Chapters 13, 14, & 15 Government 1

Chapters 13, 14, & 15 Government 1

• These chapters look at the Constitutional guarantees of basic rights that are guaranteed and given to all Americans.

Bill of Rights—James Madison introduced a series of amendments to the U.S. Constitution that became known as the Bill of Rights. It was intended to protect individuals from abuses by the national government such as: to prevent it from controlling the press, restricting speech, influencing religion, and limiting other areas of personal freedom. They had no idea that these restrictions would be applied to the state governments.

Barron v. Baltimore (1833)—the U.S. Supreme Court ruled that the Bill of Rights applied only to the national government, not to the states.

• In Barron v. Baltimore (1833), the Supreme Court ruled that the Constitution'sBill of Rightsrestricts only the powers of the federal government and not those of the state governments. The case began with a lawsuit filed by John Barron against the city of Baltimore, claiming that the city had deprived him of his property in violation of theFifth Amendment, which provides that the government may not take private property without just compensation. He alleged that the city ruined his busy wharf in BaltimoreHarbor by depositing around the wharf sand and earth cleared from a road construction project that made the waters around the wharf too shallow to dock most vessels. The state court found that the city had unconstitutionally deprived Barron of private property and awarded him $4,500 in damages, to be paid by the city in compensation. Anappellate courtthen reversed this award. Barron appealed to the Supreme Court, which reviewed the case in 1833. The Supreme Court, in a decision written byChief Justice John Marshall, ruled that Barron had no claim against the state under the Bill of Rights because the Bill of Rights does not apply to the states. The Court asserted that the Constitution was created "by the people of the United States" to apply only to the government that the Constitution had created -- the federal government -- and "not for the government of the individual states." The separate states had drafted constitutions only to apply to themselves, limiting the actions of only state governments. Thus, "the Fifth Amendment must be understood as restricting the power of the general government, not as applicable to the states." The Court argued that the validity of this conclusion is bolstered by the fact that the Constitution nowhere states that the Bill of Rights also limits the actions of state governments, Thus, the state of Maryland, through the actions of the city of Baltimore, did not infringe on the Constitution. With no federal claim, the Supreme Court thus lackedjurisdiction(or power) to hear Barron's case and dismissed it.Barron v. Baltimore's simple rule, that the Bill of Rights applies only to the federal government and not to the states, was, in the words of Chief Justice Marshall, "not of much difficulty" -- self-evident from the structure and literal language of the Constitution. However, in spite of the Court's ruling, state courts still interpreted the Bill of Rights as applying to their own governments, viewing them as reflections of the general laws in Anglo-American culture ("the common law"). The Supreme Court's ruling in Barron prevailed in federal courts, however, until passage of theFourteenth Amendmentafter the Civil War. Gradually since then, the Supreme Court has interpreted the Fourteenth Amendment, which bans states from depriving citizens of life, liberty, or property without "due processof law," as alsoincorporating-- or applying -- most of the amendments in the Bill of Rights against the states, including the "takings clause" of the Fifth Amendment. Modern constitutional law prohibits state governments from taking private property without just compensation.

Incorporation—the gradual process of applying the Bill of Rights to the states.

14TH Amendment—no attempt was made to apply the Bill of Rights to the states for about 80 years, and then Congress added the 14TH Amendment to the Constitution. It not only defined citizenship but also laid the groundwork for making individual rights national. It’s due process clause state that “no state shall …deprive any person of life, liberty, or property without the due process of law…”

• The 14th Amendmentto the Constitution was ratified on July 9, 1868, and granted citizenship to “all persons born or naturalized in the United States,” which included former slaves recently freed. In addition, it forbids states from denying any person "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of the laws.” By directly mentioning the role of the states, the 14th Amendment greatly expanded the protection of civil rights to all Americans and is cited in more litigation than any other amendment.

Gitlow v. New York(1925)—the U.S. Supreme Court ruled that 1ST Amendment rights to freedom of speech applied to states as well as the federal government.

• Benjamin Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law. Does the New York law punishing the advocacy of overthrowing the government an unconstitutional violation of the free speech clause of the First Amendment? Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.

