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Bill of Rights

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Description: First ten amendments to the U.S. Constitution, guaranteeing individual rights, such as freedom of speech, freedom of the press, separation of church and state, the right to counsel, the right against self-incrimination, and due process.


Significance: The Bill of Rights has posed an endless series of challenges for the Supreme Court to interpret the scope of personal liberties and the limits of government power.


When the Constitutional Convention adjourned in September, 1787, and submitted its new Constitution to a curious public, three of the remaining delegates refused to sign the new charter. One, George Mason of Virginia, declared that he would “sooner chop off this right hand than put it to a constitution without a Bill of Rights.” Fearing that Mason and other Antifederalists might scuttle the ratification of the new Constitution, James Madison promised his fellow Virginians that if they supported the new charter (and elected him to the First Congress), he would sponsor a Bill of Rights. Each side kept its end of the bargain. In December, 1791, the Bill of Rights was ratified, launching more than two hundred years of Supreme Court decisions interpreting, defining, and refining the nature of the relationship between the government and its citizens. The Constitution was essentially a plan of government, establishing the legislative, executive, and federal branches and delineating their powers and responsibilities. Although the Constitution purported to grant only limited powers to Congress to pass laws in specified areas, it also provided that Congress had the authority to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This elastic catch-all clause worried those who feared that the Constitution would install an all-powerful national government, free to dominate the people and the states. It was the Bill of Rights that gave these critics some measure of solace that the new federal government would not become the same tyrannical seat of power that they had so recently fought to escape. From the outset, the Supreme Court played a special role in giving meaning to the Bill of Rights. In March of 1789, Thomas Jefferson wrote to Madison that “the Bill of Rights is necessary because of the legal check which it puts into the hands of the judiciary.” Jefferson was referring to a “legal check” on unwarranted government interference with the rights of the citizens. The Bill of Rights touches on every realm of human affairs. It has fallen to the Supreme Court to interpret its elusive and elastic language. In every generation, the Court has been called on to grapple with the challenge of applying its 413 words, written in the late eighteenth century, to circumstances unknown to the authors, arising in the nineteenth, twentieth, and twenty-first centuries. The Bill of Rights protects both substantive and procedural rights. In contrast to the Constitution itself, which says what the government can do, the Bill of Rights says what the government cannot do.


First Amendment

The most powerful articulation of individual rights against government intrusion is found in the First Amendment, which is considered by many to be the most important of all the Amendments. The opening words speak volumes about the purpose and intent of the Bill of Rights: “Congress shall make no law…” These five words set the tone for all that follows. However, the simplicity is deceiving and the Supreme Court has the responsibility of deciding which laws pass constitutional muster and which do not. Specifically, under the First Amendment, Congress is prohibited from making laws “respecting an establishment of religion or prohibiting the free exercise thereof.” In one phrase, the First Amendment simultaneously guarantees the right of individuals to follow the beliefs and practices of their chosen religious faiths, while at the same time, it prohibits the government from singling out any particular religious denomination as a state-sponsored church. The First Amendment built what Jefferson called a “wall of separation” between church and state. The free exercise and establishment clauses generated great consternation for the Court on controversial issues. From prayer in school to religious symbols on public property, from religious invocations at high school graduations to vouchers using public funds to subsidize parochial schools, the Court struggled to ensure that government remains neutral, but not hostile, in matters of religion. The First Amendment next prohibits Congress from “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.” No portion of the Bill of Rights has engaged the Court's attention with more intensity, drama, and public interest than its protection of freedom of expression and freedom of assembly. Volumes have been written about how and why the Court decided whether particular speech or gatherings are constitutionally protected. No majority of Supreme Court justices ever treated the protections guaranteed by the First Amendment as absolute. Instead, the Court recognized exceptions for obscenity, libel, criminal solicitation, perjury, false advertising, and fighting words. Within and beyond these categories, the Court has shifted, especially in times of war or during external threats, from the protection of wide-open, robust debate to the punishment of controversial ideas.


Second Amendment

The Second Amendment has been controversial; however, it was addressed by the Court only on rare occasions. It is popularly known for guaranteeing “the right of the people to keep and bear arms.” However, in its most significant pronouncement, the Court unanimously held that this right is qualified by the opening phrase which reads: “A well regulated Militia, being necessary to the security of a free State…” In the light of that limitation, most recently the Court declined to hear an appeal from a lower court ruling upholding a municipal ban on hand guns.


