the bill of rights and civil liberties - big red live · 2020. 3. 29. · liberties from government...

The Bill of Rights and Civil LibertiesHow are your rights defined and protected under the Constitution?

Vocabulary

Glossary VocabularyCards

civil liberties

civil rights

incorporation

libel

slander

prior restraint

self-incrimination

double jeopardy

Introduction

T H E B I L L O F R I G H T S A...

2020 Teachers' Curriculum Institute Level: A

This 1949 painting by ArthurSzyk celebrates the Bill ofRights.

In the summer of 1917, the United States was desperately trying tomobilize its army to fight in World War I. The government instituted amilitary draft to raise enough troops to go to war. It also launched acampaign to increase public support for the war effort. To limit dissent,Congress passed the Espionage Act. Among other things, this law statedthat any effort to undermine the war effort would be considered acriminal act.

Many Americans were opposed to the war and the draft. One of themost outspoken opponents was Charles Schenck, the general secretaryof the American Socialist Party. Schenck and his fellow socialists took astrong stand against the draft, which they regarded as anunconstitutional violation of individual rights. They believed thatAmericans should not be forced to serve in the military against theirwill.

To promote this view, Schenck organized a mass mailing of antidraftleaflets to young men in the Philadelphia area. These flyers called thedraft “involuntary servitude” and urged draftees to call for its repeal.

Some recipients found the leaflets offensive and complained to


Level: A 2020 Teachers' Curriculum Institute

authorities. Schenck was arrested and charged under the EspionageAct. At his trial, he was declared guilty of violating the law by conspiringto undermine the war effort. Schenck appealed to the Supreme Court,arguing that the Espionage Act violated his right to free speech.

In a unanimous opinion, written by Justice Oliver Wendell Holmes Jr.,the Court held that Schenck’s conviction was constitutional. “The moststringent protection of free speech would not protect a man in falselyshouting fire in a theatre and causing a panic,” Holmes wrote. In theCourt’s view, Schenck’s publications created “a clear and presentdanger” to a nation engaged in war. “When a nation is at war,” wroteHolmes, “many things that might be said in time of peace . . . will notbe endured so long as men fight.” In such cases, the Court said, publicsafety should prevail over individual rights.

Schenck spent six months in prison for his crime. Ironically, by the timethe Supreme Court decided the case, in March 1919, the war was overand the draft had been suspended. The Schenck v. United Statesdecision did set a larger precedent, however. It allowed the courts toapply a “balancing test” in free speech cases, weighing the rights ofindividuals against the broader needs of society.

1. Defining and Protecting YourRights and LibertiesThe Schenck case illustrates the role played by the Supreme Court indefining constitutional rights. When the framers wrote the Constitution,they said almost nothing about the protection of individual rights andliberties from government abuses. They spelled out many things thegovernment could do but said very little about what it could not do.That omission was rectified by the Bill of Rights, the first tenamendments to the Constitution. These amendments guarantee twotypes of rights: civil liberties and civil rights.



When the nation is engaged in war, limitations on civil liberties becomemore stringent. This poster advertises a forum on how civil libertieschange during wartime.

Defining Civil Liberties and Civil Rights Civil liberties are basicfreedoms that are considered to be the birthright of all individuals.Thomas Jefferson and his fellow authors of the Declaration ofIndependence would have called them natural rights, or unalienablerights. In addition to the Declaration’s “Life, Liberty and the pursuit ofHappiness,” these liberties include such rights as freedom of speech,freedom of religion, and freedom of assembly. Because civil libertiesare regarded as a person’s birthright, they are not something that thegovernment can legitimately take away or infringe on.

Civil rights, on the other hand, are rights that come with being amember of society. They are not protections from government. Instead,they are guarantees by the government of equal rights and fairtreatment under the law. Included in this group are the right to trial byjury, the right to legal counsel, and the right to vote. These rights wereamong the main goals of the civil rights movement that began in themid-1950s.

With the Bill of Rights added to the Constitution, Americans wereguaranteed a broad range of civil rights and civil liberties. But thesewere only formal guarantees. The enforcement of these rights was



another matter. In fact, James Madison worried that the Bill of Rightsmight serve as little more than a “parchment barrier” againstgovernment abuses. These rights and freedoms would be safeguardedonly when protections were built into the structure of government. Thatis where the role of the Supreme Court and other federal courts hascome into play.

Early Challenges in Enforcing the Bill of Rights The Bill of Rightsdefines rights and liberties in sweeping terms. For example, the FirstAmendment says, “Congress shall make no law . . . abridging thefreedom of speech.” Does that mean government cannot limit speechin any way?

Before free speech and other rights on paper could be safeguarded, thelanguage of the Bill of Rights had to be interpreted and applied underactual circumstances. That task would fall to the Supreme Court underits power of judicial review, established in the case of Marbury v.Madison.

Marbury laid the foundation for the Supreme Court’s enforcement of theBill of Rights, but it was only the first step. The Court first decided thatthe Bill of Rights did not apply to state government actions. In 1833, theCourt concluded in Barron v. Baltimore that the Bill of Rights appliedonly to actions of the federal government. As a result, the Court coulddo little to prevent states from infringing on basic rights and liberties.

After the Civil War, some people hoped that the Court’s limitedenforcement of the Bill of Rights would change. For support, theylooked to the Fourteenth Amendment, which was ratified in 1868. Theamendment states,

No State shall make or enforce any law which shall abridgethe privileges or immunities of citizens of the United States;nor shall any State deprive any person of life, liberty, orproperty, without due process of law; nor deny to anyperson within its jurisdiction the equal protection of thelaws.

At first, the Supreme Court interpreted the amendment very narrowly.For example, in the case of Plessy v. Ferguson (1896), the Courtdeclared that racial segregation in the South did not violate theFourteenth Amendment’s Equal Protection Clause as long as“separate but equal” facilities were provided for all races.

The Supreme Court’s reluctance to make the Bill of Rights binding on



the states meant that very few cases involving civil rights or libertiescame before it in the 1800s. As a leading rights organization laterobserved, “The Bill of Rights was like an engine no one knew how tostart.”

New Hope in a New Century In the early 1900s, however, twonewly formed groups began to have some success in broadening theCourt’s application of the Fourteenth Amendment. These groups werethe National Association for the Advancement of Colored People(NAACP) and the American Civil Liberties Union (ACLU).

The two groups had different goals. The NAACP fought for civil rights,initially by challenging segregation laws in court. The ACLU, on theother hand, focused its attention on cases involving civil liberties, suchas freedom of speech. However, both groups sought to give voice tocitizens who felt their rights were being violated.

In 1919, not long after the decision in the Schenck case, free speechadvocates suffered another Court loss, this time in the case of Abramsv. United States. This case involved a group of Russian-born politicalactivists who were arrested for handing out leaflets critical of U.S.actions against Russia’s new revolutionary government. Using the sameargument applied in Schenck, the Supreme Court agreed that thelanguage in the leaflets posed a “clear and present danger” toAmerican society.

Formed in 1909, the NAACP is a group that fights for civil rights. Thisgroup brought Brown v. Board of Education to the Supreme Court, thecase that overturned the “separate but equal” doctrine established byPlessy v. Ferguson.

