1

The Bill of Rights

2

“Rights and Responsibilities”

• The meaning behind “rights and responsibilities”

• Americans’ understanding of the Bill of Rights

• What does it all mean?

3

“Rights and Responsibilities”

• Rights and their responsibilities are inseparable

• The Framers drew from the past to build for the future

• Roman Republic

• Enlightenment philosophy

• English law

• American colonial history

• The rights granted evolved over time

4

The Roman Republic

The Roman Republic’s influence on the Bill of Rights:

• Roman law based on laws of nature

• Laws established equality and justice

• Limited the power of the state

• Created laws that protected property, contracts, and promoted equality

• Stressed the responsibility of civic virtue

5

Influences from English Law

The Magna Carta

• Defined the power of the monarchy

• Protected barons’ rights to property, trial by their peers, and taxation only by consent

Magna Carta (1215)

Glorious Revolution (1689)

• Placed Parliament above the monarchy

• Gave Parliament freedom of speech

• No quartering of troops in people’s homes

• No punishment without cause

6

Enlightenment PhilosophyHumanists promoted the dignity of the individual and identified the rights of man

Locke Voltaire

• Voltaire advocated freedom of speech, religion, and the right to a fair trial

• Locke spoke of the right to life, liberty, and property• Government should protect these rights

7

Colonial American ExperiencesExperiences before and during the American Revolution

The Pilgrims’ landing

• English rights to life, liberty, and property brought to the American Colonies

• Most Americans had more equality than the British

• Plentiful land and economic opportunities

8

Colonial American Experiences: Rights

• Massachusetts Body of Liberties (1641) reflected broadening of rights granted to citizens

• Rights not extended to majority of colonial population (women, slaves)

Seal of Massachusetts Bay Colony

Experiences before and during the American Revolution

9

Why a Bill of Rights?

• Initially, the Constitution had no bill of rights

• Federalists agreed to include a bill of rights in order to gain ratification

• Drafted and approved by the first Congress in 1789

• Approved by the states in 1791 through the amendment process

James Madison

10

Discussion Questions

1. What was the Roman concept of civic virtue and the common welfare?

2. What were some of the rights granted by English law that are found in the U.S. Bill of Rights?

3. How did Enlightenment-era humanists view the rights of man and the purpose of government?

4. How were the rights of Englishmen different for Americans in the 13 colonies?

5. Were these rights given to all Americans? Why or why not?

6. Why was the Bill of Rights not included in the original Constitution, and only added later?

11

The First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to

assemble, and to petition the government for a redress of grievances.”

12

First Amendment:Freedom of Religion

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”Two provisions

• Establishment clause: government cannot establish an official religion

• Free-exercise clause: government cannot prevent anyone from practicing a religion

13

First Amendment: Origins of Religious Freedom

• In many 17th-century European countries, Catholicism was the official religion

• The Reformation: challenged the relationship between church and state

• Pilgrims from England fled to America to avoid persecution

• Established religious settlements with little tolerance for religious differences

14

First Amendment: Religious Freedom in Colonial America

• Colonial America more tolerant of religious differences than Europe

• The “Great Awakening” expanded religious tolerance and practices

• Framers’ views on separation of church and state

• Protected religion from government influence

• Protected individuals’ right to worship as they wanted

15

First Amendment: Establishment and Free-Exercise Clauses

Two ways the courts view the establishment and free-exercise clauses:

• Broad view: No public aid for any religion by either federal or state governments

• Narrow view: Government prohibited only from giving preference to one religion over another

16

First Amendment: Establishment and Free-Exercise Clauses

• Supreme Court interpretation of the establishment clause

• Everson v. Board of Education (1947): denied the government from aiding or favoring any religion

• Supreme Court interpretation of the free-exercise clause

• Westside Community Schools v. Mergens (1990): required public schools to allow student religious groups to meet at school

17

Discussion Questions

1. List and describe the two clauses in the First Amendment’s freedom of religion.

2. Why do you think the Puritans became intolerant of other religious beliefs, even though they had been banished from England for their own beliefs?

3. What factors led to an increase in religious tolerance in colonial America?

4. What do you think was the Framers’ intent in writing the establishment and free-exercise clauses in the First Amendment?

