The authors of the Declaration of Independence believed liberty to be an inherent right of all human beings and sought to create a government to protect this right. The Bill of Rights was thus designed to guarantee the inalienable rights of all humans. Governments are created to provide peace and protect individual rights; society is willing to concede power to a government in order to have these protections. However, the struggle continues between how much power to give to this government before it infringes on one's rights. The classic dilemma of people in a democratic society is how to balance the authority they need with the personal liberty they want. James Madison called this the "great object" of government, and it is the particular focus of the Bill of Rights.

At first the protections of the Bill of Rights applied only to the national government. State constitutions often had their own protections of civil liberties, but these were enforceable only in state courts. The ratification of the Fourteenth Amendment after the Civil War provided the legal basis for "nationalizing" the Bill of Rights. In a long series of decisions, the Supreme Court "selectively incorporated" various rights by holding that they were implied by the "due process of law" and "equal protection of the law" required of states by the Fourteenth Amendment. Among the first rights to be nationalized in this way was freedom of speech, in the case of Gitlow v. New York.

Freedom of Religion

The First Amendment guarantees freedom of religion and prohibits the establishment of government-sanctioned religions, known as the Free Exercise Clause and the No Establishment Clause.

The Free Exercise Clause prohibits government from restricting religious beliefs or practices but is not absolute. The Supreme Court has not ruled that it can be used to protect any conduct. In 1879 the Court ruled that Congress could outlaw polygamy in the Utah Territory even though some Mormons argued it was part of their religious faith. In addition, the Court has struck down a attempt by a state to outlaw all religious schools. The Court has distinguished between religious beliefs, which are protected absolutely, and practices, which have been restricted for valid secular purposes such protection of health, safety or welfare. The Court, however, has encountered many difficulties in applying the secular test rule to specific infringements of religious freedom. Its rulings have varied greatly on this matter.

The No Establishment Clause has also created disputes as to its true meaning. The interpretations have varied from simply intending that the government would not create a national church to the creation of a "wall of separation between church and state" that prohibits government from endorsing, aiding, sponsoring, or encouraging any or all religious activities. The Supreme Court's wall-of-separation doctrine holds laws may not have as their purpose aid to one religion or to all religions. The Court established the Lemon Test to determine whether a particular state law constitutes "establishment" of religion. The Test states that to be constitutional a law effecting religious activity must have a secular purpose, its primary effect must neither advance nor inhibit religion and it must not foster excessive government entanglement with religion. However, the Court has also upheld use of tax funds for nonreligious textbooks and lunches and transportation for religious schools and it has upheld tax deductions for charitable giving to churches.

The Court's most controversial rulings have been in the area of school prayer and Bible readings. In Engle v. Vitale (1962) the Supreme Court declared voluntary school prayer to be unconstitutional. In Abington School District v. Schempp (1963) the Court held Bible readings in opening school exercises were unconstitutional. The Justices were clear that the study of the Bible or religion, when presented objectively and as part of a secular education, were constitutional, but religious ceremonies were not. The states have sometimes attempted to encourage "voluntary prayer" in public schools, but these too have been struck down as unconstitutional by the Court. The Court has included the use of prayers or invocations at graduations and football games under prohibited activities.

Recently, the issue of state educational vouchers to attend any school, including religious schools, has become also a Constitutional issue. The constitutional issue is whether or not payments to religious schools violate the First Amendment's prohibition against the "establishment of religion." In 2002 the Supreme Court held in a 5-4 decision that Ohio's "Scholarship Program" that resembled vouchers and benefited religious schools, did not violate the Constitution because the intent of the program was to distribute benefits, not to advance religion.

Freedom of Speech

The First Amendment also states "Congress shall pass no low...abridging the freedom of speech." In the clear and present danger doctrine the Supreme Court interpreted the First Amendment to allow government suppression of dangerous speech, as in the Espionage Act of 1917 and the Sedition Act of 1918. Gitlow v. New York (1925) upheld the right of government to ban speech which "tended to subvert or imperil the government." In general, however, the Supreme Court has given free speech a preferred position, acknowledging its special protection by the Constitution. In fact, the symbolic speech doctrine has broadened freedom of speech by construing such actions as Ku Klux Klan cross-burning and radical flag-burnings as a form of protected speech. The Court has made it clear that the government may not prohibit speech simply because it finds it offensive. Also, the Court has decided that the government cannot ban speech before it occurs simply because it believes it may create a disturbance; and vulgarity is not illegal. In recent years many schools and colleges have banned speech that is considered racist, sexist, homophobic or insensitive to women and minorities; the speech codes, however, raise serious constitutional challenges that would probably not stand up under the Court's scrutiny. Attempts to prohibit hate speech - speech that expresses hostile or prejudicial attitudes expressed toward another person's or group's characteristics - has historically been viewed by the Supreme Court as an unconstitutional infringement of First Amendment freedoms; however, the Supreme Court has recognized that hate crimes may be more heavily punished than the same crimes inspired by other motives.

