The Bill of Rights

1. The Bill of Rights Citizenship and the Protection of Individual Liberties

2. citizenship • History of citizenship • Dred Scott case (1857) • Citizenship could only be claimed by descendants of state citizens (as of 1788) or through naturalization

3. citizenship • 14th amendment (1868) • “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…” • Jus soli “law of the soil” ~ born in the US • Jus sanguini “law of blood” ~ born abroad to US citizens, residency requirement • Naturalization process~ immigrants who apply

4. citizenship • Naturalization process (cont’d) • 1: apply • 2: background check of good moral character • 3: test of US history and government • 4: test of basic English literacy • 5: taking an oath of allegiance

5. citizenship • Loss of Citizenship • Only the federal government can both grant and take away citizenship; state governments can take away the privileges of citizenship • Ex. You can lose your right to vote when incarcerated or having served time for certain felonies

6. Citizenship • Loss of Citizenship • Expatriation • Giving up your citizenship by living in a foreign country AND taking their oath of allegiance • Punishment for certain federal crimes • Treason, rebellion, acts of “extreme disloyalty” • De-naturalization • Being fraudulent in the naturalization process

7. 1st amendment & Religion • The Establishment Clause • (def) part of the 1st amendment that prohibits Congress from establishing a “National” Church

8. 1st amendment & religion • Supreme Court Actions • 1971 Lemon v. Kurtzman • As a result of this case, the Supreme Court devised the Lemon Test to see if a law violated the establishment clause • 1: does it have a secular purpose ? • 2: is it religiously neutral ? • 3: does it prevent excessive entanglement between government & religion ?

9. 1st amendment & religion • Supreme Court Actions • 1990 the Endorsement Test • Created as an attempt to simplify the Lemon Test • Allows gov’t involvement in religion AS LONG AS gov’t does not endorse one religion over another

10. 1st amendment & religion • Religion & Public Spaces • 1968~ school sanctioned prayer is unconstitutional • 1980~ posting the 10 commandments in classrooms is unconstitutional • 1987~ cannot force public schools to teach creationism

11. 1st amendment & religion • Religion & Public Spaces • 1990~ religious groups have the right to access school facilities • 1992~ no clergy led prayer at graduation ceremonies • 2000~ upheld a federal provision to provide computer equipment to all schools (public and private)

12. 1st amendment & religion • Free Exercise Clause • (def) the ability to practice religion without government interference • 1940 Cantwell v. Connecticut ~ the Supreme Court determined that a state may interfere IF they have compelling state interest to do so • Ex. Human sacrifice ≠ free exercise • Ex. Santeria = free exercise

13. 1st amendment & speech • Is freedom of speech an absolute right ?

14. 1st amendment & speech • Background • Originally intended to protect political speech, freedom of speech has expanded to include “expression” and symbolic speech • James Madison, in Federalist #10, stated that free political speech helps prevent violence in society. Open discussions and political participation among citizens are essential to self-government.

15. 1st amendment & speech • Landmark Supreme Court Cases • Schenk v. United States (1919) • The Supreme Court ruled that the country’s interest in fighting WWI outweighed Schenk’s right to free speech.

16. 1st amendment & speech • Landmark Supreme Court Cases • Garrison v. Louisiana (1964) • The Supreme Court reaffirmed the right to free speech and open discussion by ruling in favor of Garrison.

17. 1st amendment & speech • Landmark Supreme Court Cases • Brandenburg v. Ohio (1969) • the Supreme Court ruled that the 1st amendment protects even the most extreme form of criticism unless the speaker is calling for “IMMINENT lawless action”

18. 1st amendment & speech • Landmark Supreme Court Cases • Tinker v. Des Moines (1969) • A public school could not suspend students for wearing plain black armbands in protest of a war. Armbands were seen as “akin to pure speech”

19. 1st amendment & speech • Landmark Supreme Court Cases • Texas v. Johnson (1989) • The Supreme Court ruled that burning of an American flag is a form of symbolic speech and is therefore protected.

