The First Amendment provides for freedom of religion, speech, press, and assembly. These protections of individual freedoms may conflict with the need for order—an example of the original dilemma of government discussed in Chapter 1. Freedom of religion is guaranteed in two clauses. The first, the establishment clause, forbids any law that would create an official religion; the second, the freeexercise clause, prevents the government from interfering with the practice of religion. The establishment clause erected “a wall of separation between church and state.” The government is also supposed to be neutral between religions and between the religious and the nonreligious. On certain issues, such as government aid to church-related schools, the Supreme Court has allowed what opponents have seen as violations of the establishment clause. Reasoning that textbook loans and transportation are aids to students, not churches, the Court has allowed some support to church schools.
In 1971, the Lemon test put forth guidelines for determining constitutionality under the establishment clause. The Court loosened its application of the Lemon test by allowing public school teachers to provide government-mandated classes to disadvantaged youngsters in New York parochial schools. A 2002 decision upholding school voucher programs further weakened the standards outlined in Lemon. The Supreme Court has also relaxed restrictions on the use of public funding for Christmas displays. On the issue of school prayer, however, the Court has maintained a consistent position that public school prayer violates the establishment clause. In 2000, the Supreme Court struck down the practice of organized student-led prayer at public high school football games. The free-exercise clause also gives rise to conflicts when the practice of a certain religion leads a person to do what is forbidden by law or to refuse to do what is required by law. A person may not be forced to take a job that requires him or her to work on the Sabbath, but the Court has forbidden participation in traditional religious rituals that involve the use of illegal drugs. The Court reasoned that religious beliefs are inviolate, but antisocial actions in the name of religion are not protected by the Constitution. The perceived narrowing of the range of free expression of religion led Congress to pass the Religious Freedom Restoration Act that required the government to meet strict scrutiny before interfering with religious practices. The Court quickly ruled the popular act unconstitutional, noting that Congress could not change the Constitution.
Freedom of expression, including freedom of speech and freedom of the press, provides a right to unrestricted discussion of public affairs, yet these rights have never been absolute. Initially, the First Amendment clauses seemed aimed at preventing prior restraint. As the First Amendment speech doctrines developed, justices argued that speech creating a “clear and present danger” may be limited. “Symbolic speech” and “fighting words” may receive even less protection, though the Supreme Court has ruled that flag burning is a constitutionally protected form of expression. Obscenity—although hard to define—is not protected by the Constitution, and the Court agreed that the government can regulate distribution of obscene materials. Yet, the Court has also affirmed broad latitude for freedom of speech in cyberspace. In 1999, a federal court issued a permanent injunction closing a website of some antiabortion advocates who threatened doctors performing abortions.
Freedom of the press, including the ability to collect and report information without government interference, is crucial in a free society. Print media defend this freedom as absolute, although electronic media have had to accept some government regulation. Individuals may sue the media for libel, but public figures must show that there is actual malice involved when publishers print false statements about them. Basically, freedom of the press means freedom from prior restraint. The Court has been reluctant to limit freedom of the press in order to ensure a fair trial. However, reporters are not protected from the demands of law enforcement and may be required to reveal their sources. Only in the most extreme and compelling cases has prior restraint been considered justified, as, for example, when publishing certain material might mean nuclear annihilation.
The First Amendment also provides the right to peaceably assemble and to petition the government for redress of grievances. This right has merged with freedom of speech and freedom of the press under the general heading of freedom of expression.
The Second Amendment’s guarantee of the right to keep and bear arms is a source of great controversy. Advocates of gun control see the guarantee as a collective one, centered on the right of states to maintain militias. Opponents of gun control argue that the amendment protects the individual’s right to own guns.
The Bill of Rights was created to put limits on the power of the national government. Initially, its provisions did not apply to states. Under the Fourteenth Amendment, however, nearly all of the items in
Bill of Rights have gradually been extended to all levels of government. The Fourteenth Amendment guarantees people due process of law. The Court has interpreted this provision to mean that, in criminal proceedings, defendants in both state and national cases must be told about their constitutional rights, including their right to remain silent and their right to an attorney. The Court still allows jury size in trials to vary from state to state, however. The right to an attorney is considered fundamental, while the right to trial by a jury of a certain size is not. In one of the important cases of 2000, the court reaffirmed that Miranda had a constitutional rule, which Congress could not undermine through legislation. The Fourth Amendment provides people with freedom from unreasonable searches and seizures. The exclusionary rule, which disallows the use of evidence obtained illegally, helps to ensure this right, though this rule has been weakened in recent years. Interpretation of the exclusionary rule continues to divide the Court and serves as an example of the conflict between freedom and order.
The Ninth Amendment left open the possibility that there were other rights, not enumerated, that might also be free from government interference. In the 1960s and 1970s, the Supreme Court used the Ninth Amendment as the basis for asserting that people have a right to privacy and that that right allows individuals to make their own choices about birth control and abortion. The appointment of conservative justices under Presidents Reagan, G. H. W. Bush, and G. W. Bush placed gay rights and abortion rights in question, but President Clinton’s more liberal appointees seem more likely to support those unenumerated rights.
The discovery of new rights under the Ninth Amendment creates a difficulty for democracy. It removes questions about value conflicts from the arena of democratic politics and puts them under the
what is selective incorporation?
another link another explanation selective incorporation explained again
A conflict in rights- some constitutional provisions are in conflict with other provisions as well as clashing with state laws. A clear example of this conflict is reflected in the (free exercise of religion clause), you have a right to practice your religious beliefs but what if it causes harm to family members in violation of state law? If a mother doesn’t get help for a sick child who needs immediate medical attention and opts out for prayer instead of medical attention, then the law parental neglect laws override her right to practice her religious beliefs. So rights are not absolute, they can be taken away if one neglects a child for religious reasons.
Another standard-Political speech- When should public officials and law enforcement officials ban provocative speech that might elicit a violent reaction? The court had to articulated a standard or test to clarify what they should do as a policy.
political speech and violence standard
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Use the lecture and link to answer these question.
2, Go to the bill of rights and list at least 10 civil liberties?
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Discussion(200 words)
Out of all the civil liberties you are entitled to, which right is most important to you and why?
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