Although the Abrams decision presented a new limitation on freespeech, this time Justice Holmes voiced an influential dissent to theCourt’s majority opinion. He said that the “clear and present danger”argument should be applied only in cases where public safety was



actually at risk. Only an emergency, he wrote, “warrants making anyexception to the sweeping command, ‘Congress shall make no lawabridging the freedom of speech.’” Holmes’s dissent would laterinfluence the Court to take a more protective stance on free speech.

Supreme Court decisionshave extended most of therights and liberties in the Billof Rights to the states.Exceptions, such as the Thirdand Seventh amendments,have either been rejected forincorporation or not yet beentested in Court cases. TheNinth and Tenth amendmentsare not listed because theydo not safeguard specificrights and thus are notsubject to incorporation.



Incorporation: Applying the Bill of Rights to the States Not longafter the Abrams case, the Court handed down a crucial decision thatwould expand the reach of the Bill of Rights. The case in question,Gitlow v. New York, involved another group of activists. This group alsowas arrested for handing out leaflets, this time calling for an uprising tocreate a socialist government. The members of the group wereprosecuted and convicted in 1919 under a New York law forbidding“dangerous” speech.

Benjamin Gitlow appealed his conviction to the Supreme Court,claiming that the New York law violated his First Amendment right tofree speech. Lawyers for the state argued that the Bill of Rights did notapply to state laws and that the Court did not have jurisdiction todecide the case.

The Court disagreed. In a groundbreaking decision handed down in1925, the Court reversed its previous position and said that the DueProcess Clause of the Fourteenth Amendment did extend the FirstAmendment to the states. This process of applying the Bill of Rights tothe states through Supreme Court decisions is known asincorporation.

On the free speech issue, however, the Court held that the New Yorklaw did not violate the Constitution. Gitlow’s conviction was upheld,though he was later pardoned by the governor of New York.

The Gitlow case focused on freedom of speech. Subsequent cases haveextended other rights protected in the Bill of Rights to the states. Thistable shows which amendments have been similarly incorporated.

The Role of the Supreme Court Today Every year, thousands ofpeople petition to appeal legal cases to the Supreme Court. Most ofthese cases involve a constitutional issue. They often involve a conflictover rights and liberties guaranteed in the Bill of Rights. Sometimes theconflict is between an individual or a group and the government. Othertimes, it is between one individual or group and another.



In 2018, the Supreme Courtconcluded that the ColoradoCivil Rights Commissionviolated a bakery owner’sright to free exercise whenthe owner was ordered toprovide a wedding cake for asame-sex couple. However,the Court declined to rule onwhether or not the FirstAmendment protectsdiscrimination.

The role of the Supreme Court is not to retry the original case, butrather to review the legal decisions made by the lower courts. In theGitlow case, for example, the Court considered whether Gitlow’s earlierconviction under a New York law violated the First Amendment. Afterreviewing the court record and hearing the arguments, the Courtupheld Gitlow’s conviction.

What would have happened if the Supreme Court had sided withGitlow? When the Supreme Court finds that a lower court’s decision isunconstitutional, it may decide to reverse the decision. Often, however,it returns the case to a lower appeals court. That lower court may alterits original decision to conform to the Court’s opinion, dismiss the case,



or order a new trial.

When the Supreme Court makes a decision on an issue, that decisionbecomes a precedent, or example, for all courts to follow in similarcases in the future. Occasionally the Court overturns its ownprecedents. This happened in 1954, when the Court rejected its“separate but equal” decision on segregation that had been made inPlessy v. Ferguson. The Court found in Brown v. Board of Education that“separate educational facilities are inherently unequal.” Segregatedschools were, therefore, a violation of the Fourteenth Amendment’sguarantee of equal protection of the laws.

2. Your First Amendment RightsMany people regard the First Amendment as the most importantamendment in the Bill of Rights. It guarantees various rights, includingthe freedoms of religion, speech, the press, and assembly. These rightsare critical to life in a democratic society.

Freedom of Religion: The Establishment Clause The FirstAmendment begins with freedom of religion. It reads, “Congress shallmake no law respecting an establishment of religion, or prohibiting thefree exercise thereof.” This statement can be divided into two parts:the Establishment Clause and the Free Exercise Clause.

The Establishment Clause guarantees the separation of church andstate. Influenced by European tradition, most places in colonial Americahad an official church. In the colonies, everyone had to pay taxes tosupport the church, and in some places, only church members couldvote. Some communities even made church attendance mandatory.These practices discriminated against people who did not follow theestablished religion.

The founders of this country believed that having a state-sponsoredchurch was incompatible with freedom of religion. Thomas Jeffersonlater wrote that a “wall of separation” should exist between church andstate.



Before the landmark case ofEngel v. Vitale, states couldmandate that prayers be saidin school. However, theSupreme Court overruledthis, claiming that regardlessof whether students said theprayers voluntarily, the actviolated the EstablishmentClause of the Constitution.

Still, religious references do exist in government. For example,politicians say “so help me God” when taking the oath of office. Thephrase “In God We Trust” appears on currency. And Congress opens itsdaily sessions with prayer. Some critics say that these practices violatethe founding ideals. Others argue that the founders never meant todeny religion a place in public life. The issue of church-state separationhas provoked heated battles over the years.

One such battle took place in 1875. In response to a growing number ofCatholic schools, Congressman James Blaine proposed a constitutionalamendment to deny public funding to religiously affiliated schools. TheBlaine Amendment failed on the national stage, but many statesadopted similar laws. Today, more than 35 state constitutions have aversion of the law.

Still, until the early 20th century, most students were educated inchurchsponsored schools. Even as public education expanded, prayersand Bible readings continued in many schools. In general, the courtsconsidered such practices acceptable.

In the landmark case Engel v. Vitale (1962), the Court changed courseand struck down a New York law that provided a daily prayer for



students to recite. Although the Establishment Clause had previouslybeen interpreted to mean Congress could not create a national church,in Engel the Court ruled that it also banned state-sponsored prayer,even if voluntary and nondenominational, in public schools.

The Court’s decision on the Engel case remains unpopular with manyAmericans, but it has led to a greater division between religiousteaching and public education. Since school attendance is mandatory,the Court has argued that religious teachings in public schools wouldamount to forced teaching of religion by government.

In 1971, the Supreme Court decided in Lemon v. Kurtzman that thepractice of using public funds to support private religious schools wasunconstitutional. This case established a three-point “Lemon test” todetermine if and when a government action violates the EstablishmentClause. To be constitutional, a government action must

have a secular, or nonreligious, purpose.neither help nor hurt religion.not result in an “excessive entanglement” of the government andreligion.

Freedom of Religion: The Free Exercise Clause The Free ExerciseClause establishes that all people are free to follow the religiouspractices of their choice. They are also free to follow no religion. If aperson’s religious faith conflicts with the law of the land, however, thelaw must prevail. This principle was established as a legal precedent bythe Supreme Court in 1879 in the case of Reynolds v. United States.

George Reynolds was a member of the Mormon Church who followedthe practice of polygamy or having more than one spouse at a time.This practice violated a federal law, leading to Reynolds’s arrest andconviction in a Utah court. He appealed his conviction on the groundsthat the law against polygamy violated the free exercise of his religion.

