Rights and Liberties

Main Ideas from the Readings + First & Second Amendments

1. Origins of Rights and Liberties (from both readings)

Civil liberties are freedoms that protect individuals from government interference — things like speech, religion, and privacy.

Civil rights guarantee equal treatment by government — like voting, fair trials, and protection from discrimination

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The Founders were influenced by natural rights philosophy — the belief that people are born with unalienable rights such as life, liberty, and the pursuit of happiness.

The original Constitution (1787) focused on what the government could do; it said very little about what it couldn’t do to protect individuals.

Many Americans demanded a clearer protection of freedoms, leading to the Bill of Rights (1791) — the first ten amendments that limit government power and safeguard personal liberties.

Over time, the Supreme Court became the key protector of these rights through cases interpreting the Bill of Rights (for example, Marbury v. Madison and Barron v. Baltimore)

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These rights are the foundation of American democracy and still evolve as courts and citizens debate their meaning today.

2. The First Amendment — Freedom as the Core of Democracy

Main Idea: The First Amendment is the heart of American liberty. It guarantees five fundamental freedoms that make self-government and individual expression possible:

Freedom of religion — government cannot establish a national religion (Establishment Clause) or interfere with personal religious practice (Free Exercise Clause).

Freedom of speech — people can express opinions, even unpopular ones, without government punishment, except in limited cases (threats, slander, etc.).

Freedom of the press — journalists can publish ideas and information freely, holding government accountable (Near v. Minnesota, New York Times v. U.S.).

Freedom of assembly — people can gather peacefully to protest or share ideas (Hague v. CIO).

Freedom to petition — citizens can demand change or redress from their government

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Key Point: The First Amendment ensures an open exchange of ideas — the foundation for democracy and protection from tyranny. It turns “We the People” into a living principle.

3. The Second Amendment — Security and Liberty in Balance

Main Idea: The Second Amendment protects “the right of the people to keep and bear arms.”

It originated from early American distrust of standing armies and the desire for citizens to defend themselves and their communities

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At the time, militias were central to national defense, but the amendment’s modern interpretation focuses on individual vs. collective rights — whether it ensures personal gun ownership or applies mainly to organized militias.

Today, it represents the ongoing debate between individual liberty and public safety — how to maintain personal rights while preventing violence and misuse.

Key Point: The Second Amendment shows how liberty can sometimes conflict with security — a reminder that rights require constant interpretation to fit changing times.

4. Connection to the Unit Theme

The First and Second Amendments directly extend the Founders’ belief in natural rights and self-government.

They express the balance between freedom and order, individual rights and government power, echoing the same tensions seen under the Articles of Confederation and in the Constitutional debates.

Together, they mark the shift from theoretical rights (as in the Declaration) to legally protected liberties enforceable by law.

1. Defining and Protecting Your Rights and Liberties The Schenck case illustrates the role played by the Supreme Court in defining constitutional rights. When the framers wrote the Constitution, they said almost nothing about the protection of individual rights and liberties from government abuses. They spelled out many things the government could do but said very little about what it could not do. That omission was rectified by the Bill of Rights, the first ten amendments to the Constitution. These amendments guarantee two types of rights: civil liberties and civil rights.

