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The Bill of Rights
9th Grade Social Studies · 84 lessons
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- 1What a Bill of Rights Is ForA bill of rights is a written list of freedoms that a government promises not to take away. The US Bill of Rights, the first ten amendments to the Constitution, was ratified in 1791 to calm fears that the new national government would become too powerful. Its key idea is that some liberties, such as speech, worship and a fair trial, should be placed beyond the reach of ordinary majorities and officials. Writing rights down mattered because it gave citizens something concrete to point to, and it later allowed courts to strike down laws that broke those promises. The American document drew on centuries of English struggles against royal power and on rights declarations in the newly independent states. Understanding why it was written, and how its meaning has been argued over ever since, explains many of the most heated legal debates in the United States today.
- 2Magna Carta and the Idea of the Law of the LandIn June 1215, rebellious English barons forced King John to seal Magna Carta at Runnymede, near the River Thames. The charter was mainly a peace treaty about feudal grievances such as taxes and inheritance, and the Pope annulled it within months. Yet it was reissued several times, and one promise outlived the rest: no free man could be imprisoned, stripped of property or outlawed except by the lawful judgment of his peers or by the law of the land. Over the centuries, English lawyers such as Sir Edward Coke reinterpreted that clause as a guarantee of due process for everyone, not just barons. American colonists inherited this reading and treated Magna Carta as proof that even rulers are bound by law. Historians caution that the charter's original meaning was narrower than its later reputation, but its symbolic power shaped the Fifth Amendment's due process clause and the right to trial by jury.
- 3The Petition of Right and the Habeas Corpus ActIn the seventeenth century, Parliament and the Stuart kings clashed over whether the Crown could tax, jail and billet soldiers without consent. In 1628 Parliament pressed Charles I to accept the Petition of Right, which declared that no one should be taxed without Parliament's approval, imprisoned without cause shown, forced to house soldiers, or subjected to martial law in peacetime. The king accepted it but later ignored it, which fed the conflict that led to civil war. In 1679 Parliament passed the Habeas Corpus Act, which strengthened the old writ requiring jailers to bring a prisoner before a judge and justify the detention. These documents matter for American history because colonists treated them as part of their own inheritance. Their concerns reappear in the US Constitution's habeas corpus clause and in the Third and Fourth Amendments, showing how American rights grew from English constitutional battles.
- 4The English Bill of Rights of 1689 and Its American EchoesAfter James II fled England in 1688, Parliament offered the throne to William and Mary on condition that they accept a Declaration of Right, enacted in 1689 as the Bill of Rights. It barred the monarch from suspending laws, levying taxes or keeping a standing army in peacetime without Parliament's consent. It protected free elections, freedom of speech in Parliament and the right to petition the king, and it allowed Protestant subjects to have arms for their defence as suitable to their condition and allowed by law. Its most direct legacy in America is a single sentence: excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted, which the Eighth Amendment copies almost exactly. The English document protected Parliament against the Crown rather than individuals against Parliament, a key difference Americans noticed. They wanted a bill of rights that would bind legislatures too.
- 5Colonial Charters and the Rights of EnglishmenFrom the start, English colonies in North America were founded under charters that promised settlers the same liberties as people living in England. The Virginia Company's charter of 1606 said colonists and their children would enjoy all liberties, franchises and immunities as if born in England. Massachusetts went further in 1641 with the Body of Liberties, a written code that protected things such as trial procedures and limits on cruel punishment. William Penn's Frame of Government for Pennsylvania in 1682, and his Charter of Privileges in 1701, promised jury trials and liberty of conscience for those who believed in God. These charters taught colonists to think of rights as written, legal guarantees. When Parliament later taxed and policed the colonies in the 1760s, Americans argued they were being denied the rights of Englishmen. The claim was powerful because it rested on documents they had lived under for generations, though those rights excluded enslaved people and Native Americans.
- 6Religious Toleration in the ColoniesMany colonists crossed the Atlantic for religious reasons, yet most colonies had official churches and punished dissenters. Some places experimented with toleration. Roger Williams, banished from Massachusetts, founded Providence in 1636 and argued that government should not control conscience. Maryland's Toleration Act of 1649 protected Christians who believed in the Trinity, though it threatened death for those who denied it. In 1657 residents of Flushing, in Dutch New Netherland, sent the Flushing Remonstrance protesting a ban on Quaker worship. Rhode Island's royal charter of 1663 promised that no one would be punished for differences of opinion in religion. These experiments were limited and uneven, but they showed that a colony could survive without forcing one faith on everyone. Their arguments, some religious and some practical, fed directly into the debates that produced the First Amendment's guarantees against an established church and for the free exercise of religion.
- 7The Zenger Trial and the Roots of Press FreedomIn 1734 New York's royal governor, William Cosby, had printer John Peter Zenger arrested for seditious libel because his New-York Weekly Journal published essays attacking the governor. Under English law at the time, truth was not a defence: criticism that damaged respect for officials could be criminal even if accurate. In 1735 Zenger's lawyer, Andrew Hamilton of Philadelphia, admitted that Zenger had printed the articles but urged the jury to acquit because the claims were true and the cause of liberty was at stake. The jury returned a verdict of not guilty. The case did not change the formal law, and later colonial governments still prosecuted critics. Its significance was political and symbolic: it showed that juries could shield critics of government and popularized the idea that the press should be free to report truthfully on officials. That idea later shaped the First Amendment and the modern law of libel.
- 8Writs of Assistance and James OtisIn the 1750s and 1760s, British customs officers in the colonies used writs of assistance, general warrants that let them search any ship, warehouse or home for smuggled goods without naming a place or showing specific evidence. In February 1761, Boston merchants challenged the renewal of these writs, and lawyer James Otis argued for five hours that they were contrary to fundamental English rights and that a man's house was his castle. Otis lost the case, and Parliament's Townshend Acts of 1767 expressly authorized such writs. Yet his argument had a long life. A young John Adams, who watched the speech, later wrote that 'then and there the child Independence was born'. In Britain at the same time, courts were rejecting general warrants in cases involving John Wilkes. The colonial hatred of open-ended searches became a central reason for the Fourth Amendment's requirement that warrants describe the place to be searched and the things to be seized.
- 9George Mason and the Virginia Declaration of RightsOn June 12, 1776, weeks before the Declaration of Independence, the Virginia Convention adopted a Declaration of Rights drafted mainly by George Mason. It opened by stating that all men are by nature equally free and independent and have certain inherent rights, including life, liberty, property, and the pursuit of happiness and safety. It went on to protect jury trials, ban excessive bail and general warrants, call freedom of the press one of the great bulwarks of liberty, and declare that power derives from the people. A young James Madison successfully pushed to replace the word 'toleration' with the stronger promise that all men are equally entitled to the free exercise of religion. The document was enormously influential: it shaped other state declarations, the federal Bill of Rights and even France's 1789 Declaration of the Rights of Man. Its limits were stark, though, since Mason and many delegates enslaved people whom its promises did not cover.
- 10State Declarations of Rights, 1776–1780Once the colonies broke from Britain, they had to write their own constitutions, and most attached declarations of rights. Pennsylvania's radical 1776 constitution protected freedom of speech and the press, liberty of conscience, and the right of the people to bear arms in defence of themselves and the state. Massachusetts took a different path: its 1780 constitution, largely drafted by John Adams, was submitted to town meetings for approval, establishing the idea that the people themselves should ratify a constitution. Its declaration proclaimed that all men are born free and equal, words that enslaved people such as Elizabeth Freeman and Quock Walker used in court to win their freedom in the early 1780s. These state documents were laboratories. They showed which rights Americans valued, tested different wordings, and gave Madison a ready supply of language when he drafted the federal amendments. They also revealed tensions, since several states kept official support for churches.
- 11Rights in the Northwest Ordinance of 1787While delegates in Philadelphia were drafting the Constitution in July 1787, the Confederation Congress in New York passed the Northwest Ordinance to govern the land north of the Ohio River. Alongside rules for creating new states, it included what amounted to a bill of rights for the territory: religious freedom for anyone behaving peaceably, habeas corpus, trial by jury, bail except for capital offences, and a ban on cruel or unusual punishments. It encouraged schools and education, promised good faith toward Native Americans, and in Article VI banned slavery in the territory, though it also allowed escaped slaves to be reclaimed. The ordinance shows that Congress was already willing to guarantee rights in a federal law before the Constitution had a bill of rights. Its promises were inconsistently honoured, especially toward Native nations whose lands were taken, but the slavery ban made the Ohio River a lasting dividing line in American politics.
