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The basic foundation Essay

The first ten amendments of the Constitution embody the Bill of Rights. The First Amendment encompasses many different rights. It contains the Non-establishment Clause relating to the non-establishment of religion, the Free Exercise Clause, the right to freedom of speech, freedom of the press, the freedom of assembly and the right to petition the government for redress of grievances. The Non-establishment Clause and the Free Exercise Clause come hand-in-hand.

They express an underlying rational concept of separation between religion and secular government, vis-a-vis the definition of what religion is and what the state is permitted to do in light of human experience. In Torcaso v. Watkins (367 U. S. 485, 1961), Justice Black included Buddhism and secular humanism as included in the term religion and thus guaranteed their protection.

The basic foundation of the free exercise clause is respect for the inviolability of the human conscience. Historically, the guarantee of free exercise is an outgrowth of two schools of thought, i. e. , Protestant dissent, for which the inviolability of the conscience was anchored in ultimate allegiance to a Higher power, and humanistic rationalism, in which in the social contract, the individual is anterior to the state and to him are reserved is rights and beliefs. The first landmark case on free exercise was Reynolds v. United States (98 U. S. 145, 1878) which adopted the rule that the free exercise clause gave complete protection to the realm of belief, but the acting out of such beliefs were subject to the police power of the State.

However, the heart of the doctrine was discussed in Cantwell v. Connecticut (310 U. S. 296, 303-304, 1940), wherein the court stated as follows: “the constitutional inhibition on legislation on the subject of religion has a double aspect. One the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen religion.

Thus, the amendment embraces two concepts—freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be. ” The absoluteness of the freedom to believe carries with it the corollary that the government, while it may look into the good faith of a person, cannot inquire into a person’s religious pretensions, as held in United States v. Ballard (322 U. S. 78, 1944). However, in Cleveland v. United States, the court clarified that “whether an act is immoral within the meaning of the statute is not to be determined by the accused’s concept of morality.

Congress has provided the standard. The offense is complete if the accused intended to perform, and did in fact perform, the act which the statute condemns. ” In Employment Division v. Smith (494 U. S. 872, 1990), the defendant and another person were fired by a private rehabilitation organization for ingesting peyote for worship purposes under their Native American Church, and were thus denied employment compensation because their dismissal was said to be caused by work-related misconduct.

The Court here stated that the Free Exercise Clause does not excuse an individual from compliance with a law that incidentally forbids (or requires) the performance of an act which his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specific acts for non-religious reasons. On the other side is the Non-establishment Clause, which prohibits that ate from passing laws which prefer one religion over another.

Some of the more important non-establishment clauses relate to religion and education and may be divided into two groups: those dealing with religious activities within the public school system and those involving aid to sectarian schools. In McCollum v. Board of Education (333 U. S. 203, 1948), the court banned a released time program of religious education in Chicago which allowed sectarian representatives to teach religion during regular school hours within the school building. However, in Zorach v. Clauson (343 U. S.

306, 1952), the court upheld a New York released time program which allowed the students to be released from school to attend religious instruction or services out of school, because the school did no more than accommodate into their schedules religious instruction that happened outside the school premises. In Engel v. Vitale (370 U. S. 421, 1962), the court disallowed a prayer which the local school board had prescribed for recitation by each class in the beginning of each day for being a religious activity which involved government coercion. In Abington School District v. Schempp (374 U.

S. 203, 1963), at issue was the validity of a state law requiring that selections from the Bible be read in public schools at the opening of each school day. The tests laid down by the court involved making a determination of what the purpose and primary effect of the enactment were. If either the purpose of the effect is the advancement or inhibition or religion, the enactment violates the Non-establishment Clause. With respect to public aid given to sectarian institutions, the test given by the court is known as the neutrality test. In Everson v. Board of Education (330 U. S.

1, 1947) on which the test in Schempp was formulated, an ordinance authorizing the town to reimburse all parents of school age children the bus fares for transporting the children to school was upheld. In Board of Education v. Allen (392 U. S. 236, 1968), the court upheld he validity of a statute which required public school authorities to lend textbooks free of charge to all students from grades seven through twelve, whether studying in a public or private school. The facet of excessive entanglement was added to the neutrality test in Lemon v. Kurtzman (403 U. S. 602, 1971).

The law authorized the Superintendent of Public Schools to purchase secular educational services from non-public schools, directly reimbursing teachers’ salaries, textbooks, and instructional materials for specific secular subjects which required the approval of the Superintendent, with the caveat that no payment would be made respecting courses with religious content. Because of the excessive entanglement involved via the determination to be made by the Superintendent vis-a-vis the nature of the schools to be given such aid which were mostly Catholic, the Court struck down the statute.

The trend, however, seems to be a liberalization of the application of the non-establishment doctrine. In Zobrest v. Catalina Foothills School District (No. 92-94, decided June 18, 1993), the court ruled that the non-establishment clause did not preclude the state from furnishing a disabled child enrolled in a sectarian school with a sign language interpreter in order to facilitate his education. In Agostini v. Felton (No. 96-552, decided June 23, 1997), the court ruled that a federally funded program providing supplemental remedial instruction to disadvantaged children on a neutral basis did not violate the Constitution.