• Since the Gitlow case, the U.S. Supreme Court has incorporated almost all other rights provided for in the first 10 amendments. With the exceptions being the 2ND, 3RD, and 10TH Amendments, the excessive bails and fines prohibition of the 8TH Amendment, and two judicial procedures contained in the 5TH and 7TH Amendments.

Establishment Clause—the part of the 1ST Amendment that prohibits the establishment of a national religion.

• TheFirst Amendment’sEstablishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion. Although some government action implicating religion is permissible, and indeed unavoidable, it is not clear just how much the Establishment Clause tolerates. In the past, the Supreme Court has permitted religious invocations to open legislative session, government funding of bussing and textbooks for private religious schools, and efforts by school districts to arrange schedules to accommodate students’ extra-curricular religious education programs. The Court has ruled against some overtly religious displays at courthouses, state funding supplementing teacher salaries at religious schools, and some overly religious holiday decorations on public land.

Free Exercise Clause—the part of the 1ST Amendment that states that Congress may not make laws restricting or prohibiting a person’s religious practices.

• Free Exercise Clause refers to the section of theFirst Amendment: “Congress shall make no law respecting an establishment of religion, orprohibiting the free exercise thereof...” The Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage in religious rituals. The wording in the free-exercise clauses of state constitutions that religious “[o]pinion, expression of opinion, and practice were all expressly protected” by the Free Exercise Clause. The clause protects not just religious beliefs but actions made on behalf of those beliefs. More importantly, the wording of state constitutions suggests that “free exercise envisions religiously compelled exemptions from at least some generally applicable laws.” The Free Exercise Clause not only protects religious belief and expression; it also seems to allow for violation of laws, as long as that violation is made for religious reasons. In the terms of economic theory, the Free Exercise Clause promotes a free religious market by precluding taxation of religious activities by minority sects.

• Notice that the phrase “separation of church and state” does not appear in the 1ST Amendment, nor is it found anywhere else in the Constitution. Instead, Thomas Jefferson coined it in his writings during the American Revolution. He opposed having he Church of England as the established church of his native Virginia. As President, Jefferson wrote that the 1ST Amendment’s freedom of religion clause was designed to build “a wall of separation between Church and State.” Jefferson’s interpretation has surely influenced the Supreme Court through the years. The Court has consistently ruled that a separation between church and state is required by the Constitution. The Court has declared that the 1ST Amendment not only means that no national religion may be established but that government can have no involvement with religion at all.

Everson v. Board of Education (1947)—The U.S. Supreme Court ruled that a New Jersey township had not violated the establishment clause when it reimbursed parents for the cost of sending their children to school on public transportation. The reimbursement was made to all parents even if their children attended religious schools. The Court explained that the practice served the public purpose of getting children to school safely; was neutrally administered, neither favoring nor disfavoring anyone on the basis of their religious views; and was a general program intended to benefit students, not to advance religion.

• A New Jersey law allowed reimbursements of money to parents who sent their children to school on buses operated by the public transportation system. Children who attended Catholic schools also qualified for this transportation subsidy. Did the New Jersey statute violate the Establishment Clause of the First Amendment as made applicable to the states through the Fourteenth Amendment? No. A divided Court held that the law did not violate the Constitution. After detailing the history and importance of the Establishment Clause, Justice Black argued that services like bussing and police and fire protection for parochial schools are "separate and so indisputably marked off from the religious function" that for the state to provide them would not violate the First Amendment. The law did not pay money to parochial schools, nor did it support them directly in anyway. It was simply a law enacted as a "general program" to assist parents of all religions with getting their children to school.

• School prayer has been the most controversial of the separation of church and state issues. The U.S. Supreme Court has ruled about the constitutionality of saying prayers and reading the Bible in public schools.

Lemon v. Kurtzman (1971)—ruling by the U.S. Supreme Court that established a three-part test for determining if a particular government action violates the establishment clause.

