Cover credit – Freepik
This week, we’ll look at perhaps the most significant document guaranteeing civil liberties in the U.S.: The Bill of Rights. The term refers to the first Ten Amendments of the U.S. Constitution and are considered paramount in preserving individual freedoms.
History
The two political parties at the time, the Federalists and the Anti-Federalists, had different views as to how comprehensive language surrounding government powers should be, primarily because lack of clarity could leave the door open for violations of liberties. Federalists argued that the states would be sufficient grantors of such liberties. The Massachusetts Compromise spawned from the state’s delegation’s contentions, which caused a fistfight between Federalist Francis Dana and Anti-Federalist Elbridge Gerry, from whose actions the term “gerrymander” was coined. The compromise allowed for amendments to be proposed at the convention when ratifying the Constitution and was created to the agreement of John Hancock and Samuel Adams.
The First Amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
This amendment is one of the most familiar, in that it prohibits the federal government from making laws that violate one’s freedoms to express their religion, views, general speech, and assembly, even in the form of protest. It also protects the freedoms of information and publication, especially those afforded to the press.
The Second Amendment
“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.”
One of the more controversial amendments, the Second Amendment guarantees the right of the public to weapons for the preservation of life, liberty, and property, primarily in terms of self-defense against the government. The practice was actually first codified in the 1689 English Bill of Rights, although it only applied to Protestants. The 2010 Supreme Court decision McDonald v. Chicago ruled that the Second Amendment also applies to state and local governments in the same way it applies to the federal government.
The Third Amendment
“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
This amendment was passed in response to the Quartering Acts during the Revolutionary War. The Quartering Acts were passed by British Parliament during the war that required local authorities of the Thirteen Colonies to provide British Army personnel with lodging, food, and other essentials. The amendment simply prevents the government from mandating the lodging of soldiers in private homes. This is one of the least controversial of the Constitution and has the distinction of having never been the primary basis of a Supreme Court decision.
The Fourth Amendment
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
This amendment protects citizens from being searched or having property seized without a proper warrant sanctioned by a judiciary and supported by probable cause. It stipulates that search and seizure must be contingent on information specified by the issuing court. The amendment serves as the basis for the exclusionary rule, a facet of U.S. criminal procedure that says that evidence obtained illegally cannot be introduced into a criminal trial. This was the result of the 1914 decision in Weeks v. United States and became applicable to the rest of the state in 1961, after the landmark Mapp v. Ohio case.
The Fifth Amendment
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The Fifth Amendment protects against double jeopardy – a defendant being tried again for the same crime following acquittal or conviction – and self-incrimination – for the purpose of this article, the rights to remain silent and to retain legal counsel. It’s also the basis for criminal procedure, in that it guarantees the rights of due process and a grand jury to the accused, as well as compensation of property under seizure of eminent domain – the power of the government to take private property for public use.
We’ll explore the aspects of the Fifth Amendment in a later column.
The Sixth Amendment
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
The Sixth Amendment guarantees the accused the rights to a speedy and public trial, to a trial by an impartial jury, to be informed of criminal charges, to confront witnesses, to compel witnesses to appear in court, and to the assistance of legal counsel.
The Seventh Amendment
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.”
The Seventh Amendment guarantees jury trials in federal civil cases that concern claims of more than twenty dollars. The amendment also prevents judges from overruling findings of fact by juries in federal civil trials. It does not apply to cases of maritime law, lawsuits against the government itself, and most patent claims.
The Seventh Amendment provides unincorporated rights, meaning it’s one of the few aspects of the Bill of Rights that does apply to other states by virtue of itself. The reason it is unincorporated is because it was intended to be a check on the power of federal judges, and thus, only applied to federal courts and law. Almost every state has a similar provision for jury trials in civil cases in their respective constitutions.
The Eighth Amendment
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
While fairly straightforward – the Eighth Amendment protects the accused against excessive bails, fines, and repercussions – it has been the basis for several Supreme Court cases over the decades. The Court’s views on what exactly what punishments are considered “cruel and unusual” have fluctuated over time. The 1972 case of Furman v. Georgia found that capital punishment itself violated the Eighth Amendment. The court argued that the amendment could reflect “evolving standards of decency,” corresponding to public opinion. The interpretation of the amendment even halted executions nationwide for several years after the Furman decision. The 1976 case Gregg v. Georgia found that capital punishment could be constitutional if the jury was given concrete sentencing guidelines. Estelle v. Gamble (1976) and Brown v. Plata (2011) have found that poor prison conditions could constitute “cruel and unusual” punishments.
The Ninth Amendment
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
This amendment acknowledges other fundamental rights outside the scope of the Constitution. It’s basically a disclaimer that the rights outlined in the Constitution are not an exhaustive list of individual rights. The amendment’s first notable citation by a Supreme Court Justice was in the 1965 decision Griswold v. Connecticut, the result of which voided a statute prohibiting the use of contraceptives, which was seen as infringement of rights of martial privacy.
The 1973 decision Roe v. Wade overturned a Texas law which criminalized assistance to an abortion. The 1992 decision Planned Parenthood v. Casey struck down a Pennsylvania law that required spousal awareness prior to getting an abortion.
The Tenth Amendment
“The 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.”
This amendment also acts as a de facto disclaimer, in that it reinforces the principle of separation of powers and classical federalism. Powers not granted to the federal government by the Constitution are left to the states, who are each autonomous in their enactment and enforcement of laws and designation of rights and powers not enumerated by the Constitution.
The Document Itself
George Washington had fourteen handwritten copies of the Bill of Rights made, with one meant for Congress and the others each meant for the original thirteen states. The Georgia, Maryland, New York, and Pennsylvania copies are missing, with the New York copy thought to have been destroyed in a fire. The Georgia and Maryland copies are thought to be two unidentified copies that survive, with one residing in the National Archives and the other in the New York Public Library. North Carolina’s copy was stolen by a Union soldier after the Civil War, but it was recovered in a 2003 FBI sting operation.
The copy held since the First Congress has been on display in the Rotunda for the Charters of Freedom in the National Archives Building in Washington, D.C., since December 1952.
The Constitution and the Declaration of Independence are also stored here.
After the displays were updated in 2003, the documents were rededicated in a ceremony. The update found that the documents themself have been well-preserved.
In 1941, President Franklin D. Roosevelt (D-NY) declared December 15 as Bill of Rights Day, commemorating the 150th anniversary of their ratification. For the bicentennial in 1991, the Virginia copy toured all fifty state capitals.
