GOVT 2301

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GOVT 2301

• Civil Liberties and the Bill of Rights

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The final constitutional principle we will
discuss is individual liberty. The fancy term
we will use is civil liberty.
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Note that other principles are contained in the
constitution, but these (most notably equality)
were added to the document after the original
document was ratified.
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Here are the goals for this section. After
reading through the available material and
accessing some of the more critical links you
should be comfortable with the following
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For past blog posts on relevant material, click
on theseBill of Rightscivil libertiesestablish
ment clausefirst amendmentfree
exerciseprocedural liberty
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Two quick definitions of the term civil
liberty.1 - The protections of individuals
from the arbitrary powers of government.2 -
the freedom of a citizen to exercise customary
rights, as of speech or assembly, without
unwarranted or arbitrary interference by the
government.
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You can find more expansive definitions, thoughts
and comments here About.comACLU This Week in
Civil LibertiesCato Institute Civil
LibertiesDavid Hume, Of Civil LibertyWikipedia
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Note A civil liberty is not the same as a civil
right. Freedom of speech is a civil liberty.
The right to equal protection is a civil
right.We will cover this more fully in the next
section.
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Civil liberties are established by limiting the
government. Specific limits are placed on its
powers.
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As we will see, there are tow ways to do so.
The first is to design the system so that its
various parts check each other. The second is to
place explicit limits on the powers of government
in a document called a bill of rights.
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The document as ratified contained the former,
but not the latter.
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The Federalists thought the republican design, in
addition to the checks and balances was
sufficient to limit governing power, but the
Anti-Federalists needed a further guarantee.
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The Bill of Rights places two general types of
limitations on the powers of the national
government SubstantiveProcedural
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(Note that prior to the 14th Amendment, the Bill
of Rights applied only to the national
government.)
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As a consequence we can speak of procedural
liberty (notably due process) and substantive
liberty.
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A substantive limit refers to what government can
pass laws about(religion, speech, press etc)
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Example You are free to say what you wish
because government is limited from passing laws
which restrict speech. (we will analyze
exceptions to this in due course)
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A procedural limit refers to how the executive
and judicial powers can be used.The Due Process
of Law
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Example How, and under what conditions, can
someone be searched? And if one is accused of a
crime, what rights does one have in a court of
law?
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For us, these limits are contained in the U.S.
Bill of Rightsand theTexas Bill of Rights
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Note that the U.S. Bill of Rights was added on to
the original document after ratification in
order to appease the Anti-Federalists.On the
other hand, the Texas Bill of Rights is the
subject of the First Article of the Texas
Constitution.
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Again, the Federalists believed that the Bill of
Rights was unnecessary, Hamilton and Madison
thought not.The overall design of the
constitution was sufficient to limit it the
national government.
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A Bill of Rights might also prove dangerous to
individual liberty because it might not be
expansive enough.
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Basic Fact The U.S. Bill of Rights has ten
sections these are the first ten amendments to
the Constitution. There is no separate section
titled the bill of rights. the term simply
refers to the first ten amendments.
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Some useful links regarding the Bill of
Rights.Its History and SignificanceWikipediaJa
mes Madison and the Bill of Rights
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It is relatively short and vague. As is the rest
of the Constitution. It is commonly
reinterpreted, often controversially so.
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Example A recent Supreme Court case dealt with
the question whether gaming was constitutionally
protected speech.
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Basic Fact The Texas Constitution does have a
unique section called the Bill of Rights. It is
the first Article of the document. It has 33
sections, and has been heavily amended since it
was first written. Most recently in 2009.
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As with the rest of the Texas Constitution, it is
long detailed and precise.
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Bills of Rights were commonly attached to state
constitutions. It was argued that they were
necessary because the states had as we know
powers that were many and undefined.
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Federalist argued that the power of the national
government was most effectively limited by
properly designing balancing -- governmental
institutions and their powers.
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Republicanism, checks and balances, and
federalism all are argued to allow for individual
freedom by balancing and limiting governmental
power.
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The national government was limited to the
delegated powers granted to it. They were few
and defined.
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Madison and Hamilton originally argued that these
would be sufficient to ensure that the powers of
government would be limited.