- 12The Rights Already in the Original ConstitutionCritics often say the 1787 Constitution had no bill of rights, but that is not quite accurate. The original text protected several important rights. Article I, Section 9 barred Congress from suspending habeas corpus except in rebellion or invasion, and from passing bills of attainder (laws punishing a named person without trial) or ex post facto laws (laws punishing acts that were legal when committed). Section 10 placed the same limits on states and forbade them from impairing contracts. Article III guaranteed jury trials for federal crimes and defined treason narrowly, requiring two witnesses to the same overt act or a confession in open court. Article VI banned religious tests for federal office. Federalists pointed to these protections as evidence that a separate list was unnecessary. Anti-Federalists replied that the gaps were glaring: there was nothing about speech, the press, religion in general, searches or civil juries. That disagreement set up the ratification fight.
- 13The Convention Says No to a Bill of RightsOn September 12, 1787, with the Constitutional Convention nearly finished, George Mason said he wished the plan had been prefaced with a bill of rights, and Elbridge Gerry moved to appoint a committee to draft one. Roger Sherman of Connecticut replied that state declarations of rights were still in force and were sufficient. The state delegations voted the motion down unanimously, ten to none, with Massachusetts absent. Delegates were exhausted after almost four months of work, and many believed a government of limited, listed powers posed little threat to liberty. The decision proved to be a major political mistake. Mason, Gerry and Edmund Randolph refused to sign the Constitution on September 17, and Mason's written objections, which began by complaining that there was no declaration of rights, circulated widely. The absence of a bill of rights quickly became the most effective weapon in the hands of the Constitution's opponents.
- 14Federalists and Anti-FederalistsThe debate over ratifying the Constitution divided Americans into two loose camps. Federalists, including James Madison, Alexander Hamilton and John Jay, argued that the weak Articles of Confederation had failed and that a stronger national government with checks and balances would protect liberty better than the states alone. Anti-Federalists, such as Patrick Henry, George Mason, George Clinton and Mercy Otis Warren, feared that a distant central government with powers to tax, raise armies and make all 'necessary and proper' laws would swallow the states and threaten ordinary people. They worried that a large republic could not stay accountable to its citizens. The missing bill of rights became their rallying point because it was concrete and easy to understand. Both sides claimed to defend the Revolution's principles. Historians today see the Anti-Federalists not simply as losers but as critics whose demands produced the Bill of Rights and whose concerns about centralized power still echo in American politics.
- 15Brutus, the Federal Farmer and the Anti-Federalist CaseAnti-Federalist ideas spread through newspaper essays published under classical pen names. The essays signed 'Brutus', usually attributed to New York judge Robert Yates, argued that a large republic covering so many people could not keep representatives accountable, and warned that the 'necessary and proper' clause and the supremacy clause would let Congress override the states. Brutus also predicted that federal judges, appointed for life and answerable to no one, would expand national power through interpretation, an unusually prescient forecast of judicial review. The 'Federal Farmer' letters, whose authorship is still debated, called for specific guarantees such as jury trials in civil cases and protection against unreasonable searches. In Pennsylvania, 'Centinel' attacked the Constitution as a plan for aristocracy. These writers drew on a tradition that saw concentrated power as the main danger to liberty. Reading them alongside The Federalist shows that the Bill of Rights grew out of a genuine argument, not a unanimous consensus.
- 16Federalist No. 84: Hamilton's Case Against a Bill of RightsIn Federalist No. 84, published in 1788, Alexander Hamilton gave the most famous argument against adding a bill of rights. He said bills of rights began as bargains between kings and subjects, like Magna Carta, and made little sense in a government created by the people themselves. The Constitution, he argued, was itself a bill of rights because it granted only limited powers and already protected habeas corpus, jury trials and other liberties. Most strikingly, he warned that listing rights could be dangerous: why declare that things shall not be done which there is no power to do? A list might imply that the government had power over everything not mentioned. Critics found this unconvincing because the Constitution's broad clauses could be read expansively. Hamilton's warning did not stop the Bill of Rights, but it shaped it: the Ninth Amendment was written precisely to prevent the list from being read as complete.
- 17Ratification State by StateThe Constitution needed approval from conventions in nine of the thirteen states. Delaware ratified first and unanimously on December 7, 1787, and Pennsylvania followed days later after a bitter fight. The turning point came in Massachusetts, where opposition was strong. Federalists won there in February 1788, by 187 votes to 168, by agreeing that the convention would ratify and also recommend amendments for the new Congress to consider. This 'Massachusetts compromise' became the model: several later states ratified while attaching lists of proposed amendments. New Hampshire became the ninth state on June 21, 1788, making the Constitution legally operative. North Carolina refused to ratify in 1788 until amendments were added, and Rhode Island, which rejected the Constitution in a popular referendum, held out until May 1790. Ratification was therefore conditional in spirit: many Americans accepted the Constitution on the understanding that a bill of rights would follow.
- 18Virginia and New York: The Decisive ConventionsEven after New Hampshire made the Constitution legally operative, everyone knew the new government could hardly succeed without Virginia, the largest state, and New York, a commercial and strategic centre. In Richmond in June 1788, Patrick Henry spoke for days, warning that the Constitution endangered liberty and the states, while James Madison answered point by point. Virginia ratified on June 25, 1788, by 89 votes to 79, and attached a long list of proposed amendments and a declaration of rights. In Poughkeepsie, New York, Anti-Federalists led by Governor George Clinton held a majority at first, but news that Virginia had ratified changed the political calculation. New York ratified on July 26, 1788, by 30 votes to 27, and sent a circular letter urging a second convention to amend the Constitution. That threat of a second convention worried Federalists, who feared it could undo their work, and it pushed Madison toward drafting amendments himself.
- 19Jefferson and Madison Argue by LetterThomas Jefferson, serving as the American minister in Paris, followed the ratification debate through letters with his friend James Madison. In December 1787 Jefferson wrote that he liked much of the Constitution but that a bill of rights is what the people are entitled to against every government on earth. Madison was sceptical. In October 1788 he replied that experience showed such declarations were often mere 'parchment barriers' ignored by overbearing majorities in the states, and that the real danger in a republic came from majorities, not kings. Jefferson answered in March 1789 with an argument that proved prophetic: a bill of rights would put a legal check into the hands of the judiciary. Their exchange captures a central question of constitutional government: do written rights restrain power, or does power ignore them? Madison eventually concluded that a bill of rights could educate public opinion and give courts a tool, even if it was not a perfect guarantee.
- 20Madison's Change of Heart and the Election of 1789Madison's shift toward supporting amendments was driven by principle and politics together. Patrick Henry used his influence in the Virginia legislature to keep Madison out of the new US Senate and helped shape a congressional district thought to be hostile to him. Madison then faced James Monroe, a future president, in a race for the House of Representatives. Many voters in the district were Baptists, who had suffered persecution under Virginia's established church and wanted firm guarantees of religious liberty. In a January 1789 letter to Baptist minister George Eve, Madison promised to work in Congress for amendments protecting essential rights, including liberty of conscience. He won the election in February 1789. Historians debate how much he changed his mind and how much he adapted for votes, but both factors mattered. He also had strategic reasons: amendments drafted by friends of the Constitution could protect rights while preventing a second convention from weakening the new government.
- 21June 8, 1789: Madison Introduces the AmendmentsOn June 8, 1789, Madison rose in the House of Representatives, then meeting in New York, and proposed a set of amendments. Many members thought there were more urgent tasks, such as raising revenue and organizing the government, and some Federalists saw the effort as unnecessary. Madison argued that amendments would reassure the public, bring North Carolina and Rhode Island into the union, and protect liberty. He drew heavily on proposals from the state ratifying conventions and on state declarations of rights, but he carefully left out demands that would weaken federal power, such as limits on taxation. He originally wanted the changes woven into the text of the Constitution itself rather than added at the end. He also proposed that no state should violate the rights of conscience, freedom of the press or trial by jury in criminal cases, which he called the most valuable amendment on the list. The Senate later rejected that state-level guarantee.
- 22From Seventeen Amendments to TwelveMadison's proposals passed through several rounds of editing. A House select committee revised them in July 1789. Roger Sherman of Connecticut persuaded the House to place the amendments at the end of the Constitution as a supplement rather than weaving them into the original text, a decision that gave the Bill of Rights its separate identity. On August 24, 1789, the House approved seventeen amendments and sent them to the Senate. The Senate, whose debates were held behind closed doors, combined and trimmed the list to twelve, dropping Madison's restriction on the states. A conference committee settled differences between the two chambers, and on September 25, 1789, Congress sent twelve amendments to the states. The editing involved real choices: wording on religion went through several versions before settling on the phrases about establishment and free exercise. Comparing the drafts helps historians interpret what the final words were meant to do.
