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The one recourse individuals have against the press is to sue newspapers, magazines, or other press organizations for libel. The Court has made it more difficult for public officials to sue for libel than for private people to do so, because of the voluntary sacrifice of privacy implicit in a public official's decision to enter public life.
While the press cannot be restrained from publishing libelous materials, those being allegedly libelled can sue the press after the publication. In a landmark libel case, New York Times v Sullivan, the Supreme Court overturned the libel conviction of the New York Times, stating that a public official could not sue for libel unless he or she could prove that the statements published were made with actual malice.
In the case of Falwell v. Hustler (1988), the Court overturned the conviction of Hustler Magazine for printing a satirical cartoon of Reverend Jerry Falwell. Considering the nation's long history of satire, the court ruled unanimously that public officials could not sue for libel for satire. In 1976, in the case of Firestone v. Time, the Court limited the definition of public officials to those who knowingly became public officials, and not those who are drawn into the public light unwittingly.
How does the bill or rights protect against libel - History
The Bill of Rights is the collective name for the first ten amendments to the US Constitution and they guarantee certain liberties.
Explain how the Bill of Rights is used to protect natural rights of liberty and property.
- The Bill of Rights was introduced by James Madison to the 1st US Congress as a series of legislative articles. Without a Bill of Rights, the Constitution may not have been ratified.
- Originally, the Bill of Rights implicitly and legally protected only white men, excluding American Indians, people considered to be “black” (now described as African Americans), and women.
- The Bill of Rights originally only applied to the federal government, but has since been expanded to apply to the states as well.
- The Bill of Rights includes protections such as freedom of the press, speech, religion, and assembly the right to due process and fair trials the right to personal property and other rights.
- Bill of Rights: The collective name for the first ten amendments to the United States Constitution.
- amendment: An addition and/or alteration to the Constitution.
- Fourteenth Amendment: An amendment to the US Constitution containing a clause that has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights.
The Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government’s power in judicial and other proceedings, and reserve some powers to the states and the public. While the amendments originally applied only to the federal government, most of their provisions have since been held to apply to the states by way of the Fourteenth Amendment.
The Bill of Rights of the United States of American: The United States Bill of Rights, which are the first 10 amendments to the US Constitution, and the core of American civil liberties.
History of the Bill of Rights
The Constitution may never have been ratified if a bill of rights had not been added. Most state constitutions adopted during the Revolution had included a clear declaration of the rights of all people, and most Americans believed that no constitution could be considered complete without such a declaration.
Signing the Constitution: This painting depicts the signing of the US Constitution. Without the addition of the Bill of Rights, it is unlikely that the Constitution would have been ratified.
The amendments that would become the Bill of Rights were introduced by James Madison as a series of legislative articles. They were adopted by the House of Representatives on August 21, 1789, and came into effect as Constitutional Amendments on December 15, 1791, through the process of ratification by three-fourths of the States.
Portrait of James Madison: James Madison, “Father of the Constitution” and first author of the Bill of Rights
Congress passed twelve amendments, yet only ten were originally passed by the states. One of the two rejected amendments dealt with the size of the House of Representatives, and the other rejected amendment provided that Congress could not change the salaries of its members until after an election of representatives had been held (it was ratified 202 years later, becoming the 27 th Amendment).
Original Exclusions from the Bill of Rights
The Bill of Rights implicitly and legally only protected white land-owning men, excluding American Indians, people considered to be “black” (now described as African Americans), and women. These exclusions were not explicit in the Bill of Right’s text, but were well understood and applied. Gradually, these exclusions were lifted by subsequent interpretations or amendments, so in contemporary times, the Bill of Rights protects all classes of people.
- The First Amendment protects freedom of religion, speech, press, assembly and petition.
- The Second Amendment protects the right of Americans to bear arms.
- The Third Amendment prevents the government from quartering (housing) soldiers in civilian’s homes during peace time without the consent of the civilian.
- The Fourth Amendment provides protection from unreasonable search and seizure.
- The Fifth Amendment establishes rights related to due process, double jeopardy, self-incrimination, and eminent domain.
- The Sixth Amendment sets out rights of the accused of a crime: a trial by jury, a speedy trial, a public trial, the right to face the accusers, and the right to counsel.
- The Seventh Amendment protects the right to a trial by jury for civil trials.
- The Eighth Amendment prohibits excessive bail and cruel and unusual punishment.
- The Ninth Amendment protects rights not specifically enumerated in the Constitution. Some people feared that the listing of some rights in the Bill of Rights would be interpreted to mean that other rights not listed were not protected. This amendment was adopted to prevent such a misinterpretation.
- The Tenth Amendment confirms that the states or the people retain all powers not given to the national government. This amendment was adopted to reassure people that the national government would not swallow up the states.
Applying the Bill of Rights to state governments
The Bill of Rights, as originally established in 1791, was a set of restrictions on federal power. But what about restrictions on state power? Were state and local governments obliged to follow the Bill of Rights?
