Changes

==Introduction==

==Introduction==

The Amendments to the [[Constitution]] dominate current legal and political controversies.  The [[Bill of Rights]] – Amendments one through ten – and the Fourteenth Amendment have wrought enormous changes.  We explain the [[Bill of Rights]] now, and reach the Fourteenth Amendment in a future class.

The [[Amendment]]s to the [[Constitution]] dominate current legal and [[politics|political]] controversies.  The [[Bill of Rights]] – [[Amendment]]s one through ten – and the Fourteenth [[Amendment]] have wrought enormous changes.  We explain the [[Bill of Rights]] now, and reach the Fourteenth [[Amendment]] in a future class.

==[[Bill of Rights]]==

==[[Bill of Rights]]==

Opposition was so strong to the [[Constitution]] that its supporters had to promise a “[[Bill of Rights]].”  But ratification only required nine out of thirteen states (Article VII), and that was attained when a convention in [[New Hampshire]] approved it (57-47) on June 21, 1788.  But the large states of [[Virginia]] and [[New York]] had not yet joined the [[Union]], and the [[Anti-Federalists]] were strong in both states.  These were the home states of [[Madison]] and [[Hamilton]], respectively, the biggest supporters of the [[Constitution]].

Opposition was so strong to the [[Constitution]] that its supporters had to promise a “[[Bill of Rights]].”  But ratification only required nine out of thirteen [[state]]s (Article VII), and that was attained when a convention in [[New Hampshire]] approved it (57-47) on June 21, 1788.  But the large [[state]]s of [[Virginia]] and [[New York]] had not yet joined the [[Union]], and the [[Anti-Federalists]] were strong in both [[state]]s.  These were the home [[state]]s of [[Madison]] and [[Hamilton]], respectively, the biggest supporters of the [[Constitution]].

[[Virginia]] only ratified the [[Constitution]] by adding a [[Bill of Rights]] for 20 changes, and demanding 20 other changes too.  In [[New York]], defeat seemed likely until [[Hamilton]] cleverly procured a delay to await news from [[New Hampshire]] and [[Virginia]].  When news of their ratification reached [[New York]], sentiment moved in favor of the [[Constitution]] and it narrowly passed on July 26, 1788.  The vote was a very close 30-27.  Still, [[New York]] demanded another constitutional convention to add a [[Bill of Rights]].

[[Virginia]] only ratified the [[Constitution]] by adding a [[Bill of Rights]] for 20 changes, and demanding 20 other changes too.  In [[New York]], defeat seemed likely until [[Hamilton]] cleverly procured a delay to await news from [[New Hampshire]] and [[Virginia]].  When news of their ratification reached [[New York]], sentiment moved in favor of the [[Constitution]] and it narrowly passed on July 26, 1788.  The vote was a very close 30-27.  Still, [[New York]] demanded another [[constitution]]al convention to add a [[Bill of Rights]].

To avoid another constitutional convention, the first [[Congress]] passed 12 constitutional amendments and sent them to the states for ratification.  The states ratified ten of them by the end of 1791, and they became known as the “[[Bill of Rights]]” because they protect the people against certain [[government]] interference.

To avoid another [[constitution]]al convention, the first [[Congress]] passed 12 [[constitution]]al [[amendment]]s and sent them to the states for ratification.  The states ratified ten of them by the end of 1791, and they became known as the “[[Bill of Rights]]” because they protect the people against certain [[government]] interference.

The [[Bill of Rights]] is very short: you could completely memorize them in a few days.  They are set forth on pages 330-31 of the textbook.  What they mean, however, could fill an entire library.

The [[Bill of Rights]] is very short: you could completely memorize them in a few days.  They are set forth on pages 330-31 of the textbook.  What they mean, however, could fill an entire library.

The first two amendments establish fundamental freedoms, including the right to keep and bear arms.  The third amendment prohibits placing troops in people’s homes in time of peace.  The fourth through eighth amendments establish legal rights, particularly for the accused.  The ninth amendment is a vague protection of individual rights, and the tenth amendment protects state rights.

The first two [[amendment]]s establish fundamental [[freedom]]s, including the right to keep and bear arms.  The third [[amendment]] prohibits placing troops in people’s homes in time of peace.  The fourth through eighth [[amendment]]s establish legal rights, particularly for the accused.  The ninth [[amendment]] is a vague protection of individual rights, and the tenth [[amendment]] protects [[state]] rights.

The [[First Amendment]] receives the most attention.  It prohibits [[Congress] from infringing on free speech, press, assembly, petition and religion; it also prohibits the establishment of religion.  By implication, it protects freedom of association.  It expressly applies only to [[Congress]], but the courts have since applied it against all the states too.

