In my opinion, the Bill of Rights is one of the most brilliant documents ever written. Studying it is fascinating. Teaching law was once my profession, so I hope you’ll indulge me as I take this detour from my usual subjects and address the most common misconceptions about the Bill of Rights. (Even if you don’t live in the U.S., I expect that most of you will see parallels in this piece to the laws of your own country.)
Preliminarily, many people don’t realize that the Bill of Rights came about because several states refused to ratify the Constitution until the Bill of Rights was included. The goal of these states was to limit the power of the federal government but, ironically, by Supreme Court decision, most of the provisions in the Bill of Rights now apply to state governments! (And “state” includes local governments—such as your city council.)
This means that if the federal government or a state legislature or a city council or even a school board enacts a law that, for example, interferes with your right to free speech, that law can be struck down as unconstitutional. In addition, anyone working for the government (police officers, pubic school officials) must follow the provisions of the Bill of Rights.
That said, nothing is ever as simple as it seems; so here are four of the most common misconceptions about the Bill of Rights:
Misconception #1: The Fourth Amendment’s ban on unreasonable search and seizure serves only to protect criminals.
When someone who is accused of a crime is released from jail because he or she was the subject of an unreasonable search or seizure, people often complain that the Fourth Amendment serves only to protect criminals. But this is incorrect. It was enacted to protect innocent people like you and me from unreasonable government intrusion.
In short, the Fourth Amendment ensures that we won’t be living in a police state. It protects citizens from what is a commonplace occurrence in many countries around the world where police and other government officials can intrude upon any private space of yours at will (where you live, your car, even your body).
Do you like the fact that law enforcement officers cannot, without “reasonable justification” (as determined by court decisions over the centuries) walk up to your dwelling place and just come in…and if the door is locked, break it down to get in? There are many places in the world where government officials can do just that.
Do you like knowing that a police officer can’t pull you over to the side of the road just because he or she doesn’t like the kind of car you’re driving and then search through your bags and other personal items? Again, there are many places in the world where they can do just that.
This is the type of government behavior that the Fourth Amendment’s ban on unreasonable search and seizure protects us against. Of course, most law enforcement officers act honorably and fairly, but the Fourth Amendment helps assure that all of them will.
It’s true that if an officer’s behavior doesn’t conform to the requirements of the Fourth Amendment, a person who has committed a crime might go free. This occurrence is the exception rather than the rule, but exceptions are what make splash headlines, misleading us into believing that it happens all the time.
As with many difficult issues in life, the pros and cons have to be weighed against each other and no solution is perfect. It’s my view that the occasional freeing of a guilty person, while unfortunate—and sometimes tragic in its consequences—is worth the price of having the Fourth Amendment protect the innocent from government intruding at will into our private lives.
Misconception #2: The First Amendment’s guarantee of religious freedom is clear and unambiguous.
Everyone knows that the Bill of Rights guarantees freedom of religion. But the wording of that guarantee contains two distinct clauses, separated by the word “or”:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…
The first clause is known as the Establishment Clause. It “establishes” the separation of church and state (and remember that, by Supreme Court decision—too complicated to explain here—“state” includes state and local governments even though the clause only uses the word “Congress”). The Establishment Clause has been interpreted to mean that government cannot pass a law that favors one religion over another or that favors religion over no religion.
The second clause is known as the Free Exercise Clause and has been interpreted to mean that government cannot interfere with our right to engage in religious activities.
Sounds straightforward! But these two clauses are often in conflict. Here’s an example. Which clause should control if the federal government wants to pay chaplains to serve at military bases? That would appear to violate the Establishment Clause because government would be “making a law respecting…religion.” Indeed, government would be favoring religion and using tax payer money to do so!
But, if the federal government doesn’t allow chaplains on military bases, wouldn’t that violate the Free Exercise Clause by preventing men and women in uniform from engaging in religious activity—like seeking counsel from a chaplain or worshipping in a chapel?
Another example involves school prayer. Allowing prayer in public schools appears to violate the Establishment Clause; however, not allowing prayer appears to violate the Free Exercise Clause. Fascinating, isn’t it?
These are two of dozens of examples where the plain wording of the two clauses is in conflict. In the case of military bases, courts have decided to allow the presence of chaplains and other religious personnel, so the Free Exercise Clause has prevailed. The case of school prayer has proved to be more problematic. In a 1971 case, Lemon v. Kurtzman, the Supreme Court tried to strike a compromise. It set out a three-part test for deciding if a particular religious activity at a public school could be allowed without violating the First Amendment. This test has led to much confusion and to conflicting state laws. Some day soon, the Supreme Court will have to revisit this issue.