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The Anti-Federalists were unconvinced and
demanded that a Bill of Rights be added to the
document to ensure that specific limits were
placed on the national government.
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Five states, including Massachusetts, ratified
the Constitution on the condition that such
amendments be added immediately.
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James Madison agreed to introduce and push it
through the House when he became a member of it.
He thought it was harmless.
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The addition of the Bill of Rights is therefore a
product of a compromise between the Federalists
and the Anti-Federalists. It was the subject of
Federalist 84 (wikipedia).
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Federalist 84Anti Federalist 84
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In Federalist 84, Hamilton argues that a Bill of
Rights is not necessary since the national
government can only exercise the powers delegated
to it.
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There is no reason to that Congress has no power
to pass a law on a subject that it has no
delegated authority over.
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State governments did need Bills of Rights since
they possessed the reserved powers and could more
easily become tyrannical.
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Republicanism, Federalism and the Checks and
Balances should be sufficient to ensure that the
national government would not overstep its
authority.
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Adding a Bill of Rights stating that Congress
could not pass laws on matters not delegated to
it raised a question regarding the limits of the
rights individuals possessed.
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Noah Webster thought it would be dangerous to do
so. It is impossible to spell out all the
rights of individuals. To only list a few would
imply that others did not exist.
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Listing six freedoms in the First Amendment might
lead others to suggest that these are the only
ones that exist.
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What about rights not mentioned in the
Constitution? Privacy?Travel?Contract?Propert
y?Voting?
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For general information Things that are not in
the Constitution.
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If the right is not explicitly written in the
Constitution, it may be argued that the power
does not exist.
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An example.Clarence Thomas Dissenting Opinion
in Lawrence v. Texas.
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I join Justice Scalias dissenting opinion. I
write separately to note that the law before the
Court today is uncommonly silly. Griswold v.
Connecticut, 381 U.S. 479, 527 (1965) (Stewart,
J., dissenting). If I were a member of the Texas
Legislature, I would vote to repeal it. Punishing
someone for expressing his sexual preference
through noncommercial consensual conduct with
another adult does not appear to be a worthy way
to expend valuable law enforcement
resources.Notwithstanding this, I recognize
that as a member of this Court I am not empowered
to help petitioners and others similarly
situated. My duty, rather, is to decide cases
agreeably to the Constitution and laws of the
United States. Id., at 530. And, just like
Justice Stewart, I can find neither in the Bill
of Rights nor any other part of the Constitution
a general right of privacy, ibid., or as the
Court terms it today, the liberty of the person
both in its spatial and more transcendent
dimensions, ante, at 1.
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There would be no way to make this argument if
there was no First Amendment.
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Was this what Hamilton was concerned about here?
bills of rights, in the sense and in the extent
in which they are contended for, are not only
unnecessary in the proposed constitution, but
would even be dangerous. They would contain
various exceptions to powers which are not
granted and on this very account, would afford a
colorable pretext to claim more than were
granted. For why declare that things shall not be
done which there is no power to do?
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As we know It was argued that since many states
had bills of rights, it was necessary for the
national government to have one as well.
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The response was that since the powers of the
state governments are potentially far broader
than those of the national government, a Bill of
Rights was necessary to protect the people from
the states.
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Nevertheless, a bill of rights was proposed
during the Constitutional Convention (August 20).
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But it is also argued that a statement of the
specific liberties held by the people is
essential to the formation of a free society.It
clearly establishes the importance of these
rights.
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Every time we read the First Amendment, for
example, we are reminded of the importance of
religious liberty as well as that of speech,
press, assembly and petition. They attain a
unique status among all liberties.
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Some History
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The rights listed in the Bill of Rights evolved
over time.Some of this history we have
discussed so this concept should be familiar by
now.
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We have noted four specific predecessors to the
Bill of Rights.
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The Charter of LibertiesMagna CartaThe Petition
of RightThe English Bill of Rights
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The Charter of Liberties (1100) was issued by
Henry I in order to convince the nobility and the
church that he would abide by the law.
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These were a bit random, and were soon forgotten.
But they would become the model for the Magna
Carta which established specific procedural
limits on the power of the monarchy.