- 23Ratifying the Bill of Rights, 1789–1791Once Congress proposed twelve amendments, three-fourths of the states had to approve them. New Jersey acted first, in November 1789. The process took longer than expected because states moved at different speeds and Vermont's admission in 1791 raised the number of states, and therefore the number of ratifications needed, to eleven. Virginia's approval on December 15, 1791, completed ratification of ten amendments. The first proposal on the list, about the size of the House, was never ratified. The second, delaying congressional pay raises until after an election, fell short at the time but was revived by a student's research campaign and ratified as the Twenty-seventh Amendment in 1992. The ten that succeeded, originally numbered third through twelfth, became the First through Tenth Amendments. Massachusetts, Connecticut and Georgia did not formally ratify until 1939, as a symbolic gesture for the 150th anniversary. The quiet ratification contrasts with how central these amendments later became.
- 24The First Test: The Sedition Act of 1798Only seven years after the First Amendment was ratified, it faced a severe test. Amid an undeclared naval war with France, the Federalist-controlled Congress passed the Sedition Act in July 1798, making it a crime to publish false, scandalous and malicious writings against the government, Congress or the president. Prosecutions targeted Democratic-Republican newspaper editors and politicians, including Vermont congressman Matthew Lyon, who was jailed and re-elected while in prison. Supporters argued that the law was moderate because, unlike older English law, it allowed truth as a defence and required a jury. Opponents, led by Jefferson and Madison in the secretly drafted Kentucky and Virginia Resolutions, argued that it violated the First Amendment and exceeded federal power. The law expired in 1801, and Jefferson pardoned those convicted. The Supreme Court never ruled on it, but in 1964 the Court said the attack on its validity had carried the day in the court of history.
- 25Five Freedoms in Forty-Five WordsThe First Amendment packs five freedoms into a single sentence of forty-five words: religion, speech, the press, peaceable assembly and petitioning the government. Its religion section has two clauses that work together, one forbidding laws respecting an establishment of religion and one protecting its free exercise. Its first word, 'Congress', reflects that it originally restrained only the federal government; the Supreme Court began applying its protections to the states in the twentieth century through the Fourteenth Amendment. The freedoms are linked by a common purpose: they protect the ability of people to think, believe, communicate and organize without government control, which is essential for self-government. Yet none is absolute. Courts have spent more than a century drawing lines, for example between protected advocacy and incitement, or between religious belief and conduct. The First Amendment also limits only government, not private employers or companies, a distinction many people overlook when they talk about free speech.
- 26The Establishment Clause and the Wall of SeparationThe establishment clause forbids Congress from making any law respecting an establishment of religion. At minimum, it barred a national church like the Church of England. How much further it goes has long been debated. In an 1802 letter to the Danbury Baptists, Jefferson described a 'wall of separation between church and state', a phrase the Supreme Court adopted in Everson v. Board of Education in 1947, the case that applied the clause to the states. In Engel v. Vitale in 1962, the Court ruled that a state-written prayer recited in New York public schools was unconstitutional. Lemon v. Kurtzman in 1971 created a three-part test focusing on purpose, effect and entanglement, which was widely criticized. In Kennedy v. Bremerton School District in 2022, the Court said it had abandoned that test in favour of historical practices and understandings. Separationists stress keeping government neutral; accommodationists stress that the founders accepted a public role for religion.
- 27Free Exercise: Belief, Conduct and ExemptionsThe free exercise clause protects the right to practise one's religion, but courts have struggled with laws that burden religious conduct. In Reynolds v. United States in 1879, the Court upheld a federal ban on polygamy, distinguishing protected belief from regulable action. Later, Sherbert v. Verner in 1963 required the government to show a compelling interest before burdening religious practice, and Wisconsin v. Yoder in 1972 exempted Amish families from compulsory schooling beyond eighth grade. In Employment Division v. Smith in 1990, the Court changed course, ruling that neutral laws applying to everyone generally do not violate free exercise even if they burden a faith, in a case involving the ceremonial use of peyote. Congress responded with the Religious Freedom Restoration Act of 1993, restoring the compelling-interest test by statute for the federal government. The central tension remains: exemptions protect minority faiths, but too many exemptions could undermine equal application of the law.
- 28From Clear and Present Danger to BrandenburgDuring World War I, the government prosecuted people under the Espionage Act of 1917 for opposing the draft. In Schenck v. United States in 1919, Justice Oliver Wendell Holmes upheld a conviction for distributing anti-draft leaflets, writing that speech could be punished if it created a 'clear and present danger' and comparing it to falsely shouting fire in a theatre. Months later, in Abrams v. United States, Holmes dissented, arguing that the best test of truth is the power of an idea to win acceptance in the competition of the market. Justice Louis Brandeis added in 1927 that the remedy for bad speech is more speech, not enforced silence. During the Cold War, the Court upheld convictions of Communist Party leaders in Dennis v. United States in 1951. Finally, in Brandenburg v. Ohio in 1969, the Court ruled that advocacy of force or law-breaking is protected unless it is directed to inciting imminent lawless action and likely to produce it.
- 29Symbolic Speech: Flags, Draft Cards and Expressive ActsSpeech is not only words. The Supreme Court has recognized that conduct can be protected expression when it is meant to convey a message that others are likely to understand. In Stromberg v. California in 1931, the Court struck down a ban on displaying a red flag as a symbol of opposition to government. But not every expressive act is protected: in United States v. O'Brien in 1968, the Court upheld the conviction of a man who burned his draft card, reasoning that the law served an important government interest unrelated to suppressing his message. The most controversial case came in Texas v. Johnson in 1989, when a 5-4 majority ruled that burning an American flag in political protest is protected speech. Congress passed the Flag Protection Act in response, and the Court struck it down in 1990. Supporters see these rulings as protecting even offensive dissent; critics argue the flag deserves special protection as a national symbol.
- 30Students' Speech Rights: Tinker and AfterIn December 1965, Mary Beth Tinker, her brother John and their friend Christopher Eckhardt wore black armbands to school in Des Moines, Iowa, to mourn the dead in the Vietnam War, and were suspended. In Tinker v. Des Moines in 1969, the Supreme Court ruled 7-2 that students do not shed their constitutional rights at the schoolhouse gate; schools may restrict speech only if it would substantially disrupt school or invade others' rights. Later cases carved out exceptions. Bethel School District v. Fraser in 1986 allowed punishment for a lewd assembly speech; Hazelwood v. Kuhlmeier in 1988 allowed principals to edit school-sponsored newspapers for legitimate educational reasons; and Morse v. Frederick in 2007 upheld punishing a 'BONG HiTS 4 JESUS' banner seen as promoting drug use. In Mahanoy Area School District v. B.L. in 2021, the Court ruled 8-1 that a cheerleader's profane off-campus Snapchat post was protected, while saying schools have some interest in off-campus speech.
- 31The Limits of Speech: Categories Outside ProtectionAlthough the First Amendment protects a vast range of expression, the Supreme Court has recognized a small number of historically unprotected categories. In Chaplinsky v. New Hampshire in 1942, it described 'fighting words', face-to-face insults likely to provoke an immediate violent reaction. Miller v. California in 1973 set the test for obscenity, which is not protected. Incitement to imminent lawless action, defamation, fraud and true threats are also outside protection. In Virginia v. Black in 2003, the Court held that cross burning carried out with intent to intimidate could be banned as a true threat, and in Counterman v. Colorado in 2023 it ruled that prosecutors must show at least recklessness about a statement's threatening nature. The Court has resisted creating new categories: in United States v. Stevens in 2010, it refused to add depictions of animal cruelty to the list. Defenders say narrow categories keep speech free; critics say they leave some harmful speech unregulated.
- 32Freedom of the Press and Prior RestraintFor the founders, press freedom meant above all freedom from 'prior restraint', meaning government censorship before publication, which English law had used through licensing. The Supreme Court made this principle central in Near v. Minnesota in 1931, striking down a state law that let officials shut down a newspaper as a public nuisance. The landmark modern test came in 1971, when the Nixon administration sought to stop the New York Times and Washington Post from publishing the Pentagon Papers, a classified history of US involvement in Vietnam leaked by Daniel Ellsberg. In New York Times Co. v. United States, the Court ruled 6-3 that the government had not met the heavy burden needed to justify prior restraint. In Nebraska Press Association v. Stuart in 1976, it applied similar reasoning to gag orders on reporting about criminal trials. The cases show a strong presumption against censorship, though the justices acknowledged that some extreme national security cases might be different.