The [[First Amendment]] receives the most attention.  It prohibits [[Congress]] from infringing on free speech, [[press]], assembly, petition and [[religion]]; it also prohibits the establishment of [[religion]].  By implication, it protects [[freedom]] of association.  It expressly applies only to [[Congress]], but the [[court]]s have since applied it against all the [[state]]s too.

In fact, virtually all of the [[Bill of Rights]] now protect citizens against all forms of government: federal, state or local.

In fact, virtually all of the [[Bill of Rights]] now protect citizens against all forms of government: federal, state or local.

===The Free Speech Clause.===

===The Free Speech Clause.===

The [[First Amendment]] protects the greatest of all constitutional rights: “[[Congress]] shall make no law ... abridging the freedom of speech.”  This protects religious and political speech.  It protects prayer in many circumstances; it also protects evangelizing.  It was unique to [[America]], reflecting the [[Great Awakening]] and preaching that permeated the colonies in the 1700s.

The [[First Amendment]] protects the greatest of all [constitution]]al rights: “[[Congress]] shall make no law ... abridging the freedom of speech.”  This protects religious and political speech.  It protects [[prayer]] in many circumstances; it also protects evangelizing.  It was unique to [[America]], reflecting the [[Great Awakening]] and preaching that permeated the [[colony|colonies]] in the 1700s.

Originally, “speech” would not have included as much as it does today.  Over the years, the [[Supreme Court]] has expanded what is protected as speech under the [[First Amendment]].

Originally, “speech” would not have included as much as it does today.  Over the years, the [[Supreme Court]] has expanded what is protected as speech under the [[First Amendment]].

Now speech includes, for example, the burning of the American flag ([[Texas v. Johnson]]).  It includes spending money on political campaigns.  It can include vulgar or obscene words.  It offers some protection even to commercial speech, such as certain advertisements.

Now speech includes, for example, the burning of the [[America]]n [[flag]] ([[Texas v. Johnson]]).  It includes spending money on political campaigns.  It can include vulgar or obscene words.  It offers some protection even to commercial speech, such as certain advertisements.

When something qualifies as “free speech,” the protection against regulation of its content is nearly absolute.  Only a compelling interest by the government can justify infringing on such speech, and the regulation must be narrowly tailored for a necessary goal.

When something qualifies as “free speech,” the protection against regulation of its content is nearly absolute.  Only a compelling interest by the government can justify infringing on such speech, and the regulation must be narrowly tailored for a necessary goal.

It is easy to think of examples of speech that should not be free and protected.

It is easy to think of examples of speech that should not be free and protected.

Consider terrorism.  Suppose an anonymous caller phones a hospital and says that there is a bomb there.  The hospital may have to evacuate as a precaution.  Operations would be immediately stopped, and the very sick would be moved with great difficulty.  Or imagine someone on an airplane standing up in mid-flight and announcing he’s a terrorist.  Passengers would panic and the airplane would be forced to land immediately.  There can be no constitutional protection for this type of speech.

Consider [[terrorism]].  Suppose an anonymous caller phones a hospital and says that there is a bomb there.  The hospital may have to evacuate as a precaution.  Operations would be immediately stopped, and the very sick would be moved with great difficulty.  Or imagine someone on an airplane standing up in mid-flight and announcing he’s a terrorist.  Passengers would panic and the airplane would be forced to land immediately.  There can be no [[constitution]]al protection for this type of speech.

Before airplanes and terrorism, the classic example of unprotected speech is yelling “fire” in a crowded theater.  People would stampede for the exits, and some could be injured.

Before airplanes and [[terrorism]], the classic example of unprotected speech is yelling “fire” in a crowded theater.  People would stampede for the exits, and some could be injured.

The [[Supreme Court]] has said that “fighting words” are not “free speech” protected by the [[First Amendment]].  Other types of speech are also excluded from the [[First Amendment]].  But over time, the [[Court]] has redefined protected speech to be broader and broader, including even conduct like flag-burning and political campaign spending.

The [[Supreme Court]] has said that “fighting words” are not “free speech” protected by the [[First Amendment]].  Other types of speech are also excluded from the [[First Amendment]].  But over time, the [[Court]] has redefined protected speech to be broader and broader, including even conduct like flag-burning and political campaign spending.

===B.  The Establishment Clause.===

===B.  The Establishment Clause.===

The [[First Amendment]] begins with: “[[Congress]] shall make no law respecting an establishment of religion ....”  Known as the “[[Establishment Clause]],” this is increasingly used against state and local government.  In 1962, this clause was the basis for the [[Supreme Court]] to ban prayer in the schools (Engel v. Vitale).  It is the basis for the recent ban on the phrase “under God” in the Pledge of Allegiance, and the order to remove the [[Ten Commandments]] plaque from the Alabama Supreme Court.