Well, as several historians and legal scholars have noted, the Framers of the Constitution had no intention of restricting the power of state governments through the Bill of Rights. So, if the people of each state saw fit to subject their respective state governments to similar restrictions, they could do so on their own accord. Perhaps it says something about the importance our founding generations placed upon the right to a fair hearing that, in every new state to join the Union, the people of that state unilaterally chose to preserve the right to have the assistance of a lawyer in criminal prosecutions by adopting it as part of their respective state constitutions. And that’s where the constitutional right to counsel was left, along with the rest of the Bill of Rights. That is, until the era of reconstruction that followed the Civil War.
The American Civil War ended in 1865. The Fourteenth Amendment was ratified three years later, in 1868. A host of historians and legal scholars believe its adoption was almost as important as the entire Bill of Rights itself. In particular, it’s the Fourteenth Amendment’s second sentence that they focus upon. It reads:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any State deprive any person of life, liberty, or property, without due process of law nor deny to any person within its jurisdiction the equal protection of the laws.”
As the lawmakers who crafted the language of the Fourteenth Amendment readily admitted, it was intended as a direct reversal of a 35-year old ruling of the Supreme Court.
The 1833 case, Barron v. Baltimore, was the first instance in which the Supreme Court confronted the argument that a state or a city government had violated one of the provisions of the Bill of Rights. In Mr. Barron’s case, he alleged that local government failed to compensate him for its destruction of his private property in violation of his federal rights contained in the Fifth Amendment. There, the Court ruled that the first ten “amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.” So, in 1833, the Supreme Court confirmed what the original Framers of the Constitution had intended – that the Bill of Rights applied only to the federal government and not to any state. But the Civil War had changed dramatically the relationship between the federal government and the states.
With the adoption of the Fourteenth Amendment, Congress overruled the Barron decision and instead established that, from hence forth, certain portions of the Bill of Rights could be federally enforced against state governments. But the ability of the federal government to enforce certain portions of the Bill of Rights against the states left open the question of which rights would be enforced, and which rights would not. In a series of decisions handed down over the next several decades, the Supreme Court slowly but surely made clear its process for answering those questions – particularly how it would determine whether the Sixth Amendment right to counsel was an obligation of state government under the Fourteenth Amendment, or not.
The key Supreme Court ruling came in 1926, in Hebert v. Louisiana, where the court found that the due process clause of the Fourteenth Amendment only requires that “state action . . . shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” That’s the key for the right to counsel: is it a “fundamental principle of liberty and justice” that one accused of a crime has a right to the assistance of a lawyer in his defense? If so, then the Sixth Amendment is obligatory on state government by virtue of the Fourteenth Amendment.
The first major test of this idea for the right to counsel was 1932’s Powell v. Alabama – the legendary, notorious case of the so-called “Scottsboro Boys.” Next, we recount the Scottsboro Boys’ story, as a prelude to a discussion of the Powell decision and its impact on the right to counsel in the United States.
 For an excellent analysis of the history of the Bill of Rights, see Amar, Akhil Reed. The Bill of Rights and the Fourteenth Amendment (Yale Law Review, 1992). See also William Beaney, The Right to Counsel in American Courts (U of Mich, 1955), at 28-33.
 William Beaney, The Right to Counsel in American Courts (U of Mich, 1955), at 25.
The Bill of Rights Revisited
Drawing on work by historian Gordon S. Wood, I recently suggested that we see the U.S. Constitution not as a landmark in the struggle for liberty, but rather as a move to introduce elements of monarchy and aristocracy into an American political system that had become too democratic for America's upper crust. As Wood wrote in Empire of Liberty: A History of the Early Republic: 1789-1815, "Benjamin Rush [a signer of the Declaration of Independence] described the new government in 1790 as one 'which unites with the vigor of monarchy and the stability of aristocracy all the freedom of a simple republic.'" But is that union actually coherent?
Rush's invocation of "the freedom of a simple republic" was no mere lip service to satisfy ordinary Americans. The new country's patricians also valued personal liberty no one wanted the arbitrary rule of a dictatorship. But it is important to understand that the framers of the second U.S. constitution—the successor to the Articles of Confederation—did not intend for the complex governmental structure devised at the federal convention of 1787 to protect Americans' liberty directly. Rather, the ultimate protector was to be the ruling elite, the gentlemen of leisure who, free of the daily care of laboring in the marketplace, could referee clashing particular interests and thereby effect the general welfare. The purpose of the political process established in 1789 was to assure that the right sort of people would be selected to govern and the wrong sort would be weeded out, as alas they had not been in the various states since the Revolution.
In light of this interpretation of constitutional history, we may now inquire into the nature and purpose of the Bill of Rights, the 10 amendments adopted immediately after the new government was put into operation.
As Wood notes, Americans were surprised that the proposed Constitution had no bill of rights. Furthermore, most of those who had participated in the convention were apparently surprised that everyone else was surprised. In fact, no one even mentioned a bill of rights during the convention until the closing days, when George Mason raised the matter.
"It was voted down by every state delegation," Wood wrote. Bear in mind that some state constitutions had bills of rights, so including one would have blazed no new ground. (The lack of interest in a bill of rights reminds me that when Alexander Hamilton was asked why God was not mentioned in the Constitution, he reportedly said, "We forgot.")