- 33New York Times v. Sullivan and the Actual Malice RuleIn 1960 civil rights supporters placed a full-page advertisement in the New York Times, titled 'Heed Their Rising Voices', describing actions against protesters in Alabama. It contained some factual errors. L. B. Sullivan, a Montgomery city commissioner who oversaw the police, sued for libel even though he was not named, and an Alabama jury awarded him $500,000. Similar suits threatened to bankrupt national news organizations covering the civil rights movement. In New York Times Co. v. Sullivan in 1964, the Supreme Court unanimously reversed. It ruled that public officials can win libel suits about their official conduct only by proving 'actual malice', meaning the speaker knew the statement was false or acted with reckless disregard for whether it was true. The Court said debate on public issues should be uninhibited, robust and wide-open. Later cases extended the rule to public figures. Supporters credit it with protecting journalism; some critics argue it makes it too hard for people to answer falsehoods.
- 34Assembly, Association and PetitionThe rights to assemble peaceably and to petition the government allow citizens to act together and demand change. In the 1830s and 1840s, the House of Representatives adopted a 'gag rule' that automatically tabled anti-slavery petitions; former president John Quincy Adams campaigned against it until it was repealed in 1844. The Supreme Court applied the right of assembly to the states in De Jonge v. Oregon in 1937 and recognized a right of association in NAACP v. Alabama in 1958, when it blocked Alabama from forcing the civil rights group to hand over its membership lists. Governments may impose reasonable, content-neutral rules on the time, place and manner of gatherings, such as permits, but may not ban marches because officials dislike their message. This principle was tested in 1977–78 when a neo-Nazi group sought to march in Skokie, Illinois, home to many Holocaust survivors, and courts upheld its right to demonstrate, a decision that remains painful and controversial.
- 35The Right Not to Speak: Compelled SpeechThe First Amendment protects not only the right to speak but also the right not to be forced to say something. In 1940, in Minersville School District v. Gobitis, the Supreme Court upheld expelling Jehovah's Witness children who refused, for religious reasons, to salute the flag. A wave of violence against Witnesses followed. Just three years later, in West Virginia State Board of Education v. Barnette, the Court reversed itself. Justice Robert Jackson wrote that no official can prescribe what shall be orthodox in politics, nationalism or religion, or force citizens to confess their faith in it. In Wooley v. Maynard in 1977, the Court ruled New Hampshire could not punish a driver for covering the state motto 'Live Free or Die' on his licence plate. In 303 Creative v. Elenis in 2023, the Court ruled that a web designer could not be compelled to create wedding websites conveying messages she disagreed with, a decision that remains debated.
- 36Money, Campaigns and the First AmendmentShould spending money on elections count as speech? In Buckley v. Valeo in 1976, after the Watergate scandal, the Supreme Court upheld limits on contributions to candidates to prevent corruption but struck down limits on how much candidates and independent groups could spend, reasoning that spending is necessary to communicate political messages. In Citizens United v. Federal Election Commission in 2010, a 5-4 majority ruled that the government may not ban independent political spending by corporations and unions, which led to the growth of 'super PACs' that can raise and spend unlimited sums if they do not coordinate with candidates. Supporters argue that political speech is at the heart of the First Amendment and that groups of people do not lose rights by organizing. Critics argue that large sums give wealthy donors outsized influence and weaken public trust. The debate continues over disclosure rules, constitutional amendments and how to balance free speech with fair elections.
- 37The Second Amendment's Text and OriginsThe Second Amendment reads: 'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.' Its roots lie in English history, especially the 1689 Bill of Rights, and in colonial reliance on citizen militias rather than professional armies. Many Americans feared a standing army controlled by a distant government, and the Revolution began in 1775 when British troops marched to seize militia weapons and supplies at Concord. The amendment's structure has generated lasting debate. One reading emphasizes the opening clause and sees the right as tied to service in an organized militia. Another reading treats the opening clause as a statement of purpose and the second clause as protecting an individual right held by 'the people'. The Militia Act of 1792, which required most free white men of military age to enrol and supply their own weapons, shows how founders connected private arms and public defence.
- 38United States v. Miller and Early Gun LawsFor most of American history, the Supreme Court said little about the Second Amendment. In United States v. Cruikshank in 1876 and Presser v. Illinois in 1886, it said the amendment restricted only the federal government. In the 1930s, gangland violence involving machine guns prompted Congress to pass the National Firearms Act of 1934, which taxed and required registration of weapons such as machine guns and short-barrelled shotguns. Two men, Jack Miller and Frank Layton, were charged with transporting an unregistered short-barrelled shotgun across state lines. In United States v. Miller in 1939, the Court upheld the law, saying it had no evidence that such a shotgun had a reasonable relationship to a well-regulated militia. For decades, many lower courts read Miller as linking the right to militia service, while others read it more narrowly as a ruling about types of weapons. That ambiguity set up the major cases of the twenty-first century.
- 39District of Columbia v. Heller (2008)In 1976 Washington, D.C., effectively banned handgun possession and required other guns in the home to be kept disassembled or locked. Dick Heller, a security guard who carried a gun at work, challenged the law. In District of Columbia v. Heller in 2008, the Supreme Court ruled 5-4 that the Second Amendment protects an individual right to keep and bear arms, unconnected to militia service, and that the right includes keeping a handgun in the home for self-defence. Justice Antonin Scalia's majority opinion relied heavily on the historical meaning of the text. Justice John Paul Stevens' dissent argued the amendment protects arms only in connection with militia service, and Justice Stephen Breyer's dissent argued that the law was a reasonable public safety measure. The majority stressed that the right is not unlimited and that its ruling did not cast doubt on longstanding prohibitions, such as bans on possession by felons or in sensitive places like schools.
- 40McDonald v. Chicago and the Second Amendment in the StatesBecause Heller involved Washington, D.C., a federal district, it left open whether the Second Amendment limited state and local governments. Chicago had banned most handgun possession since 1982. Otis McDonald, a retired maintenance engineer in his seventies who lived in a neighbourhood with high crime, wanted a handgun for protection at home. In McDonald v. Chicago in 2010, the Supreme Court ruled 5-4 that the Second Amendment applies to the states. Justice Samuel Alito's plurality opinion used the Fourteenth Amendment's due process clause, reasoning that the right of self-defence is fundamental and deeply rooted in American history. Justice Clarence Thomas agreed with the result but argued the right should be applied through the Fourteenth Amendment's privileges or immunities clause instead. Dissenters argued that the decision would restrict states' ability to experiment with gun policy. The case is an important example of incorporation, the process by which the Bill of Rights came to limit state governments.
- 41Bruen, Rahimi and the History-and-Tradition TestAfter Heller, lower courts generally weighed gun laws by balancing the burden on the right against the government's public safety goals. In New York State Rifle and Pistol Association v. Bruen in 2022, the Supreme Court rejected that approach by a 6-3 vote. It struck down New York's requirement that people show 'proper cause' to obtain a licence to carry a handgun in public, and said gun laws must be consistent with the nation's historical tradition of firearm regulation. Critics, including the dissent by Justice Breyer, argued that the test was hard to apply and ignored modern gun violence. In United States v. Rahimi in 2024, the Court ruled 8-1 that the government may disarm a person subject to a domestic violence restraining order who has been found to pose a credible threat, explaining that modern laws need not have an identical historical twin. Together the cases show the Court refining a new method that lower courts continue to apply.
- 42The Third Amendment: Soldiers and the HomeThe Third Amendment forbids quartering soldiers in any house in peacetime without the owner's consent, and in wartime except as prescribed by law. To modern readers it can seem obsolete, but it addressed a real grievance. Parliament's Quartering Acts of 1765 and 1774 required colonial authorities to house British troops, and the 1774 version was part of what colonists called the Intolerable Acts. The Declaration of Independence complained of 'quartering large bodies of armed troops among us'. The Supreme Court has never decided a case based mainly on the Third Amendment. The best-known lower-court case, Engblom v. Carey in 1982, arose when New York housed National Guard troops in prison guards' residences during a 1979 strike; a federal appeals court ruled that National Guard members count as soldiers and that the guards' interest in their homes could be protected. The amendment also contributed to the idea of a constitutional zone of privacy in the home.
- 43Probable Cause, Warrants and Their ExceptionsThe Fourth Amendment has two parts. The first protects the people against unreasonable searches and seizures of their persons, houses, papers and effects. The second requires that warrants be issued only upon probable cause, supported by oath, and particularly describing the place to be searched and the persons or things to be seized. Its authors had in mind general warrants and writs of assistance, and the English case Entick v. Carrington in 1765, which condemned an open-ended search of a writer's papers. Courts generally treat warrantless searches as unreasonable, but they have recognized exceptions: consent, searches incident to a lawful arrest, items in plain view, emergencies, and the 'automobile exception' from Carroll v. United States in 1925, which permits searching a vehicle when officers have probable cause. Supporters say these exceptions reflect practical policing needs; critics say they have grown so numerous that warrants have become the exception rather than the rule.
