The first ten amendments composing the Bill of Rights are generally short, so let’s take them one at a time and look at the sources of so many well-known concepts and phrases. Note that the punctuation and spelling are sometimes different in the English language of earlier centuries. We will use examples from current news and issues in the U.S.
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."
Notice that these rights of freedom of religion, of expression, and of assembly and political activism so central to American thought all appear in the same First Amendment. Remember that the writers had recently won independence from a legal and political system that had a history of punishing people who spoke against the government and that had historically established a state religion. Although much of U.S. law is based on old English law, by putting all of these rights together as the first amendment, the writers were affirmatively protecting the fundamental rights of people to follow their own conscience in religion, politics, and the general living of their lives, and to speak out in favor of or in opposition to the government or to what other people believed or how they behaved.
These rights do have limits. People must exercise their rights within the law and without undue harm to others or infringement of other’s rights. Common examples one often hears include:
"Freedom of speech does not give a person the right to yell ‘Fire’ in a crowded theater." A current example might be the law that some have tried to enact against "hate speech." I have the right to say, "I hate X." But do I have the right to say, "I hate X. Let’s meet this afternoon and go over and beat up X."? The first may be a statement of belief while the second may be an incitement or conspiracy to commit a crime.
"Freedom of religion does not give a person the right to engage in human sacrifices." But the distinctions are not always so obvious. In some religions people sometimes use animal sacrifices as part of their worship. Some states attempted to stop the practice by invoking laws regarding cruelty to animals. Members of these religions and their supporters successfully argued that they have a Constitutional right to worship in this way, and further that their religious practice is no crueler than the normal commercial slaughter of animals for food. Consider the discussion about prayer in the public schools. Some very devout Christians would like to set aside a time for prayer at school. If the school asks someone to say a prayer within a certain religious framework, then the state (the school) is imposing a particular religious practice on the group, an act prohibited by the Constitution. But would it be acceptable to set aside a time for "meditation" and to let each student spend that time in his/her own religious practice? Would enforced "meditation" violate the rights of atheists? Would it make a difference if the period were called "private" time instead of "meditation" time? If the federal government uses tax money contributed by all people to give to parents to send their children to private religious schools, does such a diversion of public funds from the public schools constitute government support for religious schools in violation of the Constitution? Suppose my religion requires me not to use the services of a physician, and instead to depend only on prayer for healing. If my child develops appendicitis and dies for lack of medical care, have I murdered my child through neglect or just held true to my beliefs for myself and my family? What right or responsibility does the government have to intervene?
"Freedom of the press does not mean that the press can print anything it wants and distribute that information anywhere it wants without consequence." While the press in the U.S. has wide latitude, it must abide by certain rules and is subject to certain restrictions and punishments. A court may issue a "gag" order instructing the media not to publish the names of victims of a crime if that reporting would do further and greater harm to the victims, or not to publish certain information while a trial is ongoing. If a journalist or the media publishes libelous or slanderous stories about someone, that person has the right to sue the journalist or the media and demand retractions and compensation. The publishing of pornographic literature and pictures is protected by the Constitution, but different cities and states can pass laws to limit how that material is sold or distributed. The information distribution capabilities of the Internet bring these discussions to our homes and offices in completely new ways.
"Freedom of assembly does not give a person the right to assemble a mob and attack other people." Consider the current example of the protest demonstrations around abortion clinics. The protestors have a right to assemble peaceably, but they do not have the right to block entrances to the clinics to prevent people from using their services. People in a labor union have the right to assemble and form a picket line outside their employer’s place of business to protest wages or working conditions. They do not have the right to prevent other people from entering that place of business.
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."
This is the one of the core elements of the division between those who want strict gun control and those who want general access to firearms. Those who favor private gun ownership argue that "the right of the people to keep and bear Arms, shall not be infringed" means just that - the full right to own arms of various kinds. In general that discussion has focused around guns, but the amendment refers to arms, not just to guns. Those who favor gun control argue that the purpose of the amendment is to maintain a militia for the defense of the nation, and that the existence of a permanent military removes the need to maintain a militia. Therefore, the people need not have access to arms.
But a deeper discussion exists as well. Remember the context of the writing of this document. The new country had only recently emerged from a war of independence in which the citizen soldiers had resisted and overcome an organized professional military. The writers knew from experience that private arms gave people one of the tools to resist tyranny, even the possible future tyranny of one’s own government. Some argue that the framers of the Constitution wanted to protect the right of each person to own arms for his or her own use, and, at the same time, saw it as each person’s duty to help in maintaining "the security of a free State."
Congress has made laws that limit the kinds of arms people can own, that specify the prior acts or characteristics (such as criminals) who are prohibited from owning arms, and that set other standards and controls related to arms ownership. So far, many of these laws have generally withstood constitutional challenges, which means that the limitations have so far not been judged to be unconstitutional.
