GOVT 2301 Civil Liberties and the Bill of Rights

GOVT 2301

Civil Liberties and the Bill of Rights

The final constitutional principle we will discuss

is individual liberty.

The fancy term we will use is civil liberty.

Note that other principles are contained in the constitution, but

these (most notably equality) were added to the document

after the original document was ratified.

Here are the goals for this section. After reading through

the available material and accessing some of the more critical links you should be

comfortable with the following:

For past blog posts on relevant material, click on these

Bill of Rightscivil liberties

establishment clausefirst amendment

free exerciseprocedural liberty

Two quick definitions of the term “civil liberty.”

1 - The protections of individuals from the arbitrary powers of government.

2 - “the freedom of a citizen to exercise customary rights, as of speech or assembly, without unwarranted or

arbitrary interference by the government.”

You can find more expansive definitions, thoughts and comments

here:

About.comACLU: This Week in Civil Liberties

Cato Institute: Civil LibertiesDavid Hume, Of Civil Liberty

Wikipedia

Note: A civil liberty is not the same as a civil right.

Freedom of speech is a civil liberty. The right to equal protection is a civil

right.

We will cover this more fully in the next section.

Civil liberties are established by limiting the government.

Specific limits are placed on its powers.

As we will see, there are tow ways to do so.

The first is to design the system so that its various parts check each other. The second is to

place explicit limits on the powers of government in a

document called a bill of rights.

The document as ratified contained the former, but not

the latter.

The Federalists thought the republican design, in addition to the checks and balances was

sufficient to limit governing power, but the Anti-Federalists

needed a further guarantee.

The Bill of Rights places two general types of limitations on

the powers of the national government:

SubstantiveProcedural

(Note that prior to the 14th Amendment, the Bill of Rights

applied only to the national government.)

As a consequence we can speak of procedural liberty (notably due process) and

substantive liberty.

A substantive limit refers to what government can pass laws

about

(religion, speech, press etc…)

Example: You are free to say what you wish because

government is limited from passing laws which restrict

speech.

(we will analyze exceptions to this in due course)

A procedural limit refers to how the executive and judicial

powers can be used.

The Due Process of Law

Example: How, and under what conditions, can someone be

searched? And if one is accused of a crime, what rights

does one have in a court of law?

For us, these limits are contained in the

U.S. Bill of Rightsand the

Texas Bill of Rights

Note that the U.S. Bill of Rights was added on to the original document

after ratification – in order to appease the Anti-Federalists.

On the other hand, the Texas Bill of Rights is the subject of the First Article of the Texas Constitution.

Again, the Federalists believed that the Bill of Rights was

unnecessary, Hamilton and Madison thought not.

The overall design of the constitution was sufficient to

limit it the national government.

A Bill of Rights might also prove dangerous to individual liberty

because it might not be expansive enough.

Basic Fact:

The U.S. Bill of Rights has ten sections – these are the first ten

amendments to the Constitution. There is no

separate section titled “the bill of rights.” the term simply refers to

the first ten amendments.

Some useful links regarding the Bill of Rights.

Its History and SignificanceWikipedia

James Madison and the Bill of Rights

It is relatively short and vague. As is the rest of the

Constitution. It is commonly reinterpreted, often controversially so.

Example: A recent Supreme Court case dealt with the

question whether gaming was constitutionally protected

speech.

Basic Fact:

The Texas Constitution does have a unique section called the Bill of Rights. It is the first Article

of the document. It has 33 sections, and has been heavily

amended since it was first written. Most recently in 2009.

As with the rest of the Texas Constitution, it is long detailed

and precise.

Bills of Rights were commonly attached to state constitutions. It

was argued that they were necessary because the states

had – as we know – powers that were “many and undefined.”

Federalist argued that the power of the national government was most

effectively limited by properly designing – balancing --

governmental institutions and their powers.

Republicanism, checks and balances, and federalism all are

argued to allow for individual freedom by balancing and

limiting governmental power.

The national government was limited to the delegated powers

granted to it. They were “few and defined.”