18

First Amendment: Freedom of

Speech

“…or abridging the freedom of speech,…”

Freedom of speech is an essential part of democracy

• Promotes intellectual growth and human dignity

• Allows for the communication of new and better ideas

• Essential to the operation of representative democracy

• Vital for bringing about peaceful change

• Also safeguards individual rights

19

First Amendment: Origins of Free Speech

• First protected in the American colonies in the Massachusetts Body of Liberties (1641)

• Not found in Magna Carta

• Not found in the original U.S. Constitution

• Incorporation a condition for ratification

20

First Amendment: Government Limitations on Free Speech

• Sedition Act (1798)

• Dissenters during Civil War (later deemed unconstitutional)

• World War I: Espionage Act of 1917

21

First Amendment: Government Limitations on Free Speech

(continued)• Schenk v. U.S.

• “Clear and present danger” requirement

• After WWI, many states passed laws that criminalized dissent

22

First Amendment: Free-Speech Court Decisions

• Expanded from political speech to include symbolic speech

• Tinker v. Des Moines School District (1967): free speech in schools

23

First Amendment: Free-Speech Court Decisions (continued)

• Texas v. Johnson (1989): burning the U.S. flag

• United States v. Eichman (1990): reaffirmed right to burn flag as free speech

24

First Amendment: Origins of Press Freedom

“…or of the press,…”

Minute sheet from the trial of John Peter Zenger

• Invention of the printing press

• The John Peter Zenger trial

• Pamphlets and papers during the Revolution

• Not mentioned in the original Constitution

25

First Amendment: Extent of Press Freedom

“…or of the press,…”

• Original intent of Framers was to protect political speech

• Results of Supreme Court decisions

• Placed limitations on freedom of the press

• Protections against clear and present danger and libel

• “Prior restraint”• Near v. Minnesota

26

First Amendment: Supreme Court Tests of Press Freedom

Libel or informing the public?

• New York Times Co. v. Sullivan (1964)

Threat to national security or the public’s right to know?

• New York Times Co. v. United States (1971)—the “Pentagon Papers” case

27

Discussion Questions1. Do you feel people should be allowed to make statements that

call for an elimination of the Bill of Rights? Why or why not?2. Explain how freedom of speech and of the press helped bring

about the American Revolution. 3. During times of crisis such as war or natural disasters, should

people be allowed to criticize the government and demand a change in leadership? When has such expression been restricted in U.S. history?

4. What types of expression would constitute a “clear and present danger” to the nation and thus not receive free speech protections?

5. Should other types of expression such as burning the flag be protected as free speech? Why or why not? Should the government pass laws that criminalize making disparaging or insulting remarks about a particular race, gender, or religion?

28

First Amendment: Freedoms of Assembly and Petition

“…or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

• Freedoms of assembly and petition linked to freedom of speech and press

• These freedoms serve many diverse causes and groups

29

First Amendment: Origins of Assembly and Petition

• Magna Carta itself (1215)

• English Petition of Right (1628)

• American colonists notrepresented in Parliament

• Initially not part of the Constitution; later included in the Bill of Rights

The Engligh Petition of Right

30

First Amendment: Historical Restrictions on Assembly and

Petition• “Gag rule” banning

congressional discussion of anti-slavery petitions (1836)

• Denying assembly and petition to homeless (1890s/1930s)

• Breaking up peaceful demonstrations during civil rights movement (1950s and 1960s)

1830s political cartoon about the congressional “gag rule”

31

First Amendment: Assembly and Petition—Supreme Court Decisions

• DeJonge v. Oregon (1937): Incorporating freedom of assembly to the states

• Cox v. New Hampshire (1941): Time, place, and manner of assembly may be restricted but not eliminated

• Lloyd Corporation v. Tanner (1972): Private property exempt from freedom of assembly

• Feiner v. New York (1951): Limitations on the right to assembly

32

First Amendment: Assembly and Petition vs. Government

Responsibility • Government has a responsibility to

keep the peace

• The right to assemble extends to meetings in public areas

• Government has a right to impose restrictions based on time, place, and manner of assembly

• Restrictions must not make it impossible to express ideas

Soldiers stand guard at a demonstration against the Vietnam War

33

Discussion Questions1. Explain how the freedoms of assembly and petition are closely

tied to the rights of free speech and a free press.2. Explain how the rights of assembly and petition facilitate the

exercise of democracy and benefit both the government and the people.

3. Review the three examples of government limitation or denial of the rights to assemble or petition (slide 30). Why do you think the government imposed these restrictions during these times?