- 44The Exclusionary Rule: From Weeks to MappA right needs a remedy, and the main remedy for illegal searches is the exclusionary rule, which bars prosecutors from using evidence obtained in violation of the Fourth Amendment. The Supreme Court adopted it for federal cases in Weeks v. United States in 1914. In 1949 the Court said the Fourth Amendment applied to the states but did not require them to exclude evidence. In 1957 police in Cleveland forced their way into Dollree Mapp's home looking for a bombing suspect and found allegedly obscene materials instead. In Mapp v. Ohio in 1961, the Court extended the exclusionary rule to state courts. Critics have long argued, in the words of Judge Benjamin Cardozo, that the criminal should not go free because the constable has blundered. Supporters respond that without exclusion, the Fourth Amendment would be an empty promise. Later cases, such as United States v. Leon in 1984, created a 'good faith' exception for officers who reasonably relied on a warrant later found invalid.
- 45Katz and the Reasonable Expectation of PrivacyIn Olmstead v. United States in 1928, the Supreme Court ruled that wiretapping telephone lines outside a suspect's home was not a search, because officers had not physically entered his property. Justice Louis Brandeis dissented, warning that new technologies would let government invade privacy without trespass and defending 'the right to be let alone'. Four decades later, the Court agreed with him. Charles Katz used a public telephone booth in Los Angeles to place illegal bets, and FBI agents recorded his calls with a device attached to the outside of the booth. In Katz v. United States in 1967, the Court ruled that the Fourth Amendment protects people, not places. Justice John Marshall Harlan's concurrence proposed a two-part test: a person must have an actual expectation of privacy that society recognizes as reasonable. The test became the standard approach for decades, though critics say judges' views of what society finds 'reasonable' can be subjective.
- 46Terry v. Ohio and Stop-and-FriskIn 1963 Cleveland detective Martin McFadden watched two men repeatedly walk past and peer into a store window, which he suspected was preparation for a robbery. He stopped them, patted down their outer clothing and found guns. In Terry v. Ohio in 1968, the Supreme Court ruled 8-1 that police may briefly stop a person based on 'reasonable suspicion' of criminal activity, a lower standard than probable cause, and may frisk for weapons if they reasonably believe the person is armed and dangerous. The Court saw the rule as balancing officer safety and crime prevention against personal liberty. Justice William O. Douglas dissented, warning that it gave police too much power. In later decades, stop-and-frisk programs drew intense debate. In 2013 a federal judge ruled that New York City's practices, as carried out, violated the Fourth and Fourteenth Amendments, while supporters argued the tactic helped reduce crime. The debate continues over effectiveness, fairness and community trust.
- 47Searches at School: T.L.O. to ReddingDo students have Fourth Amendment rights at school? In New Jersey v. T.L.O. in 1985, a fourteen-year-old was caught smoking in a school bathroom; an assistant vice principal searched her purse and found cigarettes and evidence of drug selling. The Supreme Court ruled that the Fourth Amendment applies to public school officials, but that they need only reasonable suspicion, not a warrant or probable cause, and the search must be reasonable in scope. In Vernonia School District v. Acton in 1995, the Court upheld random drug testing of student athletes, and in 2002 it extended that to students in competitive extracurricular activities. In Safford Unified School District v. Redding in 2009, it ruled 8-1 that strip-searching a thirteen-year-old for prescription-strength ibuprofen was unreasonable because the suspected danger did not justify such an intrusive search. The cases reflect a balance between schools' duty to keep students safe and students' privacy.
- 48The Fourth Amendment in the Digital AgeDigital technology has forced courts to apply eighteenth-century words to devices the founders could not imagine. In United States v. Jones in 2012, the Supreme Court unanimously ruled that attaching a GPS tracker to a suspect's car and monitoring it for 28 days was a search. In Riley v. California in 2014, it unanimously held that police generally need a warrant to search a cell phone seized during an arrest. Chief Justice John Roberts explained that phones hold 'the privacies of life', and the Court's answer to what police must do was simple: get a warrant. In Carpenter v. United States in 2018, a 5-4 majority ruled that obtaining months of cell-site location records from a phone company is a search requiring a warrant, limiting the older 'third-party doctrine', which held that information shared with companies is not private. Debates continue over facial recognition, data brokers, smart home devices and geofence warrants, and over whether courts or legislatures should set the rules.
- 49Grand Juries and Double JeopardyThe Fifth Amendment opens with two protections for people accused of crimes. First, serious federal charges require an indictment by a grand jury, a group of citizens who decide whether there is enough evidence to bring a case to trial. The idea descends from medieval English practice and was meant to place ordinary people between prosecutors and the accused. The Supreme Court ruled in Hurtado v. California in 1884 that this requirement does not bind the states, and about half the states now rely mainly on other procedures. Second, the double jeopardy clause forbids trying a person twice for the same offence, protecting people from being worn down by repeated prosecutions. It was applied to the states in Benton v. Maryland in 1969. Under the 'dual sovereignty' doctrine, however, state and federal governments may each prosecute the same conduct, a rule the Court reaffirmed in Gamble v. United States in 2019. Critics argue that this weakens the clause's purpose.
- 50Miranda v. Arizona and the Right to Remain SilentThe Fifth Amendment says no person shall be compelled in any criminal case to be a witness against himself. The privilege grew from opposition to English courts that forced people to answer questions under oath. In 1963 Ernesto Miranda was arrested in Phoenix and confessed after two hours of police questioning without being told of his rights. In Miranda v. Arizona in 1966, the Supreme Court ruled 5-4 that before custodial interrogation, police must warn suspects that they have the right to remain silent, that anything they say can be used against them, and that they have the right to a lawyer, including an appointed one if they cannot afford one. Critics argued the rule would let guilty people go free and handcuff police. Supporters said the pressure of interrogation could produce false confessions. Congress tried to override Miranda in 1968, but in Dickerson v. United States in 2000 the Court reaffirmed that Miranda is a constitutional rule.
- 51Due Process and the Takings ClauseThe Fifth Amendment also says no person shall be deprived of life, liberty or property without due process of law, echoing Magna Carta's 'law of the land'. Due process means at least fair procedures, such as notice and a hearing before the government takes something away. The same amendment ends with the takings clause: private property shall not be taken for public use without just compensation. It allows eminent domain, the power to take land for roads or schools, but requires fair payment. In Kelo v. City of New London in 2005, the Supreme Court ruled 5-4 that a city could take homes as part of an economic development plan, treating that as a 'public use'. Susette Kelo's small pink house became a national symbol. Supporters said cities needed tools to revive struggling areas; critics, from across the political spectrum, said it let governments take homes from ordinary people to benefit private developers. More than forty states then changed their laws to limit such takings.
- 52Speedy and Public TrialsThe Sixth Amendment begins by guaranteeing the accused a speedy and public trial. A speedy trial protects people from long imprisonment before conviction, reduces anxiety, and prevents evidence and witnesses from fading. But there is no fixed deadline in the Constitution. In Barker v. Wingo in 1972, the Court adopted a balancing test weighing the length of the delay, the reason for it, whether the defendant asserted the right, and the harm to the defendant. Congress added concrete deadlines for federal cases in the Speedy Trial Act of 1974. Public trials guard against secret proceedings like those of England's Star Chamber, letting citizens see that justice is done. In Richmond Newspapers v. Virginia in 1980, the Court recognized that the public and press have a right to attend criminal trials. Courts sometimes limit publicity to protect fair trials, as in Sheppard v. Maxwell in 1966, which overturned a conviction because of a chaotic, media-saturated courtroom.
- 53Trial by Jury: Who Judges the AccusedThe Sixth Amendment guarantees an impartial jury in criminal cases. Jury trials let ordinary citizens stand between the government and the accused. In Duncan v. Louisiana in 1968, the Supreme Court applied the right to the states for serious crimes, in a case involving Gary Duncan, a young Black man convicted without a jury after an encounter with white youths. Who sits on juries has also been a constitutional issue. Strauder v. West Virginia in 1880 struck down a law excluding Black men from juries, though discrimination continued through other means. In Batson v. Kentucky in 1986, the Court barred prosecutors from using peremptory challenges to strike jurors because of race. In Ramos v. Louisiana in 2020, the Court ruled 6-3 that state juries must be unanimous to convict for serious crimes, ending non-unanimous verdicts that Louisiana had adopted in 1898 and Oregon had also used. The majority highlighted the rule's origins in efforts to weaken the voice of Black jurors.
- 54Gideon's Trumpet: The Right to a LawyerThe Sixth Amendment guarantees the accused the assistance of counsel, but for a long time that meant only that defendants could hire lawyers if they could afford them. In Powell v. Alabama in 1932, arising from the Scottsboro case in which nine Black youths were hastily tried and eight were sentenced to death, the Court required states to provide meaningful counsel in capital cases. In Betts v. Brady in 1942, it refused to extend that rule to all felonies. Then, in 1961, Clarence Earl Gideon was charged with breaking into a pool hall in Panama City, Florida. Denied a lawyer, he defended himself, was convicted, and wrote a handwritten petition to the Supreme Court from prison. In Gideon v. Wainwright in 1963, the Court ruled unanimously that states must provide lawyers to defendants in felony cases who cannot afford one. At his retrial, with a lawyer, Gideon was acquitted. Today debates focus on whether public defenders have enough resources.