Anti-Federalists like Mason made the lack of a bill of rights the top talking point against the Constitution (a fatal strategic error, as we'll see), and the issue came up repeatedly in state ratifying conventions. While no state convention conditioned ratification on addition of a bill of rights, Wood wrote, "many of the states had ratified the Constitution on the understanding that some changes would be made in order to protect people's rights, and popular expectation was high that amendments would be added as soon as possible."
This made the Federalists unhappy. The last thing they wanted was to tamper with their handiwork before it had a chance to work. Besides, they said, no bill was needed. "The Constitution had been drafted in part to protect the rights of Americans," Wood wrote. "But the Constitution was designed to protect the Americans' rights from the abusive power of the state legislatures." Alexander Hamilton argued further that if the national government could exercise only those powers spelled out, then the document itself was a bill of rights. (The Anti-Federalists did not believe this talking point about enumerated powers, not should they have. After all, the power of eminent domain is not spelled out, but we know from the subsequently added Fifth Amendment that the framers viewed the power as an inherent possession of the government.)
After enough states ratified, all but one Federalist was willing to ignore the demand for a bill of rights: James Madison. At first he was also willing to let the matter go, but his sense of honor (and pressure from Thomas Jefferson) prevailed, and he strove to keep his promise when he was elected to the first Congress as a member of the House of Representatives. (He had lost out on the Senate when the Virginia state legislature selected two Anti-Federalists.) "Besides," Wood wrote, "as he [Madison] told a friend, a bill of rights would 'kill the opposition everywhere, and by putting an end to the disaffection to the Govt. itself, enable the administration to venture on measures not otherwise safe.'"
Thus did Madison make a virtue of expediency.
Nearly 200 amendments had been recommended by the state ratifying conventions, and so Madison sorted through them. "Yet Madison was determined that his bill of rights would be mainly limited to the protection of personal rights," Wood wrote, "and would not harm 'the structure & stamina of the Government.'"
In other words, most of the proposed amendments and the most serious objections of the Anti-Federalists would be ignored. Revealingly, Madison favored an amendment, in Wood's words, "to protect certain rights from the states," which shows that the Federalists were actually nationalists. It failed, just as Madison's proposal at the federal convention to empower Congress to veto state legislation failed. (The states were seen as obstacles to a consolidated political system. For more on this, see "James Madison: Father of the Implied-Powers Doctrine," in which I describe how Madison watered down what would become the 10th Amendment by arguing for "powers by implication.")
"By then," Wood added, "many Federalists had come to see that a bill of rights might be a good thing after all. Not only was it the best way of undercutting the strength of Anti-Federalism in the country, but the Bill of Rights that emerged, as Hamilton pointed out, left 'the structure of the government and the mass and distribution of its powers where they were.'"
In the end, Americans got a government with nearly comprehensive power to tax and potential blank checks in the form of the general-welfare, necessary-and-proper, and supremacy clauses, and more.
But what of the Bill of Rights?
"Madison's amendments, as opponents of the Constitution angrily came to realize, were 'good for nothing' and were 'calculated merely to amuse, or rather to deceive,'" Wood wrote. "They affected 'personal liberty alone, leaving the great points of the Judiciary & direct taxation & c. to stand as they are.'"
Aedanus Burke, Representative from South Carolina, said Madison's amendments "are little better than whip-syllabub, frothy and full of wind, formed only to please the palate.&hellip I think it will be found that we have done nothing but lose our time, and that it will be better to drop the subject now and proceed to the organization of the government."
But since the Anti-Federalists had put so much emphasis on the lack of a bill of rights, once the amendments were ratified, the critics appeared to be unable to take yes for an answer. Further complaints against the Constitution looked obstructionist. Meanwhile, "Anti-Federalists in the Congress," Wood wrote, "began to realize that Madison's rights-based amendments weakened the desire for a second convention and thus actually worked against their cause of fundamentally altering the Constitution."
Actually, the Bill of Rights largely embodied uncontroversial traditional rights of Englishmen. Indeed, in sorting through the amendments, Wood wrote, "Madison … extracted mainly those concerned with personal rights that he thought no one could argue with."
"Unlike the French Declaration of Rights of Man and Citizen issued by the National Assembly in 1789," Wood noted, "the American Bill of Rights of 1791 was less a creative document than a defensive one. It made no universal claims but was rooted solely in the Americans' particular history. It did not invent human rights that had not existed before, but mainly reiterated long-standing English common law rights."
To see this point clearly, recall that in 1798 the Federalist Congress passed the Sedition Act, which prohibited one to "write, print, utter or publish … any false, scandalous, and malicious writing or writings against the Government of the United States, or either House of the Congress of the United States, with intent to defame the said government, or either house of the said Congress, or the President, or to bring them … into contempt or disrepute, or to excite against them, or either or any of them, the hatred of the good people of the United States."
Little good the First Amendment did to stop it. "Americans believed in freedom of the press and had written that freedom into their Bill of Rights," Wood wrote,
But they believed in it as Englishmen did. Indeed, the English had celebrated freedom of the press since the seventeenth century, but they meant by it, in contrast with the French, no prior restraint or censorship of what was published. Under English law, people were nevertheless held responsible for what they published. If a person's publications were slanderous and calumnious enough to bring public officials into disrespect, then under the common law the publisher could be prosecuted for seditious libel. The truth of what was published was no defense indeed, it even aggravated the offense" (emphasis added)
Bad as it was, the Sedition Act was more liberal than the common law because it permitted truth as a defense.