Madison and Hamilton originally argued that these would be sufficient to ensure that the

powers of government would be limited.

The Anti-Federalists were unconvinced and demanded

that a Bill of Rights be added to the document to ensure that specific limits were placed on

the national government.

Five states, including Massachusetts, ratified the

Constitution on the condition that such amendments be

added immediately.

James Madison agreed to introduce and push it through the House when he became a

member of it.

He thought it was harmless.

The addition of the Bill of Rights is therefore a product of a compromise between the Federalists and the Anti-

Federalists.

It was the subject of Federalist #84 (wikipedia).

Federalist #84

Anti Federalist #84

In Federalist #84, Hamilton argues that a Bill of Rights is not

necessary since the national government can only exercise

the powers delegated to it.

There is no reason to that Congress has no power to pass a law on a subject that it has no

delegated authority over.

State governments did need Bills of Rights since they

possessed the reserved powers and could more easily become

tyrannical.

Republicanism, Federalism and the Checks and Balances

should be sufficient to ensure that the national government

would not overstep its authority.

Adding a Bill of Rights stating that Congress could not pass laws on matters not delegated

to it raised a question regarding the limits of the rights

individuals possessed.

Noah Webster thought it would be dangerous to do so.

It is impossible to spell out all the rights of individuals. To only

list a few would imply that others did not exist.

Listing six freedoms in the First Amendment might lead others to suggest that these are the

only ones that exist.

What about rights not mentioned in the Constitution?

Privacy?Travel?

Contract?Property?Voting?

For general information: Things that are not in the Constitution.

If the right is not explicitly written in the Constitution, it

may be argued that the power does not exist.

An example.

Clarence Thomas’ Dissenting Opinion in Lawrence v. Texas.

I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through

noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My

duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty

of the person both in its spatial and more transcendent dimensions,” ante, at 1.

There would be no way to make this argument if there was no

First Amendment.

Was this what Hamilton was concerned about here? “bills of rights, in the sense and

in the extent in which they are contended for, are not only unnecessary in the

proposed constitution, but would even be dangerous. They would contain various

exceptions to powers which are not granted; and on this very account, would afford a

colorable pretext to claim more than were granted. For why declare that things shall

not be done which there is no power to do?”

As we know: It was argued that since many states had bills of rights, it was necessary for the national government to have

one as well.

The response was that since the powers of the state

governments are potentially far broader than those of the

national government, a Bill of Rights was necessary to protect

the people from the states.

Nevertheless, a bill of rights was proposed during the

Constitutional Convention (August 20).

But it is also argued that a statement of the specific

liberties held by the people is essential to the formation of a

free society.

It clearly establishes the importance of these rights.

Every time we read the First Amendment, for example, we

are reminded of the importance of religious liberty as well as

that of speech, press, assembly and petition.

They attain a unique status among all liberties.

Some History

The rights listed in the Bill of Rights evolved over time.

Some of this history we have discussed so this concept should be familiar by now.

We have noted four specific predecessors to the Bill of

Rights.

The Charter of LibertiesMagna Carta

The Petition of RightThe English Bill of Rights

The Charter of Liberties (1100) was issued by Henry I in order to convince the nobility and the church that he would abide by

the law.

These were a bit random, and were soon forgotten. But they

would become the model for the Magna Carta which established specific procedural limits on the

power of the monarchy.

Magna Carta (1215)

As we know, Magna Carta was forced upon John by the

nobility. It was intended to minimize arbitrary rule.

For our purposes, the most important result of the document

was that it established that no freeman could be punished

unless it was in accordance with the law of the land.

A handful of its provisions establish what we now know as the rule of law – or procedural liberty as we are calling it now.

38. No bailiff for the future shall, upon his own unsupported

complaint, put anyone to his "law", without credible

witnesses brought for this purposes.

39. No freemen shall be taken or imprisoned or disseised or

exiled or in any way destroyed, nor will we go upon him nor

send upon him, except by the lawful judgment of his peers or

by the law of the land.