In Zelman v. Simmons-Harris (No. 001751, decided June 27, 2002), the program providing for tuition aid to parents according to financial need was upheld on the ground that it was for a valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system. Perhaps the most notable and most hotly contested of the rights embodied in the First Amendment is that of freedom of speech and of the press. This doctrine was of common law origin, elevated into a constitutional principle via the First Amendment.

As early as the nineteenth century, Blackstone (1876) recognized the importance of this freedom as being “essential to the nature of a free state”, with such freedom consisting in “laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published. ” Historical accounts show that the evolution of free speech law resulted from an intellectual phenomenon of sorts, with the legal standard developed for Free Speech against the Espionage Act by thinkers such as Justices Oliver Wendell Homes Jr. and Louis Brandeis, Judge Learned Hand, Law Professor Zechariah Chafee Jr. (Bobertz, 1999).

But even before them, in 1909, the peaceful protest of Elizabeth Gurley Flynn and the rest of IWW against the rampant abuses of fake employment agencies and the violent aftermath thereof sparked, at the very least, an interest and awareness of the general public in this freedom (Bobertz, 1999). Then came the First World War and the propaganda that accompanied it, with the clash between hyper-patriotism of people who supported the war and those who strongly dissented against it (Bobertz, 1999). Prior restraint means official government restrictions on the press or other forms of expression in advance of actual publication or dissemination.

This facet was a reaction to sixteenth and seventeenth century attempts to control the press by requiring licenses and permits as prerequisites to any form of publication. The Supreme Court has held in Times Film Corp. v. City of Chicago (365 U. S. 43, 1961) and in Freedman v. Maryland (380 U. S. 51, 1965) that movie censorship, although not in the same level as press censorship, is a form of prior restraint, as well as judicial prior restraint in the form of injunctions against publications, as in the case of Near v. Minnesota (283 U. S. 697, 1931) and New York Times Co.

v. United States (403 U. S. 713, 1971), or license taxes measured by gross receipts for the privilege of engaging in business of advertising in any newspaper as held in Grosjean v. American Press Co. (297 U. S. 233, 1936), or flat license taxes for the selling of religious books as in Murdock v. Pennsylvania (319 U. S. 105, 1943). However, the courts recognized that the mere prohibition of prior restraint by the government would be an inadequate form of protection to speech and expression if the government could nonetheless punish without limitation after publication.

Hence, the corresponding doctrine against subsequent punishment was created, as even the mere threat of subsequent punishment could itself operate as an effective prior restraint. It is not that subsequent punishment is absolutely prohibited, only that it must be tightly circumscribed. According to Justice Holmes in Trohwerk v. United States ( 249 U. S. 204, 1919), the constitutional guarantee of freedom of speech was not intended to give immunity for every conceivable use of language. Through his efforts the original “dangerous tendency” test yielded to the “clear and present danger” test.

In Shenck v. United States (249 U. S. 47, 1919), he stated that the speech should be taken into context with the circumstances under which it was made. The clear and present danger rule thus formulated was as follows: “the question in every case is whether the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. ” The most recent test used is the Balancing of Interests test, stated in American Communications Association v.

Douds (339 U. S. 383, 1951). Of course, there are certain forms of speech or expression that are unprotected, regardless of whatever tests are applied. These are libelous speech and obscenity, as held in Chaplinsky v. New Hampshire (315 US. 568, 1942) and Roth v. United States (354 U. S. 476, 1957). As for the right of assembly and petition, its background is English and originated from the provision in Chapter 61 of the Magna Carta of 1215, and was developed through the equity jurisdiction of the common law courts.

In United States v. Cruikshank (92 U. S. 542, 1876), the understanding of the right of assembly was limited to the political purpose af petitioning the government for redress of grievances. However, this is no longer the case. In De Jonge v. Oregon (299 U. S. 353, 1937), the court recognized this right as being similar to and as fundamental as free speech and free press; and therefore, the standards for allowable impairment of speech and press are the same for assembly and petition.

As laws become less rigid and formalistic, the interpretation and application behind the First Amendment and its scope have become more and more liberal, and this seems to be the ongoing trend. The broadening of the horizons of knowledge and the tearing down of existing physical, geographical, and cultural barriers have led to a liberalization in thinking and of acceptance. This trend is clearly seen with respect to the freedom of expression and non-establishment clauses. As for the speech. Press, assembly and petition, the areas of prohibited speech and expression are becoming smaller and smaller.

As fundamental as these freedoms are, perhaps there is a need to once again apply the tests more strictly, or to tilt the balance in favor of public interest as against the interest of the individual. With pornographic material, whether printed or visual, being characterized as falling under one’s artistic license, there needs to be more stringent standards of what is acceptable as not being obscene. Reference List Blackstone, W. (1876). Commentaries, 145. Bobertz, B. C. (1999). The Brandeis Gambit: The Making of America’s “First Freedom”, 1909-1931. William and Mary Law Review. 50(2), 557. (the other sources are the cases; there are 24).

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