Wood summed up the story of the Bill of Rights thus: "Under the circumstances the states ratified the first ten amendments slowly and without much enthusiasm between 1789 and 1791 several of the original states—Massachusetts, Connecticut, and Georgia—did not even bother. After ratification, most Americans promptly forgot about the first ten amendments to the Constitution. The Bill of Rights remained judicially dormant until the twentieth century."
This does not mean the Bill of Rights was worthless. To the extent it has worked to restrain government power, we should be grateful. But its presence eventually shifted attention from asking where in the Constitution a claimed power was specified to asking where in the Bill of Rights a claimed right was specified. And the effort to procure the Bill of Rights distracted from weightier matters and left the national government with its frighteningly broad powers largely intact. I submit that the government would have been less threatening to our liberties had the Constitution been rejected or at least radically altered.
This piece originally appeared at Richman's "Free Association" blog.
Sheldon Richman is executive editor of The Libertarian Institute and chairman of the board of trustees of the Center for a Stateless Society. He blogs at Free Association and has authored several books including, most recently, America's Counter-Revolution: The Constitution Revisited.
Liberty versus tyranny under the U.S. Constitution
For the signers of the Declaration of Independence, “liberty” is the universal notion that every person should determine their own path to happiness free from undue government control. Patrick Henry preferred death to living without it. John Adams risked his reputation by defending in court the British soldiers involved in the Boston Massacre, recounting years later that a defense lawyer ought to be the last thing a person should be without in a free country.
In fact, “liberty” is so central to the idea of American democracy that the framers of our Constitution created a Bill of Rights to protect personal liberty from the tyranny of big government. All people, they argued, should be free to express unpopular opinions or choose one’s own religion or protect one’s home without fear of retaliation from the state.
Preeminent in the Bill of Rights is the idea that no one’s liberty can ever be taken away without the process being fair. A jury made up of everyday citizens, protections against self-incrimination, being informed of the nature of the offense for which one is accused, and the right to a speedy and public trial are all American ideas of justice. And so all of them were enshrined in the first ten amendments to the United States Constitution, which became law when they were ratified by the states in 1791.
The right to have a lawyer advocating on one’s behalf is found in the Sixth Amendment. As distinctly English settlements, the laws governing the colonies by and large were based upon the contemporary rules of English common law. In England, however, the law held that a person accused of treason or a serious crime was to be denied the assistance of a lawyer in defending himself against his accusers. Colonial governments broke with contemporary English common law, and instead wrote into their statutes and charters a right to have the assistance of an attorney in any criminal case.
But, wait . . . Those same colonies became the original thirteen states of the United States of America. And almost all of them had already established the right to counsel as state law? Well, if that was the case, then why was it important for the federal Congress to ratify this same right as an amendment to the Constitution?
The citizens of this new republic had created a new federal government to administer the union of their respective state governments. But, those citizens were well acquainted with England’s history of government abuse in which people were subjected to unfair methods of prosecution and investigation, and left with no personal protections. Having just liberated the Colonies from what they felt was the tyrannical rule of the British government, the Framers of our Constitution were loath to create a new tyranny in the form of this Union’s central government that could ignore – or worse, could abolish – these protections of personal liberty.
As Thomas Jefferson wrote in 1787, “a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.” We, the people, have just enshrined these rights so you, the federal government, cannot take them away from us. And so, with the passage of the Bill of Rights, the right to counsel was sacrosanct. The federal government was obligated to enforce it for all time.
But as of this point, the Sixth Amendment merely established that an accused person had a constitutional right to have a lawyer assist him in defending himself. It made no mention of the government’s obligation to appoint or pay for the lawyer using tax dollars in the event the defendant couldn’t afford the cost on his own.
So, how did we get from “the government cannot prevent you from being represented by an attorney” to “the government will cover the cost of your defense attorney in any matter where you face potential time in jail”?
Well, it actually required an additional constitutional amendment along with a whole litany of U.S. Supreme Court cases interpreting the Constitution to get to where we are today.
But first, we need to take a step back and clarify one thing, and it’s pretty important. The Bill of Rights were restrictions on federal power, rather than state power. Next, we discuss how the Fourteenth Amendment changed this dynamic and why.
 This entry in our series about the right to counsel borrows language from the afterwards drafted by 6AC Executive Director, David Carroll, for Karen Houppert’s book Chasing Gideon: The Elusive Quest for Poor People’s Justice, published March 2013 by New Press, New York, New York.
 Henry, Patrick. Speech before the Virginia House of Burgesses at St. John’s Church. March 23, 1775: “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! — I know not what course others may take but as for me, give me liberty or give me death!”
 Adams, John. The Works of John Adams, Second President of the United States: with a Life of the Author, Notes and Illustrations, by his Grandson Charles Francis Adams (Boston: Little, Brown and Co., 1856). 10 volumes. Volume II: Diary, Notes of Debate, and Autobiography.
