NOTE: It is most often referred to as “the establishment clause.” Its meaning has been one of the most disputed issues in American history. There is general agreement among Americans that one thing “the Establishment Clause” certainly means is that government cannot establish a national religion or a national church. Beyond that, however, there is considerable disagreement about its meaning.
NOTE: Some Americans and some members of the Supreme Court have subscribed to Thomas Jefferson’s view that the clause created “a wall of separation between church and state.” The argument has been over how high that wall should be. The two questions or problems that have most frequently been involved in disputes involving “the establishment clause” are: (1) What kind of government aid to church schools, if any, is permissible? (2) What kind of religious activity on public property such as public schools, courthouses, or capitol grounds, if any, is permissible?
NOTE: In the early history of the U. S., “the establishment clause” was interpreted as only applying to and limiting the power of the national government, However, in the landmark 1947 case Everson v Board of Education of Ewing Township, the Supreme Court ruled that the clause was “incorporated” by the due process of law clause of the Fourteenth Amendment and thus now also applies to and limits the actions of state and local governments.
NOTE: Like “the establishment clause,” the meaning of the “free exercise clause” has been one of the most disputed issues in American history.
NOTE: In 1878 in Reynolds v United States, one of the earliest cases the Supreme Court heard and decided involving “the free exercise clause,” the Court determined that an individual has an absolute right to believe anything or nothing in terms of religion but not an absolute right to act on or practice that belief. For example, one can believe in the name of one’s religion in human sacrifice, but this does not mean that government cannot prevent action on that religious belief.
NOTE: One religious group in the twentieth century which was particularly active in bringing challenges to government actions on grounds of violation of “the free exercise clause” was Jehovah’s Witnesses. For example, in the landmark 1943 case West Virginia State Board of Education v Barnette, Jehovah’s Witnesses challenged a public school policy requiring students to participate in a daily Pledge of Allegiance and salute to the American flag as a violation of their sincerely held religious beliefs. The Supreme Court ruled in favor of Jehovah’s Witnesses.
NOTE: Like “the establishment clause,” in the early history of the U. S., “the free exercise clause” was interpreted as only applying to and limiting the power of the national government. However, in another landmark case initiated by Jehovah’s Witnesses, the 1940 case of Cantwell v Connecticut, the Supreme Court ruled that the clause was “incorporated” by the due process of law clause of the Fourteenth Amendment and thus now also applies to and limits the actions of state and local governments.
NOTE: Throughout American history, this has been one of the most important and often litigated issues. Some of the most important and often quoted Supreme Court opinions have been written in these cases.
NOTE: Like the other guarantees of the First Amendment, in the early part of the nation’s history, the freedom of speech guarantee only applied to and limited the national government. However, in the landmark 1925 case Gitlow v New York, the Supreme Court ruled that the freedom of speech was “incorporated” by the due process of law clause of the Fourteenth Amendment and thus now also applies to and limits the actions of state and local governments.
NOTE: One important issue which the Supreme Court has had to resolve concerning the freedom of speech guarantee is the nature of speech, and specifically if it is restricted in meaning only to oral, spoken words. The Court on several occasions has ruled that speech does not have to be oral, spoken words. Rather, it has ruled that “symbolic speech” is also protected by the freedom of speech guarantee. For example, in the landmark 1989 case Texas v Johnson, the Court ruled that burning the American flag as a means of protesting government policy was speech and was protected by the First Amendment.
NOTE: One of the most important and frequently used tests devised by members of the Supreme Court to judge freedom of speech cases is called the “clear and present danger test” enunciated by Justice Oliver Wendell Holmes, Jr. in the landmark 1919 case Schenck v United States. Holmes wrote: “But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater and causing a panic. …The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger …”
NOTE: Another important freedom of speech issue has concerned the question of whether public school students enjoy freedom of speech in the schoolhouse. In the landmark 1969 case Tinker v Des Moines School District, the Supreme Court ruled that students do enjoy freedom of speech in the schoolhouse when it stated: “Neither students nor teachers shed their constitutional rights at the schoolhouse gate.” However, the Court in that case as well as in others has made it clear that the freedom of speech rights of students in the public schools are not the same as they are in the world outside the public school.
NOTE:From the colonial period of American history to the present day, the press has played an important role in American democracy in informing the public about what is going on in the nation and the world, and particularly in informing the public about the actions of their government and government officials. In early American history, the word “press” was limited in meaning to newspapers, pamphlets, magazines, and books. Today, “press” has a much broader meaning such as “media” and includes not only those earlier means of communication but also radio, television, the Internet, Facebook, Twitter, etc.