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Magna Carta (1215)
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As we know, Magna Carta was forced upon John by
the nobility. It was intended to minimize
arbitrary rule.
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For our purposes, the most important result of
the document was that it established that no
freeman could be punished unless it was in
accordance with the law of the land.
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A handful of its provisions establish what we now
know as the rule of law or procedural liberty
as we are calling it now.
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38. No bailiff for the future shall, upon his own
unsupported complaint, put anyone to his "law",
without credible witnesses brought for this
purposes.
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39. No freemen shall be taken or imprisoned or
disseised or exiled or in any way destroyed, nor
will we go upon him nor send upon him, except by
the lawful judgment of his peers or by the law of
the land.
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40. To no one will we sell, to no one will we
refuse or delay, right or justice.
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Respectively these establish the idea that
convictions must be based on eyewitness
testimony, convictions must be rendered by a
jury, and that justice is available to all.
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Much of the 6th Amendment which establishes the
procedural liberties of criminal defendants - is
based on this.
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The Petition of Right (1628)
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The Petition of Right was written to remind
Charles I of the ancient rights and liberties
agreed to in Magna Carta.
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The petition was written by Edward Coke who
modified Magna Carta to apply to all subject of
the crown, not just the nobility.All subjects
of the crown should have liberties from the
arbitrary actions of the government.
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Charles was unconvinced and suspended Parliament
as a result.But he would be executed soon
enough, and the Scottish Stuarts would be removed
in the Glorious Revolution, which led as we
know to
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The English Bill of Rights (1689)
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This document, backed by a powerful Parliament,
would not only ensure that the procedural
limitations placed on the power of the monarch
would be secure, but it also added substantive
liberties as well.
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A Small Sampling
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The English Bill of Rights

• . . . it is the right of the subjects to petition
  the king, and all commitments and prosecutions
  for such petitioning are illegal
• . . . the subjects which are Protestants may have
  arms for their defence suitable to their
  conditions and as allowed by law
• . . . the freedom of speech and debates or
  proceedings in Parliament ought not to be
  impeached or questioned in any court or place out
  of Parliament
• . . . excessive bail ought not to be required,
  nor excessive fines imposed, nor cruel and
  unusual punishments inflicted

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Aspects of the First, Second, and Eighth
Amendment can be found here. But notice that
religious liberty is not honored. Protestants are
privileged over Catholics (this is something to
think about prior to our discussion of equal
protection and civil rights).
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The Declaration of Independence (1776)
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The Declaration of Independence would establish
that the liberties of Englishmen should apply to
the white, property owning, male inhabitants of
the colonies.
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Note we cover the expansion of liberties to
other groups in society when we discuss civil
rights.
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The Declaration is based on John Lockes
argument in the Second Treatise on Government. We
covered this material previously so it should be
familiar to you.
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Liberty was considered to be among the
unalienable rights, and a government should be
evaluated based on how well it was securing
individual liberty.
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The document does not lay out all unalienable
rights, but aside from mentioning life, liberty
and the pursuit of happiness, it lists grievances
which suggest what types of incursions they
thought unacceptable.
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Two other useful documents
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The Virginia Declaration of RightsThe
Declaration of the Rights of Man and of the
Citizen
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The Virginia Declaration of Rights was also
written by Jefferson and was intended to serve as
Virginias Bill of Rights.
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The Declaration of the Rights of Man was Frances
Bill or Rights, written during their revolution.
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Each document is far more forceful, than the U.S.
Bill of Rights, in how they state these rights.
Certain things are inherent in the individual and
must be guaranteed.
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The Bill of Rights does not make similar
statements. It is really less about the rights of
individuals than it is about limiting the power
of government.
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The document assumes that people have certain
liberties, and establishes them by negating the
power of government to interfere with those
liberties.
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Two useful terms Negative LibertyPositive
Liberty
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Negative LibertyA liberty established by the
negation of the power that can suppress it.
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The First Amendment, for example, starts with the
phrase Congress shall make no law. The subject
of the document is not the people and what they
can do, but government and what it cannot do.
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This is distinct from a positive liberty which
places an obligation on a governing authority to
actively provide for the right.This is a good
definition of a civil right.
