The Bill of Rights The Bill of Rights

The Bill of Rights

The Bill of Rights • The Bill of Rights protects our civil liberties – the freedoms we have to think and to act without government interference or fear of unfair treatment • They place strict limits on how the national government can use its power over the people • The first ten amendments to the Constitution were all added in 1791

First Amendment Freedoms • “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”

Freedom of Religion • There are two main guarantees of religious freedom – • The Establishment Clause – no law regarding the establishment of religion • The Free Exercise Clause – no law prohibiting the free exercise thereof

Freedom of Religion • Thomas Jefferson said the Establishment Clause set up, “a wall of separation between church and state. ” • Government does much to encourage religion in general – no taxes, the oath of office on a bible, use of chaplains, references to God on coins etc. • How high the wall of separation is exactly is much debated and continually evolving

Freedom of Religion • Most Establishment Clause cases involve religion and education • The Court has ruled that public dollars can go to parochial (religious) schools for things like bussing and some other non-religious instruction • The Court also has allowed religious release time • The Court has allowed religious groups the same access to public facilities as other groups

Freedom of Religion • The Court has not allowed school led prayer in public schools or a moment of silence • The Court has not allowed the posting of the Ten Commandments in classrooms • They have struck down laws forbidding the teaching of evolution

Freedom of Religion • Seasonal displays are also part of the Establishment Clause • The court has ruled that holiday displays that endorse a religious doctrine are unconstitutional • Chaplains for legislatures have been found to be constitutional because of the long tradition of having a chaplain and because legislators are old enough to not be susceptible to religious indoctrination or peer pressure

Freedom of Speech • • 1. 2. 3. 4. The First Amendment guarantees that we can say what is on our minds, in public or private, without fear of punishment by the government The Court has ruled that some forms of freedom of speech are not protected. They include: Libel – the false and malicious use of printed words Slander – the false and malicious use of spoken words Seditious speech – advocating the overthrow of the government by force Obscenity – very hard to define

Freedom of the Press • For the most part, the freedom regular citizens have extend to the Press/Media • The government cannot practice censorship; that is, it cannot ban printed materials or films merely because they contain alarming or offensive ideas. • It also cannot censor information before it is published • The Court has found that the Media can be restricted more than the average citizen due to their scope

Freedom of the Press • The Court ruled that members of the media are not protected from being forced to testify in court and to reveal their sources • The Supreme Court has allowed the press to be limited when the material might threaten national security • The Zenger Case – (1733) John Peter Zenger was arrested and imprisoned for criticizing the governor of New York – his lawyer, Andrew Hamilton, argued that only a press free to criticize the government could prevent that government from abusing its power

Freedom of Assembly/Petition • The First Amendment protects our right to gather in groups for any reason, so long as the assemblies are peaceful • A petition is simply a formal request. • The right to petition means the right to express one’s ideas to the government • A petition can be a simple letter or email or a written statement signed by thousands

Freedom of Assembly/Petition • Most cases in this area have to do with public protests or picketing • The Court ruled that government can regulate the time, place, and manner of the assembly – but not the content • They have set some guidelines for protests like at abortion clinics • They have also allowed limits on private property • Freedom of assembly also implies freedom of association – which means you are free to form or join social clubs, political parties, labor unions etc.

Protecting the Rights of the Accused • “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” • It was designed to prevent the use of writs of assistance which the British had used

Protecting the Rights of the Accused • The key to the 4 th Amendment is that you must have a search warrant that has been obtained with probable cause to search except in particular circumstances • Police do not need a warrant when evidence is in plain view • Minnesota v. Carter (1999) police noticed two men bagging cocaine through an open window; they went in and arrested them and seized the drugs

Protecting the Rights of the Accused • Arrests – they are the seizure of a person. An officer does not need a warrant to search the area around the suspect when making a lawful arrest • Officers need probable cause that the suspect has committed a crime or is about to • Officers can search the area around them to prevent them from pulling out a weapon or destroying evidence

Protecting the Rights of the Accused • Automobiles – the Court has struggled with searches of automobiles because they are essentially mobile crime scenes • They have found that it is unreasonable to expect the police to wait for a warrant because the suspect will leave the scene and be able to destroy the evidence • Whenever police lawfully stop a car, they do not need a warrant to search anything in that vehicle that they have reason to believe holds evidence of a crime

Protecting the Rights of the Accused • The exclusionary rule - evidence gained as the result of an illegal act by police cannot be used at the trial of the person from whom it was seized Weeks v. United States (1914) • The exclusionary rule was extended to the states in Mapp v. Ohio (1961) • Over the years, the exclusionary rule has been narrowed – Nix v. Williams (1984) the Court ruled tainted evidence can be used if it would have been inevitably discovered