Commercial speech such as advertising is also protected. States cannot, for instance, ban price advertising by physicians. However, commercial speech is not given a preferred position but instead is weighed by the Court against public interests in regulation. Libel and slander have never been protected by the First Amendment, but in the case of public officials, plaintiffs must prove statements were not only false and damaging but also made in malice.

Privacy, Abortion and the Constitution

The Supreme Court found a right of privacy in the Constitution when, in 1965, it struck down a Connecticut law prohibiting the use of contraceptives. The Court found in Griswold v. Connecticut that there were "penumbras formed by the emanations from" the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendment guarantees that created a zone of privacy. Roe v. Wade built upon these findings to rule that the constitutional right of privacy included a woman's decision to bear or not to bear a child. Later rulings determined that there was no constitutional obligation for governments to pay for abortions, and that states may choose to apply some modest restrictions such as requirements for informed decisions, waiting periods prior to abortions, and notification of the parents of minors. In 2003 the Court stuck down a Texas law that banned homosexual sodomy and stated that homosexual persons have the right to enter upon a relationship in the confines of their homes and their private lives. Privacy has also been extended to other areas such as the possession or viewing of pornography in one's home.

The Court has not yet been called upon to make a decision regarding gay marriages. Several states, including Massachusetts have ruled that gay marriages are legal. Several states have also moved to endorse constitutional amendments banning such marriages.

The Supreme Court has ruled that there is no constitutional right to a physician assisted suicide, but the court implied that the laws would need to be changed by legislatures not in the constitution.

Obscenity and the Law

Obscene materials are not protected by the First Amendment. The problem has come in defining what constitutes "obscenity." In Roth v. United States (1957) the Court defined obscenity narrowly: "Whether to the average person applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest." Community standards were initially defined to mean the interests of society at large, The Court also stipulated that works with "redeeming social or literary merit" were not obscene. The Roth standard proved difficult to understand and implement in practice. In Miller v. California (1973) the Court redefined "community standards" to mean local standards. It also weakened the "redeeming interest" test to refer only to works which lack "serious literary, artistic, political, or scientific value." Miller made convictions for pornography easier, sometimes by forcing publishers to be tried in conservative communities remote from their publishing location. Miller also allowed less conservative communities and states to continue to permit pornography to be distributed.

The rise of the Internet in the 1990s has again raised obscenity issues. In Janet Reno v. ACLU (1997), the Supreme Court held the Communications Decency Act of 1997 to be unconstitutional. Among its reasons for doing so were the need to protect the Internet as "the most participatory form of mass speech yet developed" and the fact sexually-oriented materials must be sought out by those who want them, and because technological ways for parents and schools to block access to sex-oriented sites were being created.

Freedom of the Press

Democracy depends upon the free expression of ideas. English common law prior to the writing of the Constitution prohibited prior restraint of the press — restricting publication of a work prior to its actual publication. In Near v. Minnesota (1931) the Supreme Court affirmed the Constitution's prohibition against prior restraint, which forces publishers to prove their content should not be censored rather than placing the burden of proof on government censors.

Film and the broadcast media also enjoy freedom of the press, but for these media the Supreme Court has been more willing to sustain government regulation than for the print media. The Federal Communications Commission, created in 1934, has imposed various regulations on the broadcast media. The government allocates radio and television frequencies and licenses stations, therefore making them subject to government regulations. Shield laws in some states give reporters the right to refuse to name their sources; but these state laws must yield to Constitutional law, as when refusal to name sources conflicts with a defendant's right to a fair trial.

Freedom of Assembly and Petition

Freedom of assembly, also found in the First Amendment, guarantees the right to peaceably parade or demonstrate. However, authorities may regulate the time, place, and manner of assembly to achieve the public interest as long as such regulations are applied in a non-discriminatory manner. Permits to parade and assemble cannot be denied based on the unpopularity of the cause involved. In general, the Supreme Court has upheld the right of assembly on public property but has not required owners of private property, such as shopping mall owners, to accommodate the right of assembly. Opponents of abortion who attempt to dissuade women from entering abortion clinics have tested the freedom of assembly. The courts have ruled that freedom of assembly does not include the right to block access to public or private buildings.

The Right to Bear Arms

The Second Amendment says "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." Many constitutional scholars believe this right only applied to state militias and to the National Guard, which replaced militias in 1912. Opponents of gun control argue that "militias" in 1789 consisted of all free males over eighteen, as defined in the Militia Act of 1792. Defenders of gun control note the same act required all males to be equipped with "a good musket," but this obviously no longer applies. The Supreme Court has made few rulings on the Second Amendment, but it has leaned toward the narrower interpretation, upholding the right of government to regulate firearms used by private citizens.