4. What obligations does the government have in imposing any restrictions on the rights of assembly and petition? Why does it have these obligations?

5. Why do you think the Framers thought it important to include the rights of assembly and petition in the Bill of Rights to serve the needs of all classes of people?

34

The Second Amendment

“A well regulated militia, being necessary to the security of a free state, the right of the people to

keep and bear arms, shall not be infringed.”

35

Second Amendment: Two Problematic Clauses

“A well regulated militia, being necessary to the security of a free state,…

…the right of the people to keep and bear arms, shall not be infringed.”

36

Second Amendment: Origins

• British army occupied the colonies to enforce order

• Americans resented a standing army of foreign troops

• Colonial militia became known as “minutemen”

Minutemen at the battle of Lexington

37

Second Amendment:Varying Interpretations

“A well regulated militia, being necessary to the security of a free state,…

…the right of the people to keep and bear arms, shall not be infringed.”

• Who has the right to bear arms?

• Does the Second Amendment provide each individual with the right to own a gun, or merely allow each state to maintain a well-regulated militia?

38

Second Amendment:Court Decisions

• U.S. v. Miller (1939): The federal government has the right to require that firearms be registered

• Quilici v. Morton Grove (1982): U.S. Court of Appeals ruled right to bear arms does not apply to individuals

A sawed-off shotgun, similar to the type under question in U.S. v. Miller

39

Discussion Questions

1. Why did colonial Americans resent a “standing army” of British soldiers?

2. Explain how a gun-ownership advocate might interpret the Second Amendment.

3. Explain how a gun-control advocate might interpret the Second Amendment.

4. In U.S. v. Miller, what did the Supreme Court say about the Federal Firearms Act of 1934?

5. What did the U.S. Court of Appeals say about Morton Grove’s law banning firearms? How do you think this case would be decided if the Supreme Court chose to rule on it? Explain your answer.

40

The Third Amendment

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time

of war, but in a manner to be prescribed by law.”

41

Third Amendment: Origins

• Protection against quartering dates back to 12th century

• Grievance in Parliament’s Petition of Right (1628)

• Established firmly in English law by English Bill of Rights (1689)

King Charles I

King James II

42

Third Amendment:Colonial Experiences

• Thousands of British troops came to North America during the French and Indian War

• Troops stayed to enforce laws of taxation

• Citizens confronted British soldiers in the Boston Massacre

The Boston Massacre, by Paul Revere (1770)

43

Third Amendment:Early American Developments

• Quartering of soldiers was one of the grievances stated in the Declaration of Independence

• Prohibition on quartering of troops not mentioned during Constitutional Convention

• Included in the Bill of Rights in 1791

Patrick Henry

44

Third Amendment: Today• Troops can be quartered in private homes during wartime.

• No Supreme Court decisions directly concerning quartering troops in people’s homes

• Courts have cited the Third Amendment as a further protection of the right to privacy from government intrusion

Union troops were quartered in private homes during the Civil War

45

The Fourth Amendment

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or

things to be seized.”

46

Fourth Amendment: Origins

• Semayne’s Case (1603) acknowledged need for balance between privacy and the duties of law enforcement

• Writs of assistance allowed government officers wide latitude in searching private homes

• James Otis’s court challenge (1761)

James Otis

47

Fourth Amendment:Later Colonial Experiences

• Purpose is to prevent arbitrary actions and protect persons from invasions of privacy

• Violations by the Continental Congress during the Revolutionary War

• Framers incorporated colonial experiences and English heritage into the Fourth Amendment

• Amendment’s restrictions create tension between government’s duty and citizen’s privacy

48

Fourth Amendment: Two Clauses

First clause“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

Second clause“…and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

49

Fourth Amendment:Tests and Trials

• The original wording has fared well over time

• Supreme Court cases have limited what searches may entail:

• Olmstead v. United States (1928): listening devices

• Katz v. United States (1967): the “reasonable expectation of privacy” doctrine

• California v. Greenwood (1988): garbage bags

50

Fourth Amendment: Exclusionary Rule

Supreme Court cases have further clarified the meaning of unreasonable search or seizure:

• Weeks v. United States (1914): established the “exclusionary rule”

• Silverthorne Lumber Co. v. United States (1920): “fruit of the poisonous tree” doctrine

• Mapp v. Ohio (1961): extended exclusionary rule to states through the Fourteenth Amendment

51

Fourth Amendment: Exceptions to the Exclusionary Rule

• United States v. Leon (1984): “good faith” doctrine

• Nix v. Williams (1984): “inevitable discovery” doctrine

• The exclusionary rule is not intended to let criminals go free, but to penalize police for misconduct

52

Fourth Amendment: Other Exceptions to the

Exclusionary Rule

AutomobilesBorder searches Exigent circumstances

53

Fourth Amendment: Other Exceptions to the

Exclusionary Rule (continued)

Plain view

Stop and frisk

Student searches

54

Discussion Questions1. What types of things does the Fourth Amendment protect from

unreasonable searches? How does the amendment limit the power of the government?