In deciding against Reynolds, the Court drew a distinction betweenreligious beliefs and religious practices. It pointed out that although thelaw may not interfere with beliefs, it may interfere with practices. TheCourt argued that if people were able to disregard any law because itviolated their religious beliefs, the effect would be “to permit everycitizen to become a law unto himself. Government could exist only inname under such circumstances.”

The Court continued that line of reasoning in the 1940 case ofMinersville School District v. Gobitis. In that case, the Court decided



against two children who were suspended from school for refusing tosay the Pledge of Allegiance. As Jehovah’s Witnesses, they viewedpledging allegiance to the flag as a form of idolatry prohibited by theBible. Many supporters of religious freedom condemned the decision.

Just three years later, however, the Court reversed itself. In WestVirginia State Board of Education v. Barnette, the Court said thatJehovah’s Witnesses could refuse to salute the flag. Their right to do sowas protected under their First Amendment rights to religious freedomand free speech. In later cases, the Court has held that the governmentmust show a compelling interest in forcing people to obey a law thatviolates their religious convictions.

Freedom of Speech Freedom of speech is the second right listed inthe First Amendment. It acts like an anchor for all the other rights in theamendment, because they are all linked in one way or another to freeexpression.

After its decisions in Schenck, Abrams, and Gitlow, the Supreme Courthas generally supported freedom of speech. It has taken exception,however, to forms of speech that are harmful to others. Two clearexamples of this are libel and slander—forms of speech, either writtenor spoken, that make false statements with intent to harm. Anotherform of speech not protected under the First Amendment is obscenity,or speech offensive to conventional standards of decency.

The issue of public safety was the key factor in the Court’s earlydecisions limiting free speech. In 1969, however, the Court took acloser look at the “clear and present danger” test as advised by JusticeHolmes in his Abrams dissent. The opportunity to do so came in thecase of Brandenburg v. Ohio, which centered on a Ku Klux Klan leaderwho was arrested for giving a speech advocating illegal activities.

In its decision, the Court offered a two-part test to determine whether a“clear and present danger” exists that might justify suppressing freespeech. First, such speech has to be “directed to inciting or producingimminent lawless action.” Second, the speech must be “likely to inciteor produce such action.” The Court found that the Klan leader’s speech,though containing hateful statements, was unlikely to produce anyunlawful actions. Thus, the Brandenburg case did not pass the “clearand present danger” test.



The Supreme Courtdetermined that the FirstAmendment protects theright to symbolic free speech.These demonstrators areexercising this right bydressing as prisoners toprotest the operation of theGuantánamo Bay DetentionCamp.

In 1989, the Court extended this protection to include symbolicspeech, or conduct that conveys a message without spoken words.Five years earlier, Gregory Lee Johnson had been arrested in Texas forburning a flag to protest government policies. His actions violated astate law against “flag desecration.”

In Texas v. Johnson, the Court concluded that flag burning as anexpression of opinion was protected symbolic speech. It said that astate could not prohibit such actions, even if it found them offensive.The Court struck down the Texas law as a violation of the FirstAmendment right to free speech.

The Court has also held that some forms of pornography are protectedspeech, although the government may restrict children’s access tosexually graphic materials. In 1996, Congress tried to do just that bypassing the Communications Decency Act. The act was designed toregulate pornography on the Internet. The Court struck it down a yearlater in Reno v. American Civil Liberties Union. The Court found that thelaw was so vague that it could have limited most speech on theInternet.

In this decision, as in its flag-burning decision, the Court has made itclear that to protect all speech, some offensive speech must be allowed



to exist. That trade-off is one of the cornerstones of American society.

Freedom of the Press Free speech can be interpreted to includemost forms of expression. Nevertheless, freedom of the press was listedseparately in the First Amendment to underscore its importance in afree society. “Were it left to me to decide whether we should have agovernment without newspapers or newspapers without government,”wrote Thomas Jefferson, “I should not hesitate a moment to prefer thelatter.”

By specifically protecting the press, the First Amendment makes it clearthat free speech covers the media as well as individuals. However, thishas not stopped government officials from trying to stop the publicationof material they dislike. In Near v. Minnesota (1931), the Court declaredsuch attempts at prior restraint to be unconstitutional.

The Near case involved a newspaper that Minnesota officials wanted toshut down. The paper had published articles exposing politicalcorruption. The Court declared that a government had no right to callfor prior restraint. Keeping information from being published could beallowed only under very special circumstances, such as protectingnational security. If officials were worried about possibly libelousarticles, they could sue the publisher after the materials were in print.

In 1971, during the Vietnam War, the federal government did invoke“national security” as grounds for prior restraint. It did so after a formergovernment employee, Daniel Ellsberg, leaked classified documents tothe New York Times. Ellsberg leaked this information to show thatofficials had been lying about the war’s progress. After the Timespublished excerpts of the so-called Pentagon Papers, authorities soughtto halt any further publication of the information.



The right to peacefulassembly is an importantguarantee of the FirstAmendment. It allows peopleto gather and express theirviews in public, eitherthrough speech or throughsymbolic actions, such asmarches and protests. In2017, demonstratorsgathered in Philadelphia toprotest against the repeal ofthe Affordable Care Act andcuts to Medicaid.

In New York Times Co. v. United States, the Supreme Court decidedagainst the government. The release of the papers, it said, had nonotable impact on national security. This decision helped limit futureefforts to use national security as a pretext for censoring the press.

The reporting on the Pentagon Papers was accurate. But what aboutnews reports that are false? The First Amendment does not protectagainst libel. However, journalists sometimes make mistakes. Unless itcan be shown that their errors were intentional and were meant to doharm, journalists are not guilty of libel.

Freedom of Assembly and the Right to Petition Finally, the FirstAmendment protects “the right of the people peaceably to assemble,and to petition the Government for a redress of grievances.” The rightto petition the government to solve problems was originally consideredthe more important of the two. But over time, the right to assemble hastaken on a larger role and has been the issue in many cases.



In this cartoon, this man isexcessively armed to defendhimself against a burglar. TheSecond Amendment protectsan individual’s right to beararms, but some states stillrequire gun owners toregister their firearms andimpose regulations on howand where firearms may beused.

In keeping with the principle of peaceable assembly, manycommunities require groups that want to gather in public places toapply for permits and to follow certain rules. Some officials have usedthese requirements to limit the activities of groups they dislike. In1937, for example, Frank Hague, the mayor of Jersey City, New Jersey,refused to grant the Committee of Industrial Organization (CIO) a permitto assemble simply because he disliked labor unions. The union tookHague to court.

In Hague v. CIO, the Court decided in favor of the labor union. It foundthat Mayor Hague had applied the permit law unfairly to limit the CIO’sfreedom of assembly. Although the Court acknowledged a city’s right toset rules for the use of public spaces, it said that such rules must beenforced equally for all groups. Such rules should also be limited to“neutral” issues, such as the time, place, and nature of the meetings.

The right to petition has been the subject of only a few Court cases.One key case, however, arose during the civil rights movement. Thiscase concerned the NAACP’s efforts to encourage African Americanswho had suffered from discrimination to take their cases to court. The



state of Virginia accused the NAACP of breaking a state law by seekingout legal business. The purpose of such laws is usually to preventunethical lawyers from launching lawsuits for their own gain.

