedom of religion, in any way, that government action is not prohibited. The Constitution promises freedom of religion, not freedom from religion.
“Respect for religious expressions is indispensable to life in a free and diverse republic,” Justice Neil Gorsuch wrote in his opinion for the Supreme Court majority. And he added (perhaps to reassure people that he was not establishing Coach Kennedy’s Christian religion but only protecting Kennedy’s right to pray) that if the Bremerton School System could fire the coach for his prayers on the field, “a school could fire a Muslim teacher for wearing a head scarf in the classroom or prohibit a Christian [or observant Jewish] aide from praying quietly over her lunch in the cafeteria.”
At law school, I was taught that over time Supreme Court decisions could slide on a “slippery slope” from what their authors intended to unacceptable applications. In his opinion, Justice Gorsuch has put up some strong roadblocks against such sliding, and we must, as always, depend on future Supreme Courts to understand that the great goal of the First Amendment is to protect freedom of religion, and that the prohibition of the establishment of a religion is in the Constitution to protect every American’s freedom of religion, not to banish religious expression from American life...
In addition to the above, some laws that may appear to establish certain religious practices are allowed. For example, the courts have permitted religiously inspired blue laws that limit working hours or even shutter businesses on Sunday, the Christian day of rest, because by allowing people to practice their (Christian) faith, such rules may help ensure the “health, safety, recreation, and general well-being” of citizens. They have allowed restrictions on the sale of alcohol and sometimes other goods on Sunday for similar reasons.
The meaning of the establishment clause has been controversial at times because, as a matter of course, government officials acknowledge that we live in a society with vigorous religious practice where most people believe in God—even if we disagree on what or who God is. Disputes often arise over how much the government can acknowledge this widespread religious belief. The courts have generally allowed for a certain tolerance of what is described as ceremonial deism, an acknowledgement of God or a creator that generally lacks any persuasive religious content.
For example, the national motto of the United States; “In God We Trust,” which appears on our coins and paper money is seen as more an acknowledgment that most citizens believe in God than any serious effort by government officials to promote religious belief and practice.
This reasoning has also been used to permit the inclusion of the phrase “under God” in the Pledge of Allegiance—a change that came about during the early years of the Cold War as a means of contrasting the United States with the “godless” Soviet Union.
In addition, the courts have allowed some religiously motivated actions by government agencies, such as clergy delivering prayers to open city council meetings and legislative sessions. Yet, while some displays of religious codes (e.g., Ten Commandments) are permitted in the context of showing the evolution of law over the centuries in other cases, these displays have been removed after state supreme court rulings. In Oklahoma, the courts ordered the removal of a Ten Commandments sculpture at the state capitol when other groups, including Satanists and the Church of the Flying Spaghetti Monster, attempted to get their own sculptures allowed there.
Do you think Oklahoma’s decision about the Ten Commandments statue can still stand after the Kennedy v. Bremerton School District decision?
In Washington DC on the Supreme court building itself, there is a sculpture of Moses with the 10 commandment tablets. Does this mean that the United States is sponsoring Judaism or Christianity or is the display allegorical to the concept of justice and the rule of law in general in your view?
Optional video for context:
The Free Exercise Clause
The free exercise clause of the first amendment limits the ability of the government to control or restrict religious practices. This portion of the First Amendment prohibits government suppression of religious beliefs and practices. Much of the controversy surrounding the free exercise clause reflects the way laws or rules that apply to everyone might apply to people with particular religious beliefs. For example, can a Jewish police officer whose religious belief, if followed strictly, requires her to observe Shabbat be compelled to work on a Friday night or during the day on Saturday? Or must the government accommodate this religious practice, even if it means the general law or rule in question is not applied equally to everyone?
In the 1930s and 1940s, cases involving Jehovah’s Witnesses demonstrated the difficulty of striking the right balance. In addition to following their church’s teaching that they should not participate in military combat, members refuse to participate in displays of patriotism, including saluting the flag and reciting the Pledge of Allegiance, and they regularly engage in door-to-door evangelism to recruit converts. These activities have led to frequent conflict with local authorities. Jehovah’s Witness children were punished in public schools for failing to salute the flag or recite the Pledge of Allegiance, and members attempting to evangelize were arrested for violating laws against door-to-door solicitation of customers. In early legal challenges brought by Jehovah’s Witnesses, the Supreme Court was reluctant to overturn state and local laws that burdened their religious beliefs. However, in later cases, the court was willing to uphold the rights of Jehovah’s Witnesses to proselytize and refuse to salute the flag or recite the Pledge.
The rights of conscientious objectors—individuals who claim the right to refuse to perform military service on the grounds of freedom of thought, conscience, or religion—have also been controversial, although many conscientious objectors have contributed service as non-combatant medics during wartime. To avoid serving in the Vietnam War, many people claimed to have a conscientious objection to military service on the basis that they believed this particular war was unwise or unjust. However, the Supreme Court ruled in Gillette v. United States that to claim to be a conscientious objector, a person must be opposed to serving in any war, not just some wars.
Establishing a general framework for deciding whether a religious belief can trump general laws and policies has been a challenge for the Supreme Court. In the 1960s and 1970s, the court decided two cases in which it laid out a general test for deciding similar cases in the future. In both Sherbert v. Verner, a case dealing with unemployment compensation, and Wisconsin v. Yoder, which dealt with the right of Amish parents to homeschool their children.
SIDEBAR: Depending on what state you are in right now, you may be directly affected by the Wisconsin v. Yoder decision! While some states are very friendly to homeschoolers. others are decidedly against the very idea of parents teaching their own children.
Politicians in some states strongly disapprove of any homeschooling and feel that compulsory education administered in public schools using curriculum and materials that only the government approves of is the only way education should be handled.
On the other hand, some homeschooling parents believe that the government’s position is a step toward “indoctrination”, and they believe that homeschooling is the only real option that they are willing to accept for their own children. These parents believe that they alone should select school curriculum that either matches their own belief system or a curriculum that at least presents topics and lessons in a more neutral or objective manner than that which is chosen by local school officials.
Wisconsin v. Yoder forces the government to accept homeschooling as an option in many cases especially in the case where religious issues are involved in homeschooling.
The court said that for a law to be allowed to limit or burden a religious practice, the government must meet two criteria. It must demonstrate both that it had a “compelling governmental interest” in limiting that practice and that the restriction was “narrowly tailored.” In other words, it must show there was a very good reason for the law in question and that the law was the only feasible way of achieving that goal. This standard became known as the Sherbert test. Since the burden of proof in these cases was on the government, the Supreme Court made it very difficult for the federal and state governments to enforce laws against individuals that would infringe upon their religious beliefs.
In 1990, the Supreme Court made a controversial decision substantially narrowing the Sherbert test in Employment Division v. Smith, more popularly known as “the peyote case.” This case involved two men who were members of the Native American Church, a religious organization that uses the hallucinogenic peyote plant as part of its sacraments. After being arrested for possession of peyote, the two men were fired from their jobs as counselors at a private drug rehabilitation clinic. When they applied for unemployment benefits, the state refused to pay on the basis that they had been dismissed for work-related reasons. The men appealed the denial of benefits and were initially successful, since the state courts applied the Sherbert test and found that the denial of unemployment benefits burdened their religious beliefs. However, the Supreme Court ruled in a 6–3 decision that the “compelling governmental interest” standard should not apply; instead, so long as the law was not designed to target a person’s religious beliefs in particular, it was not up to the courts to decide that those beliefs were more important than the law in question.
On the surface, a case involving the Native American Church seems unlikely to arouse much controversy. But because it replaced the Sherbert test with one that allowed more government regulation of religious practices, followers of other religious traditions grew concerned that state and local laws, even ones neutral on their face, might be used to curtail their religious practices. In 1993, in response to this decision, Congress passed a law known as the Religious Freedom Restoration Act (RFRA), which was followed in 2000 by the Religious Land Use and Institutionalized Persons Act after part of the RFRA was struck down by the Supreme Court. In addition, since 1990, twenty-one states have passed state RFRAs that include the Sherbert test in state law, and state court decisions in eleven states have enshrined the Sherbert test’s compelling governmental interest interpretation of the free exercise clause into state law.
However, the RFRA itself has not been without its critics. While it has been relatively uncontroversial as applied to the rights of individuals, debate has emerged about whether businesses and other groups can be said to have religious liberty. In explicitly religious organizations, such as a fundamentalist congregation (fundamentalists adhere very strictly to biblical absolutes) or the Roman Catholic Church, it is fairly obvious members have a meaningful, shared religious belief. But the application of the RFRA has become more problematic in businesses and non-profit organizations whose owners or organizers may share a religious belief while the organization has some secular, non-religious purpose.
