GOVT 2301

1. GOVT 2301 Civil Liberties and the Bill of Rights

2. The final constitutional principle we will discuss is individual liberty. The fancy term we will use is civil liberty.

3. Note that other principles are contained in the constitution, but these (most notably equality) were added to the document after the original document was ratified.

4. Here are the goals for this section. After reading through the available material and accessing some of the more critical links you should be comfortable with the following:

5. - What is the definition of civil liberties?- What is the marketplace of ideas?- What role did the Magna Carta and the British Bill of Rights have in establishing the concept of individual liberty?- Why did the Federalists argue that a Bill of Rights was unnecessary?- What is a substantive liberty? Which amendments establish them?- What is a procedural liberty? Which amendments establish them?- How did the 14th Amendment apply the Bill of Rights to the states?- How might the Supreme Court decide that a freedom established in the Bill of Rights might not be enforceable in a specific case?- What are the arguments for and against interpreting the Constitution strictly or loosely?- Describe the “establishment” and “free exercise” clauses.

6. For past blog posts on relevant material, click on theseBill of Rightscivil libertiesestablishment clausefirst amendmentfree exerciseprocedural liberty

7. Two quick definitions of the term “civil liberty.”1 - The protections of individuals from the arbitrary powers of government.2 - “the freedom of a citizen to exercise customary rights, as of speech or assembly, without unwarranted or arbitrary interference by the government.”

8. You can find more expansive definitions, thoughts and comments here: About.comACLU: This Week in Civil LibertiesCato Institute: Civil LibertiesDavid Hume, Of Civil LibertyWikipedia

9. Note: A civil liberty is not the same as a civil right. Freedom of speech is a civil liberty. The right to equal protection is a civil right.We will cover this more fully in the next section.

10. Civil liberties are established by limiting the government. Specific limits are placed on its powers.

11. As we will see, there are tow ways to do so. The first is to design the system so that its various parts check each other. The second is to place explicit limits on the powers of government in a document called a bill of rights.

12. The document as ratified contained the former, but not the latter.

13. The Federalists thought the republican design, in addition to the checks and balances was sufficient to limit governing power, but the Anti-Federalists needed a further guarantee.

14. The Bill of Rights places two general types of limitations on the powers of the national government: SubstantiveProcedural

15. (Note that prior to the 14th Amendment, the Bill of Rights applied only to the national government.)

16. As a consequence we can speak of procedural liberty (notably due process) and substantive liberty.

17. A substantive limit refers to what government can pass laws about(religion, speech, press etc…)

18. Example: You are free to say what you wish because government is limited from passing laws which restrict speech. (we will analyze exceptions to this in due course)

19. A procedural limit refers to how the executive and judicial powers can be used.The Due Process of Law

20. Example: How, and under what conditions, can someone be searched? And if one is accused of a crime, what rights does one have in a court of law?

21. For us, these limits are contained in the U.S. Bill of Rightsand theTexas Bill of Rights

22. Note that the U.S. Bill of Rights was added on to the original document after ratification – in order to appease the Anti-Federalists.On the other hand, the Texas Bill of Rights is the subject of the First Article of the Texas Constitution.

23. Again, the Federalists believed that the Bill of Rights was unnecessary, Hamilton and Madison thought not.The overall design of the constitution was sufficient to limit it the national government.

24. A Bill of Rights might also prove dangerous to individual liberty because it might not be expansive enough.

25. Basic Fact: The U.S. Bill of Rights has ten sections – these are the first ten amendments to the Constitution. There is no separate section titled “the bill of rights.” the term simply refers to the first ten amendments.

26. Some useful links regarding the Bill of Rights.Its History and SignificanceWikipediaJames Madison and the Bill of Rights

27. It is relatively short and vague. As is the rest of the Constitution. It is commonly reinterpreted, often controversially so.

28. Example: A recent Supreme Court case dealt with the question whether gaming was constitutionally protected speech.

29. Basic Fact: The Texas Constitution does have a unique section called the Bill of Rights. It is the first Article of the document. It has 33 sections, and has been heavily amended since it was first written. Most recently in 2009.

30. As with the rest of the Texas Constitution, it is long detailed and precise.

31. Bills of Rights were commonly attached to state constitutions. It was argued that they were necessary because the states had – as we know – powers that were “many and undefined.”

32. Federalist argued that the power of the national government was most effectively limited by properly designing – balancing -- governmental institutions and their powers.

33. Republicanism, checks and balances, and federalism all are argued to allow for individual freedom by balancing and limiting governmental power.

34. The national government was limited to the delegated powers granted to it. They were “few and defined.”

35. Madison and Hamilton originally argued that these would be sufficient to ensure that the powers of government would be limited.

36. The Anti-Federalists were unconvinced and demanded that a Bill of Rights be added to the document to ensure that specific limits were placed on the national government.

37. Five states, including Massachusetts, ratified the Constitution on the condition that such amendments be added immediately.

38. James Madison agreed to introduce and push it through the House when he became a member of it. He thought it was harmless.

39. The addition of the Bill of Rights is therefore a product of a compromise between the Federalists and the Anti-Federalists. It was the subject of Federalist #84 (wikipedia).

40. Federalist #84Anti Federalist #84

41. In Federalist #84, Hamilton argues that a Bill of Rights is not necessary since the national government can only exercise the powers delegated to it.

42. There is no reason to that Congress has no power to pass a law on a subject that it has no delegated authority over.

43. State governments did need Bills of Rights since they possessed the reserved powers and could more easily become tyrannical.

44. Republicanism, Federalism and the Checks and Balances should be sufficient to ensure that the national government would not overstep its authority.

45. Adding a Bill of Rights stating that Congress could not pass laws on matters not delegated to it raised a question regarding the limits of the rights individuals possessed.

46. Noah Webster thought it would be dangerous to do so. It is impossible to spell out all the rights of individuals. To only list a few would imply that others did not exist.

47. Listing six freedoms in the First Amendment might lead others to suggest that these are the only ones that exist.

48. What about rights not mentioned in the Constitution? Privacy?Travel?Contract?Property?Voting?

49. For general information: Things that are not in the Constitution.

50. If the right is not explicitly written in the Constitution, it may be argued that the power does not exist.