Third Amendment

The Third Amendment, prohibiting the quartering of soldiers in private houses in times of peace without the consent of the owner, or in times of war, except as prescribed by law, while vitally important when it was written, is no longer the subject of serious Court review.


Fourth Amendment

The Fourth Amendment is a catalogue of important personal rights that the Court has sought to interpret by balancing the right of privacy against the legitimate needs of law enforcement. It begins by declaring that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The very presence of the undefined term “unreasonable” has required the Court to delve into every manner of search and seizure, developing specific rules that police must follow in order to avoid the exclusion of evidence at trial. The Court has repeatedly articulated that the consequence for an illegal search or seizure is suppression of the evidence, thereby creating an incentive for police to scrupulously follow constitutional requirements. The Fourth Amendment also guarantees that“no Warrants shall issue, but upon probable cause.” Here again the Court developed rules to determine whether probable cause exists. In essence, the Court uses a standard of reasonableness based on all of the facts and circumstances surrounding a challenged search or arrest. The Court places itself in the position of the reasonable police officer, relying on particularized suspicion and past experience, but rejecting mere hunches or guesswork.


Fifth Amendment

The Fifth Amendment also protects the rights of persons charged with crimes. It prohibits double jeopardy (“subject for the same offence to be twice put in jeopardy of life or limb”), self-incrimination (being “compelled in any criminal case to be a witness against himself”), denial of due process (being “deprived of life, liberty, or property, without due process of law”), and a taking without compensation (having “private property…taken for public use without just compensation”). The Court takes these rights very seriously because they set critical boundaries on what government may do in prosecuting crime.


Sixth Amendment

The Sixth Amendment protects the rights of persons charged with criminal violations. Often mischaracterized as mere “technicalities” protecting the “guilty,” Sixth Amendment rights were included in the Bill of Rights because the Founders had lived under a government that frequently arrested, jailed, convicted, and punished individuals without any semblance of fairness or justice. Under the Sixth Amendment, the accused has a “right to a speedy and public trial.” Both elements of this right are very important. The right to a trial is of little value if the accused is kept in jail for several months or years waiting to be tried. Generally speaking, unless the accused waives the time limit, he or she is entitled to go to trial within sixty days after arrest. Likewise, a “public” trial is vital to ensure that an overzealous prosecutor or corrupt judge does not trample on the rights of the accused. Exposing criminal trials to the bright light of public scrutiny allows the general public and the press to observe the proceedings and see for themselves whether the accused is getting a fair trial. The days of the notorious “Star Chamber,” where Englishmen were tried in secret, are a thing of the past. Anyone accused of a crime is also entitled to “an impartial jury” chosen from the geographical area where the crime was committed. The Sixth Amendment guarantees that no one may sit on a jury if he or she has a demonstrable bias or prejudice against the accused, either individually, or because of his or her gender, race, religion, ethnicity, or any other immutable characteristic. Generally, trial judges go to great lengths to question prospective jurors in order to ferret out those who cannot discharge their duties in an impartial manner. Anyone accused of a crime has a right under the Sixth Amendment “to be informed of the nature and cause of the accusation.” Obviously, in order to defend himself, the accused must know what he is being accused of so that he can establish an alibi or find witnesses who may assist in proving his innocence. Only by knowing the charges can the accused's attorney challenge the sufficiency of the indictment of the validity of the statute or regulation involved. Closely allied to this right is the important right under the Sixth Amendment “to be confronted with the witnesses against him.” An accused is entitled to know who will testify against him or her so that the accused and his or her lawyer can prepare adequate cross-examination. From experience, the Founders knew that it is more difficult to lie to another's face than to do so when the other person is not present. Also, under the Sixth Amendment, an accused has the right “to have compulsory process for obtaining witnesses in his favor.” In other words, the accused has the right to subpoena other persons and require them to come to court to testify and to bring papers and documents. Because the government already has this power, this right ensures a level playing field, where an accused can force reluctant witnesses to present evidence that may exonerate him or her or prove that a witness for the prosecution is lying. Without this right, an accused would be confined to presenting only testimony or documents from persons who voluntarily chose to take the time to come to court. Finally, and perhaps most importantly, the Sixth Amendment guarantees the accused the right “to have Assistance of Counsel for his defense.” No person should face a criminal trial without competent legal counsel at his or her side. Only attorneys trained in the rules of evidence and trial procedures can adequately navigate through the complexities of a criminal trial. Indeed, so vital is the right to legal counsel that the law requires the state to provide a lawyer free of charge for the most serious crimes where the accused cannot afford one. It is worth noting, before leaving the Sixth Amendment, that it contains no reference to the fundamental principle considered the very foundation of Anglo-Saxon law that one is innocent until proven guilty. Indeed, the presumption of innocence appears nowhere in the Bill of Rights or the Constitution. Yet, this essential right has repeatedly been recognized by the courts and remains a vital guarantee of American justice.