20. 1st amendment & speech • Types of speech & expression • Indecent Speech: speech that contains suggestive sexual (or other) references • **may be regulated** • Obscene Speech • Speech that contains material that is offensive and contains no redeeming social value • Society has the right to be protected from such speech • Local governments are expected to decide

21. 1st amendment & speech • Types of speech & expression • Preferred Speech • Because of the position free speech holds in regard to our form of government and political participation, the Supreme Court has elevated speech to a higher position over other rights • Free speech is considered the basis of all other liberties

22. 1st amendment & speech • Types of speech & expression • Symbolic Speech • Armbands, flag burning…. Actions and/or symbols used to express opinions

23. Bill of Rights & Rights of the Accused in Criminal Procedure • “It is more dangerous that a guilty person should be punished, without the forms of law, than that he should escape.” • Thomas Jefferson, 1788

24. Criminal procedure • 4th amendment • Search warrants to be issued only with probable cause and with a specific person or place to be searched and the evidence sought • The Exclusionary Rule • Knowledge or evidence gained from an illegal search may not be used in trial …. Initially only applied to the federal government … BUT

25. Criminal procedure • Enforcement of the 4thamendment • 1961 Mapp v. Ohio the exclusionary rule was made universal to both the federal and state levels. • However, • Illegally seized evidence has been allowed at grand jury testimony to obtain an indictment • Still a controversial issue!

26. Criminal procedure • 5th amendment • Due Process Rights • Procedural due process is protected under the 5th amendment • Government must follow a set procedure when applying the law and it must be applied the same each time

27. Criminal procedure • Side Note…… • 14th amendment • Also protects due process • Substantive due process is protected under the 14th amendment • Courts must look beyond procedure to make sure the substance of laws are inherently fair and equal to all people • Ex. Plessy v. Ferguson • Procedurally constitutional • Substantively unconstitutional Brown v. Board of Education (1954)

28. Criminal procedure • 5th amendment (cont’d) • Protection against double jeopardy • Protection against self incrimination • Requires a grand jury indictment for federal level crimes

29. Criminal procedure • 6th amendment • Right to a jury trial • Right to a speedy trial • Right to know the crime for which one is accused • Right to confront witnesses against you & to call witness on your behalf • Right to the assistance of an attorney

30. Criminal procedure • 8th amendment • Executions must be as swift and painless as possible (does not say this; but this is how it has been interpreted) • Punishment cannot be cruel or unusual • Monetary penalties must fit the crime and not be excessive

31. Criminal procedure & juries • Can a randomly selected jury be as competent in determining guilt or innocence as a legally trained judge ?

32. Criminal procedure & juries • Historical Background • Jury duty is considered the role & responsibility of a citizen in a free society • Jurors cannot be punished for a verdict

33. Criminal procedure • Trials & juries • Trials must be open to the media • Juries must be impartial or moved when “prejudicial publicity” exists • Grand Jury • Used at the federal level, not required at the state level (New York does use it for some cases) • Can only indict • Grand juries can have approx 25 members

34. Criminal procedure & juries • Special Power of Juries • Nullification • When juries refuse to convict a defendant for breaking a law they consider to be unjust • Examples: • 1800’s ~ Fugitive Slave Act • 1960’s & 70’s ~draft evaders during Vietnam War • Present ~euthanasia cases (Terry Schiavo)

35. Criminal procedure & juries • Jury Selection • 1. Summons – must represent a fair cross section of society • 2. Voir Dire – to determine fitness, potential jurors are questioned • 3. Empanel – 12 jurors + 2 alternates • **the summons must represent a fair cross section but the panel chosen may not**

36. Criminal procedure & juries • Jury Responsibilities • Listen impartially • Keep an open mind • Deliberate with other jurors • Apply the law • Reach a verdict

37. Criminal procedure & juries • Special Cases • Hung jury • When jurors cannot reach a unanimous verdict and are deadlocked after extensive deliberation • A mistrial is declared • The defendant may be retried with a new jury…. Double jeopardy does NOT apply here because a verdict was never reached

38. Wrap up • There are many parts of the Bill of Rights that we did not cover • Petition & Assembly (1st amendment) • Right to bear arms (2nd amendment) • Eminent domain (5th amendment) • Civil trials (7th amendment) • These are still options for your upcoming project if they interest you!