- 55Confronting Witnesses and Calling Your OwnThe Sixth Amendment also gives the accused the right to be confronted with the witnesses against them and to have compulsory process for obtaining witnesses in their favour. The confrontation right has deep roots: in 1603 Sir Walter Raleigh was convicted of treason largely on a written statement by an accuser he was not allowed to question in court. Confrontation lets the defence cross-examine witnesses and lets jurors observe them. The Court applied the right to the states in Pointer v. Texas in 1965 and the right to compel favourable witnesses in Washington v. Texas in 1967. In Crawford v. Washington in 2004, Justice Scalia's opinion held that 'testimonial' statements by absent witnesses cannot be used unless the defendant had a chance to cross-examine them. Courts have also balanced confrontation against protecting vulnerable witnesses: in Maryland v. Craig in 1990, the Court allowed a child to testify by one-way closed-circuit television when necessary to prevent trauma.
- 56The Seventh Amendment and the Civil JuryThe original Constitution guaranteed juries in federal criminal trials but said nothing about civil cases, such as lawsuits over contracts or debts. Anti-Federalists saw this as a serious flaw, arguing that civil juries protected ordinary people against wealthy creditors and government officials. The Seventh Amendment answered them, preserving the right to a jury in suits at common law where the value in controversy exceeds twenty dollars. Its second clause says no fact tried by a jury shall be re-examined by any federal court except according to the rules of the common law, limiting judges' power to overturn jury findings. The Supreme Court has never applied the Seventh Amendment to the states, though most state constitutions protect civil juries on their own. Its scope remains contested: in SEC v. Jarkesy in 2024, the Court ruled 6-3 that when the Securities and Exchange Commission seeks civil penalties for securities fraud, the defendant is entitled to a jury trial rather than an agency proceeding.
- 57Excessive Bail and Excessive FinesThe Eighth Amendment begins by forbidding excessive bail and excessive fines. Bail allows an accused person, presumed innocent, to be released before trial while ensuring they return to court. In Stack v. Boyle in 1951, the Court said bail set higher than needed to assure appearance is excessive. The Bail Reform Act of 1984 allowed federal judges to detain some defendants before trial if they posed a danger, and the Court upheld it in United States v. Salerno in 1987. Today debates about cash bail centre on whether it keeps poorer defendants in jail simply because they cannot pay, while others stress public safety; Illinois became the first state to eliminate cash bail entirely in 2023. The excessive fines clause was applied to the states in Timbs v. Indiana in 2019, when the Court unanimously ruled in favour of a man whose $42,000 Land Rover was seized over a drug offence carrying a maximum fine of $10,000.
- 58What Makes a Punishment Cruel and Unusual?The Eighth Amendment forbids cruel and unusual punishments, a phrase borrowed from the English Bill of Rights of 1689. Its meaning has long been debated. Some judges read it according to its original meaning, banning punishments that were cruel and contrary to long usage at the founding. Others hold that its meaning changes over time. In Weems v. United States in 1910, the Court ruled that punishment must be proportionate to the offence, striking down a harsh sentence for falsifying a public record. In Trop v. Dulles in 1958, it held that stripping citizenship from a wartime army deserter was unconstitutional, declaring that the amendment draws its meaning from the 'evolving standards of decency that mark the progress of a maturing society'. In Robinson v. California in 1962, it applied the clause to the states, ruling that a person could not be punished for the status of being addicted to drugs. The amendment also governs prison conditions and medical care.
- 59The Death Penalty Before the CourtCapital punishment has been one of the most debated questions under the Eighth Amendment. In Furman v. Georgia in 1972, the Supreme Court ruled 5-4 that death penalty laws as then applied were unconstitutional because they were imposed in an arbitrary and inconsistent way; each of the nine justices wrote a separate opinion. States rewrote their laws to guide juries' discretion, and in Gregg v. Georgia in 1976 the Court upheld the new systems, ruling that the death penalty is not unconstitutional in itself. Later cases narrowed its use. Coker v. Georgia in 1977 barred it for the rape of an adult woman, Atkins v. Virginia in 2002 barred executing people with intellectual disabilities, and Kennedy v. Louisiana in 2008 barred it for crimes against individuals that did not result in death. Supporters argue it delivers justice for the worst crimes; opponents point to wrongful convictions, unequal application and cost. Policies differ widely among the states.
- 60Young Offenders and the Eighth AmendmentSince 2005, the Supreme Court has repeatedly ruled that young people who commit crimes must be treated differently from adults when it comes to the harshest punishments. In Roper v. Simmons in 2005, a 5-4 majority barred the death penalty for crimes committed before age eighteen, citing research on adolescent impulsivity and susceptibility to peer pressure, and noting a national trend away from executing juveniles. Graham v. Florida in 2010 barred life without parole for juveniles convicted of crimes other than homicide. Miller v. Alabama in 2012 ruled that mandatory life-without-parole sentences for juveniles are unconstitutional, requiring judges to consider youth. Montgomery v. Louisiana in 2016 made Miller apply to earlier cases. In Jones v. Mississippi in 2021, however, the Court said judges need not make a specific finding that a juvenile is permanently incorrigible. The cases raise questions about the role of science, public opinion and foreign practice in constitutional interpretation, which dissenters strongly criticized.
- 61The Ninth Amendment: Rights Retained by the PeopleThe Ninth Amendment states that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. It was Madison's answer to Hamilton's warning in Federalist No. 84 that listing some rights might imply that unlisted ones were unprotected. What it means in practice is among the most debated questions in constitutional law. Some scholars see it as a source of unenumerated individual rights that judges should protect. Others read it as a rule of interpretation, telling readers not to infer broad federal power from the list of rights, without itself giving judges authority to identify new rights. Still others link it closely to the Tenth Amendment and federalism. The Supreme Court has rarely relied on it directly. Justice Arthur Goldberg's concurrence in Griswold v. Connecticut in 1965 invoked it, and during his 1987 confirmation hearings, Judge Robert Bork compared it to an inkblot covering part of the text.
- 62Rights Not Listed: Meyer, Pierce and GriswoldSeveral important Supreme Court cases have protected liberties that the Constitution does not name. In Meyer v. Nebraska in 1923, the Court struck down a law banning the teaching of foreign languages to young children, a law aimed largely at German after World War I, ruling that liberty includes the right to acquire knowledge and parents' right to direct their children's education. Pierce v. Society of Sisters in 1925 struck down an Oregon law requiring children to attend public schools, declaring that the child is not the mere creature of the state. In Griswold v. Connecticut in 1965, the Court struck down a law banning married couples from using contraceptives. Justice William O. Douglas wrote that specific guarantees in the Bill of Rights have 'penumbras' that create zones of privacy. Justices Hugo Black and Potter Stewart dissented, arguing that judges had no authority to strike down laws based on rights not found in the text. These cases remain central to debates about unenumerated rights.
- 63The Tenth Amendment and Reserved PowersThe Tenth Amendment states that powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. It expresses the principle of a federal government of limited, listed powers. Notably, Congress rejected a proposal to say 'expressly delegated', the wording used in the Articles of Confederation, which left room for implied powers. In McCulloch v. Maryland in 1819, Chief Justice John Marshall used that omission to support Congress's power to create a national bank under the necessary and proper clause. In Hammer v. Dagenhart in 1918, the Court used Tenth Amendment reasoning to strike down a federal child labour law, but in United States v. Darby in 1941 it overruled Hammer and called the amendment a 'truism' that adds nothing to the Constitution's existing limits. The balance between national power and state authority has shifted repeatedly as the Court has changed its view.
- 64Anti-Commandeering and the Modern Tenth AmendmentSince the 1990s, the Supreme Court has revived the Tenth Amendment through the 'anti-commandeering' doctrine, which says the federal government cannot order state governments to carry out federal programs. In New York v. United States in 1992, it struck down a provision requiring states to take ownership of radioactive waste if they failed to arrange for its disposal. In Printz v. United States in 1997, it ruled that Congress could not require local sheriffs to perform background checks for handgun purchases under the Brady Act. In Murphy v. NCAA in 2018, it struck down a federal law that forbade states from authorizing sports betting, opening the door for states to legalize it. Supporters argue the doctrine keeps lines of accountability clear and protects state independence. Critics argue it can hamper national solutions to shared problems. The doctrine has been used by states of different political leanings, for example on immigration enforcement and marijuana policy, which shows its neutral structural character.
