Unit 5, Part I: What Rights Does the Bill of Rights Protect?

1. Unit 5, Part I: What Rights Does the Bill of Rights Protect? David S. TanenhausEditor, Law and History Reviewhttp://journals.cambridge.org/LHR Professor and Chair History Department at UNLV 4505 Maryland Parkway Box 455020 Las Vegas, Nevada 89154-5020 (o) (702) 895-3549(f) (702) 895-1782e-mail: david.tanenhaus@unlv.edu http://www.kansaspress.ku.edu/tancon.html

2. Bill of Rights Activity: Rank Them. Rank the following rights in order of importance from 1 to 10—with 1 being most important. Note: You only get to keep your top 5. h/t The Bill of Rights Institute, The Bill of Rights and the Founders. ___ 1. Freedom of speech ___ 2. Freedom of religion ___ 3. Right to a jury trial ___ 4. Freedom of the press ___ 5. Freedom from cruel and unusual punishments ___ 6. Right to keep and bear arms ___ 7. Right to control your own property ___ 8. Freedom of assembly ___ 9. Freedom from quartering troops in your home ___ 10. Freedom from unreasonable search and seizures

3. Which rights did the founders value most? Right to a jury trial in a criminal case

4. The Conventional Wisdom The Constitution The Bill of Rights “To vest individuals and minorities with substantive rights against popular majorities” (Akhil Amar, The Bill of Rights, xii). Organizational Structure and Democratic Governance • Federalism • Separation of Powers • Bicameralism • Representation • Republican Government • Constitutional Amendment

5. Bill of Rights Literacy Which phrases appears most often in the Bill of Rights? • Citizen • The People • Individual • Education • Privacy

6. Putting the People Back into the Constitution “[The] sovereign people. . .constitute the rock on which our Constitution is built. The opening words of the Preamble, of course, dramatize this truth; but so do the words of the Bill of Rights. For I hope it has not escaped our notice that no phrase appears in more of the first ten amendments than ‘the people” (Amar, 133).

7. The Bill of Rights as a Constitution “The Bill of Rights can itself be seen as a Constitution of sorts—that is, as a document attentive to structure, focused on the agency problem of government, and rooted in the sovereignty of We the People of the United States” (Amar, 127). “My point is not that substantive rights are unimportant, but that these rights were intimately intertwined with structural considerations” (Amar, 128.”

8. How do you read Federalist 51? “[I]t is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.” James Madison

9. The Problem of “Agency Costs” • HOwHOw The People (the principals) Their Representatives (the agents) The Problem: How do you minimize self-dealing?

10. The Importance of Immediate Associations: Churches, Militia and Juries They are designed to create an educated and virtuous citizenry. “The jury summed up—indeed embodied—the ideals of populism, federalism, and civic virtue that were the essence of the Bill of Rights” (Amar, 97).

11. The Significance of the Jury “The jury, and more especially the jury in civil cases, serves to communicate the spirit of the judges to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions.” • Alexis De Tocqueville, “Chapter XVI: Causes Mitigating Tyranny In The United States,” in Democracy in America (1835)

12. The Federal Bill of Rights Constitutional Law Barron v. Baltimore (1833) The general language of the Constitution, including the amendments, applies only to federal action. It does not limit state or local action. Popular Constitutionalism Natural rights cannot be infringed upon by any government.

13. The Structural Imperatives of Slavery “The structural imperatives of the peculiar institution led slave states to violate virtually every right and freedom declared in the Bill—not just the rights and freedoms of slaves, but of free men and women too. Slavery bred repression.” Amar, The Bill of Rights, 160.

14. The Significance of Dred Scott v. Sanford (1857): Defining “We the People” “It is true, every person, and every class and description of persons who were, at the time of the adoption of the Constitution, recognised as citizens in the several States became also citizens of this new political body, but none other; it was formed by them, and for them and their posterity, but for no one else.” “In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.” Chief Justice Taney

15. The Crisis of the Civil War and the Meaning of the Constitution “[They were] good men and were wise in their day and generation, but all wisdom did not die with them, and we are expiating in blood and agony and death and bereavement one of their errors. . . the toleration and perpetuation of human slavery.” William Kelley (Republican, Pennsylvania)

16. National Citizenship Section 1. 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; 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.

17. Creation and Reconstruction The Bill of Rights (1791) The Fourteenth Amendment (1868) Centrally directed at the states. Arose to address as well the distinct problem of minority rights. Seems more liberal and individualistic, sounding mainly in civil rights, in the private liberty of the moderns. Centrally directed at the federal government Arose mainly to address the agency problem of government Seems largely republican and collective, sounding mainly in political rights, in the public liberty of the ancients.

18. What is the relation between the Bill of Rights and the Fourteenth Amendment? “Does the amendment ‘incorporate’ the Bill, making the Bill’s restrictions on federal power applicable against states? If so, which words in the Fourteenth Amendment work this change? Are all, or only some, of the provisions of the first ten amendments incorporated or absorbed into the Fourteenth? If only some, which ones, and why? Once incorporated or absorbed, does a right or freedom declared in the Bill necessarily constrain state and federal governments absolutely equally in every jot and tittle?” Amar, 137.

