Slide 1OverviewRecapCivil LibertiesCivil LibertiesCivil LibertiesDebating the Bill of RightsDebating the Bill of RightsDebating the Bill of RightsDebating the Bill of RightsDebating the Bill of RightsDebating the Bill of RightsDebating the Bill of RightsDebating the Bill of RightsLimits in PracticeLimits in PracticeLimits in PracticeLimits in PracticeEstablishment ClauseEstablishment ClauseEstablishment ClauseEstablishment ClauseEstablishment ClauseEstablishment ClauseFree ExerciseFree ExerciseFree ExerciseFree ExerciseFree ExerciseLimits in PracticeLimits in PracticeWrap-upPOLS 206: American National GovernmentMegan K. Dyer September 25, 2014Today:1. Civil liberties2. Debating the Bill of Rights•Federalist 84•Brutus 23. Policy limits in practice•1st Amendment – Establishment•1st Amendment – Free exerciseOverviewMajor Institutional Features of the American Gov’t•Union•Enumerated Powers•Separation of Powers & Checks and Balances•FederalismBill of Rights: added later (1791)RecapCivil liberties: •Constitutional & legal protections against gov’t action.•Set out in the Bill of Rights•“Freedom from”Civil LibertiesCivil LibertiesThe un-amended Constitution on personal freedoms:•Not much•Denied powers (Art I, Sect. 9)•etc.Civil LibertiesHow 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)Federalists not keen on a Bill of RightsFederalist 84: •Aside: number/orderDebating the Bill of RightsFederalist 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 RightsFederalist 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 RightsWhat good is a list by itself?•e.g. USSR Constitution (1936)Debating the Bill of RightsAntifederalists 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 peopleDebating the Bill of RightsAntifederalists•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 RightsWho 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 RightsFederalists concede the point.Debating the Bill of RightsCan a political majority restrict itself?Any bill of rights offers:•legal statement that some preferences can’t be expressed in policyLimits in PracticeDoes this work?•Hard to define policy limits from the text itself•Unless we accept literal & very strong interpretationsLimits in PracticeCase 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 PracticeWhat 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?Limits in Practice1st Amendment – Establishment Clause•What is an “establishment of religion”?Two Interpretations:1. Prevents Congress from creating a national church2. Wall of separation between church and stateEstablishment Clause1st Amendment – Establishment ClauseInterpretation 1: Prevents Congress from creating a nat’l church• Accommodationist view•Lesser contacts b/t gov’t & religion are OKEstablishment Clause1st Amendment – Establishment ClauseInterpretation 2: Wall of separation b/t church & state• strict separationist view•Gov’t must avoid contacts w/ religionEstablishment ClauseTypical 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 ClauseLemon Test (Lemon v. Kurtzman, 1971)Policy limits on state aid to religious schools1. Secular legislative purpose2. Primary effect neither advances nor inhibits religion3. No excessive entanglement•Putting it in practice?Establishment ClauseEstablishment Clause questions: •Can a religious student group use school facilities?•Public displays of religious symbols?•School prayer?•Vouchers?Establishment Clause1st 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 ExerciseReligion & 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 ExerciseReligious practices that clash with majority preferences •open to substantial gov’t regulationE.g.Free ExerciseReligious practices that comport with majority preferences •often not regulatedE.g.Free ExerciseFree Exercise Issues:•Objections to military service•Work days v. holy days •Pledge of allegiance as a prohibited oath•Laws specifically targeting animal sacrificesFree ExerciseSetting 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 minoritiesLimits in PracticeIs the Bill of Rights effective?•Yes. But..•We assume strong protections.•Yet protections can be limited & even weak