POLS 206 American National Government Megan K Dyer September 25 2014 Overview Today 1 Civil liberties 2 Debating the Bill of Rights Federalist 84 Brutus 2 3 Policy limits in practice 1st Amendment Establishment 1st Amendment Free exercise Recap Major Institutional Features of the American Gov t Union Enumerated Powers Separation of Powers Checks and Balances Federalism Bill of Rights added later 1791 Civil Liberties Civil liberties Constitutional legal protections against gov t action Set out in the Bill of Rights Freedom from Civil Liberties The un amended Constitution on personal freedoms Not much Denied powers Art I Sect 9 etc Civil Liberties How to keep nat l power from expanding infringing upon liberty Problem Majority rule v individual rights esp of minorities Approaches Institutional designs v parchment barriers paper shield Debating the Bill of Rights Federalists not keen on a Bill of Rights Federalist 84 Aside number order Debating the Bill of Rights Federalist 84 Bills of Rights unnecessary even dangerous They would contain exceptions to powers not granted and on this very account afford a colorable pretext to claim more than were granted Congress given no powers to abridge civil liberties Bill of Rights a pretext for power hungry lawmakers Debating the Bill of Rights Federalist 84 General problem w setting limits on a majority whatever fine declarations may be inserted in any constitution must altogether depend on public opinion and on the general spirit of the people and the government A list of rights could well be a paper shield Majority can evade restrictions Debating the Bill of Rights What good is a list by itself e g USSR Constitution 1936 Debating the Bill of Rights Antifederalists don t buy it Brutus 2 Gov ts always try to enlarge their powers Necessary to fix limit barriers Moral reason behind lists of rights Statement of basic principles of relationship b t gov t the people Debating the Bill of Rights Antifederalists Assume rights not reserved are given up to the national gov t Federalists Assume the opposite Constitution gives gov t no such power Bill of Rights might be read to imply extra powers Debating the Bill of Rights Who was right Should a list of rights be spelled out to restrict gov t Or do such lists make the dangerous suggestion that national the gov t has unspecified powers Debating the Bill of Rights Federalists concede the point Limits in Practice Can a political majority restrict itself Any bill of rights offers legal statement that some preferences can t be expressed in policy Limits in Practice Does this work Hard to define policy limits from the text itself Unless we accept literal very strong interpretations Limits in Practice Case Study 1st Amendment religion Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof No law What is an establishment of religion What counts as religion Limits in Practice What are the policy limits May a state provide funds to religious schools to purchase books used for teaching secular subjects May a state ban polygamy even in some individuals hold sincere religious beliefs that command marriage to more than one person Establishment Clause 1st Amendment Establishment Clause What is an establishment of religion Two Interpretations 1 Prevents Congress from creating a national church 2 Wall of separation between church and state Establishment Clause 1st Amendment Establishment Clause Interpretation 1 Prevents Congress from creating a nat l church Accommodationist view Lesser contacts b t gov t religion are OK Establishment Clause 1st Amendment Establishment Clause Interpretation 2 Wall of separation b t church state strict separationist view Gov t must avoid contacts w religion Establishment Clause Typical policy question Can gov t give aid to religious schools if not favoring one religion Is this an establishment of religion Favoring in practice Giving aid at all Never Establishment Clause Lemon Test Lemon v Kurtzman 1971 Policy limits on state aid to religious schools 1 Secular legislative purpose 2 Primary effect neither advances nor inhibits religion 3 No excessive entanglement Putting it in practice Establishment Clause Establishment Clause questions Can a religious student group use school facilities Public displays of religious symbols School prayer Vouchers Free Exercise 1st Amendment Free Exercise Clause Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof What is the free exercise of religion Laws that incidentally interfere w religion Burden it Free Exercise Religion religious practices are regulated by the gov t in myriad ways But affected differently 1 Mainstream religions are less affected Also protected by their parishioner s ballots 2 What about minority religions Free Exercise Religious practices that clash with majority preferences open to substantial gov t regulation E g Free Exercise Religious practices that comport with majority preferences often not regulated E g Free Exercise Free Exercise Issues Objections to military service Work days v holy days Pledge of allegiance as a prohibited oath Laws specifically targeting animal sacrifices Limits in Practice Setting limits on gov t policy Strong statements about the Bill of Rights are imprecise at best Majorities have political protections minorities lack may successfully legislate regulations upon minorities Limits in Practice Is the Bill of Rights effective Yes But We assume strong protections Yet protections can be limited even weak w o popular support Wrap up How is it effective A powerful symbol of American values A source of moral appeal invoked by minorities to try to alter the preferences of majorities Next Bill of Rights con t