40. To no one will we sell, to no one will we refuse or delay, right

or justice.

Respectively these establish the idea that convictions must be

based on eyewitness testimony, convictions must be rendered by a jury, and that justice is

available to all.

Much of the 6th Amendment – which establishes the

procedural liberties of criminal defendants - is based on this.

The Petition of Right (1628)

The Petition of Right was written to remind Charles I of the

“ancient rights and liberties” agreed to in Magna Carta.

The petition was written by Edward Coke who modified Magna Carta to apply to all

subject of the crown, not just the nobility.

All subjects of the crown should have liberties from the arbitrary

actions of the government.

Charles was unconvinced and suspended Parliament as a

result.

But he would be executed soon enough, and the Scottish

Stuarts would be removed in the Glorious Revolution, which led –

as we know to:

The English Bill of Rights (1689)

This document, backed by a powerful Parliament, would not only ensure that the procedural limitations placed on the power

of the monarch would be secure, but it also added

substantive liberties as well.

A Small Sampling:

The English Bill of Rights

• . . . it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;

• . . . the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

• . . . the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;

• . . . excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

Aspects of the First, Second, and Eighth Amendment can be found here.

But notice that religious liberty is not honored. Protestants are privileged over Catholics (this is something to

think about prior to our discussion of equal protection and civil rights).

The Declaration of Independence (1776)

The Declaration of Independence would establish that the liberties of Englishmen

should apply to the white, property owning, male

inhabitants of the colonies.

Note: we cover the expansion of liberties to other groups in

society when we discuss civil rights.

The Declaration is based on John Locke’s argument in the

Second Treatise on Government. We covered this material previously so it should

be familiar to you.

Liberty was considered to be among the unalienable rights, and a government should be

evaluated based on how well it was securing individual liberty.

The document does not lay out all unalienable rights, but aside from mentioning life, liberty and the pursuit of happiness, it lists grievances which suggest what types of incursions they thought

unacceptable.

Two other useful documents:

The Virginia Declaration of Rights

The Declaration of the Rights of Man and of the Citizen

The Virginia Declaration of Rights was also written by

Jefferson and was intended to serve as Virginia’s Bill of Rights.

The Declaration of the Rights of Man was France’s Bill or Rights,

written during their revolution.

Each document is far more forceful, than the U.S. Bill of

Rights, in how they state these rights. Certain things are

inherent in the individual and must be guaranteed.

The Bill of Rights does not make similar statements. It is really less about the rights of

individuals than it is about limiting the power of

government.

The document assumes that people have certain liberties,

and establishes them by negating the power of

government to interfere with those liberties.

Two useful terms:

Negative LibertyPositive Liberty

Negative Liberty

A liberty established by the negation of the power that can

suppress it.

The First Amendment, for example, starts with the phrase “Congress shall make no law.” The subject of the document is not the people and what they can do, but government and

what it cannot do.

This is distinct from a positive liberty which places an

obligation on a governing authority to actively provide for

the right.

This is a good definition of a civil right.

For example, many people consider education to be a right,

which means that we are obligated to provide it.

Five points about the Bill of Rights

1 - It is undemocratic.

It establishes that, for example, certain laws cannot be passed, even if the majority supports it. This minimizes the ability of the majority to impose its will on the

minority

“Congress can make no law...”

Even if the majority wants it to?

This is meant to save the minority from the majority, but it does so by limiting the majority.

This explains why the implementation of these limitations can be very

unpopular.

2 - Civil Liberties are not absolute.

They can be limited if doing so secures the greater interest of

society.

Example:

Freedom of Speech does not protect you from being punished

for falsely shouting fire in a crowded theater.

The most stringent protection of free speech would not protect a man falsely shouting fire

in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and

are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right

to prevent.

– Oliver Wendell Holmes, Schenck v. U.S.

A related concept:

Ordered Liberty

People are free to act within the confines of what it takes to have

an orderly society.

Another example:

“The Constitution is not a suicide pact” - Eric Posner

Can restrictions on searches and seizures be too restrictive on the ability of government to

enforce the law?

