“The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power. — Alexander Hamilton, 1775.
I have often referred to the first 10 amendments to the Constitution, collectively known as the Bill of Rights, in my writings. These ten amendments were not a part of the original draft of the Constitution as adopted by Congress on September 28, 1787 after a convention held in Philadelphia comprised of 55 delegates from the original 13 states. On July 26, 1788 New York was the 11th state to ratify the new Constitution pursuant to Article VII of said Constitution that stated:
“The ratification of the conventions of nine states shall be sufficient for the establishment of this Constitution between the states so ratifying the same.”
Delaware became the first state to ratify the Constitution on December 7, 1787 with New York being the last on July 26, 1788. Rhode Island refused to call for a ratifying convention and did not adopt the Constitution until May 29, 1790, The New Constitution went into effect on March 4, 1789 and became the supreme law of the land or one of the three organic laws along with the Declaration of Independence and the Northwest Ordinance.
During the Constitutional Convention there was a raging debate between the Federalist and Ant-Federalist over the limitation of power that would be granted the federal government a federalist form of a republic containing three separate, but equal, branched of government. The Federalists led by Alexander Hamilton and James Madison believed the Constitution, with its enumerated powers, was adequate to protect the rights of the states and the people. On the contrary the Anti-Federalists led by Patrick Henry and George Mason with tacit support from Thomas Jefferson believed we needed an enumerated bill of rights to protect the states and the people from an overreach of the federal government. It was George Mason, a friend of James Madison, who was the primary author of the Virginia Declaration of Rights.
The need for the Constitution grew out of problems with the Articles of Confederation, which established a "firm league of friendship" between the states, and vested most power in a Congress of the Confederation. This power was, however, extremely limited — the central government conducted diplomacy and made war, set weights and measures, and was the final arbiter of disputes between the states. Crucially, it could not raise any funds itself, and was entirely dependent on the states themselves for the money necessary to operate. Each state sent a delegation of between two and seven members to the Congress, and they voted as a bloc with each state getting one vote. But any decision of consequence required a unanimous vote, which led to a government that was paralyzed and ineffectual.
A movement to reform the Articles began, and invitations to attend a convention in Philadelphia to discuss changes to the Articles were sent to the state legislatures in 1787. In May of that year, delegates from 12 of the 13 states (Rhode Island sent no representatives) convened in Philadelphia to begin the work of redesigning government. The delegates to the Constitutional Convention quickly began work on drafting a new Constitution for the United States.
A chief aim of the Constitution as drafted by the Convention was to create a government with enough power to act on a national level, but without so much power that fundamental rights would be at risk. One way that this was accomplished was to separate the power of government into three branches, and then to include checks and balances on those powers to assure that no one branch of government gained supremacy. This concern arose largely out of the experience that the delegates had with the King of England and his powerful Parliament. The powers of each branch are enumerated in the Constitution, with powers not assigned to them reserved to the states.
Much of the debate, which was conducted in secret to ensure that delegates spoke their minds, focused on the form that the new legislature would take. Two plans competed to become the new government: the Virginia Plan, which apportioned representation based on the population of each state, and the New Jersey plan, which gave each state an equal vote in Congress. The Virginia Plan was supported by the larger states, and the New Jersey plan preferred by the smaller. In the end, they settled on the Great Compromise (sometimes called the Connecticut Compromise), in which the House of Representatives would represent the people as apportioned by population; the Senate would represent the states apportioned equally; and the President would be elected by the Electoral College. The plan also called for an independent judiciary.
The founders also took pains to establish the relationship between the states. States are required to give "full faith and credit" to the laws, records, contracts, and judicial proceedings of the other states, although Congress may regulate the manner in which the states share records, and define the scope of this clause. States are barred from discriminating against citizens of other states in any way, and cannot enact tariffs against one another. States must also extradite those accused of crimes to other states for trial.