In NAACP v. Button (1963), however, the Court concluded that the civilrights group was not seeking financial gain. It was, instead, helpingpeople petition the government for their lawful rights. On that basis,the NAACP’s efforts were protected under the First Amendment.

3. Protections Against Abusesof Government PowerMore than any other amendments in the Bill of Rights, the Second,Third, and Fourth amendments were a response to the suppression ofrights under British colonial rule. In the years leading up to theAmerican Revolution, Britain often used its military authority to infringeon the liberties of colonists. These three amendments were designed toensure that such abuses would not take place under the new Americangovernment.

The Second Amendment and the Right to Bear Arms TheSecond Amendment says, “A well-regulated Militia, being necessary tothe security of a free State, the right of the people to keep and bearArms, shall not be infringed.” In colonial times, people relied on localmilitias to provide security for their communities. The militias went onto play a key role in the revolution. After the war, British philosopherRichard Price praised these militias as model security forces for ademocratic nation:

Free states ought to be bodies of armed citizens, wellregulated and well disciplined, and always ready to turnout, when properly called upon, to execute the laws, toquell riots, and to keep the peace. Such, if I am rightlyinformed, are the citizens of America.

—Observations On The Importance Of The AmericanRevolution (1784)

Although the Constitution allowed Congress to create a national armyand navy, the framers were wary of standing armies. They feared thatthe central government might use a powerful army to suppress citizens’rights. Militias, in their view, provided a better guarantee of freedomand security. They also knew that militia members usually supplied



their own weapons. So, they worded the Second Amendment to ensurethat the government would not be able to take away people’s weapons,thereby weakening the militias.

The federal government made no attempt to regulate weapons until theearly 20th century. In 1934, however, an increase in violent, gang-related shootings and an attempt on President Franklin Roosevelt’s lifeled to the passage of the first federal gun control law. This law placed atax on certain powerful firearms and required background checks onbuyers in order to limit the sale of such guns. In some cases, gunowners also had to register their weapons.

The Supreme Court upheld limitations on firearms in United States v.Miller (1939). In that case, the Court supported the conviction of twomen who had failed to register a sawed-off shotgun, a particularlydeadly weapon. Because militias never used sawed-off shotguns forcommon defense, the Court determined that government had the rightto regulate such weapons. Justice James Clark McReynolds declared,“We cannot say that the Second Amendment guarantees the right tokeep and bear such an instrument.”

Almost 70 years later, however, in District of Columbia v. Heller (2008),the Court struck down a law that banned the possession andregistration of handguns in Washington, D.C. Justice Antonin Scaliamaintained that the Second Amendment guarantees “the individualright to possess and carry weapons in case of confrontation.” Inanother case, McDonald v. City of Chicago (2010), the individual right tokeep and bear arms set forth in District of Columbia v. Heller wasapplied to state governments as well. However, those who support andthose who oppose gun control continue to dispute over the meaning ofthe Second Amendment and an individual’s right to bear arms.

The Third and Fourth Amendments: Protecting Your Home andPerson The Third and Fourth amendments are designed to protectthe privacy and property rights of citizens from abuses by lawenforcement authorities or the military.

The Third Amendment prohibits citizens from being forced to takesoldiers into their homes. Under British rule, colonists had sometimesbeen required to quarter, or feed and house, British soldiers. Manycolonists saw this quartering law as another tool British authorities usedto intimidate them.



Between 1993 and 2018, public opinion on laws restricting the sale offirearms has varied. In a survey conducted by the Gallup Organizationduring these years, Americans responded to the following question: Ingeneral, do you feel that the laws covering the sale of firearms shouldbe made more strict, less strict, or kept as they are now?



Under certain circumstances,law enforcement officialsmay carry out blanketsearches to protect publicsafety. Here, police in NewYork City, New York, search avehicle at a checkpointduring a counter-terrorisminspection. The place that thepolice set up their checkpointwas at a bustling street nearthe New York StockExchange.

Although the Third Amendment has had little direct application sincecolonial times, it offers a general guarantee for the privacy and sanctityof people’s homes. As Justice Joseph Story once wrote, the purpose ofthe Third Amendment is “to secure the perfect enjoyment of that greatright of the common law, that a man’s house shall be his own castle,privileged against all civil and military intrusion.”

The idea that people have a right to a certain amount of privacy alsoinfluenced the Fourth Amendment. This amendment forbids“unreasonable searches and seizures” of individuals or their propertywithout a properly executed warrant, or written approval from a judge.This means that law enforcement officials may not search a person’shome or property without prior consent or a legal order. A warrant mustbe based on probable cause, or reasonable suspicion of criminalbehavior. It must also be very specific in describing the place to besearched and the persons or things to be seized.

In some cases, however, the police do not need a warrant for a legalsearch. For example, they may search a person or property if they seecriminal evidence in plain view or have probable cause to believe that a



suspect is trying to destroy such evidence. Also, the Court has held thatsearches of students and their possessions by school officials do notrequire warrants.

The Supreme Court has heard numerous cases involving search andseizure. One case, Katz v. United States (1967), hinged on recordings ofa suspect’s conversation made from a public phone booth. Because therecording device was placed outside the booth and recorded only thesuspect’s voice, the police believed they did not need a warrant. Butthe Court disagreed. It concluded that a warrant was required, becausethe suspect had a “reasonable expectation of privacy” in a phonebooth.

A year later, however, another Court decision gave law enforcementofficials greater latitude to search individuals. The case, Terry v. Ohio(1968), involved three men whose behavior caused a police officer tosuspect that they were about to rob a store. After questioning the men,the officer frisked them by patting down the outside of their clothing.Two of the suspects had guns, and they were later convicted forcarrying concealed weapons. The men appealed their conviction,however, claiming that the officer did not have probable cause to friskthem. They argued that he had no evidence, other than his “hunch”that they were about to commit a crime.

The Court decided that the officer’s observations provided adequatecause for the search. It said that his actions and suspicions werereasonable given the behavior of the suspects. This “stop and frisk”rule has given the police more power to try to prevent serious crimesbefore they happen. However, studies debate the effectiveness of thisrule and the role that racial bias plays in its enforcement.

4. Your Rights in the LegalSystemThe next four amendments—the Fifth, Sixth, Seventh, and Eighth—concern the protection of rights in the judicial process. Theseamendments were designed to ensure that the justice system neitherabused fundamental liberties nor punished innocent people under thepretext of preserving law and order.

The Fifth Amendment: Your Rights When Accused of a Crime Ifyou have ever seen an arrest depicted on television, you have probablyheard the words, “You have the right to remain silent.” These words are



based on the Fifth Amendment, which protects individuals from self-incrimination, or saying anything that might imply their own guilt.

This ban on self-incrimination was meant to prevent law enforcementofficials from pressuring suspects into admitting guilt for a crime theydid not commit. In Miranda v. Arizona (1966), the Court set forth aprocedure for ensuring that suspects know their rights. Chief JusticeEarl Warren described this procedure in his written opinion:

Prior to any questioning, the person must be warned thathe has a right to remain silent, that any statement he doesmake may be used as evidence against him, and that hehas a right to the presence of an attorney.

These rights of the accused became known as Miranda rights.

