Mr. McCormack
American Government
Central Dauphin High School
Chapter Nineteen – Civil Liberties: First Amendment Freedoms
I. The Unalienable Rights
A. The Declaration of Independence proclaimed that certain rights are unalienable, meaning that they can never be surrendered to any government
1. Many of the former colonies quickly established state constitutions that attempted to define these rights
2. The US Constitution as originally written did not include a Bill of Rights
a. Many Anti-Federalists opposed ratification of the Constitution for this failing
b. James Madison, the Father of the Constitution, eventually became the leading author of the amendments in the first Congress
3. The first Congress passed 12 amendments, 10 of which became the Bill of Rights in 1791
a. An eleventh proposal became the 27th Amendment in 1992
b. The twelfth proposal, fixing the ratio of congressional representation to population at 1:50,000, never passed
4. The Bill of Rights protects both civil rights and civil liberties
a. The two terms are often used interchangeably
b. Civil Rights
i. Requires the government to act to guarantee constitutional protections to all people
ii. Examples include prohibition of discrimination on the basis of race, etc.
c. Civil Liberties
i. Guarantees the safety of persons, property, etc. from the government
ii. Examples include the freedom of religion, etc.
B. Government in the United States is limited by the Constitution in what it can do
C. Rights are relative, not absolute
1. Generally speaking, you can exercise your rights until doing so intrudes on another’s rights
2. Absolute freedom is anarchy
D. Constitutional rights apply to all persons within the US
1. This includes citizens, visitors, legal immigrants, and illegal immigrants
2. Not all rights are necessarily enjoyed to the same degree, however (i.e. right to travel)
E. Federalism and Individual Rights
1. The Bill of Rights, as amendments to the federal constitution, was originally understood to limit only the federal government, not the states
2. The Supreme Court recognized this limit in Barron v. Baltimore, 1833
3. Since the 1920’s, however, the Supreme Court has been applying more of the Bill of Rights to the states through the Fourteenth Amendment
a. This process is called “incorporation”
b. It relies upon the “due process clause” of the Fourteenth Amendment
c. The Fourteenth Amendment prohibited any state from depriving a citizen of life, liberty, or property without due process of the law
i. “Life, liberty, and property” has been interpreted to mean “fundamental rights”
ii. The only process that would normally suffice to deprive you of your fundamental rights would be a Constitutional amendment
d. Many people interpret due process to mean that states must have a trial, give you a chance to mount a defense, etc. – “procedural due process”
e. Others believe that “due process” means you can not be deprived of anything that is “basic or essential to the American concept of ordered liberty” – “substantive due process”
f. Substantive due process is still a controversial idea for many people
4. Process of Incorporation
a. 1925 – Freedom of Speech, Gitlow v. New York
b. 1931 – Freedom of the Press, Near v. Minnesota
c. 1937 – Freedom of Assembly and Petition, DeJonge v. Oregon
d. 1940 – Free Exercise, Cantwell v. Connecticut
e. 1947 – Establishment, Everson v. Board of Education
f. 1961 – Unreasonable Search & Seizure, Mapp v. Ohio
g. 1962 – Cruel, Unusual Punishment, Robinson v. California
h. 1963 – Right to Counsel, Gideon v. Wainwright
i. 1964 – Self-incrimination, Mallory v. Hogan
j. 1965 – Confront witnesses, Pointer v. Texas
k. 1967 – Speedy Trial, Klopfer v. North Carolina
l. 1967 – Obtain witnesses, Washington v. Texas
m. 1968 – Trial by jury in criminal cases, Duncan v. Louisiana
n. 1969 – Double jeopardy, Benton v. Maryland
5. Provisions Not Incorporated
a. Right to keep and bear arms
b. Quartering of troops
c. Grand jury
d. Trial by jury in civil cases
F. Ninth Amendment
1. The Ninth Amendment recognizes that there may be un-enumerated rights retained by the people
2. No one knows what those rights may be
3. The Supreme Court has refused to recognize claims under the Ninth Amendment
4. Many assume that the theory of substantive due process accomplishes what the Ninth Amendment was meant to do
II. Freedom of Religion
A. The First Amendment begins “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”
1. This religion clause is often analyzed in two parts, “establishment” and “free exercise”
2. The religion clause seems to have been inspired by the Virginia Statute of Religious Liberty of 1786
B. Establishment
1. The meaning of “establishment” would have been fairly obvious to the Framers
a. A government-sponsored church
b. A government preference for a particular religion
2. Most of the original states had established churches, some even after ratification of the First Amendment
a. Congregationalist (Puritan) Colonies
i. Connecticut (until 1818)
ii. Massachusetts (until 1780, though it continued to collect taxes to support all churches until 1833)
iii. New Hampshire (until 1790)
b. Anglican Colonies
i. Georgia (until 1789)
ii. North Carolina (until 1776)
iii. South Carolina (until 1790)
iv. Virginia (until 1786)
c. At different times and in different places, established churches were supported by compulsory attendance laws and taxation
d. Even though colonies like Pennsylvania practiced a fair degree of religious tolerance, they usually required religious oaths to vote or serve in the government
3. The Establishment Clause seems to have been designed to protect regional differences by preventing any one church from becoming a national religion
a. The same Congress that passed the First Amendment did many things that seem overly religious today
i. Created Christian missionary schools among Native Americans
ii. Appointed Chaplains
iii. Began each day’s business with prayer
b. The first Presidents were comfortable proclaiming days of fasting and prayer
4. Thomas Jefferson became the first prominent American to demonstrate a broader approach to the establishment clause
a. In an 1802 letter to the Baptist Association of Danbury, Connecticut, he spoke of a “wall of separation between church and state”
b. Jefferson refrained from the publicly religious activities of his predecessors
5. Holy Trinity Church v. United States (1892)
a. This case presented a church arguing for a religious exemption from a law that prevented anyone from contracting for the services of foreigners living abroad
b. A unanimous Supreme Court granted the exception, arguing that the Congress could not have intended to limit the activities of a Christian church
c. Justice David Brewer wrote the opinion that declared “this is a Christian nation”
d. This statement in the opinion had no legal effect, but it is representative of the prevailing thought prior to the twentieth century
6. Everson v. Board of Education (1947)
a. This case presented a taxpayer arguing that New Jersey should not provide free bus transportation to students attending religious schools
b. The Supreme Court ruled, 5-4, that the bus rides were a permissible form of aid to religion under the Establishment Clause
i. The majority knew that NJ could not directly contribute tax-raised funds to support religious education, but also felt they could not discriminate by refusing to allow religious people to benefit from a program for the general public welfare
ii. Thus, incidental benefits to religious institutions are permitted provided that those benefits are indirect and result from a generally applied program that has a secular purpose
c. The Court did not express a general principle for analyzing establishment claims, but did offer an explanation of the establishment clause: “Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.”
