Monday, March 5th
• Final version of Essay 1 and Change Memo: due
March 8th or 9th at the beginning of lab.
• Post a digital copy of final version of Essay 1 to
Turn-It-In on BlackBoard prior to your lab.
The Bill of Rights 1
THE BILL OF RIGHTS
The Bill of Rights 2
Outline – The Bill of Rights
• Protecting ourselves from government
• How we got the Bill of Rights
• What are these rights?
• Problems with a rights approach
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How do we protect ourselves from government
infringement on freedom?
• Two alternatives
• We establish processes (e.g., elections, enumerated
powers, separation of powers, checks and balances) to
limit government.
• We enumerate rights and rely upon the courts to limit
government.
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Why did the original Constitution not
include a bill of rights?
• Eight states already had bills of rights
• Impossible to enumerate all rights Noah Webster suggested the following right:
“Congress shall never restrain any inhabitant of America from … lying on his left side, in a long winter’s night, or even on his back, when he is fatigued by lying on his right.”
• Constitution already limits government; it makes no sense to grant rights that the government has no authority to withhold
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So, why the Bill of Rights?
• More important to the people than the framers expected
• Some state conventions passed resolutions for suggested amendments to the Constitution
• To avoid a call for a new constitutional convention, Madison controlled the process in Congress and suggested the first ten amendments
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What are these rights?
• Some are narrowly drafted
3rd – No forced quartering of soldiers
4th – No unreasonable search and seizure
5th – Freedom from expropriation
5th through 8th – Rights of the accused
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What are these rights?
• Others are broadly constructed
1st - Congress shall make no law respecting …
• establishment of religion
• freedom of speech
• freedom of assembly
• freedom of petition
9th - This enumeration of certain rights does not mean
there aren’t others.
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What are these rights?
• The 10th amendment
“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.”
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Video: Governor Perry of Texas
• On the 10th amendment.
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The Courts and Rights
There is no process for compromise or tradeoffs
as the courts consider rights. Thus they tend to
become very narrowly applied or to become
absolute.
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Changing definitions of rights
• Congress shall make
no law abridging the
freedom of speech or
press
• Nor shall private
property be taken for
public use without just
compensation
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Compare two phrases
Video: Kelo Decision
• 5th Amendment
“… nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken
for public use, with just compensation.”
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iClicker
How do you feel about the Supreme Court’s Kelo
decision sustaining the government's decision to
“take” Susette Kelo’s home?
A. I agree. Economic development is a legitimate
public use.
B. I disagree. The Founders did not intend for
private property rights to be violated this way.
C. I agree. Pink houses have got to go.
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Problems with the rights approach to
liberty
• Inclusion – No way to draw clear boundaries
• Collision – When rights collide, the Constitution
gives the courts no guidance.
• Expansion – Courts and politics tend to expand
rights through time.
The Bill of Rights 15
The Problem of Inclusion
Freedom of speech or religion includes what
speech and what religion?
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The Collision Effect
How should the Court make decisions about
tradeoffs involving rights?
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The Bill of Rights 18
Tradeoff between freedom of religion and freedom of
speech.
• “Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof or abridging the freedom of
speech;… or the right of the people peaceably to
assemble…”
• Freedom of street preachers and others to speak on a
public easement.
• Freedom of a religious organization to use its property
and funds to further its purposes.
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The Expansion Effect
There is no way to keep the legal definitions from
expanding through time.
We conduct our political discussions using a
rhetoric of rights.
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Video: Rights Talk in the 2008 Election
• Clips taken from the presidential and vice
presidential debates
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Video: Rights Talk
• Do lobsters have rights?
• Where does an absolute view of rights take us?
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Mary Ann Glendon
“A rapidly expanding catalog of rights – extending
to trees, animals, smokers, nonsmokers,
consumers, and so on – not only multiplies the
occasions for collisions but it risks trivializing core
democratic values. A tendency to frame nearly
every social controversy in terms of a clash of
rights impedes compromise, mutual
understanding, and the discovery of common
ground.”
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Is enumeration of rights enough?
Article 125 of the Soviet Union Constitution:
In conformity with the interests of the working people, and
in order to strengthen the socialist system, the citizens of
the U.S.S.R. are guaranteed by law:
• Freedom of speech;
• Freedom of the press;
• Freedom of assembly, including the holding of mass
meetings;
• Freedom of street processions and demonstrations.
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Conclusion
• In general, enumerated rights without
good processes prove to be
ineffective.
•Ultimately, it is the processes outlined
in the Constitution that protects our
rights, not their enumeration in the Bill
of Rights.
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