NOTE: Like the other guarantees of the First Amendment, in the early part of the nation’s history, the freedom of press guarantee only applied to and limited the national government. However, in the landmark 1931 case Near v Minnesota, the Supreme Court ruled that freedom of the press was “incorporated” by the due process of law clause of the Fourteenth Amendment and thus now also applies to and limits the actions of state and local governments.
NOTE:A variety of issues involving the freedom of press guarantee have arisen throughout American history including libel, prior restraint, and freedom of the press v the right to a fair trial. Libel is usually defined as written defamation, a false statement that harms a person’s reputation in written form. The Supreme Court has ruled that what one has to prove in order to win a libel suit depends on who or what one is. Most Americans are considered “private citizens” and have to prove less than do “public officials” who hold governmental positions. “Public officials” must prove what the Court calls “actual malice.” They must not only prove that what was published was false but also that it was published with knowledge that it was false or with “reckless disregard” of whether it was false. The media today thus have more protection where “public officials” are concerned.
NOTE: A freedom of the press issue on which the Supreme Court has taken the most steadfast position concerns what is called “prior restraint” which refers to the government interfering with the media by attempting to prevent something from being published in the first place. The Court has made it very clear that “prior restraint” by government is hardly ever allowed.
NOTE: Like the other guarantees of the First Amendment, in early American history the freedom of assembly guarantee only applied to and limited the national government. However, in the landmark 1937 case DeJonge v Oregon, the Supreme Court ruled that the freedom assembly was “incorporated” by the due process of law clause of the Fourteenth Amendment and thus now also applies to and limits the actions of state and local governments.
NOTE:If one thinks about the freedom of assembly, it quickly becomes apparent that it is closely tied to other freedoms of the First Amendment such as speech and religion. Unless one only seeks to speak to oneself or only views religion in terms of one individual, it is obvious that these freedoms are intertwined. Freedom of speech and free exercise of religion also involve freedom of assembly.
NOTE:The principal issues the Supreme Court has had to deal with concerning freedom of assembly involve where, when, and how people can assemble peaceably. Like the other First Amendment freedoms, it is not an “absolute” right. Government can place reasonable time, place, and manner restrictions on the freedom of peaceable assembly.
NOTE: The Supreme Court ruled in the 1937 case DeJonge v Oregon that the right to petition is “incorporated” by the due process of law clause of the Fourteenth Amendment and thus now also applies to the actions of state and local governments.
NOTE: Individuals have the right to petition government to express their views and ask for change. The framers of the Constitution and the Bill of Rights brought with them a strong tradition from the colonial period of petitioning government in the face of tyranny. More than once the colonists petitioned the English to cease what they considered oppressive and unfair English behavior. It is not surprising, therefore, when the time came to frame our own Constitution that the right to petition government would be included among the freedoms of the people.
NOTE: The Second Amendment is the only amendment with what is called a “preamble” which refers to the opening words of the amendment: “A well-regulated militia, being necessary to the security of a free state.” It is this “preamble” which has led to strong and lasting disagreement about the meaning of the amendment. Interpretation of the Second Amendment differs between those who believe the amendment protects an individual right and those who argue that the “preamble” renders it a group right, namely that of a “well-regulated militia.”
NOTE: For much of this nation’s history, the Supreme Court and other U. S. courts sided with those who argued that it was not an individual right but rather that of “a well-regulated militia.” Furthermore, the amendment was viewed as applying only to the national government and not to state and local governments. This changed, however, in 2010 when the Supreme Court in the landmark case McDonald v City of Chicago ruled not only that the right to keep and bear arms is an individual right but also that it now applies to and limits state and local government actions.
NOTE: The framers of the Constitution brought with them a legacy of guarding their homes against what they saw as unreasonable and tyrannical government intrusion. In the Declaration of Independence, for example, one of the charges against the king was that without colonists’ consent he had “quartered large bodies of armed troops among us.” Since Americans did not like this when the English government was doing it, it is not surprising that they did not want their own government doing it either.
NOTE: There has never been a single Supreme Court case involving the Third Amendment. Along with the Seventh Amendment, the Supreme Court has never directly addressed the meaning of the Third Amendment. However, in the 1965 case Griswold v Connecticut, the Court cited the Third Amendment as one part of the Bill of Rights that creates “zones of privacy” and thus a constitutional right to privacy.