Misconception #3: The First Amendment rights to free speech and peaceable assembly are absolute.
In addition to the religion clauses, the First Amendment prohibits government from enacting laws that abridge freedom of speech or the press, or the right to peaceably assemble. (Note that “speech” includes both our spoken and written words.) But these freedoms are not absolute. For example, the Supreme Court has ruled that the press can be held accountable (via a lawsuit by the injured party) if it recklessly prints libelous material about someone.
The Court has also ruled that governments may place “reasonable time, place, and manner” restrictions on our freedom of speech. This is a good thing because, otherwise, our city council would be forbidden by the First Amendment to make it illegal for a sound truck to drive through our neighborhoods at 2 a.m., blasting out a campaign message from a candidate for office!
A reasonable “time, place, and manner” restriction is to be distinguished from a law that would attempt to restrict the content of our speech—that is, what we actually say. When it comes to content, we are almost always given First Amendment protection. There are some narrow exceptions, such as if a person’s speech is likely to pose “a threat of imminent danger”—for example, he or she is egging on a crowd to start a riot.
Because the content of speech is almost always protected under the First Amendment, people are allowed to say hateful things. In Germany, it’s against the law to advocate Nazism. In this country, it is not. In other words, what’s come to be known as “hate speech” is protected by the First Amendment so long as it doesn’t come under one of the narrow exceptions, such as the one I mentioned above: posing a threat of imminent danger.
Why would we want to protect hate speech? Because protecting it reflects the high value we place on letting people say whatever they want without fear of government suppression. But people can’t do whatever they want. In other words, the First Amendment protects speech, not conduct. This means that although the government can’t prosecute someone for engaging in hate speech, the government can prosecute someone for committing a “hate crime”—defined in federal law as a crime against a person or property that is motivated in whole or in part by bias against race, religion, disability, ethnic origin, or sexual orientation.
And so hate itself is protected by the First Amendment from government interference, but a hate crime is not.
In distinguishing between speech and conduct in this way, we have, in my opinion, struck the right balance. Even though we may have to put up with speech we find abhorrent, in doing so, our own right to say what we want is protected.
Misconception #4: The wording of the Second Amendment explicitly gives individuals the right to own and carry firearms.
In 2008, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment gives individuals the right to own and carry firearms, so this is currently the law of the land. But the plain wording of the Second Amendment is ambiguous:
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.
When this amendment was enacted, there were no state and local police forces like we have today. Instead, people would voluntarily join militias (similar to volunteer fire departments). Back then, the Second Amendment was interpreted as giving the people who joined those militias the right to “keep and bear arms.” It was not interpreted as giving all citizens the right to own and carry firearms. But the Supreme Court can change how it once interpreted an amendment, and this is what the Court did in 2008 in the Heller case.
The most famous example of the Supreme Court changing its interpretation of a provision in the Bill of Rights involved the Equal Protection Clause. In 1954, the Supreme Court, in Brown v. Board of Education, reversed a 1896 decision called Plessy v. Ferguson in which the Court had ruled: “separate but equal is equal” (a decision that served as a rubber stamp for racial segregation). In Brown v. Board of Education, the Supreme Court said, in effect, that Plessy v. Ferguson had misinterpreted of the Equal Protection Clause, and so it reversed its own ruling!
And so, now, with the Second Amendment, the Court has ruled that the amendment had been misinterpreted for centuries and that it does protect the right of individuals to possess firearms, regardless of whether they’re members of a state militia.
This does not mean that the right will turn out to be absolute. Just as free speech is subject to reasonable time, place, and manner restrictions, the Supreme Court could uphold what it considers to be “reasonable restrictions” on the right to keep and bear firearms, such as state or federal laws that ban certain types of weapons or ammunition, and laws that require background checks.
The Bill of Rights is often described as a “living, breathing document.” Its provisions are not set in stone. As with other laws, it is subject to interpretation by lower courts and, ultimately, the Supreme Court, which, as we’ve seen, can even reverse an earlier ruling (although it’s usually given the more diplomatic label of “reinterpretation”). This is why so many people pay careful attention to who gets appointed to the Supreme Court: to a large extent, the Bill of Rights is in their hands.
© 2013 Toni Bernhard. Thank you for reading my work. I'm the author of three books:
How to Live Well with Chronic Pain and Illness: A Mindful Guide (Fall 2015)
Visit www.tonibernhard.com for more information.