2. How were the Fourth Amendment’s protections extended to the states?

3. What are some advantages and disadvantages of the exclusionary rule?

4. Do you think exceptions to the exclusionary rule are justified? Why or why not?

55

The Fifth Amendment

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law; nor shall private property be taken for

public use, without just compensation.”

56

Fifth Amendment:Common Legal Terms

• Infamous crime: a serious criminal offense

• Double jeopardy: being tried twice for the same crime

• “Taking the fifth”: invoking the right against self-incrimination

• Due process of law

• Substantive

• Procedural

• Just compensation for imposing “eminent domain”

57

Fifth Amendment:Historical Origins

Greek and Roman law

• Both established protections against double jeopardy

Magna Carta

• Protections of property and due process

The Star Chamber

• Abuse of power in the English courts

58

Fifth Amendment: Colonial Origins

• Grand jury

• Self-incrimination

• Double jeopardy

Anne Hutchinson on trial

59

Fifth Amendment: Colonial Origins (continued)

• Due process

• Just compensation

Dispossessed loyalists during the Revolution, fleeing to Canada

60

Fifth Amendment: Supreme Court Decisions

• Campbell v. Louisiana (1999): indictment by a grand jury

• Miranda v. Arizona (1966): right against self-incrimination

• Green v. United States (1957): clarified double jeopardy

61

Fifth Amendment: Supreme Court Decisions (continued)

• Goss v. Lopez (1975): juveniles’ right to due process

• Lucas v. South Carolina Coastal Council (1992) and Kelo v. City of New London (2005): right to just compensation

Students have a right to a

hearing before being

suspended, and to have

their parents at that hearing

62

The Sixth Amendment

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.”

63

Sixth Amendment: Due Process and Rights

• Preserves procedural due process

• The six provisions• Right to a speedy and public trial

• Right to a jury trial in the same locale as the crime

• Right to be informed of all charges

• Right to confront accusers in court

• Right to produce supporting evidence or witnesses

• Right to legal counsel

64

Sixth Amendment: Origins and Colonial Experiences• Magna Carta

• Massachusetts Body of Liberties

• Protections in state constitutions

• Anti-Federalists concerned about protecting the jury system for civil trials

65

Sixth Amendment: Speedy and Public Trial

“In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial…”

• A speedy trial still provides time to prepare a case, but doesn’t unnecessarily punish the accused

• A public trial helps ensure the government will abide by the rules

• Today, all trials must be public, but certain restrictions may be imposed to ensure due process

66

Sixth Amendment: Trial by Jury

“…by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, …”

• Granted to nobles in Magna Carta

• So valued that the Constitution and Bill of Rights mention it three times

• Rare today due to plea bargaining

• Individuals for an impartial jury selected through voir dire

67

Sixth Amendment: Knowing the Charges

“…and to be informed of the nature and cause of

the accusation;…”

• Defendants must be informed of the crimes they are accused of committing

• Knowing the charges allows the accused to prepare their defense

68

Sixth Amendment: Confrontation of Witnesses

“…to be confronted with the witnesses against him;…”

• Facing opposing witnesses helps provide for honest testimony

• Also enables the accused to challenge witnesses’ testimony

• In certain sensitive matters, testimony may be given through electronic means

69

Sixth Amendment: Calling of Witnesses

“…have compulsory process for obtaining witnesses in his

favor…”

• Accused persons can call witnesses in their defense

• Accused persons also hold subpoena power

70

Sixth Amendment: Legal Counsel

“…and to have the assistance of counsel for his

defense.”