Seventh Amendment

The Seventh Amendment provides that in civil cases in federal courts at common law, where the value in controversy exceeds twenty dollars, “the right of trial by jury shall be preserved.” Essentially, any civil case that entitled a litigant to a jury in 1791 still entitles the litigant to a jury today. Numerous rules (too extensive to be discussed here) have been developed by the courts to determine which civil claims must be tried before a jury and which may not. The Seventh Amendment also guarantees that once a fact has been decided by a jury, it may not be otherwise reexamined in any federal court, except as provided by common law. Here again, because juries were viewed by the Founders as a protection against injustice and tyranny, it was important to ensure that once a jury had decided the facts in a case, a judge could not overturn that finding, except in limited circumstances provided in the common law.


Eighth Amendment

Further protections for criminal defendants are found in the Eighth Amendment, beginning with the guarantee that “excessive bail shall not be required.” Persons awaiting trial are entitled to be released from jail, provided they post reasonable bail, in cash or property, which will be returned as long as they appear in court where required. The prohibition against excessive bail ensures that an accused is not arbitrarily detained because a judge has set an unreasonably high bail. Closely related is the Eighth Amendment's prohibition against “excessive fines.” This provision ensures that once convicted, an individual will be fined in proportion to his or her crime or in keeping with guidelines for similar offenses under similar circumstances. The most important provision of the Eighth Amendment states that “cruel and unusual punishment” shall not be inflicted. This prohibition limits the kinds of punishment that can be imposed on those convicted of crimes. It proscribes punishment grossly disproportionate to the severity of a crime, and it imposes substantive limits on what can be made criminal and punished as such. At its most basic level, the prohibition against cruel and unusual punishment was intended to eliminate torture and other barbaric methods of punishment, although as recently as 1963, twenty lashes as part of the sentence for robbery was found not to be in violation of the Eighth Amendment. By far, the most serious and controversial application of the prohibition on cruel and unusual punishment came in 1972 when the Court used it to strike down the death penalty (which was then reinstated four years later). The Court found that to the extent the death penalty was administered in an arbitrary and capricious manner, amounting to little more than a lottery, it constituted cruel and unusual punishment in violation of the Eighth Amendment. Generally, in determining whether a punishment is cruel and unusual, the courts consider a variety of factors, including the age of the defendant, the attitude of the defendant, the availability of less severe punishments, contemporary standards of decency, the frequency of imposition, the disparity in punishments for the same or lesser crimes, the proportionality to the offense, the inhuman shocking or barbarous nature of the punishment, and the totality of the circumstances.