Controversy: What factors justifiably limit constitutional

liberties?

How do we define the greater interest of society?

This is an ongoing source of controversy, but it is generally held that liberties have their

limits. Establishing those limits is an ongoing source of

controversy.

3 – Civil Liberties can come into conflict

Some liberties in the Bill of Rights can come into conflict

with others.

The Freedom of the Press can conflict with The Right to a Fair

Trial.

The Right Against Self Incrimination vs. the Right to

Obtain Witnesses in Your Favor

4 – The specific recognition of rights is up to the Supreme

Court.

This involves controversies over how the Constitution is to be interpreted and what role the

court should have in overturning legislation.

Examples of rights established by Supreme Court Decisions:

The Right to PrivacyOne Person One Vote

Miranda WarningsRights of Corporations

The Right to Privacy

The Supreme Court recognized in Griswold v. Connecticut

within the broad language of the Constitution, a right to privacy.

One Person One Vote

in Baker v Carr the Supreme Court ruled against the

existence of uneven districts because they violated an

implicit guarantee that votes be equal.

Miranda Warnings

In Miranda v Arizona the court argued that the Fifth

Amendment right against self incrimination had to be made

clear to criminal suspects.

Rights of Corporations

In Citizens United v. FEC the Supreme Court argued that corporations have the same

speech rights as citizens.

Controversy: How expansively should rights be inferred from

the document?

How should the Constitution be interpreted?

Strict interpretation

Loose interpretation

Strict Interpretation

original intenttextualism

Loose interpretation

Living Constituion

One with a loose interpretation of the Constitution is likely to

see rights embedded within the document that are not

acknowledged by those with a strict interpretation

Example: Privacy / Abortion

Competitive elections often include statements regarding a

candidate’s viewpoint concerning how the Constitution

should be interpreted.

5 – Originally the Bill of Rights applied only to the national

government, but the 14th Amendment made it applicable

to the states.

“All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States …”

This made the restriction placed on the national government applicable to state and local governments as

well.

States could not deny liberties to American citizens. Their citizens

were also American citizens, so the conflict was inevitable.

Controversy followed since states were no longer able to deny certain

liberties to their citizens.

They were freer to speak, organize and use the press. They also had freedoms against the arbitrary use

of law enforcement.

Supreme Court cases the apply national civil liberty restrictions to state governments contain

language stating that the national limit applies to the

states through the 14th Amendment.

The doctrine of “equal protection of the laws” was also

established in the 14th Amendment, but we cover that when we discuss civil rights.

Next Topic

The Content of the Bill of Rights

Responding to demands by the states ratifying conventions, James Madison introduced

several constitutional amendments to the House of Representatives when it first

met.

Twelve would be sent to the states, ten would be ratified.

One of the rejected amendments was a right to

conscience.

“No State shall violate the equal rights of conscience, or

the freedom of the press, or the trial by jury in criminal cases.”

It was rejected by the Senate.

To repeat a point made above:

There are two types of liberties established in the Bill of Rights,

substantive and procedural.

We will review each.

Substantive Liberties

The “what” of government

These are contained in Amendments 1, 2, 3, 9, and 10

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.

It establishes Six Liberties:

EstablishmentFree Exercise

SpeechPress

Peaceful AssemblyPetition

More attention is paid to this amendment than to any other.

We will dig into these controversies soon.

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.

Until several years ago, the Supreme Court had never clarified the meaning of the opening phrase.

Is the right to bear arms absolute or conditional upon the existence of a militia (which a standing army has

made unnecessary)?

In the case DC v. Heller, the court ruled 5-4, that it was an

absolute right.

McDonald v. Chicago made this applicable – through the 14th Amendment – to the states.

Third Amendment: 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.

There is very little jurisprudence associated with this

amendment.

Ninth Amendment: The enumeration in the Constitution,

of certain rights, shall not be construed to deny or disparage others retained by the people.

Establishes, controversially, that other rights may exist, but it does not explain how these

rights might be justified.

This amendment was used to help establish the right to

privacy.