Such a conflict emerged in the 2014 Supreme Court case known as Burwell v. Hobby Lobby. The Hobby Lobby chain of stores sells arts and crafts merchandise at hundreds of stores; its founder, David Green, is a devout fundamentalist Christian whose beliefs include opposition to abortion and contraception. Consistent with these beliefs, he used his business to object to a provision of the Patient Protection and Affordable Care Act (ACA or “Obamacare”) requiring employer-backed insurance plans to include no-charge access to the so-called “morning-after pill”, a drug which can prevent ovulation, block fertilization or keep an already fertilized egg from implanting in the uterus thus causing an abortion.
David Green argued that this requirement infringed on his conscience because of the abortive properties of the covered drug. Based in part on the federal RFRA, the Supreme Court agreed 5–4 with Green and Hobby Lobby’s position and said that Hobby Lobby and other closely held businesses did not have to provide employees free access to abortion pills or other birth control if doing so would violate the religious beliefs of the business’ owners, because there were other less restrictive ways available whereby the government could ensure access to these services for Hobby Lobby’s other employees (e.g., paying for them directly).
In 2015, state RFRAs became controversial when individuals and businesses that provided wedding services (e.g., catering and photography) were compelled to provide services these for same-sex weddings in states where homosexual marriage had been newly legalized.
Proponents of state RFRA laws argued that people and businesses ought not be compelled to endorse practices their religious beliefs held to be immoral or indecent and feared clergy might be compelled to officiate same-sex marriages against their religion’s teachings.
Opponents of RFRA laws argued that individuals and businesses should be required, per Obergefell v. Hodges, to serve those entering into same-sex marriages on an equal basis as a matter of ensuring the civil rights of gays and lesbians, just as they would be obliged to cater or photograph an interracial marriage.
Despite ongoing controversy, however, the courts have consistently found some public interests sufficiently compelling to override the free exercise clause. For example, since the late nineteenth century, the courts have consistently held that people’s religious beliefs do not exempt them from the general laws against polygamy (having more than one spouse at the same time). Another potential act in the name of religion that is also out of the question is human sacrifice.
Freedom of Expression
Although the remainder of the First Amendment protects four distinct rights—free speech, press, assembly, and petition—we generally think of these rights today as encompassing a right to freedom of expression, particularly since the world’s technological evolution has blurred the lines between oral and written communication (i.e., speech and press) in the centuries since the First Amendment was written and adopted.
Controversies over freedom of expression were rare until the 1900s, even though government censorship was more common. For example, during the Civil War, the Union post office refused to deliver newspapers that opposed the war or sympathized with the Confederacy, while allowing pro-war newspapers to be mailed. The emergence of photography and movies, in particular, led to new public concerns about morality, causing both state and federal politicians to censor lewd (crude and offensive in a sexual way) and otherwise improper content. At the same time, writers became more ambitious in their subject matter by including explicit references to sex and using obscene language, leading to government censorship of books and magazines.
Censorship reached its height during World War I. The United States was swept up in two waves of hysteria. Anti-German feeling was provoked by the actions of Germany and its allies leading up to the war, including the sinking of the RMS Lusitania and the Zimmerman Telegram, an effort by the Germans to conclude an alliance with Mexico against the United States. This concern was compounded in 1917 by the Bolshevik revolution against the more moderate interim government of Russia; the leaders of the Bolsheviks, most notably Vladimir Lenin, Leon Trotsky, and Joseph Stalin, withdrew from the war against Germany and directly and outwardly called for communist revolutionaries to overthrow the capitalist, democratic governments in western Europe and North America.
Americans who vocally supported the communist cause or opposed the war often found themselves in jail. In Schenck v. United States, the Supreme Court ruled that people encouraging young men to dodge the draft could be imprisoned for doing so, arguing that recommending that people disobey the law was tantamount to “falsely shouting fire in a theatre and causing a panic” and thus presented a “clear and present danger” to public order. Similarly, communists and other revolutionary anarchists and socialists were prosecuted after the war under various state and federal laws for supporting the forceful or violent overthrow of government. This general approach to political speech remained in place for the next fifty years.
In the 1960s, however, the Supreme Court’s rulings on free expression became more liberal, in response to the Vietnam War and the growing antiwar movement. In a 1969 case involving the Ku Klux Klan, Brandenburg v. Ohio, the Supreme Court found in a rare UNANIMOUS decision that only speech or writing that constituted a direct call or plan to imminent lawless action, an illegal act in the immediate future, could be suppressed; the mere advocacy of a hypothetical revolution was not enough.
The Supreme Court also found that various forms of symbolic speech—wearing clothing like an armband that carried a political symbol or raising a fist in the air, for example—were subject to the same protections as written and spoken communication.
SIDEBAR: The Brandenburg decision affirms the fact that the first amendment protects almost ALL speech even if it is at the time considered vile, hateful, racially charged, evil and is otherwise despised by even the vast majority of American citizens. This forces the marketplace of public opinion, not the majority or worse, the mob, to determine for themselves the validity of ideas that are despised unpopular.
Just as speaking against slavery was massively unpopular at one time, the right to express a dissenting opinion is crucial to societal advancement – either by one day affirming what was once a minority opinion, or by rejecting it in total.
Symbolic speech is also protected.
Perhaps no act of symbolic speech has been as controversial in U.S. history as the burning of the American flag. Citizens tend to revere the flag as a unifying symbol of the country. States and the federal government have long had laws protecting the flag from being desecrated—defaced, damaged, or otherwise treated with disrespect. Perhaps in part because of these laws, people who have wanted to drive home a point in opposition to U.S. government policies have found desecrating the flag a useful way to gain public and press attention to their cause.
One such person was Gregory Lee Johnson, a member of various pro-communist and antiwar groups. In 1984, as part of a protest near the Republican National Convention in Dallas, Texas, Johnson set fire to a U.S. flag that another protestor had torn from a flagpole. He was arrested, charged with “desecration of a venerated object” (among other offenses), and eventually convicted of that offense. However, in 1989, the Supreme Court decided in Texas v. Johnson that burning the flag was a form of symbolic speech protected by the First Amendment and found the law, as applied to flag desecration, to be unconstitutional.
This court decision was strongly criticized, and Congress responded by passing a federal law, the Flag Protection Act, intended to overrule it; the act, too, was struck down as unconstitutional in 1990. Since then, Congress has attempted on several occasions to propose constitutional amendments allowing the states and federal government to re-criminalize flag desecration—to no avail.
Freedom of the press is a critically important component of the right to free expression as well. In Near v. Minnesota, an early case regarding press freedoms, the Supreme Court ruled that the government generally could not engage in prior restraint; that is, states and the federal government could not in advance prohibit someone from publishing something without a very compelling reason. This standard was reinforced in 1971 in the Pentagon Papers case, in which the Supreme Court found that the government could not prohibit the New York Times and Washington Post newspapers from publishing the Pentagon Papers.
These papers included materials from a secret history of the Vietnam War that had been compiled by the military. More specifically, the papers were compiled at the request of Secretary of Defense Robert McNamara and provided a study of U.S. political and military involvement in Vietnam from 1945 to 1967.
Daniel Ellsberg famously released passages of the Papers to the press to show that the United States had secretly enlarged the scope of the war by bombing Cambodia and Laos among other deeds while lying to the American public about doing so.
Although people who leak secret information to the media can still be prosecuted and punished, this does not generally extend to reporters and news outlets that pass that information on to the public. The Edward Snowden case is another good case in point. Snowden himself, rather than those involved in promoting the information that he shared, is the object of criminal prosecution.
Furthermore, the courts have recognized that government officials and other public figures might try to silence press criticism and avoid unfavorable news coverage by threatening a lawsuit for defamation of character. In the 1964 New York Times v. Sullivan case, the Supreme Court decided that public figures needed to demonstrate not only that a negative press statement about them was untrue but also that the statement was published or made with either malicious intent or “reckless disregard” for the truth. This ruling made it much harder for politicians to silence potential critics or to bankrupt their political opponents through the courts.
The right to freedom of expression is not absolute; several key restrictions limit our ability to speak or publish opinions under certain circumstances. We have seen that the Constitution rightly protects most forms of offensive and unpopular expression, particularly political speech; however, incitement of a criminal act, “fighting words,” and genuine threats are not protected. So, for example, you can’t point at someone in front of an angry crowd and shout, “Let’s beat up that guy!” The Supreme Court has also allowed laws that ban threatening symbolic speech, such as burning a cross on the lawn of an African American family’s home. Finally, as we’ve just seen, defamation of character—whether in written form (libel) or spoken form (slander)—is not protected by the First Amendment, so people who are subject to false accusations can sue to recover damages, although criminal prosecutions of libel and slander are uncommon.
Another key exception to the right to freedom of expression is obscenity, acts or statements that are extremely offensive under current societal standards. Defining obscenity has been something of a challenge for the courts; Supreme Court Justice Potter Stewart famously said of obscenity, having watched pornography in the Supreme Court building, “I know it when I see it.”
