Monday, March 5th - American Heritage Documents Dave Spenc… · Monday, March 5th •Final version of ... •Freedom of a religious organization to use its property ... Slide 1 Author:

Monday, March 5th

• Final version of Essay 1 and Change Memo: due

March 8th or 9th at the beginning of lab.

• Post a digital copy of final version of Essay 1 to

Turn-It-In on BlackBoard prior to your lab.

The Bill of Rights 1

THE BILL OF RIGHTS


Outline – The Bill of Rights

• Protecting ourselves from government

• How we got the Bill of Rights

• What are these rights?

• Problems with a rights approach


How do we protect ourselves from government

infringement on freedom?

• Two alternatives

• We establish processes (e.g., elections, enumerated

powers, separation of powers, checks and balances) to

limit government.

• We enumerate rights and rely upon the courts to limit

government.


Why did the original Constitution not

include a bill of rights?

• Eight states already had bills of rights

• Impossible to enumerate all rights Noah Webster suggested the following right:

“Congress shall never restrain any inhabitant of America from … lying on his left side, in a long winter’s night, or even on his back, when he is fatigued by lying on his right.”

• Constitution already limits government; it makes no sense to grant rights that the government has no authority to withhold


So, why the Bill of Rights?

• More important to the people than the framers expected

• Some state conventions passed resolutions for suggested amendments to the Constitution

• To avoid a call for a new constitutional convention, Madison controlled the process in Congress and suggested the first ten amendments


What are these rights?

• Some are narrowly drafted

3rd – No forced quartering of soldiers

4th – No unreasonable search and seizure

5th – Freedom from expropriation

5th through 8th – Rights of the accused



• Others are broadly constructed

1st - Congress shall make no law respecting …

• establishment of religion

• freedom of speech

• freedom of assembly

• freedom of petition

9th - This enumeration of certain rights does not mean

there aren’t others.



• The 10th 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.”


Video: Governor Perry of Texas

• On the 10th amendment.


The Courts and Rights

There is no process for compromise or tradeoffs

as the courts consider rights. Thus they tend to

become very narrowly applied or to become

absolute.


Changing definitions of rights

• Congress shall make

no law abridging the

freedom of speech or

press

• Nor shall private

property be taken for

public use without just

compensation


Compare two phrases

Video: Kelo Decision

• 5th Amendment

“… nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken

for public use, with just compensation.”


iClicker

How do you feel about the Supreme Court’s Kelo

decision sustaining the government's decision to

“take” Susette Kelo’s home?

A. I agree. Economic development is a legitimate

public use.

B. I disagree. The Founders did not intend for

private property rights to be violated this way.

C. I agree. Pink houses have got to go.


Problems with the rights approach to

liberty

• Inclusion – No way to draw clear boundaries

• Collision – When rights collide, the Constitution

gives the courts no guidance.

• Expansion – Courts and politics tend to expand

rights through time.


The Problem of Inclusion

Freedom of speech or religion includes what

speech and what religion?


The Collision Effect

How should the Court make decisions about

tradeoffs involving rights?



Tradeoff between freedom of religion and freedom of

speech.

• “Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof or abridging the freedom of

speech;… or the right of the people peaceably to

assemble…”

• Freedom of street preachers and others to speak on a

public easement.

• Freedom of a religious organization to use its property

and funds to further its purposes.


The Expansion Effect

There is no way to keep the legal definitions from

expanding through time.

We conduct our political discussions using a

rhetoric of rights.


Video: Rights Talk in the 2008 Election

• Clips taken from the presidential and vice

presidential debates


Video: Rights Talk

• Do lobsters have rights?

• Where does an absolute view of rights take us?


Mary Ann Glendon

“A rapidly expanding catalog of rights – extending

to trees, animals, smokers, nonsmokers,

consumers, and so on – not only multiplies the

occasions for collisions but it risks trivializing core

democratic values. A tendency to frame nearly

every social controversy in terms of a clash of

rights impedes compromise, mutual

understanding, and the discovery of common

ground.”


Is enumeration of rights enough?

Article 125 of the Soviet Union Constitution:

In conformity with the interests of the working people, and

in order to strengthen the socialist system, the citizens of

the U.S.S.R. are guaranteed by law:

• Freedom of speech;

• Freedom of the press;

• Freedom of assembly, including the holding of mass

meetings;

• Freedom of street processions and demonstrations.


Conclusion

• In general, enumerated rights without

good processes prove to be

ineffective.

•Ultimately, it is the processes outlined

in the Constitution that protects our

rights, not their enumeration in the Bill

of Rights.