So, does the Second Amendment mean that I should be allowed to own a medieval broad sword, an antique cannon, a handgun, an automatic rifle, hand grenades, or a rocket launcher? Does the state have the right or even the obligation to limit the kinds and numbers of arms I may own as a way of protecting the general safety of the population? Anyone who follows U.S. domestic politics on this issue knows that this discussion is far from over.
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."
The Third Amendment prevents the military from taking over private homes and using them for its own purposes or forcing people to house the military for free. It is also an element of the idea expressed more directly in the Fourth Amendment, that the government must abide by the law and stay out of the affairs of the people.
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."
Note the key familiar phrases and concepts:
Protection from "unreasonable searches and seizures."
The requirement that law enforcement have "probable cause" for a search and obtain a "warrant" to search for specific items in specific places.
The concept of the "right to privacy" comes in large part from the Fourth Amendment, though the word, "privacy," is not used.
Note the interrelationship between what is "reasonable," what constitutes "probable cause," and which discoveries require "warrants." The concepts are difficult ones with few absolute answers or bright line demarcations.
Consider, for example, the difference between a search for a particular object or person, which generally requires probable cause and a warrant, vs. the discovery of an unlawful act or item in the usual performance of duty, which does not require a warrant. Commonly, for example, law enforcement officers do routine stops to help prevent drunk driving (think of Durham or Chapel Hill after a Duke/Carolina game), or to ensure that people wear their seat belts (remember the "click it or ticket" campaign). Generally, the officer does not have the right to search the car or the passengers just out of idle curiosity. The officer is required, as part of his/her duty, to be alert for violations of the law. If the officer sees an open bottle of alcohol in the car or smells smoke from illegal drugs, or if someone in the car shouts, "Help, I’m being kidnapped!" then the officer has reason to believe that a crime may have been or is being committed. The need for a warrant may not apply in that situation.
Courts have spent countless hours in thousands of cases trying to protect the individual’s rights against unlawful search and seizure while also trying to allow law enforcement to do its job and protect the population. Consider how many hit TV series use Fourth Amendment issues as plot elements.
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."
Note the familiar phrases and concepts:
Protection against being "twice put in jeopardy," or "double jeopardy."
Protection against self-incrimination, or in common parlance, "I take the Fifth." The protection of attorney/client privilege is part of the protection against self-incrimination. Attorney/client privilege allows you to have full disclosure of your case with your attorney so that he/she can do the best job of representing you, but prevents your attorney from reporting that information to law enforcement. It also protects your attorney so that law enforcement cannot compel him/her to reveal information.
Protection against government seizure of property without just compensation.
Note that since September 11, 2001, the Attorney General (AG) has claimed the right to engage in eaves dropping on discussions between attorneys and their alien clients if the AG believes they may be discussing, planning or facilitating terrorist acts. Many immigration and civil liberties attorneys are deeply concerned about this action of the AG.
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 defence."
Note the familiar concepts and the guarantee of a right to:
trial by jury in a criminal proceeding.
a speedy trial.
a public trial and therefore prohibition against "secret" trials.
know exactly what the charges are.
know the witnesses against you – to "face your accusers."
subpoena witnesses to compel them to appear.
have an attorney.
have the trial held in the jurisdiction in which the crime was committed.
Notice how so many of the elements we commonly think of as part of a trial appear in the Sixth Amendment, and how much they are a part of an open, public trial system.
The accused may choose to have a jury hear the case, not just a judge, thus moving the process from a judicial decision to a kind of public forum. But note that the jury trial is a choice, and the accused also has the right to elect a trial by a judge with no jury present.
The accused has the right to be tried in the area where the crime was committed, where witnesses are likely to be, and where the jury is, in theory, composed of his peers, those who understand the environment. Attorneys for either side may request a "change of venue" or change of location of the trial if they believe that the publicity of a particular case or similar factors makes it unlikely or impossible to conduct a fair trial in the current venue. A judge may legally grant a change of venue depending on circumstances and the facts of the case.
The accused has the right of subpoena – he/she, through the court, can force people to testify about their knowledge of the case.
The accused has the right to have an attorney, someone who understands the judicial system and can help him/her prepare a defense. Note that the right to an attorney includes the concept of providing an attorney at the expense of the state for citizens. Aliens have the right to an attorney, but not at government expense.
The accused has the right to a speedy trial to prevent unfair imprisonment while awaiting trial. Because of long delays in the court system some attorneys have argued that long waits for court dates amount to a violation of the right to a speedy trial and unconstitutionally imprison people who have not been convicted of any crime. See how this relates to the Eighth Amendment.
Since the events of September 11, 2001, the enactment of the USA PATRIOT ACT, along with other actions by the President and the Attorney General, appear to have eroded some of these rights. For example, there have been discussions of secret or military trials that may not be Constitutional. Many immigration and civil liberties attorneys are deeply concerned about these actions by the President and the AG.