There is debate regarding how often, and how, it ought to be

used.

Tenth Amendment: 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.

As we already know, this amendment defines the

terminology of federalism.

Procedural Liberties

The “how” of government

Amendments 4 - 8

As suggested above, together these amendments define the

parameters of what we know as the Due Process of Law.

The legal system – from beginning to end – has to follow certain

guidelines to keep it from being an agent of arbitrary power.

Given the power government has to remove an individual’s life, liberty and property, these

amendments restrict the potential that this power can be

used in a discretionary or arbitrary manner.

These are what some people derisively call “technicalities.”

Fourth 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.

After the First Amendment, this gets more attention form the courts than almost any other

amendment.

It places limits on the investigative power of law

enforcement.

A search must be justified. Police cannot go on “fishing

expeditions” casting their nets wide to see what they can

catch.

Searches have to be based on probable cause and be based

on a warrant which states what they are looking for and where

they think they will find it.

But: how broadly will the court define “probable cause?”

What level is suspicion is necessary to justify a search?

An additional area of controversy:

The Exclusionary Rule

Can evidence gathered in an unreasonable search be

excluded from being introduced in court?

Fifth 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

This places limits on the arbitrary actions of district

attorneys.

Trials can only be justified if an indictment is issued by a grand

jury, they only have one crack at finding a defendant guilty, and defendants can’t be tortured in

order to get evidence.

Areas of Controversy:

Double JeopardyEminent Domain

Sixth 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 where in 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 defence.

This applies to trials. Judges must ensure that defendant

know what they are accused of, can challenge accusers, have access to a lawyer, and have access to a speedy and public trial before a jury of their peers.

This limits the arbitrary power of judges.

Again there are significant areas of controversy:

Assistance of Counsel

How competent must public defenders be?

Seventh Amendment: 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.

Eight Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

This is almost word for word what exists in the English Bill of

Rights.

Punishments must be proportional to the crime

Ongoing area of controversy:

Is the death penalty cruel and unusual?

The 14th Amendment

The 14th Amendment makes these procedures mandatory to

the states.

At least in theory.

The 14th Amendment was written after the Civil War to

negate Dred Scott decision. The Supreme Court ruled that Scott was not a citizen and had no

right to sue in the courts.

The 14th Amendment ruled that anyone born in the US was a citizen and states could not

violate their rights (their privileges and immunities) as

Americans.

This included access to the courts.

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection of the laws”

The question soon became whether this argument applied

to all other matters raised in the Constitution as well, including the liberties guaranteed in the

Bill of Rights.

Over time these limitations on national power were applied to the states (incorporated) on a

case by case basis.

This process was called selective incorporation

The Selective Incorporation of the Bill of Rights to the States.

- Wikipedia.- Exploring Constitutional

Conflicts.- Free Legal Encyclopedia.

This idea was rejected early on however:

The Slaughter House Cases.

Beginning in early 20th Century a series of cases began to use the 14th Amemdment to protect

American citizens from the actions of the states.

Gitlow v New York

The freedom of speech is applied to the states

Mapp v. Ohio

Applied the right against unreasonable searches and

seizures to the states

McDonald v Chicago

Applied the right to keep and bear arms to the states.

What is the current status of incorporation?

From Exploring Constitutional Conflicts:

1st Amendment: Fully incorporated. 2nd Amendment: Fully incorporated. 3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated. 4th Amendment: Fully incorporated. 5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment. 6th Amendment: Fully incorporated. 7th Amendment: Not incorporated. 8th Amendment: Incorporated with respect to the protection against "cruel and unusual punishments," but no specific Supreme Court ruling on the incorporation of the "excessive fines" and "excessive bail" protections.

The Texas Bill of Rights

A far more detailed and specific document,

The Texas Bill of Rights guarantees certain rights not guaranteed by the U.S. Bill of

Rights.

Sections 3 and 3a

Equal Rights Amendment

Sec. 3.  EQUAL RIGHTS. All free men, when they form a social compact, have equal rights, and no

man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in

consideration of public services. 