• Helps the accused receive competent counsel on legal matters

• If the accused cannot afford counsel, one will be appointed for them at government expense

71

Sixth Amendment: Supreme Court Decisions

• Barker v. Wingo (1972): established guidelines for a speedy trial

• Duncan v. Louisiana (1968): right to trial by jury

• Miranda v. Arizona (1966): grants the accused the right to counsel (“Miranda warning”)

• Powell v. Alabama (1932) and Gideon v. Wainwright (1963): counsel must be provided and paid for by the government

Gideon’s original

handwritten petition

72

Discussion Questions1. List the five protections of the Fifth Amendment. Discuss which you

think is the most important, and why.

2. Define the two forms of due process: substantive and procedural. How does the protection of due process limit the government’s actions? Do you think the government should be limited in this way? Why or why not?

3. Taken as a whole, what is the purpose of the rights enumerated in the Sixth Amendment?

4. Which rights in the Fifth and Sixth Amendments appear to favor the accused over the duty of the government to convict them of a crime? Explain your answer.

5. What problems may arise over this apparent favoritism toward defendants? How should these problems be addressed?

73

Seventh Amendment

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved, and no fact tried by a jury, shall be

otherwise reexamined in any court of the United States, than according to the rules of the common law.”

74

Seventh Amendment: Historical Precedent

• Norman law

• English common law

• Admiralty courts and the Declaration of Independence

• Right not in the Constitution, but in the Bill of Rights The right to a jury trial dates back to the Norman

conquest

75

Seventh Amendment: Jury Trial Alternatives in the Past

• The importance of a trial by jury in civil cases

• Past methods of settling disputes

• Acts of faith and trials by ordeal

• Arbitrary decisions of all-powerful rulers

• Brute force (“might makes right”)

A trial by ordeal

76

Seventh Amendment: First Clause and Clarifications

• First clause guarantees a jury trial in civil cases exceeding $20

• In Re Henderson Distilled Spirits (1872): right to waive a jury trial

• Capitol Traction Co. v. Hoft (1899): right to a 12-person jury

• Colgrove v. Battin (1973): right to a six-person jury

• Minneapolis and St. Louis R. Co. v. Bombolis (1916): Seventh Amendment only applies to federal cases

77

Seventh Amendment:Second Clause

• Second clause defines the supremacy of the jury

• William Penn

• Judges may not influence the jury

• Baltimore & Carolina Line v. Redman (1935): delineating the roles of judge and jury

William Penn

78

Seventh Amendment:Juries’ Abilities

• Concerns about juries’ abilities

• Technology has become too sophisticated

• Juries alone can’t determine all the facts

• Markman v. Westview Instruments, Inc. (1996)

• Judges have better skills of interpretation

• Ruling could spread to other areas of the law

79

Seventh Amendment: Tort Reform

• Definition of tort reform

• Arguments for and against

Civil suits against corporations: David versus Goliath, or a “frivolous” use of the legal system?

80

Seventh Amendment:Tort Reform (continued)

• Proposals for reform

• Possible impact on jury system

Should punitive damages be limited in civil suits?

81

The Eighth Amendment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

82

Eighth Amendment:Historical Precedent

• Cruel and unusual punishment banned by the English Bill of Rights as a reaction to the Star Chamber

• Colonial justice sometimes involved cruel and unusual punishments as a deterrent to crime

• Provision against was rejected during Constitution ratification but accepted in Bill of Rights ratification

The pillory, a common punishment in colonial

times

83

Eighth Amendment:Rights and Freedoms

Benefits of the Eighth Amendment

• The right to be free on bail prior to trial

• Freedom from excessive fines

• Freedom from “cruel and unusual punishment”

84

Eighth Amendment: Changing Interpretations

• Standards for “cruel and unusual” punishment have changed

• In colonial times, mandatory capital punishment

• Throughout 19th century, state courts considered other factors

• Inconsistent application of capital punishment

The infamous “ball and chain”—once common, now considered “cruel and

unusual punishment”

85

Eighth Amendment: Changing Interpretations (continued)

• Capital punishment questioned in the 1960s• No evidence that capital punishment

deters crime

• Inconsistent and sometimes racist sentencing by juries

• Cost of appeals and execution greater than of life in prison

• Recent discoveries of innocence due to DNA analysis

86

Eighth Amendment: Supreme Court Decisions

• Trop v. Dulles (1958): punishment standards evolve with society

• Furman v. Georgia (1972): capital punishment as it then existed violated Eighth Amendment

• Gregg vs. Georgia (1976): death penalty not necessarily unconstitutional, though automatic sentencing is

Does the death penalty qualify

as “cruel and unusual

punishment”?