The Fifth Amendment protects other rights as well. It says that no oneshall be subjected to double jeopardy. This means that if a person istried for a crime and found not guilty, prosecutors cannot try thatperson again for the same crime. It also states that no one may be“deprived of life, liberty, or property, without due process of law.” Thisprotection, known as the Due Process Clause, also appears in theFourteenth Amendment.

The Fifth Amendment also contains the Takings Clause. It says thatthe government may not take private property for public use “withoutjust compensation.” The government may exercise a power known aseminent domain to secure private property for a public purpose, suchas the construction of a road. But it must pay a fair price for theproperty.



The Fifth Amendmentprotects individuals from self-incrimination. The police arerequired to follow aprocedure to ensure thatsuspects are aware of theirrights.

The Sixth and Seventh Amendments: Your Right to a Fair TrialThe Sixth Amendment explains how criminal trials should be conductedto protect the rights of the accused. The Seventh Amendmentguarantees trial by jury in most civil lawsuits. Civil cases are those thatdo not involve criminal matters.

The Sixth Amendment says that criminal trials must be carried outquickly, publicly, and in front of an impartial jury. The defendant hasthe right to legal counsel and to see all the evidence used in the trial.

The right to legal counsel was the focus of the 1963 Court case ofGideon v. Wainwright. Clarence Earl Gideon was a poor, uneducated ex-convict who was arrested for theft in Florida. Unable to afford anattorney, he asked the court to provide him free legal counsel. BecauseFlorida courts provided such services only in death penalty cases, thejudge turned him down. Gideon was found guilty and sentenced to fiveyears in prison.



Media coverage on a courtcase may influence trialresults and deny due processrights to defendants. In thispicture, the media are readyto cover the court hearing offootball star O.J. Simpson,who was on trial for themurder of his wife. Becauseof the farreaching coverageof this trial, people across theUnited States had formedopinions on Simpson’sinnocence before the jury hadreached a verdict.

While in prison, Gideon educated himself on his legal rights and filed anappeal that eventually made its way to the Supreme Court. There, thejustices sided with Gideon, arguing that the Sixth Amendmentguarantee of legal counsel should not depend on the defendant’s abilityto pay. Gideon was appointed a lawyer and had his case retried. Thistime, he was found not guilty. Today anyone facing charges who cannotafford an attorney can have one appointed at the government’sexpense.

At times, a defendant’s Sixth Amendment rights may come into conflictwith other rights and liberties. For example, freedom of the press is akey civil liberty, and the news media have a right to cover public trials.But if this coverage affects a trial’s outcome, the accused may bedenied due process of law. This was the issue before the Court in thecase of Sheppard v. Maxwell.

On July 4, 1954, Sam Sheppard’s wife was murdered at the couple’s



home near Cleveland, Ohio. Sheppard claimed that an armed intruderhad knocked him unconscious and then killed his wife. Nonetheless, hewas charged with the crime and found guilty. Throughout the trial, theCleveland press covered the story relentlessly, often in a manner thatimplied Sheppard’s guilt.

Sheppard appealed his conviction while in prison, arguing that biasedpress coverage had prevented him from getting a fair trial. Afterhearing the case in 1966, the Court overturned the murder conviction,agreeing that coverage of the trial had “inflamed and prejudiced thepublic.” Sheppard was retried in the lower court and found not guilty.

Although the Court acknowledged the media’s First Amendment rightsin Sheppard v. Maxwell, it said that press coverage should not beallowed to interfere with a defendant’s right to due process. In caseswhere intense media coverage might unfairly influence a trial, the trialshould be moved to another location or the jury should be isolated fromall news coverage.

The Eighth Amendment: Your Protection from Excessive Bailand Punishments The Eighth Amendment protects people in thecriminal justice system from excessive bail, fines, or cruel and unusualpunishments. Bail is money given over to the court in exchange for asuspect’s release until their trial begins.

Most of the legal challenges to this amendment have involved theprohibition of cruel and unusual punishment. The Supreme Court hasacknowledged that beliefs of what is “cruel and unusual” may changeover time. For example, when the amendment was written, publicwhipping was a common punishment. Today, such a punishment wouldbe considered cruel and unusual.

Some Americans today hold that capital punishment, or the deathpenalty, is also a cruel and unusual punishment. However, most deathpenalty cases have been about the method of execution, such as lethalinjection, not on the death sentence itself. In the 1890 case of In reKemmler, the Court said that any method of execution is acceptable, aslong as it does not involve “torture or lingering death.”

In the 1972 case of Furman v. Georgia, however, the Court focused onthe death penalty itself. It concluded that capital punishment was crueland unusual when it was inconsistently and unequally applied from onecase to another. The Court observed that all too often, two peopleconvicted of a capital crime received very different penalties. Onemight be sentenced to life in prison while the other was condemned to



death.

The Court’s decision in Furman v. Georgia halted all executions in theUnited States. Convicts on death row received reprieves. In most cases,their death sentences were converted to life in prison.

By 1976, many states had altered their laws so that capital punishmentwas applied more consistently. That year, in Gregg v. Georgia, the Courtconcluded that the death penalty was constitutional under the newlaws. Most states reinstated capital punishment as a sentencing option.Still, limits on capital punishment exist. Juveniles and intellectuallydisabled persons, for example, may not be executed.

5. Rights and Powers of theStates and the PeopleThe last two amendments, the Ninth and Tenth, are the most generalamendments in the Bill of Rights. The Ninth Amendment is designed tooffer protection for rights and liberties not specifically mentioned in theother amendments. The Tenth Amendment is meant to preserve thebalance of power between the federal and state governments.

The Ninth Amendment: Your Rights Beyond Those Listed in theConstitution The Ninth Amendment is the Bill of Rights’ “safety net.”It states that other rights and liberties may exist beyond those listed inthe Constitution, and it offers protection for those unenumeratedrights. Some of these unlisted rights were later protected under otheramendments and laws. For more than 150 years, however, theSupreme Court rarely cited the Ninth Amendment and never clearlydefined what rights it might include.



Legal executions in theUnited States steadilydeclined from the 1930sthrough the 1970s. In 1972,the Supreme Court imposeda ban on capital punishment.A Court decision reinstatedthe death penalty in 1976,however. What trends do yousee in this graph, and whatevents may have causedthem?

In 1965, in the case of Griswold v. Connecticut, some justices on theCourt declared that the Ninth Amendment includes the right to privacy.Estelle Griswold, an official with the Planned Parenthood League ofConnecticut, had been arrested for providing medical advice to marriedcouples on how to prevent pregnancy. Her actions violated aConnecticut law that prohibited the use of contraceptives. In itsdecision, the Court declared that the law violated marital privacy rights.Eight years later, in Roe v. Wade (1973), the Court extended the rightto privacy to include a woman’s right to have an abortion.

Although the Constitution does not specifically mention privacy, theCourt said that it was an implied right in the First, Third, and Fourthamendments. The Ninth Amendment provides further support, theCourt said, by stating that a right need not be cited in the Constitutionto be valid. The scope of the right to privacy remains a contested issue,



however, and has not been fully resolved by the Court.

The Tenth Amendment: Powers Reserved for the States and thePeople The Tenth Amendment is concerned more with federalism, orthe balance of federal and state powers, than with individual rights. Itlimits the powers of the federal government to those granted under theConstitution, reserving other powers for the states and the people.

