, Research Paper
Introduction
“[A] Bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”
— Thomas Jefferson December 20, 1787
The American Bill of Rights, inspired by Jefferson and drafted by James Madison, was adopted, and in 1791 the Constitution’s first ten amendments became the law of the land.
The Bill of Rights was added to the constitution for many purposes and has adapted to take on many more. The amendments are used to provide answers to challenging questions in critical court cases and have taken shape with the ever-changing times.
In Our Defense presents the many sides of the Bill of Rights. It exemplifies how the Founding Fathers protected the individual rights of the people against the power of the government and how it still affects our lives today.
The First Amendment
The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. Freedom of expression consists of the rights to freedom of speech, press, assembly and to petition the government for a redress of grievances, and the implied rights of association and belief.
The right to freedom of speech allows individuals to express themselves without interference or constraint by the government. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. This is where the clear and present danger test comes in.
During the First World War, an activist named Schenck campaigned against the draft, which he alleged constituted illegal involuntary servitude. He was convicted of inciting desertion in violation of the Espionage Act. He circulated material, which claimed that the conscription act violated the Thirteenth Amendment, and asserted that a conscript is little better than a convict. In 1919 this issue presented a close case for the Court, and in Schenck v. United States, the Court affirmed the conviction. Justice Holmes delivered the opinion of the entire Court. He stated, In many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. However, any act depends on the circumstances in which it was done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded 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. The clear and present danger rule came out of this. He also wrote Circumstances that would create a clear and present danger, Congress has a right to prevent . 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. Schenck was sentenced to a maximum of twenty years in a federal penitentiary. This case had a great impact on the country, because it gave rise to a clear and present danger rule.
Though a test was created, the courts had a difficult time determining if a danger is clear enough, or how remote it could be to still be present, and exactly how dangerous the danger must be.
Over the years, the courts established certain guidelines regarding the clause. In Brandenburg v. Ohio, the court held that the government could restrict speech only when it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. The Supreme Court also decided that courts may regulate when, where, and how speakers express themselves, as long as they don t do it to restrict the content of speech. As a result, numerous communists were released from prison, The Nazis were permitted to parade in Illinois, and the KKK was permitted to host a cable show on Public Access Television to spread their racial beliefs.
In regard to the benefits and necessity of free speech, there are many different opinions. Justice Holmes is convinced that a marketplace of ideas should be allowed to prevail in society. This idea is one that advocates the exchange of ideas among people. It states that we should feel free to say what we want and not be afraid. Instead of restricting speech, his opinion is to combat it with counter speech. People should be permitted to hear different opinions, and good and right will prevail in the end.
On the other hand, Reverend Cleaver feels that counter speech is ineffective and that society does not have time to wait for truth to prevail. Accordingly, the Reverend felt a responsibility to challenge the KKK, who desired to obliterate him and his entire race. Furthermore, Stephen Pevar suggests that free speech must mean free speech- whether for popular or unpopular views. To him, freedom of speech represents an example of a constitutional law that is the price we pay for liberty.
Despite popular misunderstanding the right to freedom of the press guaranteed by the first amendment is not very different from the right to freedom of speech. It allows an individual to express themselves through publication and propagation. It is part of the constitutional protection of freedom of expression. It does not afford members of the media any special rights or privileges not afforded to citizens in general.
In reference to this clause, absolutists claim that there should never be a limit from the government on the press. Traditionalists have a different view; they feel that in certain situations exceptions can be made, especially in the realm of national security. This matter requires both confidentiality and secrecy. If a person has acquired “top secret” information about missiles and wants to print it, they may not. If printing those military secrets will jeopardize our national security, their freedom of the press must be limited. For this reason, the courts have created a National Security exception to this clause. To set a standard for what can be released and what cannot, the courts created the standard of direct and immediate harm. Justice Warren created this rule in the Progressive case, fearing Morland s The H-bomb Secret would result in nuclear annihilation.
In my opinion, the press must be held liable for what they write. If material is printed which can jeopardize our national security, the government must be able to intervene. We must be willing to limit or freedoms in order to ensure everyones safety and security.
