notes- 12/8/08

Chapter 15

The failure to include the Bill of Rights was themost important obstacle to the adoption of the constitution

1. As It was originally written, the bills of rights imposed limits on the nat'l gov't but not on state gov't. The Supreme Court affiremed this in Barron v. Baltimore (1823)


2. Constitution guarantees Americans numerous liberties and rights

• Civil liberties are freedoms guaranteed to an individual


• Declare what gov't can not do


• May be thought of as 'negative rights'


• Civil rights are powers and priviledges guaranteed to the i ndividual and protected against arbitrary removal

1. Declare what gov't must do or provide


2. Mst be thought of as 'positive rights'


3. Protection of civil liberties in the Bill of Rights has been a center of conflict between the basic values of freedom and order

Most framers believe that the constitution protected natural rights even before agreeing to add a Bill of Rights. Rights mentioned in the Constitution include;

1. Writ of habeas corpus- laws that would punish a person w/out judicial trial


2. No ex post facto laws- a retroactive criminal law that affects the accused negatively


3. Trial by jury in federal criminal cases


4. Protetion when people move from state to state


5. No titles of nobility


6. Limits on punishment of treason


7. No religious oath required for holding federal office


8. A guarantee of republican gov't for all states

The 1st amendment prevents gov't from intefering with freedom of religion in two different ways

• The Supreme Court has affirmed the Establishment Cluase- which requires gov't to maintain religious nuetrality (seperation btw church and state)but does not bar all assistance to religious institutions. Supreme Court has accepted only incidental gov't support of religion

1. Lemon v. Jurtzman (1971) The Supreme Court, using a 3 pronged test, rejected a state program authorizing purchases of secular services for churchschools. Lemon established the criteria used by courts today to judge whether the establishment clauses is being violated. 3 points specified in test:

• Must have a secular purpose
• primary result should not advance/inhibit a religion
• Must not excessively entangle gov't and religion

2. In 1997, in Agonstina v. Felton, the court loosened its application of the 'Lemon Test'.

• The court rules that NY public school teachers could teach remedial education to disadvantaged students in By parochial schools at taxpayer expense.
• Supreme Court has updeld the constitutionality of state-funded nativity scenes with some limits. They must pass the 3 prong test
• Supreme court has consistently moved prayer in public schools as gov't encouragement of religion. the 1st major case was Engle v. Vitale (1962). where the court struck down a required prayer written by the NY state gov't. Other decisions overturned state laws require the saying of the Lord's prayer and the posting of the 10 commandments in classrooms. In 1985 an Alabama law requiring a moment of silence for meditation or voluntary prayer was struck down in Wallace v. Jaffree
• In 1990, the court upheld the constitutionality of the Equal Access Act, which declares that no public secondary school recieving federal funds may ban after-school meetings on school property by student religious or political groups if the same priviledge is provided to other groups

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