Into the early twentieth century, written work was frequently banned as being obscene, including works by noted authors such as James Joyce and Henry Miller, although today it is rare for the courts to uphold obscenity charges for written material alone. In 1973, the Supreme Court established the Miller test for deciding whether something is obscene: “(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” However, the application of this standard has at times been problematic. In particular, the concept of “contemporary community standards” raises the possibility that obscenity varies from place to place; many people in New York or San Francisco might not bat an eye at something people in Memphis or Salt Lake City would consider offensive. The one form of obscenity that has been banned almost without challenge is child pornography.
The courts have allowed censorship of less-than-obscene content when it is broadcast over the public airwaves, particularly when it is available for anyone to receive. In general, these restrictions on indecency—a quality of acts or statements that offend societal norms or may be harmful to minors—apply only to radio and television programming broadcast when children might be in the audience, although most cable and satellite channels follow similar standards for commercial reasons.
An infamous case of televised indecency occurred during the halftime show of the 2004 Super Bowl, during a performance by singer Janet Jackson in which a part of her clothing was removed by fellow performer Justin Timberlake, revealing her right breast. The network responsible for the broadcast, CBS, was ultimately presented with a fine of $550,000 by the Federal Communications Commission, the government agency that regulates television broadcasting. However, CBS was not ultimately required to pay.
On the other hand, in 1997, the NBC network showed a broadcast of Schindler’s List, a film depicting events during the Holocaust in Nazi Germany, without any editing, so it included graphic nudity and depictions of violence. NBC was not fined or otherwise punished, suggesting there is no uniform standard for indecency. Similarly, in the 1990s Congress compelled television broadcasters to implement a television ratings system, enforced by a “V-Chip” in televisions and cable boxes, so parents could better control the television programming their children might watch. However, similar efforts to regulate indecent content on the Internet to protect children from pornography have largely been struck down as unconstitutional. This outcome suggests that technology has created new avenues for obscene material to be disseminated. The Children’s Internet Protection Act, however, requires K–12 schools and public libraries receiving Internet access using special E-rate discounts to filter or block access to obscene material and other material deemed harmful to minors, with certain exceptions.
The courts have also allowed laws that forbid or compel certain forms of expression by businesses, such as laws that require the disclosure of nutritional information on food and beverage containers and warning labels on tobacco products. The federal government requires the prices advertised for airline tickets to include all taxes and fees. Many states regulate advertising by lawyers. And, in general, false or misleading statements made in connection with a commercial transaction can be illegal if they constitute fraud.
Furthermore, the courts have ruled that, although public school officials are government actors, the First Amendment freedom of expression rights of children attending public schools are somewhat limited. In particular, in Tinker v. Des Moines (1969) and Hazelwood v. Kuhlmeier (1988), the Supreme Court has upheld restrictions on speech that creates “substantial interference with school discipline or the rights of others” or is “reasonably related to legitimate pedagogical concerns.” For example, the content of school-sponsored activities like school newspapers and speeches delivered by students can be controlled, either for the purposes of instructing students in proper adult behavior or to deter conflict between students.
Free expression includes the right to assemble peaceably and the right to petition government officials. This right even extends to members of groups whose views most people find abhorrent, such as true American Nazis and the Westboro Baptist Church, whose members have become known for their protests and rallies for causes many find disgusting.
Free expression—although a very broad right—is subject to certain constraints to balance it against the interests of public order. In particular, the nature, place, and timing of protests—but not their substantive content—are subject to reasonable limits. The courts have ruled that while people may peaceably assemble in a place that is a public forum, not all public property is a public forum. For example, the inside of a government office building or a college classroom—particularly while someone is teaching—is not generally considered a public forum.
Rallies and protests on land that has other dedicated uses, such as roads and highways, can be limited to groups that have secured a permit in advance, and those organizing large gatherings may be required to give sufficient notice so government authorities can ensure there is enough security available. However, any such regulation must be viewpoint-neutral; the government may not treat one group differently than another because of its opinions or beliefs.
For example, the government can’t permit a rally by a group that favors a government policy but forbid opponents from staging a similar rally, nor can the government allow a BLM or Antifa rally while denying similar permits to those in the KKK or Nazi organizations.
Finally, there have been controversial situations in which government agencies have established so-called “free-speech zones” for protesters during political conventions, presidential visits, and international meetings in areas that are arguably selected to minimize their public audience or to ensure that the subjects of the protests do not have to encounter the protesters. This may be an area where the Supreme Court will one day have to make a series of specific rulings.
THE SECOND AMENDMENT
There has been increased conflict over the Second Amendment in recent years. Gun rights have become a highly charged political issue. The text of the Second Amendment is among the shortest of those included in the Constitution:
“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.”
Unfortunately, the relative simplicity of its text has not kept it from controversy; arguably, the Second Amendment had become controversial in large part because of its text. The question that was previously undecided was simply: Is this amendment merely a protection of the right of the states to organize and arm a “well-regulated militia” i.e.: for civil defense, or is the 2nd Amendment a protection of a “right of the people” as a whole to individually keep and bear arms?
The Supreme Court, in a 157 page long, (but unusually easy to read and understand decision), ruled in a case called DC vs Heller that the right to keep and bear arms in the second amendment is and was always intended to be an individual right of every person and that this right could also be exercised by the individual citizen in support of the state if such a need should arise.
Before the Civil War, this would have been a nearly meaningless distinction. In most states at that time, White males of military age were considered part of the ‘unorganized militia’, liable to be called for service to put down rebellions or invasions. In fact, the right “to keep and bear Arms” was considered an individual common-law right inherited from English law that predated the federal and state constitutions. The Constitution was not seen as a limitation on each state’s power, (because the 14th Amendment had not yet been ratified), and since the states expected all able-bodied free men to keep arms as a matter of course, what gun control there was mostly revolved around ensuring slaves (and their abolitionist allies) didn’t have guns.
After the Civil War, with the beginning of selective incorporation, debates over the Second Amendment were invigorated. As part of their Black codes and Jim Crow laws, designed to reintroduce most of the trappings of slavery, several southern states adopted gun control laws that restricted the carrying and ownership of weapons by former slaves.
This topic is examined in detail in Clayton Cramer’s short but well researched 1993 paper “The Racist Roots of Gun Control“. In this paper, Cramer lays out the gestation of the gun control movement and how the original purpose of gun control was primarily to deprive black citizens from having the means to protect themselves.
Despite acknowledging a common-law individual right to keep and bear arms, in 1876 the Supreme Court declined, in United States v. Cruickshank, to intervene to ensure the states would respect it.
More federal gun control laws began to be introduced in the 1930s. In a fear-driven response to organized crime the National Firearms Act or NFA was passed which, for the first time, regulated such things as the barrel length of rifles and shotguns, the ability to possess automatic weapons and sound suppressors amongst other things.
More gun control laws that regulated most commerce and trade in guns came into force in the wake of the street protests of the 1960s. The Gun Control Act of 1968 forbade citizens from transferring handguns across state lines to one another, disallowed a number of types of people, including anyone that used marijuana from shipping, transporting, or receiving a firearm or ammunition. In addition, there was a plethora of licensing, manufacturing, importing, and dealing requirements enacted by this law.
In the early 1980s, following an assassination attempt on President Ronald Reagan, laws requiring background checks for prospective gun buyers were passed. In 1994 a so-called ‘assault weapon’ ban was passed by congress limiting citizens ability to purchase commonly available semi-automatic rifles.
Constitutional Challenges and the Second Amendment
For over a century after the Civil War, the Supreme Court’s guidance regarding the meaning of the Second Amendment were ambiguous at best. In a case whose facts and arguments left a lot to be desired called United States v. Miller, the Supreme Court upheld the 1934 National Firearms Act’s prohibition of sawed-off shotguns, largely on the basis that possession of such a gun had not been proven in court to be helpful in the defense of the country and no such shotgun was shown to the court as being widely used by the military: “It is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”
The case was decided strangely. In fact, the defendants in Miller made no appearance in the case, nor did their attorneys. Because the defendants did not file any legal briefs nor appear for oral arguments, the Supreme Court heard from no one but the Government.
So, the in the end, the Miller decision was largely about the particular weapon in question – a sawed off shotgun, rather than the right of the individual citizen to poses arms for personal defense.
On balance, Miller was an unhelpful decision for both sides of the gun-control controversy and shed little if any light on the true meaning of the second amendment as it applied to individual citizens.
Despite this, the Miller decision was continually misinterpreted by gun control advocates and anti-gun legislators to incorrectly suggest that the Second Amendment only protected the right of the states to organize an armed militia, rather than an individual right, and thus lower courts frequently, and incorrectly, determined that most firearm regulations—including some city and state laws that virtually outlawed the private ownership of firearms—to be constitutional.
However, beginning in the early 2000s a number of cases that would help to correctly define the true meaning of the Second Amendment started to be heard by the Supreme Court. These cases would, for the first time, force the court to make a legal determination of the actual meaning of the amendment and its applicability, if any, to individual citizens.