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For example, many people consider education to be
a right, which means that we are obligated to
provide it.
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Five points about the Bill of Rights
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1 - It is undemocratic.It establishes that, for
example, certain laws cannot be passed, even if
the majority supports it. This minimizes the
ability of the majority to impose its will on the
minority
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Congress can make no law...Even if the
majority wants it to?
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This is meant to save the minority from the
majority, but it does so by limiting the
majority. This explains why the implementation
of these limitations can be very unpopular.
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2 - Civil Liberties are not absolute.They can
be limited if doing so secures the greater
interest of society.
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Example Freedom of Speech does not protect you
from being punished for falsely shouting fire in
a crowded theater.
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The most stringent protection of free speech
would not protect a man falsely shouting fire in
a theater and causing a panic. ... The question
in every case is whether the words used are used
in such circumstances and are of such a nature as
to create a clear and present danger that they
will bring about the substantive evils that
Congress has a right to prevent. Oliver
Wendell Holmes, Schenck v. U.S.
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A related concept Ordered LibertyPeople are
free to act within the confines of what it takes
to have an orderly society.
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Another example The Constitution is not a
suicide pact - Eric PosnerCan restrictions on
searches and seizures be too restrictive on the
ability of government to enforce the law?
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Controversy What factors justifiably limit
constitutional liberties?How do we define the
greater interest of society?
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This is an ongoing source of controversy, but it
is generally held that liberties have their
limits. Establishing those limits is an ongoing
source of controversy.
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3 Civil Liberties can come into conflict
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Some liberties in the Bill of Rights can come
into conflict with others.
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The Freedom of the Press can conflict with The
Right to a Fair Trial.
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The Right Against Self Incrimination vs. the
Right to Obtain Witnesses in Your Favor
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4 The specific recognition of rights is up to
the Supreme Court.This involves controversies
over how the Constitution is to be interpreted
and what role the court should have in
overturning legislation.
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Examples of rights established by Supreme Court
Decisions The Right to PrivacyOne Person One
VoteMiranda WarningsRights of Corporations
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The Right to PrivacyThe Supreme Court
recognized in Griswold v. Connecticut within the
broad language of the Constitution, a right to
privacy.
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One Person One Votein Baker v Carr the Supreme
Court ruled against the existence of uneven
districts because they violated an implicit
guarantee that votes be equal.
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Miranda WarningsIn Miranda v Arizona the court
argued that the Fifth Amendment right against
self incrimination had to be made clear to
criminal suspects.
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Rights of CorporationsIn Citizens United v. FEC
the Supreme Court argued that corporations have
the same speech rights as citizens.
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Controversy How expansively should rights be
inferred from the document?How should the
Constitution be interpreted?
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Strict interpretationLoose interpretation
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Strict Interpretationoriginal intenttextualism
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Loose interpretationLiving Constituion
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One with a loose interpretation of the
Constitution is likely to see rights embedded
within the document that are not acknowledged by
those with a strict interpretationExample
Privacy / Abortion
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Competitive elections often include statements
regarding a candidates viewpoint concerning how
the Constitution should be interpreted.
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5 Originally the Bill of Rights applied only to
the national government, but the 14th Amendment
made it applicable to the states.
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All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the
State wherein they reside. No State shall make or
enforce any law which shall abridge the
privileges or immunities of citizens of the
United States
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This made the restriction placed on the national
government applicable to state and local
governments as well. States could not deny
liberties to American citizens. Their citizens
were also American citizens, so the conflict was
inevitable.
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Controversy followed since states were no longer
able to deny certain liberties to their
citizens.They were freer to speak, organize and
use the press. They also had freedoms against the
arbitrary use of law enforcement.
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Supreme Court cases the apply national civil
liberty restrictions to state governments contain
language stating that the national limit applies
to the states through the 14th Amendment.
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The doctrine of equal protection of the laws
was also established in the 14th Amendment, but
we cover that when we discuss civil rights.
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Next TopicThe Content of the Bill of Rights
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Responding to demands by the states ratifying
conventions, James Madison introduced several
constitutional amendments to the House of
Representatives when it first met.
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Twelve would be sent to the states, ten would be
ratified.