• This case was heard concurrently with two others, Earley v. DiCenso (1971) and Robinson v. DiCenso (1971). The cases involved controversies over laws in Pennsylvania and Rhode Island. In Pennsylvania, a statute provided financial support for teacher salaries, textbooks, and instructional materials for secular subjects to non-public schools. The Rhode Island statute provided direct supplemental salary payments to teachers in non-public elementary schools. Each statute made aid available to "church-related educational institutions." Did the Rhode Island and Pennsylvania statutes violate the First Amendment's Establishment Clause by making state financial aid available to "church-related educational institutions?” Yes. Writing for the majority, Chief Justice Burger articulated a three-part test for laws dealing with religious establishment. To be constitutional, a statute must have "a secular legislative purpose," it must have principal effects which neither advance nor inhibit religion, and it must not foster "an excessive government entanglement with religion." The Court found that the subsidization of parochial schools furthered a process of religious inculcation, and that the "continuing state surveillance" necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs. The Court also noted the presence of an unhealthy "divisive political potential" concerning legislation which appropriates support to religious schools. Decision: 8 votes for Lemon, 0 vote(s) against.

3 PARTS OF THE LEMON TEST

1. Must have a clear secular, nonreligious purpose
2. In its main effect neither advance or inhibit religion
3. Avoid “excessive government entanglement with religion”

MAJOR U.S. SUPREME COURT CASES ON PRAYER/BIBLE READING

1. Engel v. Vitale (1962)—the U.S. Supreme Court banned the use of a prayer written by the New York State Board of Regents. It read “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.”
2. The Board of Regents for the State of New York authorized a short, voluntary prayer for recitation at the start of each school day. This was an attempt to defuse the politically potent issue by taking it out of the hands of local communities. The blandest of invocations read as follows: "Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country." Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment? Yes. Neither the prayer's nondenominational character nor its voluntary character saves it from unconstitutionality. By providing the prayer, New York officially approved religion. This was the first in a series of cases in which the Court used the establishment clause to eliminate religious activities of all sorts, which had traditionally been a part of public ceremonies. Despite the passage of time, the decision is still unpopular with a majority of Americans. Decision:6 votes for Engel, 1 vote(s) against.

2.AbingtonSchool District v. Schempp (1963)—the U.S. Supreme Court overturned a Pennsylvania law requiring the saying of the Lord’s Prayer and a Bible reading.

• The Abington case concerns Bible-reading in Pennsylvania public schools. At the beginning of the school day, students who attended public schools in the state of Pennsylvania were required to read at least ten verses from the Bible. After completing these readings, school authorities required all AbingtonTownship students to recite the Lord's Prayer. Students could be excluded from these exercises by a written note from their parents to the school. In a related case -- Murray v. Curlett -- a Baltimore statute required Bible-reading or the recitation of the Lord's Prayer at open exercises in public schools. Murray and his mother, professed atheists -- challenged the prayer requirement. Did the Pennsylvania law and Abington's policy, requiring public school students to participate in classroom religious exercises, violate the religious freedom of students as protected by the First and Fourteenth Amendments? The Court found such a violation. The required activities encroached on both the Free Exercise Clause and the Establishment Clause of the First Amendment since the readings and recitations were essentially religious ceremonies and were "intended by the State to be so." Furthermore, argued Justice Clark, the ability of a parent to excuse a child from these ceremonies by a written note was irrelevant since it did not prevent the school's actions from violating the Establishment Clause. Decision: 8 votes for Schempp, 1 vote(s) against.

3.Stone v. Graham (1980)—the U.S. Supreme Court ruled that a Kentucky law requiring copies of the Ten Commandments be posted in all public school classrooms was unconstitutional.

• Sydell Stone and a number of other parents challenged a Kentucky state law that required the posting of a copy of the Ten Commandments in each public school classroom. They filed a claim against James Graham, the superintendent of public schools in Kentucky. Did the Kentucky statute violate the Establishment Clause of the First Amendment? In a 5-to-4 per curiam decision, the Court ruled that the Kentucky law violated the first part of the test established in Lemon v. Kurtzman, and thus violated the Establishment Clause of the Constitution. The Court found that the requirement that the Ten Commandments be posted "had no secular legislative purpose" and was "plainly religious in nature." The Court noted that the Commandments did not confine themselves to arguably secular matters (such as murder, stealing, etc.), but rather concerned matters such as the worship of God and the observance of the Sabbath Day. Decision: 5 votes for Stone, 2 vote(s) against.

4.Wallace v. Jaffree (1985)—the U.S. Supreme Court ruled that Alabama’s “moment of silence” law that provided for a one-minute period of silence for “mediation or voluntary prayer” was found to be unconstitutional.