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Conflicting Rights and Liberties conflict in two ways: Individual rights conflict school prayer/different religions Individual rights vs. the good of society drug laws/freedoms

Rights How we resolve conflicts about rights The courts Congress The President The People (interest groups/pluralism)

Bill of Rights and States Why is the Bill of Rights so valuable? What was its original purpose? What didn’t it do when originally written? Applying Bill of Rights to the states 14 th amendment--incorporation

History The original Constitution, unlike those of several states, contained no listing of rights to be protected from government interference.

History Many delegates to the Constitutional Convention felt that such a listing was unnecessary because the national government was structured to be one of limited powers.

History Nevertheless, the failure to include such guarantees became the source of such heated debate at state ratifying conventions that the First Congress, as one of its first acts, proposed 12 amendments, 10 of which were ratified. These 10 amendments are known as the Bill of Rights.

History Originally, the Bill of Rights limited the actions of only the national government. Chief Justice John Marshall’s decision in Barron v. Baltimore foreclosed the possibility that the Bill of Rights could be used to limit state governments. Slavery was a key issue here.

History Ratification of the 14 th Amendment in 1868 provided an opportunity to extend the Bill of Rights to the states. The due process clause of the 14th Amendment became a means of incorporating the Bill of Rights.

History To some, most notably Justice Hugo Black, this due process clause seemed an obvious attempt to incorporate the entire Bill of Rights. (Black’s position is referred to as total incorporation.)

History Since Palko v. Connecticut (1937), the Supreme Court has used an approach known as selective incorporation: incorporating only those provisions of the Bill of Rights that a majority of justices feel are fundamental to a democratic society.

History Through this process of selective incorporation, the Court eventually came to apply almost all provisions of the Bill of Rights to the states.

Bill of Rights You should probably all know the first ten amendments Know all about the 14 th amendment and why it is important There are other important amendments that we will discuss in class

Freedom of/from Religion First Amendment guarantee that the government will not create and/or support an official state religion.

First Amendment guarantee that citizens may freely engage in the religious activities of their choice Must have a “compelling state interest” to limit religious freedom ( Sherbert v. Verner, 1963) Freedom of/from Religion

Freedom of/from Religion The First Amendment’s protection of religious freedom is composed of two parts—the establishment and free exercise clauses—that often conflict with one another. Providing for the free exercise of religion may constitute an establishment of religion, especially if it entails special treatment for a religious group.

Freedom of/from Religion Why is religious freedom valuable? Why and how can a majority religion abuse its privilege?

Freedom of Expression Informed citizenry Watchdog for government Voice for the minority Preservation of the truth

Free Speech Problem is not that it will necessarily be legally taken away…..problem is often a “majority-minority” issue. What is “allowed” by the system.

Free Speech You are either totally in favor of free speech, or you are not—think about this. You cannot pick and chose. Or can we? This is where the political system intervenes.

Expression/Speech Why is it valuable? Speech that criticizes government Speech that criticizes the majority Symbolic speech Freedom of assembly

Expression/Speech Obscenity and pornography Fighting words and offensive speech

Freedom of the Press Prior restraint Libel Right of a Fair Trial

Freedom of the Press Censorship on the Internet

Rights Why are the rights of criminal defendants valuable?

Rights Unreasonable search and seizures What is reasonable? Exclusionary Rule

Rights Right against self-incrimination Right of counsel Cruel and unreasonable punishment

Rights Right to counsel Gideon v. Wainwright (1963) Protection against cruel and unusual punishment Furman v. Georgia (1972) McClesky v. Kemp (1987)

A Bill of Obligations? What should one look like? Voting? Military service? Others?

Study Questions Briefly discuss the meaning of rights in a democratic society. What does the term "rights" actually mean--give me your own definition? Are right absolute? The textbook authors suggest that there are obvious tensions in a democratic society between the power of the individual and the power of the state. When and how do those tensions come in conflict? And how are those tensions resolved?

Study Questions Comment on Justice William O. Douglas’s quote that "Speech, except when linked with action, should be immune from prosecution." Do you agree with that statement? Should there be any restrictions or limits on speech? Can you think of any examples: internet, hate speech, etc?

Study Questions Why is free speech and a free press so important in a democracy? Can too much free speech have negative consequences? Are there times when we might want to restrict speech?

Study Questions How much courage does someone need to fight for their civil liberties and rights? How can an individual prepare for the public rejection that so often accompanies efforts to guarantee rights such as religious freedom or free speech?

Study Questions What does it mean to have academic freedom? Should professors be able to discuss anything they want in class? If we restrict a professor's ability to discuss what he or she wants in class, how might that hinder the student's educational experience? What benefits might come from it?

Study Questions Do those accused of crimes have too many protections? Should victims of crimes have more rights? If so, what should some of those rights be?

Study Questions Why is the Bill of Rights so valuable? What would our society be like if we didn't have the Bill of Rights? Finally, briefly discuss the Bill of Rights and its relationship to the states.

Study Questions Shouldn’t states be able to make their own laws concerning rights?

Study Questions Should the United States have a Bill of Obligations? If so, what should be included in it? Would a Bill of Obligations change citizens' views toward government and civic engagement?

Terms bad tendency test exclusionary rule due process of the law bills of attainder libel establishment clause

Terms clear and present danger test Miller test ex post facto law Lemon test police power

Terms Gideon v. Wainwright 14th amendment prior restraint Miranda v. Arizona habeas corpus sedition

Terms accommodationists freedom of assembly

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