8. Lemon v. Kurtzman (1971)
a. This case presented a taxpayer challenging a Pennsylvania law that allowed the state to reimburse private schools for the cost of teachers’ salaries, textbooks, and instructional materials in math, modern foreign languages, physical science, and physical education
b. The Court announced a three-prong test by which it would analyze establishment claims
i. Purpose – The statute must have a secular legislative purpose.
ii. Effect – The primary effect must be one that neither advances nor inhibits religion.
iii. Entanglement – The statute must not foster an excessive government entanglement with religion.
c. The Court found Pennsylvania’s reimbursement law failed the entanglement test because of the close supervision that would be required to ensure that teachers did not engage in religious instruction
9. The Incoherent Court after Lemon
a. The Supreme Court continued to be deeply divided over establishment cases even after Lemon, and often delivered opinions that seemed mutually contradictory
b. Board of Education v. Allen (1968) permitted New York to require that school districts furnish secular textbooks to children in private schools, but Meek v. Pittenger (1975) ruled that Pennsylvania could not provide maps, films, and laboratory equipment
c. Meek prohibited state sponsored auxiliary services such as counseling, testing, and speech therapy provided in private schools, but Wolman v. Walter (1977) allowed such services to be provided off premises, including vans parked near the schools
10. Various Establishment Cases
a. Religious Displays like a Christmas crèche and Ten Commandments may be constitutional, depending on the totality of the circumstances
b. Teaching Creationism Science has never been found to have a secular purpose
C. Free Exercise
1. Reynolds v. United States (1879)
a. Reynolds, a Mormon, was convicted of violating the Utah Territory’s anti-polygamy law by marrying more than one woman and appealed by arguing that the law violated his freedom to exercise his religion
b. Can “religious belief can be accepted as a justification of an overt act made criminal by the law of the land?”
c. The Supreme Court held that the law was constitutional
i. The law regulated only actions, not beliefs
ii. The actions in question had been criminalized long before, and contemporaneously with, the ratification of the First Amendment
2. Pierce v. Society of Sisters of the Holy Name of Jesus (1925)
a. Oregon passed a law mandating all children under the age of 16 attend public schools until completing at least the eighth grade
b. Can the state compel attendance at public schools?
c. The Supreme Court held that the law was unconstitutional
i. Relying on the earlier case of Meyer v. Nebraska (1923), the Court found that the law violated a parent’s right (under the due process clause of the 14th Amendment) to direct the upbringing of their child
ii. The Court did not determine whether the law violated the free exercise clause
3. Cantwell v. Connecticut (1940)
a. Cantwell, a Jehovah’s Witness, was convicted of distributing (inflammatory) religious messages without a permit and of inciting a breach of the peace
b. Can the state require preachers to secure a permit before preaching?
c. “The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.”
d. The Supreme Court held that Connecticut could not require preachers to secure a permit because it empowered the Secretary of Public Welfare to determine what was and was not “religious” or a “bona fide charity” or “philanthropy”
4. Wisconsin v. Yoder (1972)
a. Yoder, a member of the Old Order Amish community, was convicted of failing to send his children to school until they attained the age of 16 years
b. Does the state have a sufficiently compelling interest in educating Amish youth to enforce compulsory school attendance?
c. “Activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers.”
d. “This case, therefore, does not become easier because respondents were convicted for their "actions" in refusing to send their children to the public high school; in this context belief and action cannot be neatly confined in logic-tight compartments.”
e. The Supreme Court, finding the Amish situation virtually unique, found that compulsory education would be severely harmful to the exercise of their religion and that the state interest in educating the Amish was minimized by the sect’s seclusion
5. Oregon v. Smith (1990)
a. Smith, a drug abuse counselor, lost his job when his employer discovered that he was using peyote as a sacrament in his Native American Church
b. Oregon denied Smith unemployment benefits because of the nature of his discharge (misconduct)
c. The Court found Smith did not have the constitutional right to smoke peyote
6. Church of Lukumi Babalu Aye v. Hialeah (1993)
a. The Church of Lukumi Babalu Aye practices santeria, a controversial Afro-Caribbean religion that incorporates animal sacrifice in its rituals
b. The City of Hialeah, Florida, passed an ordinance aimed at the Church, making it a crime to kill an animal for any reason other than the consumption of food as contrary to public morals and health