In 2008, in a landmark decision called District of Columbia v. Heller, the Supreme Court found that many gun control laws absolutely do violate the Second Amendment and that the second amendment does indeed protect an individual citizen’s right to keep and bear arms without regard to service in a militia. The plaintiff, Dick Heller was a Washington DC resident who wished to keep a handgun for personal protection. DC law at the time forbade him to do so.
SIDEBAR: The Heller decision was written by Justice Scalia and it addresses many of the most common and insidious fallacies that have been propagated since the time following the Civil War in an attempt to justify gun control. The Heller opinion specifically rejects a whole host of wrong interpretations of the second amendment.
Amongst the ideas that the Heller decision specifically rejects are the following: the idea that the right to keep and bear arms is only a collective right of the state rather than an individual right of the people, the idea that the right is inextricably connected to service in a militia, the idea that handguns (or any other class of arms) can somehow be omitted from protection by the 2nd amendment and can be banned, that “safe storage methods” can be prescribed by the government, that the right only applies to 18th century types of arms (e.g.: the ‘flintlock argument’), that ‘bearing arms’ somehow only applies during participation in militia activities, that the 2nd amendment, unlike all of the others in the Bill of Rights, somehow applies only to the state and not to individuals, and maybe the most frivolous of all – that people may keep arms, but the arms must be rendered ineffective for immediate use via locked storage or disassembly.
All of those incorrect ideas and more are specifically rejected in the Heller decision which makes clear that individual citizens have the right to keep and bear arms of all types without any need to be involved in militia service or support activities whatsoever.
However, for a short period after Heller was decided in 2008, the conclusions in Heller legally only applied to a very small area of the country. Because the District of Columbia is not a state, this decision immediately applied the right only to the federal government and territorial governments. This was rapidly remedied when, only two years later, in another landmark 2nd amendment decision, McDonald v. Chicago, the Supreme Court again found that the right to bear arms was a fundamental individual right applicable in ALL states, meaning that state regulation of firearms is, in a great number of circumstances, unconstitutional.
McDonald v. Chicago, is discussed earlier in this book in order to illustrate the 14th Amendment. Suffice it to say that McDonald essentially applied the Heller decision to the entirety of the United States via the protections afforded to individual citizens from oppression by state or local governments in the fourteenth amendment.
The latest major Supreme Court decision on the second amendment came in 2022. In a Case known as NYSRPA vs. Bruen, the second half of the Second Amendment, the right for individual citizens to carry arms upon his person outside of their homes was definitively decided.
The issue in Bruen was fairly straightforward. Could the government put subjective roadblocks in the way of licensing individual citizens who wanted to carry weapons for their own protection in public? The court held that consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a gun for self-defense outside the home and that people do not have to prove to any government official that they are of ‘good moral character’ or prove an ‘elevated need’ to carry a firearm. In effect, Bruen has forced all of the states to adopt what is known as a ‘shall issue’ policy for the issuance handgun carry permits in the absence of individually disqualifying reasons such as the applicant’s conviction of a felony. The decision also allows for a few rare ‘sensitive place’ exceptions, but specifically disallows this exception from being abused.
Importantly, NYSRPS vs. Bruen also defines how lower courts must now judge the constitutionality of laws that are impacted by the Second Amendment. In adopting a ‘strict scrutiny approach’ to all future decisions, it makes it much more difficult for the government to usurp individual Second Amendment rights.
Finally, Bruen affirms that, just as the First Amendment protections for individual citizens using modern communication and printing equipment is protected, the second amendment is absolutely not limited to firearms that were extant at the time of the founding. Possession, carriage, and usage of modern firearms is protected by the Second Amendment in the same way that high speed laser printers and the Internet publication of speech/press is protected by the First Amendment.
Though politicians continue to attempt to remove or water-down the right to keep and bear arms from the citizenry of the United States under the guise of trading a little liberty for what they contend will provide more safety, the triad of Supreme Court Decisions – DC V. Heller, McDonald v. Chicago, and NYSRPA v Bruen provide an absolutely definitive body of law and precedence for lower courts to follow. The conclusion of which is that the Second Amendment absolutely protects the right of individual citizens to possess, carry and use arms for the individual protection of themselves and their country and is an individually protected and enumerated Constitutional right.
Indeed, the right of citizens to own arms is fundamental to the continuation of the country as a free constitutional republic. The U.S. Supreme Court itself in McDonald acknowledged this including the following quote from St. George Tucker, “The right of the citizen to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are unsuccessful in the first instance, enable the people to resist and triumph over them”
THE THIRD AMENDMENT
The Third Amendment says in full:
“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.”
Most people consider this provision of the Constitution obsolete and unimportant. However, it is worthwhile to note its relevance in the context of the time: citizens remembered having their cities and towns occupied by British soldiers and mercenaries during the Revolutionary War, and they viewed the British laws that required the colonists to house soldiers particularly offensive, to the point that it had been among the grievances listed in the Declaration of Independence.
Like the First and Second Amendments, this is an individual right that is enumerated to acknowledge the rights of the citizens to be free of unwanted government intrusion.
Today it seems unlikely that the federal government would need to house military forces in civilian lodgings against the will of property owners or tenants; however, perhaps in the same way we consider the Second and Fourth amendments, we can think of the Third Amendment as reflecting a broader idea that our homes lie within a “zone of privacy” that government officials should not violate unless absolutely necessary.
Note that the Third Amendment is not absolute – in fact it is one of the few Bill of Rights Amendments that provides exceptions to itself. The language “in time of peace” and “in a manner prescribed by law” DO leave open the possibility of housing soldiers in private homes against the will of the citizenry under certain circumstances.
It might be interesting to note here that the Third Amendment has never come before the Supreme Court for consideration and therefore has never been formally incorporated by the Fourteenth Amendment to apply to the individual states or local governments. So, in theory, there may be no Third Amendment protection from state or local governments from housing National Guard or Police in people’s homes.
Having said that, there are many other laws that would likely preclude such a scenario and likely there would be a way to bring a Fourth Amendment challenge to any such order as entry into a home would of necessity have the affect of ‘searching the property’ by government agents (the soldiers being housed).
THE FOURTH AMENDMENT
The Fourth Amendment is said tio “sit at the boundary between general individual freedoms and the rights of those suspected of crimes”. Perhaps this amendment partly reflects James Madison’s broader concern about establishing an expectation of privacy from government intrusion at home. Another way to think of the Fourth Amendment is that it protects us from overzealous or outright illegal efforts by law enforcement to root out crime or obtain convictions by ensuring that police or other government agents must have a good and well-supported reason before they intrude on people’s lives.
The text of the Fourth Amendment is as follows:
“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.”
The amendment places limits on both searches and seizures: Searches are efforts to locate documents, evidence, and contraband. Seizures are the taking of these items by the government for use as evidence in a criminal prosecution (or, in the case of a person, the arrest, detention, or otherwise taking of the person into custody).
In either case, the amendment indicates that government officials are required to apply for and receive a search warrant prior to a search or seizure; this warrant is a legal document, signed by a judge upon the oath or affirmation of the person seeking the warrant, allowing police to search and/or seize persons or property.
Since the 1960s, the Supreme Court has issued a series of rulings limiting the warrant requirement in situations where a person can be said to lack a “reasonable expectation of privacy” outside the home. Police can also search and/or seize people or property without a warrant if the owner or renter consents to the search, if there is a reasonable expectation that evidence may be destroyed or tampered with before a warrant can be issued (i.e., exigent circumstances), or if the items in question are in plain view of government officials.
Furthermore, the courts have found that police do not always need a warrant to search the passenger compartment of a car, or to search people entering the United States from another country. When a warrant is needed, law enforcement officers do not need enough evidence to secure a conviction, but they must demonstrate to a judge that there is probable cause to believe a crime has been committed or evidence will be found. Probable cause (or p.c) is the legal standard for determining whether a search or seizure is constitutional. PC is a lower threshold than the standard of proof at a criminal trial which is “beyond a reasonable doubt“.
Critics have argued that the probable cause requirement is not very meaningful because law enforcement officers are almost always able to get a search warrant when they request one.
So, what happens if the police conduct an illegal search or seizure without a warrant and find evidence of a crime? In the 1961 Supreme Court case Mapp v. Ohio, the court decided that evidence obtained without a warrant that didn’t fall under one of a very few exceptions could not be used as evidence in a state criminal trial, giving rise to the broad application of what is known as the exclusionary rule, which was first established in 1914 on a federal level in Weeks v. United States.
SIDEBAR: The exclusionary rule doesn’t just apply to evidence found or to items or people seized without a warrant (or falling under exceptions noted above); it also applies to any evidence developed or discovered as a result of the illegal search or seizure.
Evidence obtained illegally is sometimes called “fruit of the poisonous tree” because any other evidence gathered after that, using leads developed from the illegally obtained evidence – including even criminal confessions, is generally inadmissible at trial and can kill the entire case for the prosecution.