When the nation is engaged in war, limitations on civil liberties become more stringent. This poster advertises a forum on how civil liberties change during wartime. Defining Civil Liberties and Civil Rights Civil liberties are basic freedoms that are considered to be the birthright of all individuals. Thomas Jefferson and his fellow authors of the Declaration of Independence would have called them natural rights, or unalienable rights. In addition to the Declaration's "Life, Liberty and the pursuit of Happiness," these liberties include such rights as freedom of speech, freedom of religion, and freedom of assembly. Because civil liberties are regarded as a person's birthright, they are not something that the government can legitimately take away or infringe on. Civil rights, on the other hand, are rights that come with being a member of society. They are not protections from government. Instead, they are guarantees by the government of equal rights and fair treatment under the law. Included in this group are the right to trial by jury, the right to legal counsel, and the right to vote. These rights were among the main goals of the civil rights movement that began in the mid-1950s. With the Bill of Rights added to the Constitution, Americans were guaranteed a broad range of civil rights and civil liberties. But these were only formal guarantees. The enforcement of these rights was another matter. In fact, James Madison worried that the Bill of Rights might serve as little more than a "parchment barrier" against government abuses. These rights and freedoms would be safeguarded only when protections were built into the structure of government. That is where the role of the Supreme Court and other federal courts has come into play. Early Challenges in Enforcing the Bill of Rights The Bill of Rights defines rights and liberties in sweeping terms. For example, the First Amendment says, "Congress shall make no law … abridging the freedom of speech." Does that mean government cannot limit speech in any way? Before free speech and other rights on paper could be safeguarded, the language of the Bill of Rights had to be interpreted and applied under actual circumstances. That task would fall to the Supreme Court under its power of judicial review, established in the case of Marbury v. Madison. Marbury laid the foundation for the Supreme Court's enforcement of the Bill of Rights, but it was only the first step. The Court first decided that the Bill of Rights did not apply to state government actions. In 1833, the Court concluded in Barron v. Baltimore that the Bill of Rights applied only to actions of the federal government. As a result, the Court could do little to prevent states from infringing on basic rights and liberties. After the Civil War, some people hoped that the Court's limited enforcement of the Bill of Rights would change. For support, they looked to the Fourteenth Amendment, which was ratified in 1868. The amendment states, 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. At first, the Supreme Court interpreted the amendment very narrowly. For example, in the case of Plessy v. Ferguson (1896), the Court declared that racial segregation in the South did not violate the Fourteenth Amendment's Equal Protection Clause as long as "separate but equal" facilities were provided for all races. The Supreme Court's reluctance to make the Bill of Rights binding on the states meant that very few cases involving civil rights or liberties came before it in the 1800s. As a leading rights organization later observed, "The Bill of Rights was like an engine no one knew how to start." New Hope in a New Century In the early 1900s, however, two newly formed groups began to have some success in broadening the Court's application of the Fourteenth Amendment. These groups were the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU). The two groups had different goals. The NAACP fought for civil rights, initially by challenging segregation laws in court. The ACLU, on the other hand, focused its attention on cases involving civil liberties, such as freedom of speech. However, both groups sought to give voice to those who felt their rights were being violated. In 1919, not long after the decision in the Schenck case, free speech advocates suffered another Court loss, this time in the case of Abrams v. United States. This case involved a group of Russian-born political activists who were arrested for handing out leaflets critical of U.S. actions against Russia's new revolutionary government. Using the same argument applied in Schenck, the Supreme Court agreed that the language in the leaflets posed a "clear and present danger" to American society.

Formed in 1909, the NAACP is a group that fights for civil rights. This group brought Brown v. Board of Education to the Supreme Court, the case that overturned the “separate but equal” doctrine established by Plessy v. Ferguson. Although the Abrams decision presented a new limitation on free speech, this time Justice Holmes voiced an influential dissent to the Court's majority opinion. He said that the "clear and present danger" argument should be applied only in cases where public safety was actually at risk. Only an emergency, he wrote, "warrants making any exception to the sweeping command, 'Congress shall make no law abridging the freedom of speech.'" Holmes's dissent would later influence the Court to take a more protective stance on free speech. 2. Your First Amendment Rights Many people regard the First Amendment as the most important amendment in the Bill of Rights. It guarantees various rights, including the freedoms of religion, speech, the press, and assembly. These rights are critical to life in a democratic society. Freedom of Religion: The Establishment Clause The First Amendment begins with freedom of religion. It reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This statement can be divided into two parts: the Establishment Clause and the Free Exercise Clause. The Establishment Clause guarantees the separation of church and state. Influenced by European tradition, most places in colonial America had an official church. In the colonies, everyone had to pay taxes to support the church, and in some places, only church members could vote. Some communities even made church attendance mandatory. These practices discriminated against people who did not follow the established religion. The founders of this country believed that having a state-sponsored church was incompatible with freedom of religion. Thomas Jefferson later wrote that a “wall of separation” should exist between church and state.

