POLS 34102 Lecture Notes - Lecture 4: Exclusionary Rule, Prior Restraint, Due Process
29 Jun 2018
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CH 04 OUTLINE
A Brief History of the Bill of Rights
1. Civil liberties are protections from improper government action. Some of these restraints are
substantive liberties, which put limits on what the government shall and shall not have power to
do. Other restraints are procedural liberties, which deal with how the government is supposed to
act. Civil liberties require a delicate balance between governmental power and governmental
restraint.
2. Despite the insistence of Alexander Hamilton that a bill of rights was both unnecessary and
dangerous, adding a list of explicit rights was the most important item of business for the First
Congress in 1789.
3. The Bill of Rights, generally considered to be the first 10 amendments to the Constitution, is
made up of provisions that protect citizens from improper government action.
4. In 1833, the Supreme Court found that the Bill of Rights limited only the national government
and not state governments.
5. Although the language of the Fourteenth Amendment seems to indicate that the protections of
the Bill of Rights apply to state governments as well as to the national government, for the
remainder of the nineteenth century the Supreme Court (with only one exception) made decisions
as if the Fourteenth Amendment had never been adopted.
6. As of 1961, only the First Amendment and one clause of the Fifth Amendment had been
"selectively incorporated" into the Fourteenth Amendment. After 1961, however, most of the
provisions of the Bill of Rights were gradually incorporated into the Fourteenth Amendment and
applied to the states.
The First Amendment and Freedom of Religion
1. The establishment clause of the First Amendment has been interpreted in several ways, one
being the strict separation of church and state. But there is significant disagreement about how
high that wall is and of what materials it is composed.
2. The Supreme Court's test from Lemon v. Kurtzmann determined that government aid to
religious schools would be accepted as constitutional if (1) it had a secular purpose, (2) its effect
was neither to advance nor to inhibit religion, and (3) it did not entangle government and religious
institutions in each other's affairs.
3. The free exercise clause protects the right to believe and to practice whatever religion one
chooses; it also involves protection of the right to be a nonbeliever. The Supreme Court has taken
pains to distinguish between religious beliefs and actions based on those beliefs.
The First Amendment and Freedom of Speech and the Press
1. Freedom of speech and the press have a special place in American political thought.
Democracy depends on the ability of individuals to talk to each other and to disseminate
information and ideas.
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Document Summary
A brief history of the bill of rights: civil liberties are protections from improper government action. Some of these restraints are substantive liberties, which put limits on what the government shall and shall not have power to do. Other restraints are procedural liberties, which deal with how the government is supposed to act. Congress in 1789: the bill of rights, generally considered to be the first 10 amendments to the constitution, is made up of provisions that protect citizens from improper government action. After 1961, however, most of the provisions of the bill of rights were gradually incorporated into the fourteenth amendment and applied to the states. The first amendment and freedom of religion: the establishment clause of the first amendment has been interpreted in several ways, one being the strict separation of church and state. The supreme court has taken pains to distinguish between religious beliefs and actions based on those beliefs.