Sec. 3a.  EQUALITY UNDER THE LAW. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national

origin. This amendment is self-operative.

Religion is covered in four sections: 4 – 7.

Sec. 4.  RELIGIOUS TESTS. No religious test shall ever be required as a qualification to any office, or public trust, in

this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he

acknowledge the existence of a Supreme Being. 

Sec. 5.  WITNESSES NOT DISQUALIFIED BY RELIGIOUS BELIEFS; OATHS AND AFFIRMATIONS. No person shall be disqualified to give evidence in any of the Courts of this State on account of his religious opinions, or

for the want of any religious belief, but all oaths or affirmations shall be administered in the mode most binding

upon the conscience, and shall be taken subject to the pains and penalties of perjury.

Sec. 6.  FREEDOM OF WORSHIP. All men have a natural and indefeasible right to worship Almighty God according to

the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human

authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no

preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the

Legislature to pass such laws as may be necessary to protect equally every religious denomination in the

peaceable enjoyment of its own mode of public worship.

Sec. 7.  APPROPRIATIONS FOR SECTARIAN PURPOSES. No money shall be appropriated, or drawn from

the Treasury for the benefit of any sect, or religious society, theological or

religious seminary; nor shall property belonging to the State be appropriated

for any such purposes.

Freedom of Speech is presented as more an individual guarantee then it is in the First

Amendment.

Sec. 8.  FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish

his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed

curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth

thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.

Due Process Rights are very specific. See Bail for example:

Section 11.

Examples:

Section 11c

Family Violence

Sec. 11c.  VIOLATION OF AN ORDER FOR EMERGENCY PROTECTION INVOLVING FAMILY VIOLENCE. The

legislature by general law may provide that any person who violates an order for emergency protection issued by a

judge or magistrate after an arrest for an offense involving family violence or who violates an active protective order rendered by a court in a family violence case, including a

temporary ex parte order that has been served on the person, or who engages in conduct that constitutes an

offense involving the violation of an order described by this section may be taken into custody and, pending trial or

other court proceedings, denied release on bail if following a hearing a judge or magistrate in this state determines by a preponderance of the evidence that the person violated

the order or engaged in the conduct constituting the offense.

Section 15 a

Commitment of Persons of Unsound Mind

Sec. 15-a.  COMMITMENT OF PERSONS OF UNSOUND MIND. No person shall be committed as a person of

unsound mind except on competent medical or psychiatric testimony. The Legislature may enact all laws necessary to

provide for the trial, adjudication of insanity and commitment of persons of unsound mind and to provide for

a method of appeal from judgments rendered in such cases. Such laws may provide for a waiver of trial by jury,

in cases where the person under inquiry has not been charged with the commission of a criminal offense, by the concurrence of the person under inquiry, or his next of kin, and an attorney ad litem appointed by a judge of either the

County or Probate Court of the county where the trial is being held, and shall provide for a method of service of

notice of such trial upon the person under inquiry and of his right to demand a trial by jury.

Section 17

Regards government taking property for “public use.” Written

in response to Kelo v New London.

Section 24

Military Subordinate to Civil Authority

Sec. 24.  MILITARY SUBORDINATE TO CIVIL

AUTHORITY. The military shall at all times be subordinate to

the civil authority.

Section 26

Perpetuities and Monopolies

Sec. 26.  PERPETUITIES AND MONOPOLIES; PRIMOGENITURE OR

ENTAILMENTS. Perpetuities and monopolies are contrary to the genius of a free government, and shall never

be allowed, nor shall the law of primogeniture or entailments ever be in

force in this State.

Section 30 and 31

Rights of Crime Victims and Compensation of Victims of

Crime

Section 32

Marriage

(a) Marriage in this state shall consist only of the union of one man and one

woman.

(b)  This state or a political subdivision of this state may not create or

recognize any legal status identical or similar to marriage.

Section 33

Access and Use of Public Beaches

Detail on Religious Liberties

Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof;

Some background on the phrase “wall of separation between church and state.