Before the landmark case of Engel v. Vitale, states could mandate that prayers be said in school. However, the Supreme Court overruled this, claiming that regardless of whether students said the prayers voluntarily, the act violated the Establishment Clause of the Constitution. Still, religious references do exist in government. For example, politicians say “so help me God” when taking the oath of office. The phrase “In God We Trust” appears on currency. And Congress opens its daily sessions with prayer. Some critics say that these practices violate the founding ideals. Others argue that the founders never meant to deny religion a place in public life. The issue of church-state separation has provoked heated battles over the years. One such battle took place in 1875. In response to a growing number of Catholic schools, Congressman James Blaine proposed a constitutional amendment to deny public funding to religiously affiliated schools. The Blaine Amendment failed on the national stage, but many states adopted similar laws. Today, more than 35 state constitutions have a version of the law. Still, until the early 20th century, most students were educated in churchsponsored schools. Even as public education expanded, prayers and Bible readings continued in many schools. In general, the courts considered such practices acceptable. In the landmark case Engel v. Vitale (1962), the Court changed course and struck down a New York law that provided a daily prayer for students to recite. Although the Establishment Clause had previously been interpreted to mean Congress could not create a national church, in Engel the Court ruled that it also banned state-sponsored prayer, even if voluntary and nondenominational, in public schools. The Court’s decision on the Engel case remains unpopular with many Americans, but it has led to a greater division between religious teaching and public education. Since school attendance is mandatory, the Court has argued that religious teachings in public schools would amount to forced teaching of religion by government. In 1971, the Supreme Court decided in Lemon v. Kurtzman that the practice of using public funds to support private religious schools was unconstitutional. This case established a three-point “Lemon test” to determine if and when a government action violates the Establishment Clause. To be constitutional, a government action must have a secular, or nonreligious, purpose. neither help nor hurt religion. not result in an “excessive entanglement” of the government and religion. Freedom of Religion: The Free Exercise Clause The Free Exercise Clause establishes that all people are free to follow the religious practices of their choice. They are also free to follow no religion. If a person’s religious faith conflicts with the law of the land, however, the law must prevail. This principle was established as a legal precedent by the Supreme Court in 1879 in the case of Reynolds v. United States. George Reynolds was a member of the Mormon Church who followed the practice of polygamy or having more than one spouse at a time. This practice violated a federal law, leading to Reynolds’s arrest and conviction in a Utah court. He appealed his conviction on the grounds that the law against polygamy violated the free exercise of his religion. In deciding against Reynolds, the Court drew a distinction between religious beliefs and religious practices. It pointed out that although the law may not interfere with beliefs, it may interfere with practices. The Court argued that if people were able to disregard any law because it violated their religious beliefs, the effect would be “to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” The Court continued that line of reasoning in the 1940 case of Minersville School District v. Gobitis. In that case, the Court decided against two children who were suspended from school for refusing to say the Pledge of Allegiance. As Jehovah’s Witnesses, they viewed pledging allegiance to the flag as a form of idolatry prohibited by the Bible. Many supporters of religious freedom condemned the decision. Just three years later, however, the Court reversed itself. In West Virginia State Board of Education v. Barnette, the Court said that Jehovah’s Witnesses could refuse to salute the flag. Their right to do so was protected under their First Amendment rights to religious freedom and free speech. In later cases, the Court has held that the government must show a compelling interest in forcing people to obey a law that violates their religious convictions. Freedom of Speech Freedom of speech is the second right listed in the First Amendment. It acts like an anchor for all the other rights in the amendment, because they are all linked in one way or another to free expression. After its decisions in Schenck, Abrams, and Gitlow, the Supreme Court has generally supported freedom of speech. It has taken exception, however, to forms of speech that are harmful to others. Two clear examples of this are libel and slander—forms of speech, either written or spoken, that make false statements with intent to harm. Another form of speech not protected under the First Amendment is obscenity, or speech offensive to conventional standards of decency. The issue of public safety was the key factor in the Court’s early decisions limiting free speech. In 1969, however, the Court took a closer look at the “clear and present danger” test as advised by Justice Holmes in his Abrams dissent. The opportunity to do so came in the case of Brandenburg v. Ohio, which centered on a Ku Klux Klan leader who was arrested for giving a speech advocating illegal activities. In its decision, the Court offered a two-part test to determine whether a “clear and present danger” exists that might justify suppressing free speech. First, such speech has to be “directed to inciting or producing imminent lawless action.” Second, the speech must be “likely to incite or produce such action.” The Court found that the Klan leader’s speech, though containing hateful statements, was unlikely to produce any unlawful actions. Thus, the Brandenburg case did not pass the “clear and present danger” test.

