Changes

{{inuse}}'''American Government'''

'''American Government'''

'''Second Lecture - BILL OF RIGHTS & FEDERALISM'''

'''Second Lecture - BILL OF RIGHTS & FEDERALISM'''

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

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

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

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

The [[First Amendment]] receives the most attention.  It prohibits [[Congress]] from infringing on [[Free [[speech]] Clause|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.

The [[First Amendment]] receives the most attention.  It prohibits [[Congress]] from infringing on [[Freedom of speech|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.

Let’s look at important sections of the [[Bill of Rights]]:

Let’s look at important sections of the [[Bill of Rights]]:

==The [[Free [[speech]] Clause]].==

==The [[freedom of speech|Free Speech]] Clause==

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 [[Evangelism�|evangelizing]].  It was unique to [[America]], reflecting the [[Great Awakening]] and preaching that permeated the [[colony|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 [[Evangelism|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 [[year]]s, 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 [[year]]s, the [[Supreme Court]] has expanded what is protected as [[speech]] under the [[First Amendment]].

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

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

When something qualifies as “[[Free [[speech]] Clause|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 "[[freedom of speech|Free speech]] Clause,” 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.

One might ask, why isn’t all [[speech]] protected?  Why should the [[government]] be able to abridge any [[speech]]?  

One might ask, why isn’t all [[speech]] protected?  Why should the [[government]] be able to abridge any [[speech]]?  

The [[Supreme Court]] has said that “fighting words” are not “[[Free [[speech]] Clause|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 [[politics|political]] campaign spending.

The [[Supreme Court]] has said that “fighting words” are not “[[Free [[speech]] Clause|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 [[politics|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 [[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 [[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]] [[Article of Religious Freedom  

The [[Establishment Clause]] is rooted in [[Thomas Jefferson]]’s [[Virginia]] [[Article of Religious Freedom|Statute for Religious Freedom]] of 1786.  Its purpose was to prevent an elite class of [[clergy]], funded by [[government]].  “The [[law]] for [[Article of Religious Freedom|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 [[John Adams|Adams]], [[Monticello]] (Oct. 28, 1813).

|Statute for Religious Freedom]] of 1786.  Its purpose was to prevent an elite class of [[clergy]], funded by [[government]].  “The [[law]] for [[Article of Religious Freedom  

|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 [[Thomas Jefferson|Jefferson]] nor [[James Madison]] wanted an [[aristocracy|aristocratic]] [[clergy]] like in [[England]].  They opposed [[American]] imitation of the [[Church of England]].

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

[[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]] [[rule]]s 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]] [[rule]]s 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]] ....”

In [[colony|colonial]] [[America]], those who favored [[independence]] were considered enemies of the [[King]].  Some were [[prosecute]]d.  [[Peter Zenger]], for example, was [[prosecute]]d for published materials critical of the [[governor]] of [[New York]], who was appointed by the Crown.  [[Peter Zenger|Zenger]] was acquitted by an [[American]] [[jury]] in a famous [[case]] establishing the [[freedom]] of the [[press]].  But the [[jury]] had clearly saved him - had a [[judge]] tried the [[case]], he would have surely been sent to [[prison|jail]].

In [[colony|colonial]] [[America]], those who favored [[independence]] were considered enemies of the [[King]].  Some were [[prosecute]]d.  [[Peter Zenger]], for example, was [[prosecute]]d for published materials critical of the [[governor]] of [[New York]], who was appointed by the Crown.  [[Peter Zenger|Zenger]] was acquitted by an [[American]] [[jury]] in a famous [[case]] establishing the [[freedom]] of the [[press]].  But the [[jury]] had clearly saved him - had a [[judge]] tried the [[case]], he would have surely been sent to [[prison|jail]].

The original [[Constitution]] included few protections for individual [[liberty|liberties]], but it did guarantee the [[rights|right]] to a [[jury]] trial.  [[Article III|Art. III, Section 2]].  The [[Founding Fathers|Founders]] were sure to include that.  To this day, 95% of [[jury]] [[trial]]s held in the entire [[world]] are in the [[United States]].

The original [[Constitution]] included few protections for individual [[liberty|liberties]], but it did guarantee the [[rights|right]] to a [[jury trial]].  [[Article III|Art. III, Section 2]].  The [[Founding Fathers|Founders]] were sure to include that.  To this day, 95% of [[jury]] [[trial]]s held in the entire [[world]] are in the [[United States]].

This protection was not enough for [[colony|colonists]] still mindful of the [[British]] prosecutions.  The bulk of the [[Bill of Rights]] added many additional [[safeguard]]s against abusive [[prosecute|prosecutions]] by [[government]].

This protection was not enough for [[colony|colonists]] still mindful of the [[British]] prosecutions.  The bulk of the [[Bill of Rights]] added many additional [[safeguard]]s against abusive [[prosecute|prosecutions]] by [[government]].

Later, [[nullification]] doctrine led to the [[Civil War]] because it justified secession.  As recently as 1956, southern [[state]]s invoked the doctrine to reject the [[Supreme Court]] ruling of [[Brown v. Board of Education]] (1954), which de[[segregation|segregated]] [[school]]s.  The [[federal]] [[government]] enforced that ruling over [[objection]]s by southern [[state]]s.

Later, [[nullification]] doctrine led to the [[Civil War]] because it justified secession.  As recently as 1956, southern [[state]]s invoked the doctrine to reject the [[Supreme Court]] ruling of [[Brown v. Board of Education]] (1954), which de[[segregation|segregated]] [[school]]s.  The [[federal]] [[government]] enforced that ruling over [[objection]]s by southern [[state]]s.

Some [[state]]s, like [[West Virginia]], defer to [[federal]] [[law]] in their own [[state]] [[constitutions]].  Article 1, Section 1 of the [[West Virginia]] [[Constitution]] provides:

Some [[state]]s, like [[West Virginia]], defer to [[federal]] [[law]] in their own [[state]] [[constitution]]s.  Article 1, Section 1 of the [[West Virginia]] [[Constitution]] provides:

:The [[state]] of [[West Virginia]] is, and shall remain, one of the [[United States]] of [[America]].  The [[Constitution]] of the [[United States]] of [[America]], and the [[law]]s and treaties made in pursuance thereof shall be the supreme [[law]] of the land.

:The [[state]] of [[West Virginia]] is, and shall remain, one of the [[United States]] of [[America]].  The [[Constitution]] of the [[United States]] of [[America]], and the [[law]]s and treaties made in pursuance thereof shall be the supreme [[law]] of the land.