NOTE: Because there has never been a Supreme Court case involving the Third Amendment, this explains why it is often referred to as “the forgotten amendment.” It also explains why the Third Amendment, regardless of what it says, even today only applies to and limits the national government, not state and local governments. In other words, it is one of only three parts of the Bill of Rights which has never been “incorporated.”
NOTE: The amendment does not prohibit all searches and seizures but only those which are unreasonable.
NOTE: One of the most important parts of this amendment is “probable cause.” If law enforcement officers wish to search a home or other place, they must first convince a judge that they are in possession of information that such a search would produce evidence that a criminal offense has been committed. Furthermore, a lawful warrant must specifically describe the place to be searched and the person or things to be seized. This part of the amendment was most likely included to prevent our own government from doing what occurred in the colonial period of our history when English officials had used general search warrants called “writs of assistance” to search anywhere, at any time, for anything.
NOTE: The Supreme Court has ruled, however, that there are some situations where a search and seizure is permissible without a warrant. One such situation is where an individual has voluntarily consented to a search. Another is that police without a warrant can legally carry out a limited “pat down” of an individual behaving suspiciously. A warrant, the Court has also ruled, is not needed when police are “in hot pursuit” of a suspect, or when an officer sees incriminating evidence of the commission of a criminal offense “in plain sight.”
NOTE: In early American history, the Fourth Amendment, like other guarantees of the Bill of Rights, was interpreted as only applying to and limiting the national government, not state and local governments. However, in the landmark 1949 case Wolf v Colorado, the Supreme Court ruled that the amendment now also applies to and limits actions of state and local officers. Nevertheless, the Court also ruled in this case that evidence seized in violation of the amendment by state and local officers was still admissible against the accused in a state court. It was not until 1961 in the landmark case Mapp v Ohio that the Supreme Court ruled that the so-called “exclusionary rule” now also applies to and limits state and local courts – namely, that evidence seized in violation of the amendment is inadmissible against the accused.
NOTE: Another important issue involving the Fourth Amendment concerns its application in the public school environment: Do public school students enjoy the protection of the Fourth Amendment? The Supreme Court’s answer has been “yes,” but the Court has made it clear that there is at least one important difference in the public school environment. In the 1984 landmark case New Jersey v TLO, the Court ruled that public school officials only need “reasonable suspicion” rather than “probable cause” to conduct a legal search and seizure.
NOTE: The function of a grand jury is not to determine the innocence or guilt of an accused person but rather to determine if the government has enough evidence against the accused to proceed to trial. If the grand jury decides that enough evidence exists, it returns an indictment or, in other words, a “true bill.” The accused has no legal right to appear before a grand jury to argue the accused’s case, and therefore, the grand jury only hears the prosecution’s side of the case. Consequently, it is no surprise that grand juries almost always do what the prosecution wishes and returns a “true bill.”
NOTE: Because many believe that grand juries do not serve the function for which they were originally established, namely to serve as a check on arbitrary actions by the government, most states do not use grand juries. The Supreme Court long ago ruled that states are not required to do so and has not changed its position. In other words, the Court has not “incorporated” the grand jury clause into the due process of law clause of the Fourteenth Amendment and thus made it apply to the state and local governments.
NOTE: This means that the same government cannot try a defendant for the same offense more than once. However, some criminal offenses may be a violation of both state and national law. If that is true, then both governments can accuse and try the individual, and that is not double jeopardy.
NOTE: In early American history, like other amendments of the Bill of Rights, the no double jeopardy clause only applied to and limited the national government. However, in the landmark 1969 case Benton v Maryland, the Supreme Court “incorporated” the clause into the due process of law clause of the Fourteenth Amendment and thus ruled that the clause now also applies to and limits state and local governments.
NOTE: Government thus cannot force an accused person to testify against himself. By allowing people to refuse to answer questions that might make them seem guilty, the Fifth Amendment resolves the conflict between defending oneself and telling the truth. As noted by the English jurist, Sir William Blackstone, this protection has its roots in English legal tradition.
NOTE: In the early history of the U. S. this protection against compulsory self-incrimination only applied to and limited the national government. However, in the landmark 1964 case Malloy v Hogan, the Supreme Court “incorporated” the protection into the due process of law clause of the Fourteenth Amendment and thus ruled that it now also applies to and limits state and local governments.