Two clauses in the First Amendment guarantee freedom of religion. The establishment clause prohibits the government from passing legislation to establish an official religion or preferring one religion to another. It enforces the “separation of church and state. The Supreme Court has declared some governmental activity related to religion constitutional. For example, providing bus transportation for parochial school students and the enforcement of “blue laws” is not prohibited. The free exercise clause prohibits the government, in most instances, from interfering with a person s practice of their religion. The Yukon Indians used this clause when they went to court against the US Forest Service, who decided to build a logging road through the heart of their sacred land.
Even though the government may not outlaw religious practices, some regulation is permitted. Courts are the ones to determine if the asserted religious belief is sincerely held. Only then, if the state s interest is convincing, will it overshadow the individual s right to the free exercise of religion. Consequently, the court ruled in favor of the government in the Yukon Indian s case. Basically, the government could not operate if it were required to satisfy every citizen s religious needs and desires.
In Santa Fe Independent School District v. Jane Doe, the court ruled that public schools cannot allow student-led prayer before high school football games, a decision that reinforces the wall between church and state erected by the First Amendment. The court decided that allowing prayer violates the First Amendment’s establishment clause, which states that Congress “shall make no law respecting an establishment of religion.”
The right to assemble allows people to gather for peaceful and lawful purposes. Implicit within this right is the right to association and belief. The right to petition the government for a redress of grievances guarantees people the right to ask the government to provide relief for a wrong through the courts or other governmental action. It works with the right of assembly by allowing people to join together and seek change from the government.
The right to assemble has caused much dispute and complication. The Supreme Court has recognized that in times of peace, protecting the rights of individuals is easy. It is in times of conflict and calamity that there exists a need to speak out and oppose. If changes are wanted, the law grants people the right to pursue them peaceably. Thus, the law permits freedom of association and the right to petition in order for people to achieve these goals.
In Hobson v. Wilson, members of New MOBE and BUF filed suit against the FBI for conspiring to violate their right to assemble peaceably by attempting to interrupt their anti-war demonstration. The FBI justification was that they wanted to prevent the groups from turning violent. The courts ruled that the government is allowed to interfere with a group engaged in unlawful activities, but not to hamper lawful civil rights.
A federal appeals court ruled in May of 2000 that under the First Amendment, a photographer has the right to assemble a large group of nude people on a street to take their picture. Spencer Tunick was within his rights to take a photo of 100 nude people in Manhattan one morning in July.
The Second Amendment
The second amendment states the right of the people to keep and bear arms. The Quidici v. Morton Grove lawsuit centered on whether this right belongs to the individual or to the people as a group. There has been a longstanding question of whether the second amendment is referring to a person s right to own a gun, or to a collective right to defend the state.
The opposing theories, perhaps oversimplified, are an ”individual rights” theory whereby individuals are protected in ownership, possession, and transportation, and a collective theory whereby it is said the purpose of the clause is to protect the States in their authority to maintain formal, organized militia units.
Advocates for the individual rights theory argue that the usage of the people in this amendment mean nothing different then when stated in other amendments. The others say the clauses written support them. For example A well regulated militia, being necessary to the security of a free state restricts the right of arms to activities that the state determines are necessary to maintain a militia. They argue that the right was primarily created in defense of the state when Congress s military powers were severely limited, and are no longer necessary. I agree with the verdict of the court to tremendously support the collective rights theory. Today, the right to bear arms is extraordinarily dangerous and no longer needed.
The United States v. Cruikshank was the first case in which the Supreme Court had the opportunity to interpret the Second Amendment. The Court recognized that the right of the people to keep and bear arms was a right which existed prior to the Constitution when it stated that such a right “is not a right granted by the Constitution . . . [n]either is it in any manner dependent upon that instrument for its existence.” The indictment in Cruikshank charged a conspiracy by Klansmen to prevent blacks from exercising their civil rights, including the bearing of arms for lawful purposes. The Court held, however, that because the right to keep and bear arms existed independent of the Constitution, and the Second Amendment guaranteed only that the right shall not be violated by Congress, the federal government had no power to punish a violation of the right by a private individual; rather, citizens had “to look for their protection against any violation by their fellow-citizens” of their right to keep and bear arms to the police power of the state.
