Government_Ch7_info

=**Constitutional Freedoms Background Information**=

**Constitutional Rights:**
The Bill of Rights are the first ten amendments to the Constitution. They protect civil liberties, which are basic individual freedoms that are protected against government abuse. The Bill of Rights restricts what the government is able to do. The protect individuals from congressional, state, and local threats to basic rights. The Bill of Rights were not part of the original Constitution since each state constitutions contained a bill of rights, but state leaders were suspicious of the new Constitution. The Anti-Federalists pushed for a Bill of Rights. One such Anti-Federalist was George Mason, the Virginian who developed the Virginia Declaration of Rights and therefore became known as the Father of the Bill of Rights. The Federalists had said a bill of rights wasn't needed since the new federal government only had the powers that were expressly written in the Constitution and each state provided all civil liberties. However, the Anti-Federalists were able to get an agreement that a bill of rights be added in order to get support for the Constitution. Therefore, in 1791 James Madison introduced the amendments and the Constitution was amended with the Bill of Rights.

The 14th amendment, which was put on in 1868, defined citizenship as a person born or naturalized in the U.S. and said that life, liberty, and property cannot be deprived without the due process of law. This was put onto the Constitution was the intention of making sure the former slaves had their citizenship rights. This amendment provides for our civil rights, which are rights of fair and equal status and treatment and the right to participate in government. The Supreme Court has ruled that the Bill of Rights applies to the state and local governments. The Bill of Rights were intended to be for the federal government to keep the federal government from becoming too powerful. It didn't have to apply to the states since all states have the same rights granted in their state constitutions. Over time though, the Supreme Court has incorporated some of the rights in the Bill of Rights to the states, which increases federal power over the states.

**Freedom of Religion:**
The first clause of the first amendment is the Establishment Clause, which said "Congress shall not establish an official church," which means Congress cannot establish an official religion. The next clause is the Free Exercise Clause, which prevents the government from interfering with the practices of one's religion. It's important to understand that the Founding Fathers were not trying to remove Judeo-Christian values from society, but merely didn't want the national government telling Americans where they had to go to church. The founding documents clearly show that the founders viewed religion as a duty and clearly believed that spiritual forces led America to independence. The Secular-Progressive movement aims to make the amendment mean freedom FROM religion, when in reality the founders viewed Judeo-Christian values as necessary for America to grow.

Religion is involved in public life and has been since the founding era. Most officials take their oaths of office in the name of God with their hand on the Bible. "In God We Trust" is on our money (although Secular-Progressive groups are aiming to have that removed). "One nation, under God" is in our pledge of allegiance and is also another target of secular groups. Most public meetings, Congress's sessions, and state legislatures being with prayer. Chaplains serve each branch of the armed forces. Most church property and contributions to religious groups are tax-exempt. Many of America's historical movements were let by churches. The American Revolution would never have happened if the Great Awakening didn't take place in the colonies in which the church preached that all were created equal in the eyes of God. The first anti-slavery groups were the Quakers who began the Underground Railroad. The Civil Rights Movement led by Martin Luther King Jr., a minister, was rooted in Christian principles.

There would be numerous Supreme Court decisions that impacted the government and its role with religion. //Engel v. Vitale// in 1962 banned school prayer even in schools where it was completely optional. The next year, the Supreme Court banned Bible readings and the reciting of the Lord's Prayer in //Abbington School District v. Schempp//. The major case in which the Supreme Court changed the original intentions of the Constitution was //Lemon v. Kurtzman//, which ruled that laws and government spending had to be secular and that government could not inhibit or advance a religion and avoid any entanglement with religion. This is how groups are able to win cases when a school posts the Ten Commandments even though this doesn't come close to violating what the original intent was in terms of the establishment clause. The court did rule that busing students to religious schools was okay in //Everson v. Board of Education// since education benefits students regardless of being public or religious. The courts would also allow state funds to go to private schools for textbooks and other materials as long as the materials were secular. The Supreme Court ruled that daily moments of silence, clergy-led prayer at graduation, and even student-led prayers over the p.a. system at sporting events was illegal. As you can see, the secular Supreme Court has done a lot of damage to what the founders intended. Another example of this is that laws can't require the teaching of creation and cannot deny the teaching of evolution. The Supreme Court has allowed public high schools to receive federal funds to permit student religious groups to hold meetings in the school.

The Free Exercise Clause means that the government cannot prohibit citizens from practicing their religion. Belief is absolute, but there are some restrictions to this freedom. In //Reynolds v. United States//, the Supreme Court ruled against polygamy (Reynolds was a Mormon and had two wives). This ruling said people are not free to worship in ways that violate laws protecting health, safety, or morals of the community. The Supreme Court also had ruled that children going to school had to have their vaccinations even if religious beliefs were against, since the health of the other students had to be considered. The court upheld the firing of a worker who used illegal drugs as part of a religious ceremony. Religious reasons to not say the pledge of allegiance is legal.