5 th Amendment • Grand Jury – “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury” • It is the formal device by which a person can be accused of a serious crime. In federal cases it is a body of from 16 – 23 persons – at least 12 members must vote to return an indictment for the case to go to trial • An indictment is a formal complaint that charges the accused with a crime

5 th Amendment • A grand jury’s proceedings are not a trial • Its sessions are secret and there is no defense present • It is a protection against overzealous prosecutors • The right to a grand jury does not apply to the States • Critics think it is a waste of time and money and that the prosecution has too much influence

5 th Amendment • Double Jeopardy – the 5 th Amendment protects people from double jeopardy – this means you can not be tried twice for the same crime • It does not mean that you can’t be tried in both federal and state court, however • A hung jury case does not apply • An accused person is also protected against selfincrimination – they cannot be forced to testify against themselves

5 th Amendment • 5 th Amendment – the Federal Government cannot deprive any person of life, liberty, or property without due process • Due Process has evolved out of English Law and basically means that the government must act fairly, use fair procedures and follow fair laws • People are also protected against the government taking their property without proper compensation. The power of eminent domain is the right of the government to take property for public use

6 th Amendment • Speedy and Public Trial – “In all criminal Prosecutions, the accused shall enjoy the right to a speedy and public trial…” • The accused must be allowed a speedy and public trial by an impartial jury • If possible, the trial must be held in the area where the crime took place • The accused must be permitted to hear and question all witnesses

6 th Amendment • The accused must be informed of the nature of the charges • The accused is entitled to a lawyer and to call witnesses for his or her defense

6 th Amendment • Escobedo v. Illinois (1964) Police must stop questioning you and allow your lawyer to speak with you • Gideon v. Wainwright (1963) the Court held that an attorney must be furnished to a defendant who cannot afford one – typically judges assign a lawyer from the local community or some communities have taxsupported public defenders

Miranda v. Arizona (1966) • • Miranda was a mentally retarded man who had been convicted of kidnapping and rape. After two hours of questioning he confessed – he was never informed of his rights The court developed the Miranda Rule. The person – Must be informed of their right to remain silent – Warned that anything they say can be used against them in court – Told of their right to a lawyer when questioned

Miranda v. Arizona (1966) – Told they can have a lawyer appointed if they can’t afford one – Told that he or she may bring police questioning to an end at any time • The rule has been very controversial – many believe it puts criminals back on the streets • The court still refines it on a case-by-case basis • Illinois v. Perkins (1990) – the Court held that an undercover officer posing as a prisoner does not have to inform an inmate of his Miranda Rights before prompting him to discuss a murder

8 th Amendment says “Excessive bail shall not be required, nor excessive fines imposed…” • Bail is the $ that the accused may be required to deposit with the court to guarantee they will show up for trial • Bail is justified on two grounds 1. A person should not be jailed until their guilt is established 2. A defendant is better able to prepare for trial outside of jail •

8 th Amendment • Bail – the Constitution does not guarantee everyone bail – only that it cannot be excessive • Bail amounts are based on the severity of the crime charged and the reputation and financial resources of the accused • People who fail to show up at trial forfeit their bail – people often borrow the amount from bail bondsmen

8 th Amendment • Cruel and Unusual Punishment – the 8 th amendment also forbids cruel and unusual punishment – the question is: what is it? • Wilkerson v. Utah (1879) the firing squad was ruled to be acceptable – it defined it as barbaric tortures as burning at the stake, crucifixion, drawing and quartering etc. • Capital Punishment is the death penalty • Furman v. Georgia (1972) temporarily stopped executions because they gave too much discretion to judges and juries – only African Americans or poor people were executed

2 nd 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 intent was to preserve a State’s right to have a militia • In District of Columbia v. Heller the Court ruled that a law outlawing handguns and requiring all firearms to be unloaded and to have trigger locks was unconstitutional

3 rd Amendment • It forbids the quartering (housing) of soldiers in private homes in peacetime. This was a common practice the British employed in colonial days • It has had almost no importance since its adoption • It has never been the subject of a Supreme Court case

7 th Amendment • The 7 th Amendment concerns civil cases – lawsuits that involve disagreements between people rather than crimes • The 7 th Amendment provides for the right to a jury trial in federal courts to settle all disputes about property worth more than $20 • When both parties in a conflict agree, however, a judge rather than a jury may hear evidence and settle the case

9 th & 10 th Amendment • “The enumeration in the Constitution of the United States, of certain rights, shall not be construed to deny or disparage others retained by the people. ” • The people have rights not listed in the Bill of Rights. Government cannot take them away just because they were not written out in the Constitution • “The powers not delegated to the U. S. by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”