The [[First Amendment]] begins with: “[[Congress]] shall make no law respecting an establishment of [[religion]] ....”  Known as the “[[Establishment Clause]],” this is increasingly used against [[state]] and local [[government]].  In 1962, this clause was the basis for the [[Supreme Court]] to ban [[prayer]] in the [[school]]s (Engel v. Vitale).  It is the basis for the recent ban on the phrase “under God” in the [[Pledge of Allegiance]], and the order to remove the [[Ten Commandments]] plaque from the [[Alabama]] Supreme Court.

The [[Establishment Clause]] is rooted in [[Thomas Jefferson]]’s [[Virginia]] Statute for Religious Freedom of 1786.  Its purpose was to prevent an elite class of clergy, funded by government.  “The law for religious freedom, which made a part of this system, having put down the aristocracy of the clergy, ... restored to the citizen the freedom of the mind, and those of entails and descents nurturing an equality of condition among them.”  Letter by Jefferson to Adams, Monticello (Oct. 28, 1813).

The [[Establishment Clause]] is rooted in [[Thomas Jefferson]]’s [[Virginia]] Statute for Religious Freedom of 1786.  Its purpose was to prevent an elite class of clergy, funded by government.  “The law for religious freedom, which made a part of this system, having put down the aristocracy of the clergy, ... restored to the citizen the freedom of the mind, and those of entails and descents nurturing an equality of condition among them.”  Letter by [[Thomas Jefferson|Jefferson]] to Adams, Monticello (Oct. 28, 1813).

Neither Jefferson nor [[James Madison]] wanted an aristocratic clergy like in [[England]].  They opposed [[American]] imitation of the [[Church of England]].

Neither [[Thomas Jefferson|Jefferson]] nor [[James Madison]] wanted an aristocratic [[clergy]] like in [[England]].  They opposed [[American]] imitation of the [[Church of England]].

Jefferson and [[Madison]] were hostile to nobility and primogeniture (the English rule that gave all inheritance to the oldest son).  The [[Constitution]] bans titles of nobility, as does the Articles of Confederation.  Jefferson worked to abolish English rules of inheritance from [[Virginia]] law.

[[Thomas Jefferson|Jefferson]] and [[Madison]] were hostile to nobility and primogeniture (the English rule that gave all inheritance to the oldest son).  The [[Constitution]] bans titles of nobility, as does the [[Articles of Confederation]].  [[Thomas Jefferson|Jefferson]] worked to abolish [[English]] rules of inheritance from [[Virginia]] law.

Note that the [[Establishment Clause]] applied only to [[Congress]].  Read it again.  “[[Congress]] shall make no law ....”

Note that the [[Establishment Clause]] applied only to [[Congress]].  Read it again.  “[[Congress]] shall make no law ....”

After the [[Civil War]], some in [[Congress]] sought to extend the [[Establishment Clause]] against the states.  That would have been pointless if it already applied against the states. The proposals substituted “state” for “[[Congress]]” in copying from the [[First Amendment]]: “No state shall make any law respecting an establishment of religion or prohibiting the free exercise thereof ....”  H.R. Res. I, 44th Cong., 1st Sess. (1875) (emphasis added). But the proposed amendment never passed.  

After the [[Civil War]], some in [[Congress]] sought to extend the [[Establishment Clause]] against the [[state]]s.  That would have been pointless if it already applied against the states. The proposals substituted “[[state]]” for “[[Congress]]” in copying from the [[First Amendment]]: “No [[state]] shall make any [[law]] respecting an establishment of [[religion]] or prohibiting the free exercise thereof ....”  H.R. Res. I, 44th Cong., 1st Sess. (1875) (emphasis added). But the proposed [[amendment]] never passed.  

Eventually, someone hostile to religion in public life rose to power on the [[Supreme Court]].  Justice [[Hugo Black]], a former member of the [[Ku Klux Klan]], pushed the court to ostracize religion from schools and government.  He wrote the opinion banning prayer from public schools, and other opinions ostracizing religion. Since then courts have banned the [[Ten Commandments]] and now even the [[Pledge of Allegiance]].

Eventually, someone hostile to [[religion]] in public life rose to power on the [[Supreme Court]].  Justice [[Hugo Black]], a former member of the [[Ku Klux Klan]], pushed the court to ostracize [[religion]] from [[school]]s and [[government]].  He wrote the opinion banning [[prayer]] from public [[school]]s, and other opinions ostracizing [[religion]]. Since then courts have banned the [[Ten Commandments]] and now even the [[Pledge of Allegiance]].

===C.  Protections for the Accused.===

===C.  Protections for the Accused.===