19. The Significance of The Slaughter-house Cases (1873) “By strangling the privileges-or-immunities clause in its crib, Slaughter-House forced contrarian-minded litigants to argue that the original Bill applied against states either directly of its own force or via the Fourteenth Amendment’s due-process clause. The Court continued to dismiss the former argument with a quick invocation of Barron and also regularly rebuffed the latter.” Amar, The Bill of Rights, 213.

20. Theories of Incorporation: A Long Twentieth-Century Story Justice Black, Total Incorporation Justice Frankfurter, Fundamental Fairness Justice Brennan, Selective Incorporation * In 2010, the U.S. Supreme Court incorporated the 2nd Amendment in McDonald v. Chicago.

21. Does the Constitution change during wartime? • Yes • No

22. The Significance of World War I: The Problem of Free Speech During Wartime The Bad Tendency Test (Patterson v. Colorado [1907]). “From 120 years, from the expiration of the Sedition Act of 1798 until America’s entry into World War I, the United States had no federal legislation against seditious expression. The lessons of 1798 had carried the nation through the War of 1812, the Mexican War, the Civil War, and the Spanish-American War. But by World War I the lessons had been forgotten.” Geoffrey Stone, Perilous Times, (145) Oliver Wendell Holmes, Jr. Served on the U.S. Supreme Court From 1902 to 1932

23. The Espionage of 1917 Criminalizes willfully making or conveying false reports or false statements with intent to interfere with the military success of the U.S. or “to promote the success of its enemies; causing or attempting to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the U.S.; obstructing the recruitment or enlistment service of the U.S. Also authorizes the postmaster general to exclude from the mails any writing or publication that is “in violation of any of the provisions of this act” or that contains “any matter advocating or urging treason, insurrection or forcible resistance to any law of the U.S.” Violations were punishable by prison sentences up to twenty years in length. During WWI, 2,000 people were prosecuted under this act, which is still in effect.

24. The Sedition Act (1918) The Sedition Act (40 Stat. 553) amended the Espionage Act. It criminalized writing or uttering: “any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States, or any language intended to bring [any of the above] into contempt, scorn, contumely, or disrepute.”

25. Schenck v. United States (1919) Will you stand idly by and see the Moloch of Militarism reach forth across the sea and fasten its tentacles upon this continent? Are you willing to submit to the degradation of having the Constitution of the United States treated as a "mere scrap of paper"? “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.”

26. The Question 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. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.

27. Rethinking the First Amendment The influence of Learned Hand Summer Reading: John Stuart Mill, On Liberty

28. Abrams v. United States (1919) Facts: The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building. One leaflet signed "revolutionists" denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede the Russian Revolution. The defendants were charged and convicted for inciting resistance to the war effort and for urging curtailment of production of essential war material. They were sentenced to 20 years in prison. http://www.oyez.org/cases/1901-1939/1919/1919_316 Question:  Do the amendments to the Espionage Act or the application of those amendments in this case violate the free speech clause of the First Amendment?

29. Holmes and Brandeis Dissent: Logic and Human Nature Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.

30. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises.

31. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution.

32. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

33. I had conceived that the United States, through many years, had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, "Congress shall make no law . . . abridging the freedom of speech." Of course, I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that, in their conviction upon this indictment, the defendants were deprived of their rights under the Constitution of the United States.

34. Final Thoughts “It is not inherent in human nature to be skeptical, self-doubting, and tolerant of opposing ideas. We are naturally inclined to enforce what is ‘right,’ rather than to abide ideas that, again, in the words of Justice Holmes.’ ‘we loath and believe to be fraught with death.” The First Amendment cuts against human nature. It demands that we be better than we would be.” Geoffrey Stone, Perilous Times, 76.

35. The Principles of Modern Free Speech Jurisprudence No government paternalism in the realm of political discourse Punish the actor, not the speaker Low-Value speech, such as obscenity and threats, receives lesser protection Time, Manner and Place restrictions generally pass constitutional muster as long as they are neutrally defined and enforced and adequate “alternative channels” are left open for expression of all points of view.

36. Subversive Advocacy and the Brandenburg Test In Brandenburg v. Ohio (1969), a unanimous Court announced the broadest test for protection of subversive advocacy which remains good law today. Permits the punishment of subversive advocacy only if three conditions are satisfied: • expressadvocacy of law violation • the advocacy must call for immediate law violation • And the immediate law violation must be likely to occur.

37. Further Reading Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (Yale University Press, 1998). The Democratic Experiment: New Directions in American Political History ed. by Meg Jacobs, William J. Novak, and Julian E. Zelizer (Princeton University Press, 2003). Jack N. Rakove, Declaring Rights: A Brief History with Documents (Bedford Books, 1998). Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (W.W. Norton, 2004).