87

Eighth Amendment: More Supreme Court Decisions• Coker v. Georgia (1977): death penalty only for murder

convictions

• Enmund v. Florida (1982), and Tison v. Arizona (1987): felony-murder rule

• Stanford v. Kentucky (1989): permits executing 16- and 17-year-old minors

88

Eighth Amendment: More Supreme Court Decisions

(continued)• Atkins v. Virginia (2002): bars

executing the mentally challenged

• Roper v. Simmons (2005): court reverses itself on executing minors

89

Discussion Questions1. In what ways does a civil trial differ from a criminal trial? In

what ways are they similar?

2. What are the benefits of a jury trial in a civil case? What are some of the drawbacks?

3. How does releasing a defendant on bail benefit both the defendant and the prosecution?

4. What does the phrase “evolving standards of decency” mean?

5. How have the standards defining cruel and unusual punishment changed over the years? Why do you think this has happened?

6. Why has capital punishment become so controversial since the 1960s?

90

The Ninth Amendment

“The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others

retained by the people.”

91

Ninth Amendment: Differing Views

Two views of the Ninth Amendment

The courts should protect people’s rights

The legislature should protect people’s rights

92

Ninth Amendment: History

• Debate at Convention of 1787: how to include all of the people’s rights in Constitution

• Actual listing of rights rejected as impractical

• Ratification conventions demanded people’s rights be protected in a bill of rights

93

Ninth Amendment: Debate and Controversies

• Enumerated rights: religion, speech, due process

• Unenumerated rights: privacy, travel, voting

• Protections for unenumerated rights implied by other parts of the Bill of Rights

• Opponents state the Ninth Amendment doesn’t create rights where they don’t exist

94

Ninth Amendment: Supreme Court Decisions

• Kent v. Dulles (1958): right to travel

• Griswold v. Connecticut (1965): right to privacy for consenting adults

• Harper v. Virginia Board of Elections (1966): voting rights

95

The Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are

reserved for the States respectively, or to the people.”

96

Tenth Amendment: Early American History

• Articles of Confederation limited the power of federal government

• Constitution expanded the power of federal government

• Delegates to the ratification conventions worried about the loss of state power

Federal government was limited and largely ineffective under the Articles of Confederation

97

Tenth Amendment: Early Federalism Debates

• Jefferson and Madison’s nullification resolutions

• Chief Justice Marshall and Chief Justice Taney

• Andrew Jackson versus John C. Calhoun: the Nullification Crisis of 1832

Chief Justice John

Marshall

President Andrew Jackson

Early debates over federalism

98

Tenth Amendment:Supreme Court Cases

• Hammer v. Dagenhart (1918): child-labor law struck down

• United States v. Butler (1936): federal regulation of agricultural production

• United States v. Darby (1941): federal regulation of employment Child laborer, 1918

99

Tenth Amendment: Supreme Court Cases (continued)

• Brown v. Board of Education (1954): desegregated public schools

• United States v. Lopez (1995): power of state over federal government to regulate gun possession

Thurgood Marshall (center), chief lawyer for the NAACP in the Brown

case

100

Discussion Questions

1. What is the purpose of the Ninth Amendment? Why do you think the Bill of Rights includes this amendment?

2. Describe the two views of the Ninth Amendment regarding which branch of government is best suited to protect people’s rights.

3. Explain and give examples of enumerated and unenumerated rights. Describe the controversy over the court’s recognition of unenumerated rights.

4. Explain how the Tenth Amendment differs from the previous nine amendments in its protection of power.

101

Discussion Questions (continued)

5. What is the relationship between the Tenth Amendment and federalism? How can federalism cause tension between the federal and state governments?

6. What were the doctrine of nullification and the Nullification Crisis of 1832? Do you think states should have the power to nullify an act of the federal government?

7. Identify whether the Supreme Court during the following time periods supported states’ rights or federal supremacy: the Marshall Court, the Taney Court, 1918 to 1936, 1941 to 1995, and the Rehnquist Court.

102

The Promise in the Bill of Rights

• Written rights don’t guarantee rights

• The Bill of Rights continued the dialogue on liberty and freedom discussed at the Federal convention

• 14th amendment: Federal and state governments are held accountable to not violate people’s rights

• Democracy is best practiced by people defending their rights

• The Supreme Court serves as the forum for continued dialogue over people’s rights and freedoms