For example, if police search your home without a warrant, find bank statements showing large cash deposits on a regular basis, and discover you are engaged in some other crime in which they were previously unaware (e.g., blackmail, drugs, or prostitution), not only can they not use the bank statements as evidence of criminal activity—they also can’t prosecute you for the crimes they discovered during the illegal search. Again, a good way to remember this principle is that the application of the exclusionary rule is sometimes called the “fruit of the poisonous tree,” because just as the metaphorical tree (i.e., the original search or seizure) is poisoned, so is anything that grows out of it.
The following video is a bit longer than most in this online textbook (16 minutes), but it’s important to understand your rights, so we are including it. Note: Miranda rights are mentioned in the video and this strays into the purview of the 5th Amendment.
The Miranda rights are a set of advisory admonitions that must generally be given to a person taken into custody before he can be questioned by law enforcement. We’ll discuss Miranda rights more later. Here is a list of the rights which are to be given to suspects by the police at the appropriate time:
- You have the right to remain silent.
- If you give up the right to remain silent anything you say can and will be used against you in a court of law.
- You have the right to an attorney and have an attorney present during questioning.
- If you so desire and cannot afford an attorney, one will be provided for you free of charge.
- Do you understand the rights I have just read to you?
- With these rights in mind, do you wish to speak to me?
However, like the requirement for a search warrant, the exclusionary rule does have exceptions. The courts have allowed evidence to be used that was obtained without the necessary legal procedures in circumstances where police executed warrants they believed were correctly granted but in fact were not (“good faith” exception), and when the evidence would have been found anyway had they followed the law (“inevitable discovery”).
The requirement of probable cause also applies to arrest warrants. With significant exceptions, a person cannot generally be arrested by police or taken into custody without a warrant for crimes not committed in their presence. Most states allow police to arrest someone suspected of a felony crime without a warrant so long as probable cause exists, and police can arrest people for crimes or misdemeanors they have witnessed themselves.
THE FIFTH AMENDMENT
The Fifth Amendment will be dealt with in a later chapter in this book.
THE SIXTH AMENDMENT
Once someone has been charged with a crime and indicted, the next stage in a criminal case is typically the trial itself, unless a plea bargain is reached. The Sixth Amendment contains the provisions that govern criminal trials; in full, it states:
“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 wherein 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 defense.”
The first of these guarantees is the right to have a speedy, public trial by an impartial jury. Although there is no absolute limit on the length of time that may pass between an indictment and a trial, the Supreme Court has said that excessively lengthy delays must be justified and balanced against the potential harm to the defendant. In effect, the speedy trial requirement protects people from being detained indefinitely by the government. Yet the courts have ruled that there are exceptions to the public trial requirement; if a public trial would undermine the defendant’s right to a fair trial, it can be held behind closed doors, while prosecutors can request closed proceedings only in certain, narrow circumstances (generally, to protect witnesses from retaliation or to guard classified information). In general, a prosecution must also be made in the “state and district” where the crime was committed; however, people accused of crimes may ask for a change of venue for their trial if they believe pre-trial publicity or other factors make it difficult or impossible for them to receive a fair trial where the crime occurred.
LINK TO LEARNING
Although the Supreme Court’s proceedings are not televised and there is no video of the courtroom, audio recordings of the oral arguments and decisions announced in cases have been made since 1955. A complete collection of these recordings can be found at the Oyez Project website along with full information about each case.
Most people accused of crimes decline their right to a jury trial. This choice is typically the result of a plea bargain, an agreement between the defendant and the prosecutor in which the defendant pleads guilty to the charge(s) in question, or perhaps to less serious charges, in exchange for more lenient punishment than he or she might receive if convicted after a full trial.
There are a number of reasons why this might happen. The evidence against the accused may be so overwhelming that conviction is a near-certainty, so he or she might decide that avoiding the more serious penalty (perhaps even the death penalty) is better than taking the small chance of being acquitted after a trial. Someone accused of being part of a larger crime or criminal organization might agree to testify against others in exchange for lighter punishment. At the same time, prosecutors might want to ensure a win in a case that might not hold up in court by securing convictions for offenses they know they can prove, while avoiding a lengthy trial on other charges they might lose.
The requirement that a jury be impartial is a critical requirement of the Sixth Amendment. Both the prosecution and the defense are permitted to reject potential jurors who they believe are unable to fairly decide the case without prejudice during the pre-trial process called voir dire. However, the courts have also said that the composition of the jury as a whole may in itself be prejudicial; potential jurors may not be excluded simply because of their race or sex, for example.
The Sixth Amendment guarantees the right of those accused of crimes to present witnesses in their own defense (if necessary, compelling them to testify) and to confront and cross-examine witnesses presented by the prosecution. In general, the only testimony acceptable in a criminal trial must be given in a courtroom and be subject to cross-examination. Hearsay, (testimony by one person about what another person has said), is generally inadmissible, although hearsay may be presented as evidence when it is an admission of guilt by the defendant or a “dying declaration” by a person who has passed away. Although both sides in a trial have the opportunity to examine and cross-examine witnesses, the judge may exclude testimony deemed irrelevant or prejudicial.
Finally, the Sixth Amendment guarantees the right of those accused of crimes to have the assistance of an attorney in their defense. Historically, many states did not provide attorneys to those accused of most crimes who could not afford one themselves; even when an attorney was provided, his or her assistance was often inadequate at best. This situation changed as a result of the Supreme Court’s decision in Gideon v. Wainwright (1963). Clarence Gideon, a poor drifter, was accused of breaking into and stealing money and other items from a pool hall in Panama City, Florida. Denied a lawyer, Gideon was tried, convicted and sentenced to a five-year prison term. While in prison—still without assistance of a lawyer—he drafted a handwritten appeal and sent it to the Supreme Court, which agreed to hear his case. The justices unanimously ruled that Gideon, and anyone else accused of a serious crime, was entitled to the assistance of a lawyer, even if they could not afford one, as part of the general due process right to a fair trial.
The Supreme Court later extended the Gideon v. Wainwright ruling to apply to any case in which an accused person faced the possibility of “loss of liberty,” even for one day. The courts have also overturned convictions in which people had incompetent or ineffective lawyers through no fault of their own. The Gideon ruling has led to an increased need for taxpayer-provided known as professional public defenders. Generally, public defenders are attorneys who are paid for by the government to represent those who cannot afford an attorney themselves, although some states instead can require practicing lawyers to represent poor defendants on a pro bono basis essentially forcing them to donate their time and energy to these types of cases).
It is critical to note that, in the Gideon case, the Supreme Court also affirmed via the 14th Amendment that the 6TH Amendment applies to the individual states via the incorporation doctrine – similar to the McDonald and Bruen decisions did with the 2nd amendment as discussed above. Remember, each amendment must be individually incorporated to apply to the states.
LINK TO LEARNING
The National Association for Public Defense represents public defenders, lobbying for better funding for public defense and improvements in the justice system in general.
Criminal Justice: Theory Meets Practice
Typically, a person charged with a serious crime will have a brief hearing before a judge to be informed of the charges against him, to be made aware of the right to counsel, and to enter a plea. Several other pre-trial hearings may be held to decide on technical matters such as the admissibility of evidence seized or otherwise obtained by prosecutors.
SIDEBAR: Unlike movies and TV shows typically portray, there are very rarely any shocking “surprises” during trials. Before a trial begins both sides must divulge to the other what they are going to place before the jury insofar as evidence and witnesses. This process is known as “discovery” and is a critical part of the current American ethos of conducting trials.
Discovery allows both sides to fully prepare for being able to rebut things that they do not agree with instead of having to come up with significant arguments ‘on the spot’. Significant pre-trial hearings can revolve around what can and cannot be presented to a jury and discovery is key to a fair system.
If the two sides cannot agree on a plea bargain during the pre-trial period, the next stage is the selection of a jury. A pool of potential jurors is summoned to the court and screened for impartiality, with the goal of seating twelve (in most states) and one or two alternates in case one of the selected 12 becomes unable to serve. This could happen for various reasons including illness, or various types of misconduct by the juror or others.
All of those selected, including all jurors and any alternates attend the trial and hear the evidence presented by both sides during the trial. Unless there has been a problem and an alternate must serve, the original twelve selected jurors will debate and decide whether the evidence overwhelmingly points toward guilt or innocence beyond a reasonable doubt in a criminal trial. The alternate jurors do not participate in these debates known as “jury deliberations”.
In the trial itself, the lawyers for the prosecution and defense make opening arguments, followed by testimony by witnesses for the prosecution (and any cross-examination), and then testimony by witnesses for the defense. The defendant may also take the stand and speak in his own defense if he or she chooses. Additional prosecution witnesses may be called to rebut testimony by the defense. Finally, both sides make closing arguments. Closing arguments are an attempt to summarize the facts in such a way as to persuade the jury of each side’s view of what happened. After the closing arguments, the judge then issues the critically important instructions to the jury, including an admonition not to discuss the case with anyone outside the jury room.
The jury members then leave the courtroom to enter the jury room and begin their deliberations.
