BILL OF RIGHTS INCORPORATION FREEDOM OF RELIGION INCORPORATION
BILL OF RIGHTS INCORPORATION FREEDOM OF RELIGION
INCORPORATION • Original intent is that the Bill of Rights did not cover everyone • This is when (via court cases or legislation) the Bill of Rights has been passed on to all people and the states and new concepts are incorporated • 14 th Amendment = Bill of Rights extend to all – Supreme Court interpretation
FIRST AMENDMENT FREEDOM OF SPEECH, RELIGION, AND PRESS
ABSOLUTELY PROTECTED SPEECH 1. Truth 2. Political Speech -Speech aimed at government and government officials. It is consistently protected even when it is “insulting” or “outrageous”
America deserved what it got on September 11 th. This country and its government is worthless!
ABSOLUTELY PROTECTED SPEECH 5 . Freedom of the Press – Protected against Prior Restraint • Effort by government to block the publication of material it deems harmful. US Courts forbid prior restraint except under the most extraordinary circumstances. • Protection of freedom emphasized in New York Times v. U. S.
ABSOLUTELY PROTECTED SPEECH 3. Symbolic Speech – Action with a Political message 4. Speech plus – Following speech with physical activity such as picketing, distributing leaflets, etc. 5. Rights of Assembly 6. Rights of Petition
“Clear and Present Danger” test Test to determine whether speech is protected or unprotected. If speech creates a “clear and present danger” to society, then it is not protected by the First Amendment. Schenck v. United States 1919
CONDITIONALLY PROTECTED SPEECH • Libel – A written statement • Slander – An oral statement – Made in “reckless disregard of the truth, ” which is considered damaging to the victim because it is “malicious, scandalous, and defamatory”
CONDITIONALLY PROTECTED SPEECH • Obscenity and Pornography – Impossible to define but, “I know it when I see it. ” Justice Potter Stewart (1964) – 1973 Definition of unprotected speech 1. As a whole, is deemed obscene by the “average person” according to “community standards” 2. Depicts sexual conduct “in a patently offensive way” 3. Lacks “serious literary, artistic, political, or scientific value” * Local control
CONDITIONALLY PROTECTED SPEECH • Fighting Words – Speech that creates an abusive environment Commercial Speech Advertisements. political speech. Not protected because it is not
FREEDOM OF RELIGION Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof • Establishment clause • Free Exercise clause Free exercise thereof Establishment of religion
ESTABLISHMENT CLAUSE • Interpretation – Strict, however, its not in the Constitution – Separation of Church and State is not mentioned – “Wall of Separation” exists between church and state • Thomas Jefferson • Letter to Danbury Baptist
HOW IS THE WALL MADE? • Lemon v. Kurtzman = Lemon Test 1. Government policy must have a Secular purpose 2. Effect was to neither advance nor to inhibit religion 3. It did not entangle government and religious institutions in each other’s affairs
WHAT DOES THIS “WALL” LOOK LIKE? • School prayer – Unconstitutional • Local Courthouse displays a nativity scene during Christmas – Unconstitutional • Public library displays a nativity scene, a Star of David, and Kwanza basket of fruit during Winter – Constitutional • Public school pays for math textbooks at a religious school – Constitutional
FREE EXERCISE OF RELIGION • Clause protects a citizen’s right to believe whatever religion he or she chooses • Strict interpretation but what about… – Ceremonial use of peyote – Snake worship – Amish school attendance – Polygamy
FREE EXERCISE CLAUSE • You can believe whatever you want but you may not be able to do whatever you want. • In order to receive protection for action, religion must prove that practice – Has been in existence for a long period of time (100 years) – Is a necessary element for following the religion
PERSONAL LIBERTY PRIVACY
ND 2 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 • History – Militia’s purpose – State’s budget Armed citizens • Today – District of Columbia v. Heller, (2008) (DC) – Mc. Donald v. Chicago, (2010) (States)
PRIVACY • Supreme Court found one in Griswold v. Connecticut (1965) – Connecticut banned birth control – Birth Control Clinic and Planned Parenthood League challenged law • Supreme Court said Right to privacy appears in the “penumbras formed by the emanations from” the 3 rd, 4 th, 5 th, and 9 th
ABORTION • Roe v. Wade • Right of Privacy + 14 th Amendment’s guarantee of “liberty” – A woman has the right to make decisions about her body
THE RIGHT TO BE LEFT ALONE • Homosexuality – Bowers v. Hardwick, 1986 • Georgia statute banned homosexual relations • Supreme Court, “the Constitution confers no fundamental right upon homosexuals” – Lawrence v. Texas, 2003 • Challenged state sodomy laws • Gays are “entitled to respect for their private lives” Obergefell v. Hodges, 2015
THE RIGHT TO BE LEFT ALONE • Open to argument • Right to die? – Washington banned physician-assisted suicide – Dr. Jack Kevorkian challenged law • “Liberty” of 14 th Amendment – Supreme Court: No right to physicianassisted suicide • Can a mentally competent person in great pain control his or her death?
DUE PROCESS OF LAW 8 6 4 5
RIGHTS OF CRIMINALLY ACCUSED • Guilty “beyond a reasonable doubt” • Ensured by Due Process of the Bill of Rights – 4 th, 5 th, 6 th, 8 th Amendments – Procedures government must honor – Protects personal liberty
T H 4 AMENDMENT MAPP V. OHIO AND THE EXCLUSIONARY RULE
TH 4 AMENDMENT 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 • Purpose? • What’s the due process? • Due Process Protection – Exclusionary Rule Prohibits evidence obtained during an illegal search from being introduced in a trial.
TH 5 AMENDMENT 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
TH 5 AMENDMENT 1. Grand Juries – Jury that determines whether sufficient evidence is available to justify a trial; grand juries do not rule on the accused’s guilt or innocence – Not incorporated 2. Double Jeopardy – A person cannot be tried twice for the same crime
T H 5 AMENDMENT MIRANDA V. ARIZONA SELF INCRIMINATION AND THE MIRANDA RIGHTS
TH 5 AMENDMENT Self-Incrimination – Miranda rule • Miranda v. Arizona • Requirement that person under arrest must be informed prior to police interrogation of their rights to remain silent and to have the benefit of legal counsel Eminent domain – Right of government to take private property for public use – Protection = payment
TH 6 AMENDMENT 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. Gideon v Wainwright
COURTROOM PROCEDURES WHAT IS MISSING IN THE COURTROOM?
TH 7 / TH 8 AMENDMENT • Limitations on Government –Excessive bail –Excessive fines –Cruel and unusual punishment
SELECTIVE INCORPORATION • PENUMBRA THEORY and the ninth amendment – The ideals of the Bill of Rights give guarantees not directly addressed (9 th amendment) • This is used regarding those rights not mentioned in the Constitution
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