In this photograph, EstelleGriswold (left) and CorneliaJahncke celebrate the legalvictory in the 1965 caseGriswold v. Connecticut. Bothwere working with thePlanned Parenthood Leagueof Connecticut when Griswoldwas arrested for providingcontraceptive information tomarried couples. TheSupreme Court struck down astate law banning the use ofcontraceptives andintroduced the idea that theright to privacy is supportedby the Bill of Rights.

Under our federal system of government, the states must uphold lawsenacted by Congress. When state laws clash with federal laws, federallaw takes precedence under the Supremacy Clause of Article VI.

Many areas of the law, however, are not mentioned in the Constitution



or granted to the federal government. Laws governing publicinfrastructure and public schools are just one example. The power toregulate these and many other matters that shape our daily lives isreserved for the states.

At times, the Supreme Court has struck down federal laws thatoverstepped the government’s constitutional authority. One examplewas the decision in the case of United States v. Morrison (2000). Thiscase focused on one part of the Violence Against Women Act, whichallowed victims of domestic violence to sue their attackers in federalcourt. The Court struck down this section, saying that violent crimebetween individuals was an issue for the states, not the federalgovernment.

Although many civil rights and liberties are guaranteed powers in theBill of Rights, they are often the topic of debate. The SecondAmendment and gun control, for example, continue to be at the centerof a contentious discussion, despite the Court ruling in District ofColumbia v. Heller (2008). While the Court decided that the SecondAmendment allows individuals to own guns for self-defense, somepeople believe otherwise. The exact scope of the rights protected in thefirst ten amendments has caused disputes from the rights’implementation through the present day.

SummaryThe first ten amendments, collectively known as the Bill of Rights, wereadded to the Constitution to safeguard civil liberties and civil rights.However, it took many years for the Supreme Court to apply the Bill ofRights to the actions of state and local governments.

The role of the judiciary The Bill of Rights defines rights andliberties in broad, abstract terms. The judicial branch interprets the firstten amendments and applies them to actual circumstances.

Protecting basic civil liberties The First Amendment protects thefreedoms of religion, speech, the press, and assembly. It alsoguarantees the right to petition the government.

Preventing abuses of power The Second, Third, and Fourthamendments are designed to protect the rights of citizens fromgovernment abuses of power.

Safeguards under the legal system The Fifth, Sixth, Seventh, and



Eighth amendments define and protect rights under the judicial system.

Powers of the states and the people The Ninth Amendmentprotects other, unnamed rights not specified in the Bill of Rights. TheTenth Amendment reserves powers not granted to the federalgovernment to the states or the people.

U.S. Supreme Court Cases:Case 2: United States v.O’Brien, 1968 - You Make theCallDoes the Selective Service Act's ban on destroying draft cards infringeon a protester's First Amendment right of free speech?

The Story Behind the Case

On the morning of March 31, 1966, David Paul O'Brien and three otheryoung men burn their draft cards on the steps of the South BostonCourthouse. They say their action is a protest against the war inVietnam. FBI agents take O'Brien into the courthouse, where he proudlydisplays the charred remnant of the small white card. He is arrested forviolating the Selective Service Act, which established a peacetime draftin 1948. The act requires young men to register for the draft at age 18and carry their draft cards with them at all times. In 1965 Congressamended the Selective Service Act to make it a crime to knowinglydestroy a draft card.

O'Brien is tried in the U.S. District Court for the District ofMassachusetts. He insists on acting as his own attorney during the trial.He tells the jury that he burned his draft card to persuade others tooppose the war. He argues that the 1965 amendment to the SelectiveService Act is unconstitutional because it limits his freedom of“symbolic speech.” O'Brien is found guilty and sentenced to themaximum of six years as a “youth offender.”

On appeal, the U.S. Court of Appeals for the First Circuit holds that theSelective Service Act's ban on destroying draft cards does violatefreedom of speech. However, the appellate court affirms O'Brien'sconviction for nonpossession of his draft card.



Both O'Brien and the United States petition the Supreme Court forreview. O'Brien challenges his conviction for not carrying his draft cardafter burning it. The government challenges the appellate court'sholding that the 1965 amendment to the Selective Service Act isunconstitutional. The Supreme Court reviews both challenges as onecase.

Relevant Case

Stromberg v. People of State of California, 1931 Yetta Stromberg, anactive member of the Young Communist League, was working as acounselor at a children's summer camp in California. She had hercampers make a red flag like that of the Soviet Union. They thenpledged allegiance to “the workers' red flag and . . . freedom for theworking class.” She was arrested and convicted of violating theCalifornia Red Flag Law. This law prohibited the display of a red flag “asan emblem of opposition to organized government.” The SupremeCourt found that the flag-ban law violated the Fourteenth Amendment,which says a state shall not “deprive any person of life, liberty, orproperty, without due process of law.” It held that “The conception of‘liberty' under the due process clause of the Fourteenth Amendmentembraces the right of free speech.” This was the first time the Courthad struck down a state law that limited symbolic speech.

Arguments for the Appellant: United States

• The requirement that men carry draft cards is essential to theeffective operation of the Selective Service system. • The 1965 amendment to the Selective Service Act prohibiting thedestruction of draft cards is aimed at maintaining a well-run draftsystem. • The effect of the ban on destroying draft cards on First Amendmentrights is minimal. The law banning destruction of draft cards should beupheld as a proper exercise of congressional power.

Arguments for the Appellee: David Paul O'Brien

• Requiring men to register for the draft is essential to the operation ofthe Selective Service system. Making them carry draft cards at all timesis not. • Burning a draft card is a form of symbolic speech, which is protectedby the First Amendment. • The 1965 amendment to the Selective Service Act prohibiting thedestruction of draft cards is aimed at limiting free speech and is



therefore unconstitutional.

Does the Selective Service Act, which requires young men tocarry draft cards at all times and bans the destruction of draftcards, violate the First Amendment? You make the call.

U.S. Supreme Court Cases:Case 2: United States v.O’Brien, 1968 - The Decision ofthe CourtDoes the Selective Service Act's ban on destroying draft cards infringeon a protester's First Amendment right of free speech?

The Decision (7-1)

The Supreme Court held that a government regulation that limits freeexpression is justified if it meets these four conditions: 1. The regulation “is within the constitutional power of thegovernment.” 2. The regulation “furthers an important or substantial governmentinterest.” 3. The interest of the government “is unrelated to the suppression offree speech.” 4. The limit on free speech “is no greater than is essential to thefurtherance of that interest.”

The Court found that the Selective Service Act met all four conditions.Writing for the majority, Chief Justice Earl Warren observed,

The constitutional power of Congress to raise and supportarmies and to make all laws necessary and proper to thatend is broad and sweeping. The power of Congress toclassify and conscript manpower for military service is“beyond question” . . . Congress may establish a system ofregistration for individuals liable for training and service,and may require such individuals within reason tocooperate in the registration system. The issuance ofcertificates [draft cards] indicating the registration andeligibility classification of individuals is a legitimate and



substantial administrative aid in the functioning of thissystem. And legislation to insure the continuing availabilityof issued certificates serves a legitimate and substantialpurpose in the system's administration.

The Court also held that the 1965 amendment to the Selective ServiceAct was constitutional. Warren wrote that the amendment simplybanned the act of destroying a draft card, and nothing more.

