The Bill Of Rights

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The bill of rights; general facts

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-On september 25,1789, the first congress elected under the constitution sent 12 proposes amandments to the state legislatures for ratification.

-Two of the proposes Amendments were defeated
(one dealing with the representation in the house and the other dealing with salary for congress and finally ratified in 1992)

-The remaining 10 Amendments were ratified on December 15, 1791 and are known collectively as "The bill of rights.

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Quote from James madison

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Rember fellow citizens, the bill of rights does not grant these rights. These rights come from nature. The bill of rights only ensures that the government protects those rights!

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Judges, types of judges

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-Judges who interpret the meaning of the costitution in general, and the bill of rights specifically, fall into one of two philosophies:
+Originalists
+ Non-originalists

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Judges, Originalists

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-they are generally judges who place primary importance on either the actual text and structure of the consitution or the intent of the framers, founding fathers.

-Two types
+Textualists +intentionalists.

~Textualists: emphasize the exact wording and structure of the consitution.

~ intentionalists: Emphasize the intentions of the Framers of the consitution.

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Judges, non-originalists

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They are judges that place primary importance on either past precedence or the school, economic and political concequences of alternative interpretations.

one type called Pragmatists.

~Pragmatists: Gives emphasis to whether the interpretation will promote stability or whether the consequences will promote the public good.

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Originalists and Non-originalists

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They often fall into coflict over the following questions:
-Should fundamental rights not specifically protected by the consitution be protected with the same scruting as those specifically mention.

-If judges are permitted to interpret law based on their analysis of the poteintal consequences and outcomes, won't their pwn opinions and biases create biased law?

-Is it even possible to be sure of the intent of the Framers as a group? How couls the Framers have forseen future changes in American culture, technology and society.

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In general, justices decide on whether or not a law is constutional or not in two ways:

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-Is the law inherently unconstitutional? (Does the law itself blatantly violate protected rights?)

-Is the Application of the law in a paticular situation unconstitutional? (is the law being used in a way that violates the rights of an individual or group?)

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The first amendment

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Congress shall make no law respecting on establishment of religon or prohibiting the free exercise there of; or abridging the freedom of speech, or of the press, or the right of the people to peacefully assemble, and to petition the government for a redress of grievances.

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The 3 clauses of the first amendment

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-The establishment clause: Forbids congress from making any laws whose primary purpose is the advancement or inhibition of a particular religion or religion in general.

-The Speech Clause: Protects both oral and written speech, including the media and the press. this right is not absolute although the press is given a great deal of latitude.

-The assenbly Clause: Protects the rioght to prtest publicly and associate freely with others. this clause also protects the right to access the government in order to resolve conflicts, right injustices and compensate for damages done by the government, states or other citizens.

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The First Amendment Establishment Clause

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- How does the court decide if a government law violates the Establishment clause?

Over the years the court has establishes four general sets of criteria also known as tests of constitutionality.

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the lemon test

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Based on the case "Lemon v. Kurtzman" (1971). It addressed the question of state aid to religous schools and later refined in the case "Agostini v. Felton" (1997) which addressed having public school teachers providing remedial classes at religous schools.

-A law violates this test if:
+It does not have a vaild secular(non-religous) purpose.
+ It has the purpose of affect of advanceing or inhibitinh a religion (benefits of the law are based on religion)
+ It creates an excessive entanglement between religion and government

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the Coercion Test

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-Based on the case,"County of Allegheny v. ACLU" (1989) which addressed two different holiday aspects.

~a law violates this test if
+it provides direct aid to a religon in a way that tends to establish a state church.
+Coerces people to support or participate in religon against their will.

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The endorsement Test

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Based on justice sandra day o'connors opinion in the case "Lynch v. Donnelly" (1984)

~A law violates this test if:
+It amounts to an endorsement of religion (if it sends a message to a non-member of the religion that they are outsiders and not full members of the political community.

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The neutrality Test

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~ A law violates this test if :
+ It treates one religion differently that the others (doesn't single out any religion)

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Cases dealing with the first amendment: Church of the lukumi Babalu Aye v. city of Hialeah (1993)

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-A governement may not stop religous practices if it does not stop secular practices that produce that same harm. (the case dealt with a religous group that used animal sacrifice as part of it's ritual)

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Cases dealing with the first amendment: Sherbert v. Verner (1963)

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A government maynot deny benefits to eligible recepents whose failure to meet all og those requirements is based on a religous belief. (The case dealt with a woman who was denied unemployment benifits because she refused a job that would have required her to work on the sabbath day in her religon.

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Cases dealing with the first amendment: wisconsin v. Yoder (1972)

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A goverment must make exceptions in it's mandatory education laws to accout for students whose religous beliefs prevent them from attending secondary schools. (The case dealt with an Amish family who wished to take their children out of the school system prior to the state mandatory age of 16 b/c their religion conflicted with the values and enviornment reflected in the public high schools)

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Cases dealing with the first amendment: employment division, Department of human resources v. Smith (1990)

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A state can make a religous activity illegal if it is also illegal in a secular enviornment. (The case involved an individual who lost his job b/c he was using peyote. He claimed that the drug use was part of his religion's rituals

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Cases dealing with the first amendment: Zorach v. Clausen (1952)

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As long as there is no coercion involved, students must be permitted to leave public school for religous instruction. (the case involved a school policy that allowed students to request early release from public school inorder to obtain religous instruction)

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Cases dealing with the first amendment: Lee v. weisman (1992)

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Public school officals may not invite mambers of the clergy to offer prayers at graduation exercises, participation then becomes coercive. (A principle at a public high school invited a rabbi to deliver a non- denominational prayer at a high school graduation)

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Cases dealing with the first amendment: Edwards v. Aguillard (1987):

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states are not permitted to require that public schools teach creationism along with evolution in science class. (louisiana enacted a law requiring that creationism be taught anytime that evolution was taught to give what they called balance treatment.