Ninth Amendment

One of the least known but most important provisions of the Bill of Rights is the Ninth Amendment, which in simple but meaningful terms states that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In many ways, these twenty-one words speak volumes about the very nature of the United States’ constitutional democracy. As set forth in the Declaration of Independence, people are born with certain inalienable rights. They are not granted their rights by a benevolent government; they are born with those rights and they establish governments in order to preserve and protect them. Thus, people speak of the Bill of Rights as “guaranteeing” constitutional rights, not “creating” them. The Founders firmly believed in those principles. Indeed at first, the drafters of the Constitution did not include a Bill of Rights because they did not contemplate that the Constitution posed any threat to the inalienable rights of all citizens. However, as noted at the outset, many feared that a new and powerful national government would seize all the power it could, thereby jeopardizing personal rights and liberties. However, when James Madison set about to draft the Bill of Rights during the First Congress in 1789, he faced a dilemma: How could he write a comprehensive list of all rights enjoyed by Americans without the risk of leaving some out? The solution was the Ninth Amendment. There, Madison, with utter simplicity, stated that the fact that “certain rights” were enumerated in the Constitution did not mean that “others retained by the people” were denied or disparaged. Consequently, any analysis of constitutional rights cannot stop by merely examining the specific rights; the “certain rights” spelled out in the first eight amendments. One must go further to determine whether there are “others retained by the people.” One of the most profound applications of the Ninth Amendment relates to the right of privacy. Few rights are more important to Americans than the right to be let alone, yet the right to privacy is nowhere mentioned in the Constitution or the Bill of Rights. To some extent, the entire Constitution and Bill of Rights express a right to privacy, that is, a set of limited and enumerated powers delegated to the government, with all other powers and rights held by the people. When the Supreme Court in the 1960's and 1970's began to address laws restricting contraception and abortion, it found that the right of privacy was rooted in several amendments, including the First, Fourth, Fifth, and Ninth, and what it called the “penumbras” emanating from all of the amendments. Trivialized by certain judges and scholars as a mere “water blot” on the Constitution, the Ninth Amendment, on serious examination, may well reflect the true meaning of the Bill of Rights.


Tenth Amendment

Parallel to the Ninth Amendment, the Tenth Amendment rounds out the Bill of Rights. It provides that 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.” Thus, as all rights not expressed in the Constitution are retained by the people, all powers not delegated to the federal government are reserved to the individual States or to the people. The Tenth Amendment reemphasizes the limited nature of the national government, underscoring the fact that the government possesses only the powers expressly delineated in the Constitution and no others. The Tenth Amendment is rather obscure on the question of whether the reserved powers belong to the states or to the people. This was surely intentional. Having made his point that the national government was a creature of limited powers, Madison and his colleagues left it to others, including state legislatures, state courts, and the people themselves to sort out their respective relationships when it came to these reserved powers. The Bill of Rights continues to serve the majestic purposes for which it was written more than two hundred years ago. Sometimes with intentional ambiguity, often with passionate eloquence and always with elusive simplicity, the Bill of Rights represents one of the most masterful declarations of individual rights and civil liberties in human history. Yet, as a charter written by people to last the test of time, the Bill of Rights demands continuous study and interpretation to meet the challenges of the next century.



Further Reading

  • The Bill of Rights, edited by Thomas Tandy Lewis (2 vols. Pasadena, Calif.: Salem Press, 2002), provides Comprehensive coverage of the Bill of Rights, with articles on each of the amendments, the Constitution, the incorporation doctrine, and many other topics, as well as 280 individual court cases. Christopher E. Smith's Constitutional Rights: Myths and Realities (Belmont, Calif.: Thompson Wadsworth, 2004) offers a thorough discussion of the rights included in the Bill of Rights that challenges conventional wisdom about the application of constitutional rights. Don Nardo's The Bill of Rights (San Diego, Calif.: Greenhaven Press, 1998) provides an overview of the original debate over the need for a bill of rights and explores some of the later debates about rights. Books that examine the origins of the Bill of Rights include Akhil Reed Amar's The Bill of Rights: Creation and Reconstruction (New Haven, Conn.: Yale University Press, 1998), Leonard Levy's Origins of the Bill of Rights (New Haven, Conn.: Yale University Press, 1999), and The Essential Bill of Rights: Original Arguments and Fundamental Documents (Lanham, Md.: University Press of America, 1998), edited by Gordon Lloyd and Margie Lloyd. Works that examine the legacy of the Bill of Rights include Ellen Alderman and Caroline Kennedy's In Our Defense: The Bill of Rights in Action (New York: Bard, 1998), The Bill of Rights, the Courts and the Law: The Landmark Cases that Have Shaped American Society (3d ed., Charlottesville, Va.: Virginia Foundation for the Humanities and Public Policy, 1999) by Lynda Butler et al., and Nat Hentoff's Living the Bill of Rights: How to Be an Authentic American (New York: HarperCollins, 1998). 1791-1991: The Bill of Rights and Beyond by the Commission on the Bicentennial of the United States Constitution, edited by Herbert M. Atherton et al. (Washington, D.C.: Commission on the Bicentennial of the U.S. Constitution, 1990) provides an interesting look back at the Bill of Rights.