The governmental interest and the scope of the 1965 amendment arelimited to preventing harm to the smooth and efficient functioning ofthe Selective Service System. When O'Brien deliberately renderedunavailable his registration certificate, he willfully frustrated thisgovernmental interest. For this noncommunicative [nonspeech] impactof his conduct, and for nothing else, he was convicted.

The Supreme Court reversed the judgment of the appellate court. The1965 amendment to the Selective Service Act remained in force, andO'Brien's conviction for violating that act was upheld.

U.S. Supreme Court Cases:Case 3: United States v. Miller,1939 - You Make the CallDoes a federal law requiring the licensing of firearms violate the SecondAmendment?

The Story Behind the Case

Agents of the Department of the Treasury are watching Jack Miller andFrank Layton, who are suspected of robbing banks and selling illegalliquor. On April 18, 1938, the two men are arrested for transporting anunlicensed sawed-off shotgun across state lines. They are accused ofviolating the National Firearms Act of 1934 (NFA). This act is aimed atcontrolling weapons, like sawed-off shotguns, that are commonly usedin criminal activities. It requires such firearms to be registered with thefederal government. It also places an excise tax of $200 on the sale ortransfer of ownership of these firearms. That amount is roughly equal tofive months' average salary.

The two defendants come to trial in the U.S. District Court for theWestern District of Arkansas. Their attorney argues that the National



Firearms Act violates the Second Amendment. This amendment states,“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.”The intent of the NFA, the attorney says, is to restrict that right. Thedistrict court judge agrees and throws out the indictment of Miller andLayton. The U.S. attorney appeals the judge's decision directly to theSupreme Court.

Relevant Case

Sonzinsky v. United States, 1937 In this case, Max Sonzinsky, a dealerin firearms, was convicted for not registering with the government andnot paying a $200 annual firearms dealer's tax as required by theNational Firearms Act. Sonzinsky challenged the constitutional validityof the tax. He argued that the $200 fee was not really a tax but rather apenalty designed to punish the sale of certain kind of firearms. Hefurther argued that such regulation of firearms dealers was a powerreserved for the states, not the national government. The SupremeCourt did not agree. Chief Justice Harlan F. Stone wrote, “Every tax is insome measure regulatory . . . But a tax is not any the less a taxbecause it has a regulatory effect.”

Arguments for the Appellant: The United States

• The National Firearms Act is a revenue-collecting measure and thuswithin the constitutional powers of Congress to enact. • The Second Amendment only protects weapons used by a militia,such as the U.S. National Guard or state defense forces. • The weapons that must be licensed under the NFA are those typicallyused by criminals. Such weapons would be useless for militarypurposes. • There is nothing in the NFA that prohibits the ownership and transportof licensed weapons as long as they are properly registered. There isno Second Amendment infringement of the right to bear arms.

Arguments for the Appellee: Miller

• The National Firearms Act is a not a revenue-collecting measure. Itstrue purpose is to regulate firearms, a power not given to Congress. • The NFA is an unconstitutional attempt by Congress to take over“police powers” reserved to the states. These are the powers needed tomaintain an orderly society. • The NFA is designed to discourage individuals from owning certainweapons. This is an unconstitutional infringement of their Second



Amendment right to bear arms.

Does the National Firearms Act, with its licensing requirementsand high excise taxes, violate the Second Amendment? Youmake the call.

U.S. Supreme Court Cases:Case 3: United States v. MIller,1939 - The Decision of theCourtDoes a federal law requiring the licensing of firearms violate the SecondAmendment? The Decision (9-0) The Supreme Court held that theNational Firearms Act is constitutional. Citing the Sonzinksy precedent,it found that the act did not violate the police power of the states. Inaddition, it declared that the Second Amendment did not guarantee thedefendants the right to own sawedoff shotguns. Writing for the Court,Justice James McReynolds noted, In the absence of any evidencetending to show that possession or use of a “shotgun having a barrel ofless than eighteen inches in length” at this time has some reasonablerelationship to the preservation or efficiency of a well regulated militia,we cannot say that the Second Amendment guarantees the right tokeep and bear such an instrument. The Court reversed the decision ofthe federal district court and sent the case back to the lower court forretrial. Both gun-control and gun-rights advocates see this decision as avictory for their sides. Gun-control advocates see it as a win because itindicates that the government can regulate the kinds of weaponsowned by citizens. Gun-rights advocates see it as a win because itindicates that owning weapons with a military purpose is protected bythe Second Amendment. They point out that short-barreled shotgunshave been used by the U.S. military, a fact that the justices were notaware of when this decision was written.West Virginia State Board of Education v. Barnette

In 1842, the West Virginia Board of Education required public schoolstudents to salute the American flag or recite the Pledge of Allegiance.Walter Barnette, a Jehovah’s Witness, sued in a district court on thepremises that it was unconstitutional and a violation of freedom ofspeech and religion to have to salute the flag. Barnette won his case.This led the state school board to appeal to the Supreme Court. The



court ruled that compelling children to salute the flag in a public schoolwas unconstitutional, with the majority opinion written by Justice RobertH. Jackson. An excerpt of the majority opinion is below.

In weighing arguments of the parties, it is important todistinguish between the due process clause of theFourteenth Amendment as an instrument for transmittingthe principles of the First Amendment and those cases inwhich it is applied for its own sake. The test of legislationwhich collides with the Fourteenth Amendment, because italso collides with the principles of the First, is much moredefinite than the test when only the Fourteenth is involved.Much of the vagueness of the due process clausedisappears when the specific prohibitions of the Firstbecome its standard. The right of a State to regulate, forexample, a public utility may well include, so far as the dueprocess test is concerned, power to impose all of therestrictions which a legislature may have a "rational basis"for adopting. But freedoms of speech and of press, ofassembly, and of worship may not be infringed on suchslender grounds. They are susceptible of restriction only toprevent grave and immediate danger to interests which theState may lawfully protect. It is important to note that,while it is the Fourteenth Amendment which bears directlyupon the State, it is the more specific limiting principles ofthe First Amendment that finally govern this case. Nor doesour duty to apply the Bill of Rights to assertions of officialauthority depend upon our possession of markedcompetence in the field where the invasion of rights occurs.True, the task of translating the majestic generalities of theBill of Rights, conceived as part of the pattern of liberalgovernment in the eighteenth century, into concreterestraints on officials dealing with the problems of thetwentieth century, is one to disturb self-confidence. Theseprinciples grew in soil which also produced a philosophythat the individual was the center of society, that his libertywas attainable through mere absence of governmentalrestraints, and that government should be entrusted withfew controls, and only the mildest supervision over men'saffairs. We must transplant these rights to a soil in whichthe laissez-faire concept or principle of noninterference haswithered, at least as to economic affairs, and socialadvancements are increasingly sought through closerintegration of society and through expanded andstrengthened governmental controls. These changed



