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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?