The jurors pick a foreman or forewoman to coordinate their deliberations. They may ask to review evidence or to hear transcripts of testimony. They deliberate in secret and in a criminal trial their decision must be unanimous; if they are unable to agree on a verdict after extensive deliberation, a mistrial may be declared, which in effect requires the prosecution to try the case all over again.
A defendant found not guilty of all charges will be immediately released unless other charges are pending (e.g., the defendant is wanted for a crime in another jurisdiction). If the defendant is found guilty of one or more offenses, the judge will choose an appropriate sentence based on the law and the circumstances; in the federal system, this sentence will typically be based on guidelines that assign point values to various offenses and facts in the case. If the prosecution is pursuing the death penalty, the jury will decide whether the defendant should be subject to capital punishment or life imprisonment. Sentencing can happen at a later date.
The reality of court procedure is much less dramatic, much more complex, and not nearly as exciting as what is typically portrayed in television shows and movies.
Statistically speaking, most Americans will participate in the legal system at least once in their lives as a witness, juror, or defendant.
Has any member of your family served on a jury? If so, was the experience a positive one? Did the trial proceed as expected? Is serving on a jury something you look forward to? Why or why not?
THE SEVENTH AMENDMENT
The Seventh Amendment deals with the rights of those engaged in civil disputes; as noted earlier, these are disagreements between individuals or businesses in which people are typically seeking compensation for some harm caused. These are NOT criminal cases and incarceration is not generally ever a consideration. For example, in an automobile accident where there has been property damage, the person responsible may be compelled by civil courts to compensate any others (either directly or through his or her insurance company) to repair the damage. Much of the work of the legal system consists of efforts to resolve civil disputes.
The Seventh Amendment, in full, reads:
“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.”
Because of this provision, all trials in civil cases must take place before a jury unless both sides waive their right to a jury trial. However, this right is not always incorporated; in many states, civil disputes—particularly those involving small sums of money, which may be heard by a dedicated small claims court—need not be tried in front of a jury and may instead be decided by a judge.
The Seventh Amendment limits the ability of judges to reconsider questions of fact, rather than of law, that were originally decided by a jury. For example, if a jury decides a person was responsible for an action and the case is appealed, the appeals judge cannot decide someone else was responsible. This preserves the traditional common-law distinction that judges are responsible for deciding questions of law while jurors are responsible for determining the facts of a particular case. In many cases it might be easiest to think of the jury as the people who judge the defendants guilt or innocence while the judge is there to make sure it is done fairly, within the law, and administered correctly.
Important note: The 7th Amendment has NOT been incorporated to the states by the 14th Amendment!
THE EIGHTH AMENDMENT
The Eighth Amendment says, in full:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The 8th Amendment’s protections are some of the most critical, yet most misunderstood and debated in the Bill of Rights.
Bail is a payment of money that allows a person accused of a crime to be freed pending trial; if you “make bail” in a case and do not show up for your trial, you will forfeit the money you paid. Since many people cannot afford to pay bail directly, they may instead get a bail bond, which allows them to pay a fraction of the money (typically 10 percent) to a person who sells bonds and who pays the full bail amount. (In most states, the bond seller makes money because the defendant does not get back the money for the bond, and most people show up for their trials.) However, people believed likely to flee or who represent a risk to the community while free may be denied bail and held in jail until their trial takes place.
It is rare for bail to be successfully challenged for being excessive. The Supreme Court has defined an excessive fine as one “so grossly excessive as to amount to deprivation of property without due process of law” or “grossly disproportional to the gravity of a defendant’s offense.” In practice the courts have rarely struck down fines as excessive either.
4.3 The Rights of Criminal Suspects
By the end of this section, you will be able to:
- Identify the rights of those suspected or accused of criminal activity
- Explain how Supreme Court decisions transformed the rights of the accused
- Explain why the Eighth Amendment is controversial regarding capital punishment
In addition to protecting the personal freedoms and liberties of innocent individuals, the Bill of Rights protects those suspected or accused of crimes from various forms of unfair or unjust treatment even if in the end they turn out to be guilty! The prominence of these universal protections in the Bill of Rights may seem surprising to some, especially those who have been victims of crimes, but these concepts are critical to protecting the innocent from government overreach or abuse.
Given the colonists’ experience of what they believed to be unjust rule by British authorities and the use of the legal system to punish rebels and their sympathizers for political offenses, the impetus to ensure fair, just, and impartial treatment to everyone accused of a crime—no matter how unpopular—is more understandable. What is more, the revolutionaries, and the eventual framers of the Constitution, wanted to keep the best features of English law as well as protecting individual liberties.
In addition to the protections outlined in the Fourth Amendment, which largely pertain to investigations conducted before someone has been charged with a crime, the next four amendments we will cover pertain to those suspected, accused, or convicted of crimes, as well as people engaged in other legal disputes.
At every stage of the legal process, the Bill of Rights incorporates protections for these people.
THE FIFTH AMENDMENT
Many of the provisions dealing with the rights of the accused are included in the Fifth Amendment; accordingly, it is one of the longest in the Bill of Rights. The Fifth Amendment states in full:
“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.”
The first clause requires that serious crimes be prosecuted only after an indictment has been issued by a grand jury. However, several exceptions are permitted as a result of the interpretation and judicial understanding of this amendment by the courts. First, the courts have generally found this requirement to apply only to felonies; less serious crimes can be tried without a grand jury proceeding. Second, this provision of the Bill of Rights does not apply to the states because it has not been incorporated; many states instead require a judge to hold a preliminary hearing to decide whether there is enough evidence to hold a full trial. Finally, members of the armed forces who are accused of crimes are not entitled to a grand jury proceeding.
The Fifth Amendment also protects individuals against double jeopardy, a process that subjects a suspect to prosecution twice for the same criminal act. No one who has been acquitted (found not guilty) of a crime can be prosecuted again for that specific alleged crime. But the prohibition against double jeopardy has its own exceptions. The most notable is that it prohibits a second prosecution only at the same level of government (federal or state) as the first; the federal government can try you for violating federal law, even if a state or local court finds you not guilty of a state law violation for the same actions. For example, in the early 1990s, several Los Angeles police officers accused of beating motorist Rodney King during his arrest were acquitted of various charges in a state court, but some were later convicted in a federal court of violating Mr. King’s civil rights.
The double jeopardy rule also does not prevent someone from recovering damages in a civil case—a legal dispute between individuals over a contract or compensation for an injury—that results from a criminal act, even if the person accused of that act is found not guilty in criminal court. One famous case from the 1990s involved former football star and television personality named O. J. Simpson. Simpson, although acquitted of the murders of his ex-wife Nicole Brown and her friend Ron Goldman in a state criminal court, was later found to be responsible for their deaths in a subsequent civil-court case and as a result was forced to forfeit most of his wealth to pay damages to the victim’s families.
Perhaps the most famous provision of the Fifth Amendment is its protection against self-incrimination, or the right to remain silent.
This provision is so well known that we have a phrase for it: “taking the Fifth.” People have the right not to give evidence in court or to law enforcement officers that might constitute an admission of guilt or responsibility for a crime. Moreover, in a criminal trial, if someone does not testify in his or her own defense, the prosecution cannot use that failure to testify as evidence of guilt or imply that an innocent person would testify. This provision became embedded in the public consciousness following the Supreme Court’s 1966 ruling in Miranda v. Arizona, whereby suspects were required to be informed of their most important rights, including the right against self-incrimination, before being interrogated in police custody. However, contrary to some media depictions of the Miranda warning, law enforcement officials do not necessarily have to inform suspects of their rights before they are questioned in situations where the suspects are free to leave.
The following video is 46 minutes long, so it is OPTIONAL. However, it is included because the professor and the police officer making this presentation are very articulate, engaging, and even entertaining. The video has had over 18 million views and has been discussed endlessly on the Internet. The video makes a very compelling case explaining why one should consider invoking their Fifth Amendment right before speaking with an attorney. You may want to watch this in your free time.
Like the Fourteenth Amendment’s due process clause, the Fifth Amendment prohibits the federal government from depriving people of their “life, liberty, or property, without due process of law.” Recall that due process is a guarantee that people will be treated fairly and impartially by government officials when the government seeks to fine or imprison them or take their personal property away from them. The courts have interpreted this provision to mean that government officials must establish consistent, fair procedures to decide when people’s freedoms are limited; in other words, citizens cannot be detained, their freedom limited, or their property taken arbitrarily or on a whim by police or other government officials. As a result, an entire body of procedural safeguards comes into play for the legal prosecution of crimes. However, the Patriot Act, a very controversial law passed to help fight terrorism after the 9/11 terrorist attacks, somewhat altered this notion.
The final provision of the Fifth Amendment has little to do with crime at all. The takings clause says that “private property [cannot] be taken for public use, without just compensation.” This provision, along with the due process clause’s provisions limiting the taking of property, can be viewed as a protection of individuals’ economic liberty: their right to obtain, use, and trade tangible and intangible property for their own benefit. For example, you have the right to trade your knowledge, skills, and labor for money through work or the use of your property, or trade money or goods for other things of value, such as clothing, housing, education, or food.