**Freedom of Speech:**
There are various types of speech. Pure speech is verbal expression of thought and opinion before an audience that has chosen to listen. Symbolic speech involves using actions and symbols. There are types of speech that are prohibited. The courts have outlawed seditious speech, which is any speech urging resistance to lawful authority or advocating the overthrow of the government. The Clear and Present Danger rule says when speech presents an immediate danger, then it isn't protected, which was the ruling in //Schenck v. United States// when Oliver Wendell Holmes used the example of yelling "fire" in a crowded theater as something that creates a clear and present danger. The Bad Tendency Doctrine restricts speech that could lead to an illegal action. Sedition Laws would get defined in the Yates Decision and the Brandenburg Decision. The Yates Decision ruled that saying the government should be overthrown is legal and different that urging someone to do it, which is illegal. The Brandenburg Decision ruled that hate speech is legal unless intended to advocate immediate and concrete acts of violence.

There are other types of speech that is not protected. Defamatory speech and "fighting words" are unprotected. Defamatory speech is false speech that damages a person's character or reputation. Slander is defamation that is spoken, while libel is defamation that is written or printed. "Fighting words" are words so insulting that they provoke immediate violence such as racial slurs or threats. In terms of student speech, the Supreme Court ruled in Tinker v. Des Moines that students were allowed to wear black armbands to protest Vietnam. Dress codes are legal, but the armbands weren't a violation. Students can be suspended for lewd or indecent speech, whether verbal or symbolic. Speech in school newspapers can be limited.

**Freedom of the Press:**
Prior restraint is government censorship of information before it is published and cannot be done by the government, which was upheld in //Near v. Minnesota//. In //New York Times Co. v. United States// the Supreme Court ruled that government could keep documents from being printed only for national security (the Pentagon Papers showing that the public was misled about Vietnam were printed by the New York Times).

Sometimes free press and a fair trial conflict especially when it comes to press coverage at a trial. In //Sheppard v. Maxwell//, the Supreme Court described several measures to ensure a fair trial in regards to press coverage. First, a judge can move a trial to reduce publicity. Two, there can be a limit put on the number of courtroom reporters. Three, controls can be placed on reporters' conduct. Fourth, jurors can be kept isolated from the press and witnesses can be isolated from the press. Fifth, a jury can be sequestered, or kept isolated until the end of the trial. A gag order is ordered by a judge barring the press from publishing certain information. This is unconstitutional if it's too vague since that would be a violation of free press. Trials must be open to the public, but coverage can be limited.

Today, the press is more than just newspapers, magazines, and pamphlets. TV and radio are regulated by the FCC (Federal Communications Commission). There are less restrictions for cable TV and satellite radio. The movie industry regulated itself. Internet speech is on the same level as other first amendment decisions. Obscenity is not protected, which is from the case //Miller v. California//. Advertising is considered "commercial speech," or speech with a profit motive and has strong regulations.

**Freedom of Assembly:**
Right for groups to meet and assemble allows political parties and interest groups to exist. All groups are allowed to meet as long as they are not committing acts of violence. This freedom includes the right to have parades and to demonstrate, though boroughs and townships often require permits for public order and safety. Unions are allowed picketing, or patrolling an establishment to convince workers and the public not to enter. There are often debates as to the distance of buffer zones for protesting at a place in conflict with the protesters.

There are regulations when in comes to public assembly and disorder. The heckler's veto is a free speech and free assembly issue of groups that may lead to violence by demonstrating, such as the KKK, Neo-Nazis, and more recently the Occupy Wall Street protests. The Supreme Court most recently ruled that as long as unpopular demonstrations are peaceful, they are within the first amendment and if an angry crowd gets violent, then those in the opposing crowd are guilty.

**Rights of the Accused:**
The 4th amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." These means the government or police cannot conduct illegal searches or seizures. Police must have a search warrant or probable cause to conduct a search and seize evidence.

There are special situations with the 4th amendment. There is no need for a warrant when police see a person breaking the law. Furthermore, illegal evidence can be seized when police are making an arrest or are in a legal situation, such as a traffic stop. When items are set out for garbage, those items can be searched or seized. Drug tests for workers are legal if such tests are to protect the public safety.

The Exclusionary Rule says that any illegally obtained evidence cannot be used in court. //Mapp v. Ohio// extended this protection to the states. If police act in good faith, evidence can be used even if the warrant is defective. Illegally obtained evidence can be used if the prosecutor can prove that the evidence eventually would've been discovered legally. Police with a warrant can search a home even if the owners aren't there. Police can search automobiles and containers inside if they have probable cause.

Other issues with the 4th amendment include students in schools and also wiretapping. No warrant is needed to search students or their property on school grounds. This comes from the ruling in //New Jersey v. T.L.O//. Schools can do random drug tests on students in extracurricular activities. In terms of wiretaps, the same rules apply in terms of searches or seizures. However, the federal Patriot Act allows FBI wiretaps without a warrant if the purpose is to stop terrorism.

The rights of the accused are protected in other amendments as well. The 5th amendment protects against self-incrimination, or that people cannot be forced to testify against their self. The right to remain silent was set in //Escobedo v. Illinois// and the rights that have to be read to a person when arrested became known as the Miranda Rights in //Miranda v. Arizona//. The 5th amendment also says no double jeopardy, or that a person may not be tried twice for the same crime, keeping from continual harassment. The 6th amendment guarantees the right to counsel, or an attorney, as well as a speedy and public trial with an impartial jury, which was ruled in //Gideon v. Wainwright//. Cruel and unusual punishment is forbidden in the 8th amendment, which says no excessive bails or fines and no cruel or unusual punishment. The death penalty was outlawed in 1972 in //Furman v. Georgia//, but it was later ruled Constitutional under the right conditions in //Gregg v. Georgia//.

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