The Supreme Court determined that the First Amendment protects the right to symbolic free speech. These demonstrators are exercising this right by dressing as prisoners to protest the operation of the Guantánamo Bay Detention Camp. In 1989, the Court extended this protection to include symbolic speech, or conduct that conveys a message without spoken words. Five years earlier, Gregory Lee Johnson had been arrested in Texas for burning a flag to protest government policies. His actions violated a state law against “flag desecration.” In Texas v. Johnson, the Court concluded that flag burning as an expression of opinion was protected symbolic speech. It said that a state could not prohibit such actions, even if it found them offensive. The Court struck down the Texas law as a violation of the First Amendment right to free speech. The Court has also held that some forms of pornography are protected speech, although the government may restrict children’s access to sexually graphic materials. In 1996, Congress tried to do just that by passing the Communications Decency Act. The act was designed to regulate pornography on the Internet. The Court struck it down a year later in Reno v. American Civil Liberties Union. The Court found that the law was so vague that it could have limited most speech on the Internet. In this decision, as in its flag-burning decision, the Court has made it clear that to protect all speech, some offensive speech must be allowed to exist. That trade-off is one of the cornerstones of American society. Freedom of the Press Free speech can be interpreted to include most forms of expression. Nevertheless, freedom of the press was listed separately in the First Amendment to underscore its importance in a free society. “Were it left to me to decide whether we should have a government without newspapers or newspapers without government,” wrote Thomas Jefferson, “I should not hesitate a moment to prefer the latter.” By specifically protecting the press, the First Amendment makes it clear that free speech covers the media as well as individuals. However, this has not stopped government officials from trying to stop the publication of material they dislike. In Near v. Minnesota (1931), the Court declared such attempts at prior restraint to be unconstitutional. The Near case involved a newspaper that Minnesota officials wanted to shut down. The paper had published articles exposing political corruption. The Court declared that a government had no right to call for prior restraint. Keeping information from being published could be allowed only under very special circumstances, such as protecting national security. If officials were worried about possibly libelous articles, they could sue the publisher after the materials were in print. In 1971, during the Vietnam War, the federal government did invoke “national security” as grounds for prior restraint. It did so after a former government employee, Daniel Ellsberg, leaked classified documents to the New York Times. Ellsberg leaked this information to show that officials had been lying about the war’s progress. After the Times published excerpts of the so-called Pentagon Papers, authorities sought to halt any further publication of the information.

The right to peaceful assembly is an important guarantee of the First Amendment. It allows people to gather and express their views in public, either through speech or through symbolic actions, such as marches and protests. In 2017, demonstrators gathered in Philadelphia to protest against the repeal of the Affordable Care Act and cuts to Medicaid. In New York Times Co. v. United States, the Supreme Court decided against the government. The release of the papers, it said, had no notable impact on national security. This decision helped limit future efforts to use national security as a pretext for censoring the press. The reporting on the Pentagon Papers was accurate. But what about news reports that are false? The First Amendment does not protect against libel. However, journalists sometimes make mistakes. Unless it can be shown that their errors were intentional and were meant to do harm, journalists are not guilty of libel. Freedom of Assembly and the Right to Petition Finally, the First Amendment protects “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The right to petition the government to solve problems was originally considered the more important of the two. But over time, the right to assemble has taken on a larger role and has been the issue in many cases.

In this cartoon, this man is excessively armed to defend himself against a burglar. The Second Amendment protects an individual’s right to bear arms, but some states still require gun owners to register their firearms and impose regulations on how and where firearms may be used. In keeping with the principle of peaceable assembly, many communities require groups that want to gather in public places to apply for permits and to follow certain rules. Some officials have used these requirements to limit the activities of groups they dislike. In 1937, for example, Frank Hague, the mayor of Jersey City, New Jersey, refused to grant the Committee of Industrial Organization (CIO) a permit to assemble simply because he disliked labor unions. The union took Hague to court. In Hague v. CIO, the Court decided in favor of the labor union. It found that Mayor Hague had applied the permit law unfairly to limit the CIO’s freedom of assembly. Although the Court acknowledged a city’s right to set rules for the use of public spaces, it said that such rules must be enforced equally for all groups. Such rules should also be limited to “neutral” issues, such as the time, place, and nature of the meetings. The right to petition has been the subject of only a few Court cases. One key case, however, arose during the civil rights movement. This case concerned the NAACP’s efforts to encourage African Americans who had suffered from discrimination to take their cases to court. The state of Virginia accused the NAACP of breaking a state law by seeking out legal business. The purpose of such laws is usually to prevent unethical lawyers from launching lawsuits for their own gain. In NAACP v. Button (1963), however, the Court concluded that the civil rights group was not seeking financial gain. It was, instead, helping people petition the government for their lawful rights. On that basis, the NAACP’s efforts were protected under the First Amendment.