 The Bill of Rights Institute has a wealth of information available for public consumption about the debates and the eventual ratification of the U.S. Bill of Rights.
 The Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation to be confronted with the witnesses against him to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
 William Beaney, The Right to Counsel in American Courts (U of Mich, 1955), at 8.
 Specifically, 12 of the 13 original states had established the right to counsel before the Federal Constitution was adopted.
Prior to 1776, the colonial laws of Delaware, Massachusetts, Rhode Island, Pennsylvania, South Carolina, and Virginia included a right to have the assistance of counsel to some degree. The specifics varied. Some included the right to appointed counsel in all cases, others limited to capital cases (which included felonies at the time), and others to have counsel only to argue points in the law. Connecticut had no statute, but as early as 1750 the judicial practice was to appoint counsel in all cases where the defendant requested it, thus making the colony more progressive in action than most other colonies in policy.
By 1784, the right to counsel was included in the constitutions of the newly established states of Maryland, New Hampshire, New Jersey, and New York. North Carolina’s original constitution omitted language on the right to counsel, but the General Assembly established the right via a 1777 statute instead. And even the independent republic of Vermont, which would eventually join the Union as the 14 th state in 1792, had incorporated the right to counsel into its 1777 constitution.
Only Georgia had no right to counsel as of 1791, the year the Federal Constitution was adopted but even Georgia adopted it as part of its 1798 state constitution.
Bill of Rights: Protecting Minorities from Majority Abuse
Dec. 15, 1791, is an important date in the history of this country. The first 10 amendments to the U.S. Constitution were officially added on that day, exactly 220 years ago.
Collectively, those 10 amendments are known as the Bill of Rights.
Even though the U.S. Constitution, ratified in June 1788, is still hailed as a masterpiece, at the time of its adoption some people thought there was something lacking.
Mainly, they believed the Constitution did not contain adequate guarantees of the essential rights and liberties of individual citizens.
Last week, U.S. Supreme Court Justice Stephen Breyer was in Kansas City, and I was able to hear his enjoyable talk at the public library.
Breyer, appointed to the Supreme Court in 1994, was here partly to promote his new book, “Making Our Democracy Work: A Judge’s View.”
Early in his book, he explains how James Madison, who later became president, “pointed out that the Bill of Rights would protect individuals from abuse by a majority.”
Similarly, Breyer begins his 13th chapter with these words: “The Constitution expressly protects the liberty of individuals through the Bill of Rights.” He uses the First Amendment as the first example of how that is so.
I find it rather ironic that some conservative Christians in this country complain about how their religious freedom is being stifled by the government, such as by not being able to have public displays of the Ten Commandments or Christmas crèches.
Christianity is, of course, overwhelmingly the majority religion in this country. But as Madison pointed out, the Bill of Rights, beginning with the First Amendment, was put into place in order to protect the rights of minorities from abuse by the majority.
In the 1780s, Baptists were a minority group in Virginia, and some Baptist ministers were even imprisoned because of their unwillingness to abide by the religious beliefs and practices of the majority.
Accordingly, John Leland, a Baptist pastor, put pressure on Madison to push for the adoption of the Bill of Rights.
There is a marker on “Constitution Highway,” five miles east of Orange, Va., commemorating the spot where in 1788 Leland and Madison, the latter of whom is often called “the father of the American Constitution,” held a significant discussion that resulted in the ratification of the Constitution by Virginia, partly through the support of Baptists.
Keeping his part of the bargain, Madison, a member of Congress from Orange, presented the First Amendment to the Constitution, by which religious liberty, free speech and the freedom of assembly are guaranteed.
That is the kind of freedom – and constitutional protection – Leland and other Baptists greatly wanted.
Now, the religious minorities in our country are Buddhists, Muslims and other non-Christians. There is a sizeable minority of atheists and non-religious people also.
The Bill of Rights is important for protecting the religious freedom of those minorities.
As a Baptist, I have been proud of how Baptists in the past were advocates of religious freedom and were strong supporters of the Bill of Rights, and especially the First Amendment.
I think it is shameful how now that they are in the majority, some Baptists and other conservative Christians complain about guarding religious liberty for minority groups in American society today.
LeroySeat was a missionary to Japan from 1966-2004 and is both professor emeritus of Seinan Gakuin University and pastor emeritus of Fukuoka International Church. This column appeared previously on his blog.
A missionary to Japan from 1966-2004, he is both professor emeritus of Seinan Gakuin University and pastor emeritus of Fukuoka International Church.
History and Scope of the Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
History.—Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the use of the “writs of assistance.” But though the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the colonies late and as a result of experience, 1 there was also a rich English experience to draw on. “Every man’s house is his castle” was a maxim much celebrated in England, as Saman’s Case demonstrated in 1603. 2 A civil case of execution of process, Saman’s Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King’s agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King’s process. Most famous of the English cases was Entick v. Carrington, 3 one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes’ polemical pamphlets attacking not only governmental policies but the King himself. 4
Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets, and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive “of all the comforts of society,” and the issuance of a warrant for the seizure of all of a person’s papers rather than only those alleged to be criminal in nature “contrary to the genius of the law of England.” 5 Besides its general character, the court said, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a “great judgment,” “one of the landmarks of English liberty,” “one of the permanent monuments of the British Constitution,” and a guide to an understanding of what the Framers meant in writing the Fourth Amendment. 6
In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize “prohibited and uncustomed” goods, and commanding all subjects to assist in these endeavors. Once issued, the writs remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conﬂicted with English constitutionalism. 7 Otis lost and the writs were issued and used, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.