The greatest recent controversy over economic liberty has been sparked by cities’ and states’ use of the power of eminent domain to take property for redevelopment. Traditionally, the main use of eminent domain was to obtain property for transportation corridors like railroads, highways, canals and reservoirs, and pipelines, which require fairly straight routes to be efficient. Because any single property owner could effectively block a particular route or extract an unfair price for land if it was the last piece needed to assemble a route, there are reasonable arguments for using eminent domain as a last resort in these circumstances, particularly for projects that convey substantial benefits to the public at large.
However, increasingly eminent domain has been used to allow economic development, with beneficiaries ranging from politically connected big businesses such as car manufacturers building new factories to highly profitable sports teams seeking ever-more-luxurious stadiums. And, while we traditionally think of property owners as relatively well-off people whose rights don’t necessarily need protecting since they can fend for themselves in the political system, frequently these cases pit lower- and middle-class homeowners against multinational corporations or billionaires with the ear of city and state officials. In a notorious 2005 case, Kelo v. City of New London, the Supreme Court sided with municipal officials taking homes in a middle-class neighborhood to obtain land for a large pharmaceutical company’s corporate campus. The case led to a public backlash against the use of eminent domain and legal changes in many states, making it harder for cities to take property from one private party and give it to another for economic redevelopment purposes.
Some disputes over economic liberty have gone beyond the idea of eminent domain. In the past few years, the emergence of on-demand ride-sharing services like Lyft and Uber, direct sales by electric car manufacturer Tesla Motors, and short-term property rentals through companies like Airbnb have led to conflicts between people seeking to offer profitable services online, states and cities trying to regulate these businesses, and the incumbent service providers that compete with these new business models. In the absence of new public policies to clarify rights, the path forward is often determined through norms established in practice, by governments, or by court cases.
4.4 Interpreting the Bill of Rights
By the end of this section, you will be able to:
- Describe how the Ninth and Tenth Amendments reflect on our other rights
- Identify the two senses of “right to privacy” embodied in the Constitution
- Explain the controversy over privacy when applied to abortion and same-sex relationships
In this section, we consider the final two amendments of the Bill of Rights and the way they affect our understanding of the Constitution as a whole.
Rather than protecting specific rights and liberties, the Ninth and Tenth Amendments indicate how the Constitution and the Bill of Rights should be interpreted, and they lay out the residual powers of the state governments. We will also examine privacy rights, an area the Bill of Rights does not address directly; instead, the emergence of defined privacy rights demonstrates how the Ninth and Tenth Amendments have been applied to expand the scope of rights protected by the Constitution.
THE NINTH AMENDMENT
We saw above that James Madison and the other framers were aware they might endanger some rights if they listed a few in the Constitution and omitted others. To ensure that those interpreting the Constitution would recognize that the listing of freedoms and rights in the Bill of Rights was not exhaustive, the Ninth Amendment states:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
These rights “retained by the people” include the common-law and natural rights inherited from the laws, traditions, and past court decisions of England. To this day, we regularly exercise and take for granted rights that aren’t written down in the federal constitution, like the right to marry, the right to seek opportunities for employment and education, and the right to have children and raise a family. Supreme Court justices over the years have interpreted the Ninth Amendment in different ways; some have argued that it was intended to extend the rights protected by the Constitution to those natural and common-law rights, while others have argued that it does not prohibit states from changing their constitutions and laws to modify or limit those rights as they see fit.
Critics of a broad interpretation of the Ninth Amendment point out that the Constitution provides ways to protect newly formalized rights through the amendment process. For example, in the nineteenth and twentieth centuries, the right to vote was gradually expanded by a series of constitutional amendments (the Fifteenth and Nineteenth), even though at times this expansion was the subject of great public controversy. However, supporters of a broad interpretation of the Ninth Amendment point out that the rights of the people—particularly people belonging to political or demographic minorities—should not be subject to the whims of popular majorities. One right the courts have said may be at least partially based on the Ninth Amendment is a general right to privacy, discussed later in the chapter.
Essentially, the Ninth Amendment affirms the concept of natural rights and requires the government to adhere to that concept. It is, in fact, another restriction on government. The Ninth Amendment assures that un-named liberties of the individual are not trampled upon EVEN when they are not specifically stated or enumerated such as the right to religion, free speech, arming oneself, being free from warrantless searches or quartering soldiers in the home. The ninth amendment acknowledges there are rights, and many of them, that do not have to be specifically stated in the Constitution in order to exist and be enforceable.
THE TENTH AMENDMENT
The Tenth Amendment is as follows:
“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.”
Unlike the other provisions of the Bill of Rights, this amendment focuses on powers rather than rights. The courts have generally read the Tenth Amendment as merely stating, as Chief Justice Harlan Stone put it, a “truism that all is retained which has not been surrendered.” In other words, rather than limiting the power of the federal government in any meaningful way, the Tenth Amendment simply restates what is made obvious elsewhere in the Constitution: the federal government has both enumerated and implied powers, but where the federal government does not (or chooses not to) exercise power, the states and / or the people themselves may do so.
At times, politicians and state governments have argued that the Tenth Amendment means states can engage in interposition or nullification by blocking federal government laws and actions they deem to exceed the constitutional powers of the national government. But the courts have rarely been sympathetic to these arguments, except when the federal government appears to be directly requiring state and local officials to do something. For example, in 1997 in a case known as Printz vs. the United States the Supreme Court struck down part of a federal law that required state and local law enforcement to participate in conducting background checks for prospective gun purchasers, while in 2012 the court ruled that the government could not compel states to participate in expanding the joint state-federal Medicaid program by taking away all their existing Medicaid funding if they refused to do so.
However, the Tenth Amendment also allows states to guarantee rights and liberties more fully or extensively than the federal government does, or to include additional rights. For example, many state constitutions guarantee the right to a free public education, several states give victims of crimes certain rights, and eighteen states include the right to hunt game and/or fish.
A number of state constitutions explicitly guarantee equal rights for men and women. Some permitted women to vote before that right was expanded to all women with the Nineteenth Amendment in 1920, and people aged 18–20 could vote in a few states before the Twenty-Sixth Amendment came into force in 1971.
As we will see below, several states also explicitly recognize a right to privacy. State courts at times have interpreted state constitutional provisions to include broader protections for basic liberties than their federal counterparts. For example, although in general people do not have the right to free speech and assembly on private property owned by others without their permission, California’s constitutional protection of freedom of expression was extended to portions of some privately owned shopping centers by the state’s supreme court in a very controversial decision.
These state protections do not extend the other way, however. If the federal government passes a law or adopts a constitutional amendment that restricts rights or liberties, or a Supreme Court decision interprets the Constitution in a way that narrows these rights, the state’s protection no longer applies. For example, if Congress decided to outlaw hunting and fishing and the Supreme Court decided this law was a valid exercise of federal power, the state constitutional provisions that protect the right to hunt and fish would effectively be meaningless. More concretely, federal laws that control drugs override state laws and constitutional provisions that otherwise permit them. Though in practice this has been ignored to some degree in recent years with regard to federal marijuana laws the Federal government could come in and enforce the federal marijuana laws at any time.
THE RIGHT TO PRIVACY
Although the term privacy does not appear in the Constitution or Bill of Rights, scholars have interpreted several Bill of Rights provisions as an indication that James Madison and Congress sought to protect a common-law right to privacy as it would have been understood in the late eighteenth century: a right to be free of government intrusion into our personal life, particularly within the bounds of the home. For example, we easily see the Second Amendment as protecting for the common-law right to self-defense in the home; the Third Amendment as a statement that government soldiers should not be housed in anyone’s home; the Fourth Amendment as setting a high legal standard for allowing agents of the state to intrude on someone’s home; and the due process and takings clauses of the Fifth Amendment as applying an equally high legal standard to the government’s taking a home or property (reinforced after the Civil War by the Fourteenth Amendment). Alternatively, we could argue that the Ninth Amendment anticipated the existence of a common-law right to privacy, among other rights, when it acknowledged the existence of basic, natural rights not listed in the Bill of Rights or the body of the Constitution itself. Lawyers Samuel D. Warren and Louis Brandeis (the latter a future Supreme Court justice) famously developed the concept of privacy rights in a law review article published in 1890.
Although several state constitutions do list the right to privacy as a protected right, the explicit recognition by the Supreme Court of a right to privacy in the U.S. Constitution emerged only in the middle of the twentieth century. In 1965, the court spelled out the right to privacy for the first time in Griswold v. Connecticut, a case that struck down a state law forbidding even married individuals to use any form of contraception. Although many subsequent cases before the Supreme Court also dealt with privacy in the course of intimate, sexual conduct, the issue of privacy matters as well in the context of surveillance and monitoring by government and private parties of our activities, movements, and communications. Both these senses of privacy are examined below.