Rights of Criminal Defendants

The U.S. Constitution limits police powers and protects the rights of the accused. The oldest right of those accused in crimes is the English common law right of habeas corpus, by which lawyers can force the government to prove to a judge that they have good cause to hold a person in jail. The Court has never suspended this right — even in wartime. The Constitution also bans bills of attainder (laws inflicting punishments without benefit of trial) and ex post facto laws (laws creating new punishments retroactively). The Fourth Amendment's prohibition on unreasonable searches and seizures requires search warrants (requiring police to obtain from a judge a court order permitting searching a specific location for evidence of a specific crime, issued on "probable cause" to believe the location may contain evidence). While at first the Court did not include wiretapping and surveillance under searches and seizures, these areas have now come under the protection of warrants.

While the Court has allowed drug testing of railroad workers, federal law-enforcement agents and student-athletes, it has also disallowed "unreasonable" drug testing under the Fourth Amendment. Arrests without warrants are allowed when a crime is committed in the presence of an officer, and when the arrest is supported by "probable cause". The Fifth Amendment requires an indictment, or a determination that sufficient evidence exists to warrant a trial, be issued by a grand jury before a person can be brought to trial in a felony offense. Other rights of the accused include the Fourth Amendment's prohibition against use of illegally obtained evidence in court called the exclusionary rule, extended to all criminal cases by Mapp vs. Ohio, 1962; the Fifth Amendment's protection against self-incrimination, and double jeopardy; the Sixth Amendment's right to a speedy and public trial and right to counsel; and the Eighth Amendment's guarantees of no excessive bail and no cruel and unusual punishment. Under grants of immunity a witness cannot claim Fifth Amendment rights against self-incrimination and can be forced to testify so evidence may be used against others deemed more important. Few criminal cases actually go to trial in the U.S. Most defendants accept a plea bargain where they agree to plead guilty and waive the right to a jury trial in exchange for concessions from the prosecutor such as dropping some of the charges. Despite criticisms of plea bargaining without it the system would be overwhelmed by the number of cases.

The Death Penalty

The death penalty is one of the most controversial areas of the criminal justice system. Questions arise over the fairness of its application and its effectiveness as a deterrent. The Eighth Amendment's prohibition against "cruel and unusual punishment" led the Supreme Court in Furman v. Georgia (1972) to declare the death penalty unconstitutional. The legal reasoning of the majority was split, allowing states to rewrite their death penalty statutes to specify when and how the death penalty was to be applied, to assure fairness and uniformity. Most states rewrote their laws, which were subsequently upheld by the Court in 1976. The Court still disapproves of mandatory death penalties if applied indiscriminately to all first degree murder cases. Instead, the revised state laws restrict death penalties to specific situations such as the murder of prison guards, multiple murders, murders involving torture, or murders committed while committing other crimes such as rape or burglary. The Court has also upheld the constitutionality of the Antiterrorism Act of 1996, part of which restricted habeas corpus appeals of death row inmates.

Chapter Objectives

After mastering the concepts in this chapter, you will be able to

• Define the "classic dilemma of democracy" as described at the outset of this chapter.
• Outline the process of nationalization of the Bill of Rights.
• Summarize the "No Establishment Clause."
• Summarize the "Free Exercise Clause"
• Apply the "No Establishment Clause" to school vouchers.
• Explain the "wall-of-separation" doctrine in terms of major Supreme Court cases.
• Explain the liberalization of Supreme Court rulings on free speech rights in the course of the twentieth century.
• Differentiate between Supreme Court rulings on "hate speech" and "hate crimes."
• Discuss commercial speech in terms of free speech rights.
• Discuss the status of public officials in terms of libel and slander.
• Discuss the right of privacy and its relationship to the evolution of abortion rights in America.
• Define "obscenity" in terms of the Roth and the Miller decisions of the Supreme Court.
• Discuss relevant Supreme Court rulings on the issue of child pornography.
• Discuss differences in free speech rights in the print media, broadcast media, and the Internet.
• Define "prior restraint."
• Give examples of regulations of the Federal Communications Commission.
• Cite exceptions to the right of assembly.
• Enumerate the rights of the accused and of criminals in the Fourth, Fifth, Sixth, and Eighth Amendments.
• Discuss victim's rights and the possibility of a victim's rights amendment to the Constitution.
• Discuss the Patriot Act and its implications for civil liberties in the U.S.
• Understand the Racketeer Influenced and Corrupt Organizations (RICO) Act and its implications for the average citizen and personal liberty.
• Explain the evolution of Supreme Court rulings on the death penalty.