An overview from Findlaw.

Two letters:

- Danbury Baptist Association of Connecticut to Thomas

Jefferson.

- Jefferson’s Reply.

establishment of religion

Links

- Wikipedia.- Exploring Constitutional

Conflicts.- First Amendment Center.

- The Founder’s Constitution.- FindLaw.

What does ”establishment” mean?

''[F]or the men who wrote the Religion Clauses of the First

Amendment the 'establishment' of a religion connoted

sponsorship, financial support, and active involvement of the

sovereign in religious activity.'' - findlaw.

Over time, it has involved a variety of other questions.

Public FundingSchool PrayerPublic Displays

Creationism

Engle v. Vitale: Government-directed prayer in public schools

violates the Establishment Clause of the First Amendment, even if the prayer is denominationally neutral and students may remain silent or

be excused from the classroom during its recitation.

Lemon v. Kurtzman: For a law to be considered constitutional under the Establishment Clause of the First Amendment, the law must have a legitimate secular purpose, must

not have the primary effect of either advancing or inhibiting religion, and

must not result in an excessive entanglement of government and

religion.

Marsh v. Chambers: The practice of hiring a chaplain for the Nebraska state legislature

did not violate the Establishment Clause of the

First Amendment.

Van Orden v. Perry: A Ten Commandments monument

erected on the grounds of the Texas State Capitol did not violate the Establishment Clause, because the monument, when considered in

context, conveyed a historic and social meaning rather than an

intrusive religious endorsement.

Kitzmiller v. Dover Area School District: Teaching intelligent design in public school biology classes violates the Establishment Clause of the First

Amendment to the Constitution of the United States (and Article I, Section 3

of the Pennsylvania State Constitution) because intelligent design is not

science and "cannot uncouple itself from its creationist, and thus religious,

antecedents."

free exercise

Links:

- Wikipedia.- Exploring Constitutional

Conflicts.- First Amendment Center.

- FindLaw.

What does “free exercise” mean?

When is it appropriate to place limits on the free exercise of

religion?

Areas of recent dispute:

Medical Assistance for ChildrenPeyote Use

Animal Sacrifices

Reynolds v. United States: Religious duty was not a

suitable defense to a criminal indictment.

Employment Division, Department of Human Resources of Oregon v. Smith: The Free Exercise Clause permits the State to prohibit sacramental peyote use and thus to deny unemployment

benefits to persons discharged for such use." Neutral laws of general

applicability do not violate the Free Exercise Clause of the First

Amendment.

Church of Lukumi Babalu Aye v. City of Hialeah: The states cannot restrict religiously-

mandated ritual slaughter of animals, regardless of the purpose of the slaughter.

A final point:

Test Cases

Some of the more important decisions that have established

the nature of civil liberty protections have resulted from

test cases, which are cases deliberately designed to force

the Supreme Court to rule on a law limiting a particular action.

Some of the cases mentioned above were test cases.

Griswold v ConnHeller v DC

A lawsuit, or a deliberate violation of the law was initiated

with the expectation that the person accused of the crime

would have the standing necessary to challenge the

constitutionality of the law in court.

Study Guide

- Be able to define “civil rights” and understand how they are protected both in the body of the Constitution and the Bill of Rights.- What is the difference between a liberty and a right?- What is the difference between a substantive and procedural freedom?- Why was the Bill of Rights added to the Constitution? What arguments were made in favor and against doing so?- What factors might be used to limit the liberties listed in the Bill of Rights?

- What predecessors influenced the Bill of Rights?- Be able to answer questions about each of the first ten amendments. - How are conflicts over the precise nature of the liberties contained in the Bill of Rights resolved? - What controversies have resulted from loose interpretations of the language in the Bill of Rights? - What impact has the 14th Amendment had on the relationship between the Bill of Rights and the states?

- What are the similarities and differences between the U.S. and Texas Bills of Rights?- What does the U.S. Bill of Rights not guarantee?- What does the First Amendment actually limit? What does this tell us about the overall structure of American government?