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One of the rejected amendments was a right to
conscience. No State shall violate the equal
rights of conscience, or the freedom of the
press, or the trial by jury in criminal cases.
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It was rejected by the Senate.
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To repeat a point made above There are two
types of liberties established in the Bill of
Rights, substantive and procedural.We will
review each.
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Substantive LibertiesThe what of
governmentThese are contained in Amendments 1,
2, 3, 9, and 10
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First Amendment Congress shall make no law
respecting an establishment of religion, or
prohibiting the free exercise thereof or
abridging the freedom of speech, or of the press
or the right of the people peaceably to assemble,
and to petition the Government for a redress of
grievances.
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It establishes Six Liberties EstablishmentFree
ExerciseSpeechPressPeaceful AssemblyPetition
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More attention is paid to this amendment than to
any other. We will dig into these controversies
soon.
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Second Amendment A well regulated Militia, being
necessary to the security of a free State, the
right of the people to keep and bear Arms, shall
not be infringed.
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Until several years ago, the Supreme Court had
never clarified the meaning of the opening
phrase. Is the right to bear arms absolute or
conditional upon the existence of a militia
(which a standing army has made unnecessary)?
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In the case DC v. Heller, the court ruled 5-4,
that it was an absolute right.McDonald v.
Chicago made this applicable through the 14th
Amendment to the states.
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Third Amendment No Soldier shall, in time of
peace be quartered in any house, without the
consent of the Owner, nor in time of war, but in
a manner to be prescribed by law.
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There is very little jurisprudence associated
with this amendment.
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Ninth Amendment The enumeration in the
Constitution, of certain rights, shall not be
construed to deny or disparage others retained by
the people.
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Establishes, controversially, that other rights
may exist, but it does not explain how these
rights might be justified.
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This amendment was used to help establish the
right to privacy. There is debate regarding how
often, and how, it ought to be used.
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Tenth Amendment The powers not delegated to the
United States by the Constitution, nor prohibited
by it to the States, are reserved to the States
respectively, or to the people.
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As we already know, this amendment defines the
terminology of federalism.
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Procedural LibertiesThe how of
governmentAmendments 4 - 8
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As suggested above, together these amendments
define the parameters of what we know as the Due
Process of Law.The legal system from
beginning to end has to follow certain
guidelines to keep it from being an agent of
arbitrary power.
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Given the power government has to remove an
individuals life, liberty and property, these
amendments restrict the potential that this power
can be used in a discretionary or arbitrary
manner.
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These are what some people derisively call
technicalities.
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Fourth Amendment The right of the people to be
secure in their persons, houses, papers, and
effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly
describing the place to be searched, and the
persons or things to be seized.
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After the First Amendment, this gets more
attention form the courts than almost any other
amendment.
160
It places limits on the investigative power of
law enforcement.
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A search must be justified. Police cannot go on
fishing expeditions casting their nets wide to
see what they can catch.
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Searches have to be based on probable cause and
be based on a warrant which states what they are
looking for and where they think they will find
it.
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But how broadly will the court define probable
cause? What level is suspicion is necessary to
justify a search?
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An additional area of controversy The
Exclusionary RuleCan evidence gathered in an
unreasonable search be excluded from being
introduced in court?
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Fifth Amendment No person shall be held to
answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land
or naval forces, or in the Militia, when in
actual service in time of War or public danger
nor shall any person be subject for the same
offence to be twice put in jeopardy of life or
limb nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived
of life, liberty, or property, without due
process of law nor shall private property be
taken for public use, without just compensation
166
This places limits on the arbitrary actions of
district attorneys.
167
Trials can only be justified if an indictment is
issued by a grand jury, they only have one crack
at finding a defendant guilty, and defendants
cant be tortured in order to get evidence.
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Areas of Controversy Double JeopardyEminent
Domain
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Sixth Amendment In all criminal prosecutions,
the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State
and district where in the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be informed
of the nature and cause of the accusation to be
confronted with the witnesses against him to
have compulsory process for obtaining witnesses
in his favor, and to have the Assistance of
Counsel for his defence.
