Federalists felt a bill of rights was unnecessary; they were also reluctant to list things that the national government had no power to do.
Many states approved the Constitution only on the condition that Congress add a bill of rights.
Early Supreme Court decisions ruled that the Bill of Rights applied only to actions of the national government.
After the Civil War, the Court used a process called selective incorporation to rule that most of the Bill of Rights applied to the states.
Selective incorporation helped to usher in an era of greater emphasis on individual rights.
FREEDOM OF RELIGION
The Free Exercise Clause prohibits the government from interfering with an individual's right to practice his or her religion.
The Supreme Court has upheld laws restricting religious practices that threaten the peace, order, and comfort of a community.
The establishment clause deals with the formal relationship between religion and government; at the very least, it prohibits the government from establishing a national religion.
The Lemon test states that a law does not violate the establishment clause if:
- It has a secular purpose.
- It neither advances nor inhibits religion.
- It does not foster an excessive government entanglement with religion.
Interpretation of the establishment clause has been at the heart of numerous issues such as mandatory prayer in school and federal aid to religious schools.
FREEDOM OF SPEECH
The Supreme Court has refused to protect speech it considers obscene, defamatory, or constituting what it calls "hate speech."
The clear and present danger test prohibits only words that produce both an obvious and immediate danger to the community.
Legitimate questions exist about what constitutes political speech and about the extent to which it is protected.
The Supreme Court has upheld limits on political contributions, but ruled that restrictions on expenditures violated free speech guarantees.
The courts traditionally have viewed commercial speech as being less worthy of free speech protection than political speech.
Courts may consider activities that convey a political message or viewpoint to be symbolic speech worthy of First Amendment protection.
The Supreme Court uses the Miller test for obscenity, which asks three questions:
- Does the average person believe that material appeals to a prurient interest?
- Is the material patently offensive?
- Does the work lack serious literary, artistic, political, or scientific value?
A public official in a libel or slander case must prove that the statements in question are false and that the defendants wrote or spoke the words with malice.
FREEDOM OF THE PRESS
The Supreme Court has generally rejected the government's right to prevent publication of material to which it objects.
The government can influence the media by prohibiting or mandating the publication of certain information.
Traditionally, radio and television have not been as free from government control as the print media.
Although the media frequently asserts a special right of access, the Supreme Court has placed a variety of limits to reporters' ability to gather news.
FREEDOM OF ASSEMBLY AND ASSOCIATION
Governments have the authority to impose "time, place, and manner restrictions" on the conditions of a political gathering.
In Roberts v. United States Jaycees (1984), the Court found that freedom of association is not an absolute right, nor does it pertain equally to all private organizations.
RIGHT TO KEEP AND BEAR ARMS
The Second Amendment has generated significant disagreement between gun owners and those who favor limits on firearm ownership.
In District of Columbia v. Heller (2008), the Supreme Court ruled that the Second Amendment confers an individual right to citizens to keep and bear arms for protection.
RIGHTS OF THE ACCUSED
The Fourth, Fifth, Sixth, and Eighth Amendments are dedicated to procedural protections for the accused.
The Fourth Amendment guarantees freedom from "unreasonable searches and seizures."
The Constitution does not preclude the possibility of warrantless searches, but requires that such searches be reasonable.
The exclusionary rule bars any evidence gathered illegally from consideration at trial.
The Fifth Amendment protects the accused against self-incrimination and places limits on police interrogation of criminal suspects.
The Miranda rights require officials to remind criminal suspects of their Fifth Amendment rights.
The Sixth Amendment guarantees the accused the right to counsel and to a trial by jury.
If they face a deprivation of their freedom if convicted, the Supreme Court has ruled that indigent defendants are entitled to counsel at the government's expense
The Eighth Amendment forbids the use of cruel and unusual punishment.
The Supreme Court has ruled that the death penalty does not violate the Eighth Amendment if it contains adequate safeguards for the defendant.
THE RIGHT TO PRIVACY
The Supreme Court has found an implied constitutional right to privacy and has declared that right to be fundamental.
In Roe v. Wade (1973), the Court ruled that the constitutional right to privacy is broad enough to include the termination of a pregnancy.
The Court has ruled that individuals have a constitutional right to die that is derived from their constitutional right to privacy.
Although the Court defends the right to die, it has not given its approval to assisted suicide.
