Fundamental American Liberties Chapter 5. In this chapter we will learn about The meaning of rights in a democratic society The Bill of Rights Freedom.

Fundamental American

LibertiesChapter 5

In this chapter we will learn about

• The meaning of rights in a democratic society

• The Bill of Rights

• Freedom of religion

• Freedom of speech and of the press

• The right to bear arms

• The rights of people accused of crimes

• The right to privacy

Conflicting rights

Rights conflict in two ways:

• Individual rights conflict– E.g., school prayer

• Individual rights vs. the good of society– E.g., drug laws

Solving conflicts about rights

• The courts

• Congress

• The president

• The people

Civil liberties vs. civil rights

Civil liberties

• Rights spelled out in the Bill of Rights, the first ten amendments to the Constitution. These rights limit the control the government can have over citizens’ lives.

Civil rights• Rights spelled out in the

13th, 14th, 15th, and 19th Amendments, as well as many laws passed by Congress. These laws attempt to provide equal treatment for those traditionally underrepresented in our political system.

The Bill of Rights

• First ten amendments

• Opposed by Hamilton in Federalist No. 84

• Supported by Anti-Federalists

• Eventually used as a compromise to help ratify the Constitution

The First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

The establishment clause

• First Amendment guarantee that the government will not create and support an official state religion

• The government must be careful to make sure nothing it does appears to make it endorse any religion.

• Separationists vs. accommodationists

The free exercise clause

• First Amendment guarantee that citizens may freely engage in the religious activities of their choice

• There must be a “compelling state interest” to limit religious freedom (Sherbert v. Verner, 1963)

• There need not be a “compelling state interest” to limit religious freedom (Employment Division, Department of Human Resources v. Smith, 1988) as long as a particular religious practice is not targeted.

Free exercise, cont’d

• In 1993, Congress passed the Religious Freedom Restoration Act (RFRA), which sought to restore the "compelling interest" standard.

• In Gonzales v. UDV (2006), the Supreme Court said that the RFRA remains applicable to federal statutes, which must therefore still meet the "compelling interest" standard in free exercise cases.

Freedom of expression

• Informed citizenry

• Watchdog for government

• Voice for the minority

• Preservation of the truth

Freedom of the press

• Restrictions on sedition:– Concerns about this issue come up with freedom

of the press or peaceful assembly scenarios.– Bad tendency test– Clear and present danger test– Imminent lawless action test

Freedom of the press, cont’d

• Prior restraint

• Libel

• Difference between libel and slander

Restricting other types of speech

• Symbolic speech

• Obscenity and pornography

• Fighting words and offensive speech

The Second Amendment

“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. “

The right to bear arms

In defense of an individual right to bear arms

• Protect hunting and other leisure activities

• Self-defense• Protect family and property• Not the government’s

business to regulate gun use• Supreme Court rules Second

Amendment guarantees an individual right to bear arms (2008)

• However, such a right is not unlimited (2010)

In opposition to an individual right to bear arms

• Arguments in favor don’t apply to the amendment

• Gun control leads to less violence and fewer gun-related deaths

• No right is absolute

The rights of criminal defendants

• These rights are spelled out in the 4th, 5th, 6th, and 8th Amendments

• Protection against unreasonable searches and seizures (Fourth Amendment)– The exclusionary rule

• Protection against self-incrimination and double jeopardy (Fifth Amendment)– Miranda rights– Also includes right to be faced with your accuser

at trial

The rights of criminal defendants, cont’d.

• Right to counsel (Sixth Amendment)– Gideon v. Wainwright (1963)

• Protection against cruel and unusual punishment (Eighth Amendment)– Furman v. Georgia (1972)– McClesky v. Kemp (1987)– Baze v. Rees (2008)

The right to privacy

• Not spelled out directly in the Constitution• Court said it “emanates from the penumbras”

of the Bill of Rights• Very controversial• Reproductive rights

– Griswold v. Connecticut (1965)– Roe v. Wade (1973)

• Gay rights– Bowers v. Hardwick (1986)– Lawrence v. Texas (2003)

The right to privacy, cont’d.

• The right to die– Suspending treatment

• E.g., Terri Schiavo case– The terminally ill

• E.g., The Oregon case

A Bill of Obligations?

What should one look like?

– Voting?

– Military service?

– Others?