1 Apparently the first statement of freedom from unreasonable searches and seizures appeared in The Rights of the Colonists and a List of Infringements and Violations of Rights, 1772, in the drafting of which Samuel Adams took the lead. 1 B. Schwartz, The Bill Of Rights : A Documentary History 199, 205–06 (1971).
2 5 Coke’s Repts. 91a, 77 Eng. Rep. 194 (K.B. 1604). One of the most forceful expressions of the maxim was that of William Pitt in Parliament in 1763: “The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.”
3 19 Howell’s State Trials 1029, 95 Eng. 807 (1705).
4 See also Wilkes v. Wood, 98 Eng. 489 (C.P. 1763) Huckle v. Money, 95 Eng. Rep. 768 (K.B. 1763), aff’d 19 Howell’s State Trials 1002, 1028 97 Eng. Rep. 1075 (K.B. 1765).
6 Boyd v. United States, 116 U.S. 616, 626 (1886).
7 The arguments of Otis and others as well as much background material are contained in Quincy’s Massachusetts Reports, 1761–1772, App. I, pp. 395–540, and in 2 Legal Papers Of John Adams 106–47 (Wroth & Zobel eds., 1965). See also Dickerson, Writs of Assistance as a Cause of the American Revolution, in The Era Of The American Revolution : Studies Inscribed To Evarts Boutell Greene 40 (R. Morris, ed., 1939).
The 3rd Amendment forbids the government from quartering troops on the private property of individuals. Prior to the Revolutionary War, the British government had passed the Quartering Act of 1765 and the Quartering Act of 1774, which required private citizens to house soldiers on their property if there were no public accommodations available.
This was one of the grievances listed by Thomas Jefferson in the Declaration of Independence. In addition, the Quartering Acts required private citizens to provide food for any soldiers staying on their property.
The 3rd Amendment guarantees the government will not house troops on private property during peacetime and only as prescribed by law during times of war.
The 3rd Amendment is one of the least familiar to Americans today because so few wars have been fought on American territory and because the American army is housed on large military bases.
You can learn more about the history and meaning of the 3rd Amendment here.
The History of the Bill of Rights
When the original Constitution was drafted, it described what the new American government could do, but it did not guarantee that the government would not infringe on citizens’ rights. Some of the states, freshly independent from English rule, refused to ratify the Constitution unless it also restricted the federal government’s power.
To resolve the problem, the Bill of Rights was adopted in 1791.
Because the Bill of Rights was designed to restrict federal powers, it originally only applied to the federal government. In 1833, the Supreme Court specifically held that the Bill of Rights only applied to the federal government and not state governments.
That meant that states could—and did—pass laws that violated protections such as freedom of speech and freedom of the press. States could establish religions, arrest and interrogate criminal suspects, and conduct trials in whatever manner they chose. And federal courts had no authority to intervene.
The 14th Amendment, ratified in 1868, forbade states from denying anyone life, liberty, or property without due process of law. But it was another 57 years before the 14th Amendment’s due process clause was interpreted to extend the guarantees in the Bill of Rights to the states.
10 Rights the First Amendment Absolutely Does Not Grant
You've seen the headline dozens of times. A movie star or professional athlete gets fired for making an insulting or racist comment during a TV interview. The person's response: "Last time I checked, it's a free country!"
That's true. The First Amendment to the U.S. Constitution guarantees the right to freedom of speech. But that doesn't mean that people won't be offended by your words or that the First Amendment protects the right to say anything, anywhere or anytime without repercussions.
The full text of the First Amendment reads:
The Founding Fathers drafted the Constitution in 1787, but the states refused to ratify it without a Bill of Rights explicitly saying what the new government could and could not do. Recently freed from a tyrannical king, the American people wanted a limited government with strong protections for personal freedoms and political dissent [source: ACLU].
The Bill of Rights (which encapsulates the first 10 amendments to the Constitution) became law in 1791, but the broad freedoms outlined in the First Amendment have been refined by centuries of court rulings, including many historic Supreme Court decisions. America is still a "free country," but you might be surprised how many rights are absolutely not granted by the First Amendment.
10: The Right to Say Anything
Freedom of speech is one of the pillars of American democracy. The Supreme Court has reaffirmed again and again the right of any person or group to proclaim and publish its opinions — no matter how unpopular. In a high-profile 2011 decision, the Supreme Court defended the rights of the controversial Westboro Baptist Church to protest during military funerals. The Ku Klux Klan is allowed to stage parades, and writers and artists are allowed to produce books and artwork that push the boundaries of taste.