- 65Barron v. Baltimore: A Bill of Rights for Washington OnlyIn the early nineteenth century, it was unclear whether the Bill of Rights restrained state governments. John Barron owned a profitable wharf in Baltimore harbour, but the city's street-building projects diverted streams that deposited sand and silt, making the water too shallow for most ships. Barron sued, arguing the city had taken his property without just compensation in violation of the Fifth Amendment. In Barron v. Baltimore in 1833, Chief Justice John Marshall wrote for a unanimous Court that the Bill of Rights limited only the federal government, not the states. The decision reflected the amendments' history: Madison's proposal to bind the states had been rejected in 1789. Its consequences were large. States remained free, under the federal Constitution, to restrict speech, support churches or deny jury trials; Massachusetts, for example, did not end its official church support until 1833. Abolitionist speech was suppressed in some Southern states. Overturning Barron's practical effect would require the Fourteenth Amendment.
- 66The Fourteenth Amendment: A Second FoundingAfter the Civil War, Congress passed three amendments that historians sometimes call a 'second founding'. The Thirteenth Amendment of 1865 abolished slavery, and the Fifteenth Amendment of 1870 barred racial discrimination in voting. The Fourteenth Amendment, ratified in 1868, transformed the relationship between citizens and the states. Its first sentence made all persons born or naturalized in the United States citizens, overturning the Dred Scott decision of 1857. It then forbade states to abridge the privileges or immunities of citizens, to deprive any person of life, liberty or property without due process of law, or to deny any person the equal protection of the laws. Its main author in the House, John Bingham of Ohio, said he wanted to make the Bill of Rights enforceable against the states, and Senator Jacob Howard said much the same. The amendment responded to Southern Black Codes that restricted freed people, and it gave Congress power to enforce its terms.
- 67The Slaughter-House Cases and a Narrowed PromiseThe first major test of the Fourteenth Amendment came not from freed people but from New Orleans butchers. In 1869 Louisiana's legislature, citing public health, required all slaughtering in the New Orleans area to take place at one company's facility. Independent butchers argued that this monopoly violated their privileges or immunities as citizens, including the right to pursue a lawful trade. In the Slaughter-House Cases in 1873, a 5-4 majority led by Justice Samuel Miller rejected their claim. It ruled that the privileges or immunities clause protected only a narrow set of rights of national citizenship, such as travelling to the seat of government or using navigable waters, leaving most rights under state control. Justice Stephen Field's dissent warned that this made the clause a vain and idle enactment. Many scholars across the political spectrum now criticize the decision, which effectively removed the clause the framers may have intended to protect the Bill of Rights against the states.
- 68The Beginnings of Incorporation: Gitlow and BeyondSince the privileges or immunities clause had been narrowed, lawyers turned to the Fourteenth Amendment's due process clause to apply Bill of Rights protections to the states, a process called incorporation. Early cases were mixed. In Hurtado v. California in 1884, the Court refused to require grand juries in state cases. But in Chicago, Burlington and Quincy Railroad v. Chicago in 1897, it ruled that states must pay just compensation when taking property, effectively the first incorporation. The breakthrough for civil liberties came in Gitlow v. New York in 1925. Benjamin Gitlow, a socialist, had been convicted for publishing a 'Left Wing Manifesto' urging revolution. The Court upheld his conviction but stated that freedom of speech and of the press are among the fundamental liberties protected by due process from impairment by the states. Within a few years, the Court used this principle to overturn state convictions and censorship in Stromberg v. California and Near v. Minnesota, both in 1931.
- 69Palko, Adamson and the Debate Over IncorporationAs incorporation advanced, justices disagreed about how to decide which rights apply to the states. In Palko v. Connecticut in 1937, Justice Benjamin Cardozo said only rights 'implicit in the concept of ordered liberty' were protected, and he ruled that the double jeopardy protection was not one of them. Frank Palko, retried and sentenced to death after an appeal by the state, was executed in 1938. In Adamson v. California in 1947, Justice Hugo Black's dissent argued for 'total incorporation', claiming the Fourteenth Amendment's authors intended to apply all of the Bill of Rights to the states, and he attached a lengthy history to support that view. Justice Felix Frankfurter defended a case-by-case approach based on 'fundamental fairness', which critics said gave judges too much discretion. In the end, the Court adopted 'selective incorporation', applying rights one at a time but treating each incorporated right as fully binding on the states. Benton v. Maryland in 1969 overruled Palko.
- 70The Warren Court's Incorporation RevolutionUnder Chief Justice Earl Warren, who served from 1953 to 1969, the Supreme Court incorporated most remaining criminal-procedure rights in a rapid series of cases. Mapp v. Ohio in 1961 applied the exclusionary rule; Robinson v. California in 1962 applied the ban on cruel and unusual punishments; Gideon v. Wainwright in 1963 applied the right to counsel; Malloy v. Hogan in 1964 applied the privilege against self-incrimination; Pointer v. Texas in 1965 applied the confrontation right; Klopfer v. North Carolina in 1967 applied the right to a speedy trial; Duncan v. Louisiana in 1968 applied the jury trial right; and Benton v. Maryland in 1969 applied double jeopardy. Supporters saw these rulings as making equal justice a national standard, especially where state systems treated poor and minority defendants unfairly. Critics argued the Court was taking over policing policy from states and making law enforcement harder. Later courts incorporated more rights, but a few, such as the grand jury and civil jury requirements, still apply only to the federal government.
- 71Equal Protection: From Plessy to BrownThe Fourteenth Amendment's equal protection clause forbids states to deny any person the equal protection of the laws. For decades, however, the Supreme Court read it narrowly. In Plessy v. Ferguson in 1896, it upheld Louisiana's law requiring separate railway cars for Black and white passengers, endorsing the doctrine of 'separate but equal'. Justice John Marshall Harlan, the lone dissenter, wrote that the Constitution is colour-blind and neither knows nor tolerates classes among citizens. The NAACP's lawyers, led by Thurgood Marshall, challenged segregation step by step, beginning with graduate and law schools. In Brown v. Board of Education on May 17, 1954, the Court unanimously ruled that separate educational facilities are inherently unequal. In a companion case, Bolling v. Sharpe, it applied the same principle to the federal government through the Fifth Amendment's due process clause. Brown's implementation met strong resistance, and courts and Congress were still enforcing desegregation decades later.
- 72Substantive Due Process: From Lochner to DobbsThe due process clauses say government may not deprive people of life, liberty or property without due process of law. Under 'substantive due process', courts have held that some liberties are so fundamental that government may not take them away even with fair procedures. In Lochner v. New York in 1905, the Court struck down a law limiting bakers' working hours as a violation of liberty of contract; Justice Holmes dissented, and the 'Lochner era' ended in 1937 when West Coast Hotel v. Parrish upheld a minimum wage law. Later the Court used substantive due process to protect personal and family decisions, including in Roe v. Wade in 1973 and Obergefell v. Hodges in 2015. In Washington v. Glucksberg in 1997, it said unlisted rights must be deeply rooted in the nation's history and tradition. In Dobbs v. Jackson Women's Health Organization in 2022, the Court overruled Roe, returning abortion regulation to the states. Supporters and critics of the doctrine continue to debate the proper role of judges.
- 73Who Guards the Guarantees? Judicial ReviewA bill of rights matters only if someone can enforce it. When Madison introduced his amendments in 1789, he predicted that independent courts would consider themselves the guardians of those rights. The power that makes this possible, judicial review, was established in Marbury v. Madison in 1803. William Marbury had been appointed a justice of the peace in the last hours of John Adams' presidency, but his commission was not delivered, and the new secretary of state, James Madison, refused to deliver it. Chief Justice John Marshall ruled that Marbury had a right to the commission but that the Court could not order its delivery, because the law giving the Court that power conflicted with the Constitution. 'It is emphatically the province and duty of the judicial department to say what the law is,' he wrote. Supporters see judicial review as essential to protecting rights from majorities; critics worry about unelected judges having the final word on contested questions.
- 74Liberty in Wartime: Lincoln to KorematsuWars have repeatedly tested the Bill of Rights. In 1861 Abraham Lincoln suspended habeas corpus in parts of the country; Chief Justice Roger Taney, sitting as a circuit judge in Ex parte Merryman, ruled that only Congress could do so, but Lincoln did not comply. After the war, in Ex parte Milligan in 1866, the Supreme Court ruled that civilians could not be tried by military commissions where civilian courts were open. During World War II, Executive Order 9066 in February 1942 led to the forced removal and incarceration of about 120,000 people of Japanese ancestry, most of them American citizens. In Korematsu v. United States in 1944, the Court upheld the exclusion orders. Decades later, Fred Korematsu's conviction was vacated in 1983, Congress apologized and paid reparations in the Civil Liberties Act of 1988, and in 2018 the Court stated that Korematsu was gravely wrong the day it was decided. The episodes raise a recurring question: how much liberty may be limited for security?