The Third Amendment
This amendment, which focuses on the quartering of soldiers, is sometimes referred to as the “forgotten amendment.” It is a reminder that, in addition to being written for ages to come, the Constitution was written to address the real and immediate grievances endured by it’s authors. The Quartering Act was one of the “intolerable acts” of the British Parliament, which allowed British troops to be quartered wherever necessary. The colonists were forced to place soldiers in their homes and provide them with food. The colonists barely had enough money for themselves, much less British soldiers stationed there to control the colonists’ every move. This amendment was therefore passed with little debate.
However, the Third Amendment has proven to be one of the least-litigated sections of the Constitution. The changing economics and practicalities of waging war have left little for the third amendment to do. As most other amendments have become flashpoints for controversy and milestones for great communal change, the third amendment has gone its own way. The Supreme Court has never directly reviewed the meaning of this amendment. Indeed, only one court has ever tackled the meaning of the amendment, in a case decided nearly 200 years after it was ratified.
Engblom v. Carey grew out of a “statewide strike of correction officers, when they were evicted from their facility-residences … and members of the National Guard were housed in their residences without their consent.” The district court initially granted summary judgment for the defendants in a suit brought by the officers claiming a deprivation of their rights under the Third Amendment. On remand, however, the District Court held that because the officers’ third amendment rights had not been clearly established at the time of the strike, the defendants were protected from suit by a qualified immunity.
The Fourth Amendment
The Fourth Amendment, which protects us all from unreasonable searches and seizures by governmental entities, is one of the greatest legal protections in the history of mankind. To pass under the Fourth Amendment, detention must be ‘reasonable. ‘ Advances in law enforcement and technology have made this determination far more complex than the framers could have ever anticipated. For example, if a police officer looks through your pocket, you have been searched. Today this includes wiretapping, testing your blood or your urine for drugs or alcohol, and DNA testing. These are all part of a person s privacy.
The Fourth Amendment entails a search to be based on probable cause. That is, government investigators must have a rational belief that a crime has been committed and that evidence or fruits of the crime can be found. The question courts will ask when a citizen claims to have been unconstitutionally searched is whether that person had a reasonable expectation of privacy in the place, papers, or information that government agents have examined or taken.
In order to be valid under the Fourth Amendment, a search warrant must “particularly describe the place to be searched, and the persons or things to be seized.” (The purpose of this particularity requirement is to avoid “a general, exploratory rummaging in a person’s belongings. ). An adequately particular warrant describes the items to be seized in such a manner that it leaves nothing to the discretion of the officer executing the warrant.
This issue was the basis of the McSurely v. McClellan case. While preparing to move, a search warrant to seize “seditious matter or printing press or other machinery to print or circulate seditious matter” and an arrest warrant were issued on the McSurely s behalf. Not only was their house searched, but scoured as well. Everything was taken from their home, including their work papers, college exams, phone bills, tax returns, telephone books, and Mrs. McSurely’s very personal diary. The McSurely’s were freed, but their possessions were locked up in “safekeeping” in case there was an appeal.
The McSurelys felt neither local Kentucky officials nor the Senate subcommittee members had obtained their documents in a reasonable manner. They appealed to the U.S. Court of Appeals, claiming their conviction was based on evidence seized in an illegal search. The Court of Appeals found that the affidavit did not support a search warrant, since the warrant was issued on hearsay. Also there was no particular description of what materials were to be seized, other than “seditious matter or printing press or other machinery to print or circulate seditious matter”. Because of the items taken from the McSurely’s home, the Court of Appeals held that this was a prime example of a general search in violation of the Fourth Amendment. Therefore, the convictions were reversed.
On November 28, 2000, the United States Supreme Court decided the case of Indianapolis v. Edmond. In Edmond, the Court held that it was unconstitutional under the Fourth Amendment to set roadblocks “whose primary purpose was to detect evidence of ordinary criminal wrongdoing.”
The Indianapolis checkpoint scheme at issue in Edmond allowed officers to conduct a search only by consent or based on the “appropriate quantum of particularized suspicion.” Further, the officers were required to conduct each stop in the same manner until particularized suspicion developed and then the officers could extend the search based on the suspicion. The cars were stopped in groups with approximately 30 officers stationed at a particular checkpoint. Prior to reaching the checkpoint, a lighted sign would identify the checkpoint and state, “Narcotics checkpoint _____ miles ahead, narcotics K-9 in use, be prepared to stop.”