Does that mean you can say absolutely anything to anyone at any time? Absolutely not. The Supreme Court and lower courts have identified nine types of speech that are not protected under the First Amendment [source: First Amendment Center]:
- Fighting words
- Defamation (including libel and slander)
- Child pornography
- Incitement to imminent lawless action
- True threats
- Solicitations to commit crimes
These particular types of speech are unprotected because they either actively break the law, incite others to break the law, or create a potentially violent or unsafe situation. Obscenity arguably has proven the most difficult to define. In the 1973 Supreme Court case Miller v. California, the justices established a three-part test to determine whether a publication, movie, image or work of art is "obscene." In general, such a work is protected as free speech if, "taken as a whole," it has at least some "serious literary, artistic, political or scientific value" [source: Legal Information Institute].
9: The Right to Publish Anything
In a 1786 letter to a friend, Thomas Jefferson wrote that "our liberty depends on the freedom of the press, and that cannot be limited without being lost" [source: Library of Congress]. A free and unobstructed press provides a powerful check on government corruption. Journalists — including bloggers and other online writers — enjoy strong protections under the First Amendment, but does that mean you can publish absolutely anything?
Not if it is false. This is where defamation laws come into play. Defamation is speech that is both false and damaging to someone's reputation [source: Doskow]. Written defamation is called libel, and spoken defamation is called slander. Over the years, the courts have established some tests for defamation. The statement must be published, false and "injurious" (proven damage to reputation). If the defamed person is a public figure (like a politician or celebrity), the libelous statement must be made with "actual malice," meaning it wasn't an "honest mistake," but a conscious decision to publish a lie [source: Doskow].
Defamation is a civil offense, not a crime. Victims of libel or slander sue the offending publication for damages. Not surprisingly, the National Enquirer and other tabloids are frequent targets of libel suits [source: Terry].
8: The Right to Ban Books at School
If offended parents had their way, high school libraries would be free of such "filth" as "The Great Gatsby," "Ulysses" and the "Harry Potter" series [source: American Library Association].
Throughout the 20th century, individual students, outside groups, and most often, parents have sought to ban or remove certain books from public school libraries. In case after case, the Supreme Court has defended a student's First Amendment right to read and receive information.
In a landmark 1982 Supreme Court case, the justices ruled that a local New York board of education violated its students' constitutional rights by removing nine books identified by a conservative organization as "anti-American, anti-Christian, anti-Semitic, and just plain filthy" [source: ALA].
School officials cannot restrict access to books just because they disagree with the content and ideas found in them. Sexually explicit material and offensive language are the top reasons for challenging books, but those reasons alone haven't held up in court. The only justifiable reason cited by the Supreme Court for removing a book from a public school libraries is if it qualifies as "pervasively vulgar" [source: First Amendment Center]. "Harry Potter" should be safe for now.
7: The Right to Unrestricted Free Speech at Work
The First Amendment rejects any government restriction of free speech, but does that mean you are free to say whatever you want at the workplace without fear of getting fired? Clearly, some types of speech — like open threats or sexual harassment — are grounds for disciplinary action according to workplace policies. But what about other types of protected free speech, like professions of deeply held religious or political beliefs?
In both public and private workplaces, employees reserve the right to display religious or political signs or symbols at their desks and discuss their opinions with co-workers as long as those desktop displays and conversations do not create a hostile work environment [sources: First Amendment Center, Snyder].
Of course, one person's casual conversation is another person's harassment. Employers reserve the right to discipline or fire a worker who continues to proselytize after warnings that such behavior is disrupting productivity or making co-workers uncomfortable. That's as long as employers are sure they won't run afoul of laws prohibiting employment discrimination based on race, color, religion, sex and other characteristics[sources: First Amendment Center, Snyder].
6: The Right for Teachers to Pray With Students
Not that long ago, public schoolchildren across America — of all religious backgrounds — began their day with a recitation of the Lord's Prayer. It wasn't until a pair of landmark Supreme Court decisions in 1962 and 1963 that state-sponsored, mandatory school prayer was deemed a violation of the First Amendment's "establishment clause" forbidding the establishment of a state religion [source: Americans United].
But the First Amendment is tricky. The same sentence that outlaws the establishment of a national religion protects the rights of individuals to express and live according to their own religious convictions. Students are free to pray in school, form Bible study groups and openly discuss religious views in the classroom, as long as the religious messages come from the student, not the public institution.
This puts public school teachers in a constitutionally precarious position. Public school teachers are individuals with the right to freely practice their religion. But public school teachers are also considered "representatives of the state" by the U.S. Department of Education. Teachers are free to pray individually before, during and after school, and even form a lunchtime Bible study group with other teachers, but they are prohibited from endorsing or participating in religious activities directly with students during the school day [source: Dept. of Education]. That includes praying with students or joining student-run religious groups in anything other than a monitoring role [source: First Amendment Center].
5: The Right to Protest Wherever, Whenever
The right to "peaceable assembly" is a fundamental First Amendment protection that allows citizens to gather to publically air their grievances. Freedom of assembly is what empowered the nonviolent civil rights movement of the 1960s to bring the injustices of segregation to national attention. So why is it that we often see scenes on TV of police arresting peaceful protesters or employing tear gas to disperse a crowd?