- 75Surveillance, Security and Privacy After 9/11Modern surveillance debates began before 2001. After the Church Committee exposed abuses by intelligence agencies in the mid-1970s, Congress passed the Foreign Intelligence Surveillance Act of 1978, creating a special court to approve foreign-intelligence wiretaps. After the September 11 attacks, Congress passed the USA PATRIOT Act in October 2001, expanding government powers to collect records and conduct surveillance. In 2013 Edward Snowden, a contractor for the National Security Agency, leaked documents revealing that the agency had been collecting Americans' telephone metadata in bulk. The revelations prompted lawsuits and a national debate. In 2015 a federal appeals court ruled that the bulk program exceeded what the PATRIOT Act authorized, and Congress passed the USA FREEDOM Act, ending the NSA's bulk collection of phone records. Supporters of strong surveillance stress preventing terrorism; critics stress Fourth Amendment privacy and the risk of abuse. Debates continue each time surveillance laws come up for renewal.
- 76Free Speech Online and the Role of PlatformsThe internet has transformed debates about free speech. In Reno v. ACLU in 1997, the Supreme Court struck down parts of the Communications Decency Act that restricted indecent material online, giving internet speech full First Amendment protection. A separate provision of that 1996 law, Section 230, shields online platforms from most liability for content posted by users and allows them to moderate content. In Packingham v. North Carolina in 2017, the Court called social media the modern public square and struck down a law broadly banning registered sex offenders from it. Because the First Amendment restricts only government, social media companies may generally set their own content rules. In Moody v. NetChoice in 2024, the Court said platforms' content moderation is a form of protected expression and sent challenges to Texas and Florida laws regulating it back to lower courts. Some argue platforms suppress certain views; others argue that government control over moderation would itself threaten free speech.
- 77Offensive Speech and the Hate Speech DebateThe United States protects offensive and even hateful speech more broadly than most democracies. In Snyder v. Phelps in 2011, the Supreme Court ruled 8-1 that members of the Westboro Baptist Church could not be held liable for picketing near a Marine's funeral with hateful signs, because their speech addressed public issues on public land. In Matal v. Tam in 2017, it unanimously struck down a federal rule denying trademarks to disparaging names, in a case brought by an Asian American band called The Slants. Supporters of this approach argue that government cannot be trusted to decide which ideas are too hateful, and that the answer to bad speech is more speech. Many other democracies take a different view. Germany criminalizes incitement to hatred and Holocaust denial, and Canada's Supreme Court upheld a hate propaganda law in R. v. Keegstra in 1990. Supporters of those laws argue they protect human dignity and vulnerable groups. Students can compare the costs and benefits of each model.
- 78Religion in Public Life: The Ongoing DebateDebates about religion in public life continue under both religion clauses. In Marsh v. Chambers in 1983, the Supreme Court upheld paid legislative chaplains, citing the practice's history dating to the First Congress, and in Town of Greece v. Galloway in 2014 it upheld prayers opening town board meetings. On the same day in 2005, the Court ruled that a Ten Commandments monument on the Texas Capitol grounds was permissible but that framed displays in Kentucky courthouses were not, reflecting the importance of context and purpose. In American Legion v. American Humanist Association in 2019, it allowed a large memorial cross honouring World War I dead in Bladensburg, Maryland, to remain on public land. In Carson v. Makin in 2022, it ruled that Maine could not exclude religious schools from a tuition program available to private schools. Some see these rulings as ending discrimination against religion; others worry they weaken church-state separation and government neutrality toward people of all beliefs.
- 79Enforcing Rights Against Officials: Section 1983 and Qualified ImmunityWhen officials violate constitutional rights, how can people get a remedy? In 1871 Congress passed the Ku Klux Klan Act to protect freed people from violence that state officials ignored or joined. Its key provision, now known as Section 1983, lets people sue state and local officials who violate their federal rights. The law was rarely used until Monroe v. Pape in 1961, when the Court allowed a family to sue Chicago police officers over an illegal raid of their home. Courts then developed 'qualified immunity', which shields officials from damages unless they violated clearly established law, a standard set out in Harlow v. Fitzgerald in 1982. Supporters argue it protects officers making split-second decisions and keeps good people in public service. Critics argue it makes it too hard to hold officials accountable because few earlier cases match the facts exactly. Some states, such as Colorado in 2020, created state-law claims where qualified immunity is not a defence.
- 80The US Bill of Rights in Comparative PerspectiveComparing the US Bill of Rights with other rights charters reveals distinctive choices. The American document is short and mostly lists 'negative' rights, things government may not do, such as abridging speech or conducting unreasonable searches. Many newer constitutions also include 'positive' rights that government must provide. South Africa's 1996 constitution, for example, guarantees rights of access to housing, health care, water and education, subject to available resources. Canada's Charter of Rights and Freedoms of 1982 allows rights to be subject to 'reasonable limits' that can be justified in a free and democratic society, and its notwithstanding clause lets legislatures override some rights temporarily. The European Convention on Human Rights of 1950 is enforced by a court in Strasbourg that hears cases from many countries. The United States relies more on courts and absolute-sounding text. Each model reflects a different balance among judicial power, democratic choice and the role of government in securing well-being.
- 81Changing the Guarantees: Article V and AmendmentsThe Bill of Rights itself was added through Article V, which sets out how the Constitution can be amended. An amendment may be proposed by two-thirds of both houses of Congress or by a convention called at the request of two-thirds of state legislatures, and it must be ratified by three-fourths of the states. The second path has never been used. Only twenty-seven amendments have been ratified, and Congress has sent just over thirty to the states. The difficulty is intentional: it protects rights from temporary majorities but makes the Constitution hard to update. The Twenty-sixth Amendment, lowering the voting age to eighteen, was ratified in about 100 days in 1971. The Equal Rights Amendment, approved by Congress in 1972, fell short by its deadline, and its legal status remains disputed. The Twenty-seventh Amendment, proposed in 1789, was ratified in 1992 after a college student's campaign. Because amending is so hard, much constitutional change happens through judicial interpretation instead.
- 82Originalism and the Living ConstitutionJudges interpreting the Bill of Rights often divide over method. Originalists argue that the Constitution's words should be read according to their meaning when they were adopted. Early versions emphasized the framers' intentions, but most modern originalists, influenced by Justice Antonin Scalia, focus on the original public meaning of the text. They argue this approach limits judges' personal preferences and leaves change to the amendment process and elected legislatures. Supporters of a 'living constitution' argue that broad phrases such as 'cruel and unusual' or 'unreasonable searches' were meant to be applied to new circumstances and that society's understanding of rights grows over time. They warn that strict originalism can lock in the prejudices of the past. The debate became prominent in 1985, when Attorney General Edwin Meese called for a jurisprudence of original intention and Justice William Brennan responded with a defence of evolving interpretation. Many judges combine elements of both, along with precedent and practical consequences.
- 83Test Cases: How Advocates Build Rights LitigationMany landmark Bill of Rights cases did not arise by accident. Advocacy groups of many viewpoints search for strong test cases, choose sympathetic plaintiffs and file friend-of-the-court briefs. The American Civil Liberties Union, founded in 1920, has litigated free speech, privacy and criminal justice cases, including defending the speech rights of groups it strongly opposes. The NAACP Legal Defense and Educational Fund, founded in 1940 under Thurgood Marshall, built the strategy that led to Brown v. Board of Education. Groups such as the Institute for Justice, founded in 1991, have pursued property rights and economic liberty cases, including Kelo and Timbs, while organizations such as the Becket Fund for Religious Liberty focus on free exercise claims. The lawyers behind Heller deliberately recruited plaintiffs, including Dick Heller. Critics argue this kind of litigation lets organized interests shape constitutional law; supporters see it as a legitimate way for citizens to petition courts and enforce their rights.
- 84Why the Bill of Rights EnduresMore than two centuries after ratification, the Bill of Rights remains at the centre of American public life. Its endurance has several causes. Its language is brief and general enough to apply to new problems, from telephones to smartphones. Judicial review, incorporation through the Fourteenth Amendment, and the work of lawyers, journalists and ordinary citizens gave its words real force. It has also become a civic symbol: President Franklin Roosevelt designated December 15, 1941, as Bill of Rights Day to mark its 150th anniversary, and the day fell just over a week after the attack on Pearl Harbor. Yet its history also shows its limits. For long periods it did not protect enslaved people, Japanese Americans in wartime, or dissenters in times of fear. Its meaning has expanded and contracted through argument. Studying it means studying a continuing debate among Americans about liberty, security, equality and the proper role of government.