Note the difference between the Sixth Amendment and Seventh Amendment. The Sixth refers to criminal proceedings like murder, theft, arson, assault, and so on where the state (the government) generally prosecutes the accused. The Seventh refers to civil or common law where one person (or company or other entity) is suing another for money, damages, to enforce the terms of a contract, and so on.
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."
This amendment gives each person his or her "day in court" and the right to have a jury settle a civil dispute. But note that the jury trial is a choice, and the accused also has the right to elect a trial by a judge with no jury present, or to settle the dispute out of court if both parties agree.
When the Constitution was written, twenty dollars was a lot more money than it is now, but the right exists, nonetheless. In practice, many disputes about small amounts are handled in small claims court, or by arbitration, or by out of court settlements. Neither side wants to risk spending thousands of dollars in legal fees and court costs just to win a few dollars. But sometimes a person feels very strongly about a perceived injustice, or a company believes that its reputation is in jeopardy or that loss of one case will result in many others being brought. In such cases the individual or the company may insist on the jury trial as a matter of principle and a right under the Constitution.
Note the difference between the Sixth Amendment and Seventh Amendment. The Sixth refers to criminal proceedings like murder, theft, arson, assault, and so on where the state (the government) prosecutes the accused. The Seventh refers to civil or common law where one person (or company) is suing another for money, damages, to enforce the terms of a contract, and so on.
Eight Amendment
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Note the two important elements:
The purpose of bail is not punishment, but to ensure that the person shows up for the trial. The excessive bail rule can be relative. For example, to a poor person $500 may be an excessive bail, while to a very rich person, $1,000,000 might not be. Judges must consider these relative factors, the seriousness of the crime, and the likelihood that the accused will appear for trial in determining bail.
The judgment of what is cruel and unusual punishment changes as the morals and sentiments of the nation change. The prisons of 100 years ago might be considered cruel by today’s standards. There are many sides to this argument. Is capital punishment, the death penalty, cruel and unusual punishment? Is life imprisonment with no hope of release more cruel than execution? Is execution a fair punishment for premeditated murder? Should the convicted person be allowed to choose either life in prison or execution? Is it cruel and unusual punishment to put those convicted of writing a bad check, committing computer crimes, or engaging in telephone fraud in a prison environment where they might be assaulted or killed by other inmates who have been convicted of violent crimes? How old should a "child" be to warrant imprisonment with adults? Is it cruel to put an adult person in an adult prison or execute him/her if he/she has the mental capacity of a five-year-old?
Ninth Amendment
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The point of this amendment is to say that even though lots of rights are listed specifically in the Bill of Rights, the people have lots of others that may not be listed. Rights belong to the people to exercise, not to the government to be parceled out. The people do not have to wait for the government to give them rights, and the government cannot take away a right just because it is not specifically listed in the Bill of Rights.
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."
Frequently referred to as "states’ rights" or "reserved powers," this amendment means that each state can pass its own laws and conduct its business according to the will of the people of that state as expressed in their election of public officials, their decisions on referenda, and their enactment and implementation of laws.
This amendment has generated heated discussion and multiple Supreme Court decisions over the years in questions of who has jurisdiction over a particular matter, the state or the federal government. For example before the Civil War different states had different laws on slavery. Slavery was legal in some states, but not in others. It was the right of each state to make laws concerning slavery. The Thirteenth Amendment to the Constitution abolished slavery, making it illegal in every state. Each state no longer had the right to make laws concerning slavery because the Constitution had been changed.
Modern states’ rights issues include environmental laws, state rules on the distribution of public funds such as Welfare, the legal age for drinking alcohol, state income taxes, commercial enterprises, and so on. Let us say, for example, that a state passes a law making 18 the legal age for drinking alcohol. The federal government passes a law saying that federal money to build highways and improve transportation services will only go to states that have a legal drinking age of 21 or higher. The state is heavily dependent on federal funds for its transportation services. Has the federal government violated the Constitutional rights of the state by making this law? Is the state forced to change its law? Would it be in the financial interest of the state to change its law? Consider a similar situation of federal vs. state law regarding the distribution of public funds and services to aliens. Should someone unlawfully present in the U.S. receive federal funds (taxpayer money) and services (paid for with taxpayer money)? Should an alien in temporary status such as F, J, H, or O receive food stamps or free medical care? If Congress passes a law denying or limiting federal funds and services to aliens, could a state give them services and funds anyway paid for from state resources? What if the positions were reversed and the federal government authorized funding and services that the state refused to give? Can the federal government make states comply with federal clean air and clean water laws? Can the states have environmental laws that are stricter than those set at the federal level? Do businesses and people in that state have to obey the stricter state laws or just the more lenient federal ones.
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