First of all, protests that occur on private property are unprotected by the First Amendment. A private property owner reserves to right to kick out individuals or groups for any reason [source: First Amendment Center]. If protesters refuse to vacate private property, they can be arrested for trespassing.
But what about protests in public streets and town squares? The Supreme Court has found that cities and municipalities have the right to restrict the time, place and manner of public demonstrations. These restrictions on the freedom of assembly are constitutional as long as they are "content-neutral," meaning the same rules are applied to everyone — from Girl Scouts to Neo Nazis — regardless of the content of a group's message [source: Goyette].
Most cities require permits for parades, protest marches and picket lines. They also have laws against blocking traffic and making excessive noise after certain hours. Groups that break those laws can be forcibly dispersed or arrested, even if their speech is otherwise protected.
4: The Right to an Answer From the Government
Hidden among the more prominent rights guaranteed by the First Amendment is the right to "petition the government for a redress of grievances." Despite its low profile, the right to petition has a long and honored pedigree dating back to the Magna Carta in 1215 [source: Bernstein]. The right and ability to complain to government officials is a critical function of a representative democracy. Whether or not that official actually listens, well, that's another story.
To comply with the First Amendment right to petition, government entities and agencies must provide a way to contact them. Every government office, including the White House, has e-mail addresses and phone numbers to submit comments and questions. But nothing in the First Amendment — or anywhere else in the Constitution — requires that the government answer those requests or even read them [source: First Amendment Center]. Instead, a democratic system relies on the voters to remove officials who are unresponsive to public opinion.
The framers of the Constitution were most concerned about government censorship of political opposition. But if the First Amendment guarantees the right to free speech, then it also prohibits any action — not just by the government, but also private groups and individuals — that aims to censor or silence unpopular viewpoints.
Here's an example. A Chinese dignitary is invited to a college campus to give speech. Midway through her remarks, a student activist begins to boo and yell about China's human rights abuses. The protester is so loud that he drowns out the dignitary's speech entirely.
This is called a heckler's veto, when the opinion of one angry person — or a group of people — tries to silence all debate. The term arose from a series of Supreme Court cases in the late 1940s. In each case, the police detained a public speaker out of fear that his speech would provoke a violent reaction from the crowd [source: Leanza]. The court sided with the speaker, arguing that it's the police's duty to protect free speech even if it incites anger in others. The "heckler" — whether it's a single protester or an angry mob — does not have the right to "veto" opposing viewpoints.
"A function of free speech under our system of government is to invite dispute," wrote the justices [source: Leanza].
2: The Right to Confidential Sources
The Founding Fathers viewed a free press as one of the most effective political watchdogs. But if reporters are to do their jobs well, they need avenues for acquiring sensitive or confidential information [source: Frontline]. In some cases, this involves an inside source that "leaks" the information under the condition of anonymity. Most U.S. states have passed shield laws that protect journalists from having to reveal their sources, but the federal government offers no such protection.
Back in 1972, the Supreme Court ruled that a reporter had to testify before a grand jury if he or she witnessed a crime. In 2005, that ruling was reaffirmed when Judith Miller, a reporter for The New York Times, spent 85 days in jail after refusing to name a confidential source who had leaked the name of an undercover CIA officer — itself a federal crime [source: Van Natta]. Journalists continue to lobby for a national shield law to safeguard reporters against the very real threat of imprisonment for protecting a source.
1: The Right to Dress Funny
Fashion is a wonderful example of free expression. Although the First Amendment doesn't mention "freedom of expression" by name, the courts often lumps together the freedoms of speech, religion, press, assembly and petition as forms of expression [source: ACLU]. So if you're free to express yourself through your clothes, what about clothing that's offensive, revealing or nonexistent?
Here again, our First Amendment freedoms are limited by location. The Supreme Court has ruled that private property owners can kick people off the premises for wearing an offensive T-shirt or no shirt at all [source: First Amendment Center]. For instance, a restaurant is within its rights to put up a sign saying, "No Shirt, No Shoes, No Service." Similarly, individual states and cities can set their own public nudity and decency laws that dictate what people can legally wear or not wear in public.
In a 1991 case, the Supreme Court affirmed that states also have the right to restrict nude dancing in adult clubs. The justices ruled that public nudity laws apply even during private shows. It's not a restriction of the freedom of expression, justices concluded, because the dancers are still free to express themselves erotically wearing a "scant amount of clothing" [source: LII].
Author's Note: 10 Rights the First Amendment Absolutely Does Not Grant
My 6-year-old has a cute habit of asking me what I'm writing about. Sometimes it's easy to explain in kindergarten-level terms: "The world's biggest vehicles!" or "How to make a backyard skate park!" But when my son asked again this morning over bowls of cereal, it took me a minute to figure out how to explain the First Amendment in the simplest way possible. First, I explained how the Constitution is like an instruction manual for how the country works. We have a president and a Congress and elections. We also have a Supreme Court that makes sure that the laws are fair to everyone. The Bill of Rights, I explained, is a list of things the government cannot do. The government can't control what you say or write or where you go to church. We are free to have conflicting opinions. In practice, this means a lot of arguing, but in the end, it also means compromise. "Sounds like a good system," my son replied, slurping up the last of his corn flakes. Couldn't have said it better myself.