SIDEBAR: In the video below, the Supreme Court case of Pierce Vs. Society of Sisters is mentioned. Do you know that the right to homeschooling freedoms stems, at least in part from the findings in this case? One very important quote from one of the Supreme Court Justices states it in an interesting way:
“The fundamental theory of liberty upon which all governments in this union repose excludes any general power of the state to standardize its children by forcing them to accept instructions from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
You might like to read more about this case and how it applies to homeschoolers here.
Although the Griswold case originally pertained only to married couples, in 1972 it was extended to apply the right to obtain contraception to unmarried people as well. Although neither decision was entirely without controversy, the “sexual revolution” taking place at the time may well have contributed to a sense that anti-contraception laws were at the very least dated, if not in violation of people’s rights. The contraceptive coverage controversy surrounding the Hobby Lobby case shows that this topic remains relevant.
The Supreme Court’s application of the right to privacy doctrine to abortion rights proved far more problematic, legally and politically. In 1972, four states permitted abortions without restrictions, while thirteen allowed abortions “if the pregnant woman’s life or physical or mental health were endangered, if the fetus would be born with a severe physical or mental defect, or if the pregnancy had resulted from rape or incest.” Abortions were completely illegal in Pennsylvania and heavily restricted in the remaining states.
The legal landscape changed dramatically as a result of the 1973 ruling in the now overturned decision of Roe v. Wade, in which the Supreme Court decided the right to privacy somehow encompassed a right for women to terminate a pregnancy, at least under certain scenarios. The justices ruled that while the government did have an interest in protecting the “potentiality of human life,” nonetheless this had to be balanced against the interests of both women’s health and women’s right to decide whether to have an abortion.
Starting in the 1980s, Supreme Court justices began to roll back the Roe decision. A key turning point was the court’s ruling in Planned Parenthood v. Casey in 1992, in which a plurality of the court rejected Roe’s framework based on trimesters of pregnancy and replaced it with the undue burden test, which allows restrictions prior to viability that are not “substantial obstacle[s]” (undue burdens) to women seeking an abortion. Thus, the court upheld some state restrictions, including a required waiting period between arranging and having an abortion, parental consent (or, if not possible for some reason such as incest, authorization of a judge) for minors, and the requirement that women be informed of the health consequences of having an abortion. Other restrictions such as a requirement that a married woman notify her spouse prior to an abortion were struck down as an undue burden. After the Casey decision, many states passed other restrictions on abortions, such as banning certain procedures, requiring women to have and view an ultrasound before having an abortion, and implementing more stringent licensing and inspection requirements for facilities where abortions are performed.
In 2022, the landmark 6–3 decision of Dobbs v. Jackson Women’s Health Organization held that the Constitution of the United States does not confer a right to abortion. The court’s decision overruled both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The decision gave the individual states full power to regulate abortion. This means that some states may choose to allow abortion and others may restrict or even forbid it.
Supreme Court judge Samuel Alito called the Roe decision “egregiously wrong from the start”, arguing that abortion is not listed in the Constitution as a protected right, and instead allows states to legislate abortion restrictions or guarantees under the Tenth Amendment to the U.S. Constitution.
Beyond the issues of contraception and abortion, the right to privacy has been interpreted to encompass a more general right for adults to have noncommercial, consensual sexual relationships in private.
Privacy of Communications and Property
Another example of heightened concerns about privacy in the modern era is the reality that society is under pervasive surveillance. In the past, monitoring the public was difficult at best. During the Cold War, regimes in the Soviet bloc employed millions of people as domestic spies and informants in an effort to suppress internal dissent through constant monitoring of the general public. Not only was this effort extremely expensive in terms of the human and monetary capital it required, but it also proved remarkably ineffective. Groups like the East German Stasi and the Romanian Securitate were unable to suppress the popular uprisings that undermined communist one-party rule in most of those countries in the late 1980s.
Technology has now made it much easier to track and monitor people. Police cars and roadways are equipped with cameras that can photograph the license plate of every passing car or truck and record it in a database and even to run it through a computer system and send an alert to authorities for whatever reason. While allowing police to recover stolen vehicles and catch fleeing suspects, this data can also be used to track the movements of law-abiding citizens who the government has no business monitoring. But law enforcement officials sometimes don’t even have to go to that much work; millions of car and truck drivers pay tolls electronically without stopping at toll booths thanks to transponders attached to their vehicles, which can be read by scanners well away from any toll road or bridge to monitor traffic flow or any other purpose. The pervasive use of connected GPS (Global Positioning System) units raises similar issues.
Even pedestrians and cyclists are relatively easy to track today. Cameras pointed at sidewalks and roadways can employ ever-advancing facial recognition software to identify people as they walk or bike around a city. Many people carry smartphones that constantly report their location to the nearest cell phone tower and broadcast a beacon signal to nearby wireless hotspots and Bluetooth devices. Police can set up a small device called a Stingray that identifies and tracks all cell phones that attempt to connect to it within a radius of several thousand feet. With certain types of software, the government, law enforcement and even criminals can remotely and surreptitiously activate a phone’s microphone and camera, effectively planting a bug in someone’s pocket without the person even knowing it or having any outward indication that this has been done.
These capabilities aren’t gimmicks in a bad science fiction movie; businesses and governments have openly admitted they are using these methods. Research shows that even metadata—information about the messages we send and the calls we make and receive, such as time, location, sender, and recipient but excluding their content—can tell governments and businesses a great deal about what someone is doing. Even when this information is collected in an anonymous way, it is often still possible to trace it back to specific individuals, since people travel and communicate in largely predictable patterns.
The next frontier of potential privacy violation issues includes the increased use of drones, small preprogrammed or remotely piloted aircraft. Drones can fly virtually undetected and monitor events from far overhead. They can peek into backyards surrounded by fences and using infrared cameras they can monitor activity inside houses and other buildings. The Fourth Amendment was written in an era when finding out what was going on in someone’s home meant either going inside or peeking through a window; applying its protections today, when seeing into someone’s house can be as easy as looking at a computer screen miles away, is no longer simple. However, the Constitution applies to modern means of communication just as it did the wooden printing press so it should equally apply to modern means of search just as it did when men had to knock on your door to look into your papers and effects.
In the United States, many advocates of civil liberties are concerned that laws such as the so-called USA PATRIOT Act, which was passed weeks after the 9/11 attacks in 2001, has given the federal government too much power by making it easy for officials to seek and obtain search warrants or, in some cases, to bypass warrant requirements altogether. Critics have argued that the Patriot Act has largely been used to prosecute ordinary criminals, in particular drug dealers, rather than terrorists as was the original stated intent.
Ironically, most European countries, at least on paper, have opted for laws that protect against such government surveillance, perhaps mindful of past experience with communist and fascist regimes. European countries also tend to have stricter laws limiting the collection, retention, and use of private data by companies, which makes it harder for governments to obtain and use that data. Most recently, the battle between Apple Inc. and the National Security Agency (NSA) over whether Apple should allow the government access to key information that is encrypted has made the discussion of this tradeoff salient once again.
A recent court outcome in the United States suggests that America may follow Europe’s lead. In Carpenter v. United States (2018), the first case of its kind, the U.S. Supreme Court ruled that, under the Fourth Amendment, police need a search warrant to gather phone location data as evidence to be used in trials.
LINK TO LEARNING
Several groups regularly bring court cases or lobby the government, such as The Electronic Frontier Foundation and The Electronic Privacy Information Center, on issues related to privacy in the information age, particularly on the Internet.
All of this is not to say that technological tools do not have value or are inherently bad. Such tools can be used for many purposes that would benefit society and, perhaps, even enhance our freedoms. Spending less time stuck in traffic because we know there’s been an accident—detected automatically because the cell phones that normally whiz by at the speed limit are now crawling along—gives us time to spend on more valuable activities. Capturing criminals and terrorists by recognizing them or their vehicles before they can continue their agendas will protect the life, liberty, and property of the public at large.
At the same time, however, the emergence of these technologies requires personal vigilance and legal limitations on what businesses and governments can do with the information they collect on us and the length of time they may retain it. We should also be concerned about how this technology could be used by more oppressive regimes. If the technological resources that are at the disposal of today’s governments had been available to the East Germany Stasi and the Romanian Securitate, or the Soviet Union’s KGB would those repressive regimes have fallen? How much privacy and freedom should citizens sacrifice in order to feel safe?
SIDEBAR: It is critical that, as citizens of the United States, we do not allow modern developments in technology to be somehow divorced from any of the Constitutional limitations on our government. Just as Ben Franklin’s printing press has been exponentially outclassed by the ability of the modern Internet to communicate with the masses, does not mean that the liberty to freely use modern methods for dissemination speech is somehow any less valid or any less constitutionally protected because it can be done more efficiently.
Similarly, because modern wholesale surveillance methods of the population are available to government – there should be no less restriction on the need to obtain a warrant when that surveillance turns to any member or group.
The Constitution, and in particular the Bill of Rights protects individual Liberties and was so masterfully written that its concepts can easily be applied to today’s modern challenges.
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