170
This applies to trials. Judges must ensure that
defendant know what they are accused of, can
challenge accusers, have access to a lawyer, and
have access to a speedy and public trial before a
jury of their peers.
171
This limits the arbitrary power of judges.
172
Again there are significant areas of controversy
Assistance of CounselHow competent must
public defenders be?
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Seventh Amendment In Suits at common law, where
the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury, shall be
otherwise re-examined in any Court of the United
States, than according to the rules of the common
law.
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Eight Amendment Excessive bail shall not be
required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.
175
This is almost word for word what exists in the
English Bill of Rights. Punishments must be
proportional to the crime
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Ongoing area of controversy Is the death
penalty cruel and unusual?
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The 14th Amendment
178
The 14th Amendment makes these procedures
mandatory to the states. At least in theory.
179
The 14th Amendment was written after the Civil
War to negate Dred Scott decision. The Supreme
Court ruled that Scott was not a citizen and had
no right to sue in the courts.
180
The 14th Amendment ruled that anyone born in the
US was a citizen and states could not violate
their rights (their privileges and immunities) as
Americans.This included access to the courts.
181
No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States nor shall any
State deprive any person of life, liberty, or
property, without due process of law nor deny to
any person within its jurisdiction the equal
protection of the laws
182
The question soon became whether this argument
applied to all other matters raised in the
Constitution as well, including the liberties
guaranteed in the Bill of Rights.
183
Over time these limitations on national power
were applied to the states (incorporated) on a
case by case basis. This process was called
selective incorporation
184
The Selective Incorporation of the Bill of Rights
to the States.- Wikipedia.- Exploring
Constitutional Conflicts.- Free Legal
Encyclopedia.
185
This idea was rejected early on howeverThe
Slaughter House Cases.
186
Beginning in early 20th Century a series of cases
began to use the 14th Amemdment to protect
American citizens from the actions of the states.
187
Gitlow v New YorkThe freedom of speech is
applied to the states
188
Mapp v. Ohio Applied the right against
unreasonable searches and seizures to the states
189
McDonald v ChicagoApplied the right to keep and
bear arms to the states.
190
What is the current status of incorporation?
191
From Exploring Constitutional Conflicts 1st
Amendment Fully incorporated. 2nd Amendment
Fully incorporated. 3rd Amendment No Supreme
Court decision 2nd Circuit found to be
incorporated. 4th Amendment Fully incorporated.
5th Amendment Incorporated except for clause
guaranteeing criminal prosecution only on a grand
jury indictment. 6th Amendment Fully
incorporated. 7th Amendment Not incorporated.
8th Amendment Incorporated with respect to the
protection against "cruel and unusual
punishments," but no specific Supreme Court
ruling on the incorporation of the "excessive
fines" and "excessive bail" protections.
192
(No Transcript)
193
The Texas Bill of Rights
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A far more detailed and specific document,
195
The Texas Bill of Rights guarantees certain
rights not guaranteed by the U.S. Bill of Rights.
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Sections 3 and 3aEqual Rights Amendment
197
Sec. 3.  EQUAL RIGHTS. All free men, when they
form a social compact, have equal rights, and no
man, or set of men, is entitled to exclusive
separate public emoluments, or privileges, but in
consideration of public services. Sec. 3a.  EQUA
LITY UNDER THE LAW. Equality under the law shall
not be denied or abridged because of sex, race,
color, creed, or national origin. This amendment
is self-operative.
198
Religion is covered in four sections 4 7.
199
Sec. 4.  RELIGIOUS TESTS. No religious test shall
ever be required as a qualification to any
office, or public trust, in this State nor shall
any one be excluded from holding office on
account of his religious sentiments, provided he
acknowledge the existence of a Supreme
Being. Sec. 5.  WITNESSES NOT DISQUALIFIED BY
RELIGIOUS BELIEFS OATHS AND AFFIRMATIONS. No
person shall be disqualified to give evidence in
any of the Courts of this State on account of his
religious opinions, or for the want of any
religious belief, but all oaths or affirmations
shall be administered in the mode most binding
upon the conscience, and shall be taken subject
to the pains and penalties of perjury.