conditions often deprive precedents of reliability, and castus more than we would choose upon our own judgment.But we act in these matters not by authority of ourcompetence, but by force of our commissions. We cannot,because of modest estimates of our competence in suchspecialties as public education, withhold the judgment thathistory authenticates as the function of this Court whenliberty is infringed. 4. Lastly, and this is the very heart ofthe Gobitis opinion, it reasons that "National unity is thebasis of national security," that the authorities have "theright to select appropriate means for its attainment," andhence reaches the conclusion that such compulsorymeasures toward "national unity" are constitutional. Id.at310 U. S. 595. Upon the verity of this assumption dependsour answer in this case. National unity, as an end whichofficials may foster by persuasion and example, is not inquestion. The problem is whether, under our Constitution,compulsion as here employed is a permissible means forits achievement. Struggles to coerce uniformity ofsentiment in support of some end thought essential to theirtime and country have been waged by many good, as wellas by evil, men. Nationalism is a relatively recentphenomenon, but, at other times and places, the ends havebeen racial or territorial security, support of a dynasty orregime, and particular plans for saving souls. As first andmoderate methods to attain unity have failed, those benton its accomplishment must resort to an ever-increasingseverity. As governmental pressure toward unity becomesgreater, so strife becomes more bitter as to whose unity itshall be. Probably no deeper division of our people couldproceed from any provocation than from finding itnecessary to choose what doctrine and whose programpublic educational officials shall compel youth to unite inembracing. Ultimate futility of such attempts to compelcoherence is the lesson of every such effort from theRoman drive to stamp out Christianity as a disturber of itspagan unity, the Inquisition, as a means to religious anddynastic unity, the Siberian exiles as a means to Russianunity, down to the fast failing efforts of our presenttotalitarian enemies. Those who begin coercive eliminationof dissent soon find themselves exterminating dissenters.Compulsory unification of opinion achieves only theunanimity of the graveyard. It seems trite but necessary tosay that the First Amendment to our Constitution wasdesigned to avoid these ends by avoiding these beginnings.



There is no mysticism in the American concept of the Stateor of the nature or origin of its authority. We set upgovernment by consent of the governed, and the Bill ofRights denies those in power any legal opportunity tocoerce that consent. Authority here is to be controlled bypublic opinion, not public opinion by authority. The case ismade difficult not because the principles of its decision areobscure, but because the flag involved is our own.Nevertheless, we apply the limitations of the Constitutionwith no fear that freedom to be intellectually and spirituallydiverse or even contrary will disintegrate the socialorganization. To believe that patriotism will not flourish ifpatriotic ceremonies are voluntary and spontaneous,instead of a compulsory routine, is to make an unflatteringestimate of the appeal of our institutions to free minds. Wecan have intellectual individualism and the rich culturaldiversities that we owe to exceptional minds only at theprice of occasional eccentricity and abnormal attitudes.When they are so harmless to others or to the State asthose we deal with here, the price is not too great. Butfreedom to differ is not limited to things that do not mattermuch. That would be a mere shadow of freedom. The testof its substance is the right to differ as to things that touchthe heart of the existing order. If there is any fixed star inour constitutional constellation, it is that no official, high orpetty, can prescribe what shall be orthodox in politics,nationalism, religion, or other matters of opinion, or forcecitizens to confess by word or act their faith therein. Ifthere are any circumstances which permit an exception,they do not now occur to us. We think the action of thelocal authorities in compelling the flag salute and pledgetranscends constitutional limitations on their power, andinvades the sphere of intellect and spirit which it is thepurpose of the First Amendment to our Constitution toreserve from all official control. The decision of this Court inMinersville School District v. Gobitis, and the holdings ofthose few per curiam decisions which preceded andforeshadowed it, are overruled, and the judgment enjoiningenforcement of the West Virginia Regulation is Affirmed.

Texas v. Johnson

In 1984, Gregory Lee Johnson burned an American flag in front of theDallas City Hall in protest of the Reagan administration. Johnson wassubsequently tried and convicted under Texas law. He was sentenced to



a year in jail and fine. However, his conviction was overturned by theTexas Court of Criminal Appeals, which argued that flag burning wasprotected as free speech under the First Amendment. The SupremeCourt accepted the case, and ruled that the desecration of the U.S. flagwas constitutionally protected under the First Amendment. Below is anexcerpt from the majority opinion.

We are fortified in today's conclusion by our conviction thatforbidding criminal punishment for conduct such asJohnson's will not endanger the special role played by ourflag or the feelings it inspires. To paraphrase JusticeHolmes, we submit that nobody can suppose that this onegesture of an unknown man will change our Nation'sattitude towards its flag. See Abrams v. United States, 250U. S. 616, 250 U. S. 628 (1919) (Holmes, J., dissenting).Indeed, Texas' argument that the burning of an Americanflag "is an act having a high likelihood to cause a breach ofthe peace,'" Brief for Petitioner 31, quoting Sutherland v.DeWulf, 323 F.Supp. 740, 745 (SD Ill.1971) (citationomitted), and its statute's implicit assumption that physicalmistreatment of the flag will lead to "serious offense," tendto confirm that the flag's special role is not in danger; if itwere, no one would riot or take offense because a flag hadbeen burned. We are tempted to say, in fact, that the flag'sdeservedly cherished place in our community will bestrengthened, not weakened, by our holding today. Ourdecision is a reaffirmation of the principles of freedom andinclusiveness that the flag best reflects, and of theconviction that our toleration of criticism such as Johnson'sis a sign and source of our strength. Indeed, one of theproudest images of our flag, the one immortalized in ourown national anthem, is of the bombardment it survived atFort McHenry. It is the Nation's resilience, not its rigidity,that Texas sees reflected in the flag -- and it is thatresilience that we reassert today. The way to preserve theflag's special role is not to punish those who feel differentlyabout these matters. It is to persuade them that they arewrong. "To courageous, self-reliant men, with confidence inthe power of free and fearless reasoning applied throughthe processes of popular government, no danger flowingfrom speech can be deemed clear and present unless theincidence of the evil apprehended is so imminent that itmay befall before there is opportunity for full discussion. Ifthere be time to expose through discussion the falsehoodand fallacies, to avert the evil by the processes of



education, the remedy to bee applied is more speech, notenforced silence." Whitney v. California, 274 U. S. 357, 274U. S. 377 (1927) (Brandeis, J., concurring). And, preciselybecause it is our flag that is involved, one's response to theflag-burner may exploit the uniquely persuasive power ofthe flag itself. We can imagine no more appropriateresponse to burning a flag than waving one's own, nobetter way to counter a flag burner's message than bysaluting the flag that burns, no surer means of preservingthe dignity even of the flag that burned than by -- as onewitness here did -- according its remains a respectfulburial. We do not consecrate the flag by punishing itsdesecration, for in doing so we dilute the freedom that thischerished emblem represents. Johnson was convicted forengaging in expressive conduct. The State's interest inpreventing breaches of the peace does not support hisconviction, because Johnson's conduct did not threaten todisturb the peace. Nor does the State's interest inpreserving the flag as a symbol of nationhood and nationalunity justify his criminal conviction for engaging in politicalexpression. The judgment of the Texas Court of CriminalAppeals is therefore Affirmed.

West Virginia State Board of Education v. Barnette excerpt from JustiaSupreme Court Center.

Entire Selection: https://supreme.justia.com/cases/federal/us/319/624/

Accessed July, 2019.

Texas v. Johnson excerpt from Justia Supreme Court Center.

Entire Selection: https://supreme.justia.com/cases/federal/us/491/397/

Accessed July, 2019.



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