NOTE: Furthermore, in the landmark 1966 case Miranda v Arizona, the Court reinforced its 1964 decision when it ruled that the protection requires the police to inform criminal suspects of their right to remain silent prior to any questioning, and that failure to do so would render a confession thus obtained inadmissible against the accused at trial.
NOTE: This is the first of two due process of law clauses found in the U. S. Constitution. They both say the same thing. The difference is that the due process clause in the Fifth Amendment applies to the national government whereas the one in the Fourteenth Amendment applies to state and local governments.
NOTE: The due process of law clause means that government has to follow certain rules and established procedures in everything it does in proceeding with a criminal case against an individual. Due process consists of many things, including many of the protections found in other amendments such as a fair trial by an impartial jury of one’s peers, no self-incrimination, no double jeopardy, right to counsel, etc. Due process, as many scholars have noted, has its roots, among other sources, in 1215’s Magna Carta where the English monarch was compelled to agree that “no free man shall be taken or imprisoned … or in any way destroyed … except by the lawful judgment of his peers or by the law of the land.”
NOTE: The Supreme Court used the Fifth Amendment’s due process of law clause when it put an end to racial segregation in the public schools of the nation’s capital, the District of Columbia. When the Court used the equal protection of the laws clause of the Fourteenth Amendment to declare racial segregation by law in the states unconstitutional in the landmark 1954 case Brown v Board of Education of Topeka, Kansas, racial segregation also existed in the public schools of the nation’s capital. The problem was that the Constitution has no equal protection of the laws clause aimed at the national government. Therefore, what the Supreme Court did in order to render racial segregation in the District’s public schools unconstitutional is called “reverse incorporation.” The Court used the due process of law clause of the Fifth Amendment to make the equal protection of the laws clause of the Fourteenth Amendment apply to the national government.
NOTE: This generally accepted power of government to take privately-owned property in order to build such things as roads, schools, libraries and other public facilities is called “eminent domain.” Government is required by the clause to pay the private property owner “just compensation” which is usually understood to mean the fair market value of the property when it uses this power of “eminent domain” to take the property for public use. The compensation provided has not often been the cause of dispute concerning the “takings clause.”
NOTE: The “takings clause” was the first protection of the Bill of Rights to be incorporated and applied to the state and local governments by the Supreme Court in the 1897 case Chicago, Burlington, & Quincy Railroad v Chicago.
NOTE: The most recent dispute concerning the “takings clause” arose as a result of a Supreme Court decision in the 2005 case Kelo v City of New London. In this case, the Supreme Court stirred controversy by its different interpretation of the meaning of the term “public use.” The Court interpreted the term to mean “public benefit” such as anticipated economic development in a region as a result of government’s taking private property.
NOTE: The Supreme Court has “incorporated” and thus applied to the state and local governments all seven of these rights.
The first three rights are “a speedy and public trial by an impartial jury …” Note: The right to a speedy trial does not refer to how long a trial lasts but rather to the amount of time that passes between the time the accused is arrested, charged, indicted, and then is actually placed on trial. For example, if ten years passes and the accused is not brought to trial, this was not a speedy trial. The right to a public trial simply means that the accused cannot be tried behind closed doors in private. The public, including the media, must have access to the trial.
NOTE: The right of the accused “in all criminal cases” to a trial by an impartial jury has given rise to several important questions which the Supreme Court has had to answer. The right does not apply to what are called “petty offenses” usually defined as offenses punishable by six months or less confinement. The Court has ruled that a traditional twelve-person jury is not always required. For less serious criminal cases six-person juries are permissible. The same is true of the traditional requirement of unanimous jury verdicts. In some instances, a jury verdict need not be unanimous. Another important issue involves a possible collision between the accused’s right to a trial by an impartial jury and the freedom of the press under the First Amendment to cover a trial’s proceedings. The Supreme Court has ruled that the accused’s right to a trial by an impartial jury is so important that a judge can and should impose certain restrictions on how the press covers the trial. Another important issue relative to the right to a trial by an impartial jury concerns the composition of a jury. The traditional rule is that a jury should be made of one’s peers which has been interpreted to mean that as close as possible the composition of a jury should reflect the population of the area where the trial is being held. For example, if the population of an area where a trial is being held is overwhelmingly African American, then it could not be a trial by a jury of one’s peers if African Americans were excluded from jury service.