200
Sec. 6.  FREEDOM OF WORSHIP. All men have a
natural and indefeasible right to worship
Almighty God according to the dictates of their
own consciences. No man shall be compelled to
attend, erect or support any place of worship, or
to maintain any ministry against his consent. No
human authority ought, in any case whatever, to
control or interfere with the rights of
conscience in matters of religion, and no
preference shall ever be given by law to any
religious society or mode of worship. But it
shall be the duty of the Legislature to pass such
laws as may be necessary to protect equally every
religious denomination in the peaceable enjoyment
of its own mode of public worship.
201
Sec. 7.  APPROPRIATIONS FOR SECTARIAN PURPOSES.
No money shall be appropriated, or drawn from the
Treasury for the benefit of any sect, or
religious society, theological or religious
seminary nor shall property belonging to the
State be appropriated for any such purposes.
202
Freedom of Speech is presented as more an
individual guarantee then it is in the First
Amendment.
203
Sec. 8.  FREEDOM OF SPEECH AND PRESS LIBEL.
Every person shall be at liberty to speak, write
or publish his opinions on any subject, being
responsible for the abuse of that privilege and
no law shall ever be passed curtailing the
liberty of speech or of the press. In
prosecutions for the publication of papers,
investigating the conduct of officers, or men in
public capacity, or when the matter published is
proper for public information, the truth thereof
may be given in evidence. And in all indictments
for libels, the jury shall have the right to
determine the law and the facts, under the
direction of the court, as in other cases.
204
Due Process Rights are very specific. See Bail
for example Section 11.
205
Examples
206
Section 11cFamily Violence
207
Sec. 11c.  VIOLATION OF AN ORDER FOR EMERGENCY
PROTECTION INVOLVING FAMILY VIOLENCE. The
legislature by general law may provide that any
person who violates an order for emergency
protection issued by a judge or magistrate after
an arrest for an offense involving family
violence or who violates an active protective
order rendered by a court in a family violence
case, including a temporary ex parte order that
has been served on the person, or who engages in
conduct that constitutes an offense involving the
violation of an order described by this section
may be taken into custody and, pending trial or
other court proceedings, denied release on bail
if following a hearing a judge or magistrate in
this state determines by a preponderance of the
evidence that the person violated the order or
engaged in the conduct constituting the offense.
208
Section 15 aCommitment of Persons of Unsound
Mind
209
Sec. 15-a.  COMMITMENT OF PERSONS OF UNSOUND
MIND. No person shall be committed as a person of
unsound mind except on competent medical or
psychiatric testimony. The Legislature may enact
all laws necessary to provide for the trial,
adjudication of insanity and commitment of
persons of unsound mind and to provide for a
method of appeal from judgments rendered in such
cases. Such laws may provide for a waiver of
trial by jury, in cases where the person under
inquiry has not been charged with the commission
of a criminal offense, by the concurrence of the
person under inquiry, or his next of kin, and an
attorney ad litem appointed by a judge of either
the County or Probate Court of the county where
the trial is being held, and shall provide for a
method of service of notice of such trial upon
the person under inquiry and of his right to
demand a trial by jury.
210
Section 17Regards government taking property
for public use. Written in response to Kelo v
New London.
211
Section 24Military Subordinate to Civil
Authority
212
Sec. 24.  MILITARY SUBORDINATE TO CIVIL
AUTHORITY. The military shall at all times be
subordinate to the civil authority.
213
Section 26Perpetuities and Monopolies
214
Sec. 26.  PERPETUITIES AND MONOPOLIES
PRIMOGENITURE OR ENTAILMENTS. Perpetuities and
monopolies are contrary to the genius of a free
government, and shall never be allowed, nor shall
the law of primogeniture or entailments ever be
in force in this State.
215
Section 30 and 31Rights of Crime Victims and
Compensation of Victims of Crime
216
Section 32Marriage
217
(a) Marriage in this state shall consist only of
the union of one man and one woman.(b)  This
state or a political subdivision of this state
may not create or recognize any legal status
identical or similar to marriage.
218
Section 33Access and Use of Public Beaches
219
(No Transcript)
220
Detail on Religious Liberties
221
Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof
222
Some background on the phrase wall of separation
between church and state.An overview from
Findlaw.
223
Two letters - Danbury Baptist Association of
Connecticut to Thomas Jefferson.- Jeffersons
Reply.
224
establishment of religion
225
Links- Wikipedia.- Exploring Constitutional
Conflicts.- First Amendment Center.- The
Founders Constitution.- FindLaw.
226
What does establishment mean?
227
''For the men who wrote the Religion Clauses
of the First Amendment the 'establishment' of a
religion connoted sponsorship, financial support,
and active involvement of the sovereign in
religious activity.'' - findlaw.
228
Over time, it has involved a variety of other
questions.Public FundingSchool PrayerPublic
DisplaysCreationism
229
Engle v. Vitale Government-directed prayer in
public schools violates the Establishment Clause
of the First Amendment, even if the prayer is
denominationally neutral and students may remain
silent or be excused from the classroom during
its recitation.
230
Lemon v. Kurtzman For a law to be considered
constitutional under the Establishment Clause of
the First Amendment, the law must have a
legitimate secular purpose, must not have the
primary effect of either advancing or inhibiting
religion, and must not result in an excessive
entanglement of government and religion.
231
Marsh v. Chambers The practice of hiring a
chaplain for the Nebraska state legislature did
not violate the Establishment Clause of the First
Amendment.
232
Van Orden v. Perry A Ten Commandments monument
erected on the grounds of the Texas State Capitol
did not violate the Establishment Clause, because
the monument, when considered in context,
conveyed a historic and social meaning rather
than an intrusive religious endorsement.
233
Kitzmiller v. Dover Area School District
Teaching intelligent design in public school
biology classes violates the Establishment Clause
of the First Amendment to the Constitution of the
United States (and Article I, Section 3 of the
Pennsylvania State Constitution) because
intelligent design is not science and "cannot
uncouple itself from its creationist, and thus
religious, antecedents."
234
free exercise
235
Links - Wikipedia.- Exploring Constitutional
Conflicts.- First Amendment Center.- FindLaw.
236
What does free exercise mean?
237
When is it appropriate to place limits on the
free exercise of religion?
238
Areas of recent dispute Medical Assistance for
ChildrenPeyote UseAnimal Sacrifices
239
Reynolds v. United States Religious duty was not
a suitable defense to a criminal indictment.
240
Employment Division, Department of Human
Resources of Oregon v. Smith The Free Exercise
Clause permits the State to prohibit sacramental
peyote use and thus to deny unemployment benefits
to persons discharged for such use." Neutral laws
of general applicability do not violate the Free
Exercise Clause of the First Amendment.
241
Church of Lukumi Babalu Aye v. City of Hialeah
The states cannot restrict religiously-mandated
ritual slaughter of animals, regardless of the
purpose of the slaughter.
242
A final point Test Cases
243
Some of the more important decisions that have
established the nature of civil liberty
protections have resulted from test cases, which
are cases deliberately designed to force the
Supreme Court to rule on a law limiting a
particular action.
244
Some of the cases mentioned above were test
cases. Griswold v ConnHeller v DC
245
A lawsuit, or a deliberate violation of the law
was initiated with the expectation that the
person accused of the crime would have the
standing necessary to challenge the
constitutionality of the law in court.
246
Study Guide
247
- Be able to define civil rights and understand
how they are protected both in the body of the
Constitution and the Bill of Rights.- What is
the difference between a liberty and a right?-
What is the difference between a substantive and
procedural freedom?- Why was the Bill of Rights
added to the Constitution? What arguments were
made in favor and against doing so?- What
factors might be used to limit the liberties
listed in the Bill of Rights?
248
- What predecessors influenced the Bill of
Rights?- Be able to answer questions about each
of the first ten amendments. - How are conflicts
over the precise nature of the liberties
contained in the Bill of Rights resolved? - What
controversies have resulted from loose
interpretations of the language in the Bill of
Rights? - What impact has the 14th Amendment had
on the relationship between the Bill of Rights
and the states?
249
- What are the similarities and differences
between the U.S. and Texas Bills of Rights?-
What does the U.S. Bill of Rights not
guarantee?- What does the First Amendment
actually limit? What does this tell us about the
overall structure of American government?