NOTE: “To be informed of the nature and cause of the accusation” simply means that a defendant has the right to know the specific charge against him and cannot be convicted of one crime on an indictment charging a very different crime. “The confrontation clause” means that the defendant has a right to be present at his trial and to cross-examine witnesses against him. Those accusing a defendant of having committed a criminal offense must face him “eyeball to eyeball” in the courtroom. Only for compelling reasons can there be an exception to this confrontation right, and traditionally that exception involves situations where children are crime victims and could suffer traumatic consequences if forced to face an individual accused of having committed a serious offense against them. Even in this situation, however, confrontation must still occur in some form, perhaps through closed circuit television. The right “to have compulsory process for obtaining favorable witnesses” simply means that the defendant is entitled to subpoena or summon witnesses who could possibly produce testimony favorable to the defendant.
NOTE: Many constitutional scholars consider this to be the most important right of an accused person in criminal cases. The reason is that many accused persons are not aware of all their constitutional rights, and if they are not aware of what these rights are, they cannot assert them. Counsel not only knows the rights of the accused and thus allows the accused to assert them but also knows how to assert those rights and others in a court of law.
NOTE: For much of American history, all this right meant, however, was that the accused had a right to the assistance of counsel if the accused could afford one. In 1938, however, the Supreme Court ruled that in any criminal case in a federal court, the U. S. government must supply counsel for indigent or poverty-stricken defendants. The Court has since extended that rule to felony criminal cases in state courts and more recently to any criminal case in a state court where a jail sentence of any length, even one day, is possible. The rule has not yet been extended to those criminal cases where only a fine is the possible punishment. The most recent issue concerning the assistance of counsel concerns not just the right to counsel but the right to “effective counsel” which means the defendant has a right to have counsel who knows what he should do and actually does it. In several instances in recent years, the Supreme Court has overturned defendants’ convictions because in the Court’s view, the defendant had “ineffective counsel.”
NOTE: Together with the Third Amendment, the Seventh Amendment is often referred to as “the forgotten amendment.” There has never been in U. S. history a single Supreme Court case involving the Seventh Amendment. Unlike most of the other rights of the Bill of Rights, the Supreme Court has never “incorporated” the amendment. As a result, the Seventh Amendment has no application to state and local courts.
NOTE: Without much attention or publicity given it, the Court in Schilb v Kuebel (1971) appears to have “assumed” incorporation of the protection against excessive bail. Most recently, in Timbs v Indiana (2019), the Court “incorporated” the no excessive fines protection of the Eighth Amendment.
NOTE: The Supreme Court has “incorporated” the “no cruel and unusual punishment” protection into the due process of law clause of the Fourteenth Amendment, and thus today it does apply to state courts. Through the years the Supreme Court has heard and decided several important issues involving the “no cruel and unusual punishment” prohibition. The Court has ruled, for example, that capital punishment or the death sentence, does not violate the prohibition. However, it has ruled that executing those who are mentally retarded, no matter what they may have done, does violate the prohibition. It has also ruled that executing those who were under the age of 18 when they committed a criminal offense does violate the prohibition. At the same time, the Court has ruled that corporal or physical punishment like paddling in the public schools does not violate the prohibition.
NOTE: The people may have other rights besides those which are specifically listed in the Constitution. This was James Madison’s response to the argument that listing the rights of the people could be dangerous because it might lead to the belief that the rights listed were the only rights the people had. For most of this nation’s history, the Ninth Amendment, like the Third and Seventh Amendments, was “a forgotten amendment.” Only in the modern era has the amendment been resurrected. Though the Supreme Court has been reluctant to decide cases based solely on the Ninth Amendment, it has been cited particularly by some justices as establishing a constitutional right to “privacy” even though that term never appears anywhere in the Bill of Rights. In fact, in the 1965 case Griswold v Connecticut, Justice Arthur Goldberg in a concurring opinion became the first justice in U. S. history to base a vote in a case solely on the Ninth Amendment.
NOTE: The Tenth Amendment has sometimes been called “the states’ rights” amendment. It is a key part of the Constitution on which states have relied when they have argued that the national government has exceeded its power under the Constitution. Of the amendments demanded by Anti-Federalists in the state conventions called to ratify the Constitution, one calling for “a reserved powers clause” for the states was by far the most common. The language of the Tenth Amendment echoes language James Madison wrote in Federalist No. 45. There Madison wrote that the powers of the national government would be “few and defined” and would mainly be external powers whereas powers reserved to the states would be “numerous and indefinite.” It is thus not surprising that when Madison authored the Bill of Rights, he would include one attempting to reassure the opponents of the Constitution that the states would continue to occupy an important role under the new Constitution.