The founders also specified a process by which the Constitution may be amended, and since its ratification, the Constitution has been amended 27 times. In order to prevent arbitrary changes, the process for making amendments is quite onerous. An amendment may be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the states request one, by a convention called for that purpose. The amendment must then be ratified by three-fourths of the state legislatures, or three-fourths of conventions called in each state for ratification. In modern times, amendments have traditionally specified a timeframe in which this must be accomplished, usually a period of several years. Additionally, the Constitution specifies that no amendment can deny a state equal representation in the Senate without that state's consent.
With the details and language of the Constitution decided, the Convention got down to the work of actually setting the Constitution to paper. It is written in the hand of a delegate from Pennsylvania, Governor Morris, whose job allowed him some reign over the actual punctuation of a few clauses in the Constitution. He is also credited with the famous preamble, quoted at the top of this page. On September 17, 1787, 39 of the 55 delegates signed the new document, with many of those who refused to sign objecting to the lack of a bill of rights. At least one delegate refused to sign because the Constitution codified and protected slavery and the slave trade.
The process set out in the Constitution for its ratification provided for much popular debate in the states. The Constitution would take effect once it had been ratified by nine of the thirteen state legislatures -- unanimity was not be required. During the debate over the Constitution, two factions emerged: the Federalists, who supported adoption, and the Anti-Federalists, who opposed it.
James Madison, Alexander Hamilton, and John Jay set out an eloquent defense of the new Constitution in what came to be called the Federalist Papers. Published anonymously in the newspapers The Independent Journal and The New York Packet under the name Publius between October 1787 and August 1788, the 85 articles that comprise the Federalist Papers remain to this day an invaluable resource for understanding some of the framers' intentions for the Constitution. The most famous of the articles are No. 10, which warns of the dangers of factions and advocates a large republic, and No. 51, which explains the structure of the Constitution, its checks and balances, and how it protects the rights of the people.
The states proceeded to begin ratification, with some debating more intensely than others. Delaware was the first state to ratify, on December 7, 1787. After New Hampshire became the ninth state to ratify, on June 22, 1788, the Confederation Congress established March 9, 1789, as the date to begin operating under the Constitution. By this time, all the states except North Carolina and Rhode Island had ratified — the Ocean State was the last to ratify on May 29, 1790.
One of the principal points of contention between the Federalists and Anti-Federalists was the lack of an enumeration of basic civil rights in the Constitution. Many Federalists argued, as in Federalist No. 84, that the people surrendered no rights in adopting the Constitution. In several states, however, the ratification debate in some states hinged on the adoption of a bill of rights. The solution was known as the Massachusetts Compromise, in which four states ratified the Constitution but at the same time sent recommendations for amendments to the Congress. In Federalist 84 Hamilton stated:
“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.”
James Madison introduced 12 amendments to the First Congress in 1789. Ten of these would go on to become what we now consider to be the Bill of Rights. One was never passed, while another dealing with Congressional salaries was not ratified until 1992, when it became the 27th Amendment. Based on the Virginia Declaration of Rights, the English Bill of Rights, the writings of the John Locke, and the rights defined in the Magna Carta, the Bill of Rights contains rights that many today consider to be fundamental to America.
On June 8, 1789, Madison submitted his proposal to Congress. In his speech to Congress on that day, Madison said:
“For while we feel all these inducements to go into a revisal of the constitution, we must feel for the constitution itself, and make that revisal a moderate one. I should be unwilling to see a door opened for a re-consideration of the whole structure of the government, for a re-consideration of the principles and the substance of the powers given; because I doubt, if such a door was opened, if we should be very likely to stop at that point which would be safe to the government itself: But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents.”
Prior to listing his proposals for a number of constitutional amendments, Madison acknowledged a major reason for some of the discontent with the Constitution as written:
“I believe that the great mass of the people who opposed [the Constitution], disliked it because it did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought we to consider them safe, while a great number of our fellow citizens think these securities necessary.”
The national "dialogue between power and liberty" had begun anew.
The fact that the Constitution did not include a bill of rights to specifically protect Americans' hard-won rights sparked the most heated debates during the ratification process. To the Federalists, those who favored the Constitution, a bill of rights was unnecessary because the Federal Government was limited in its powers and could not interfere with the rights of the people or the states; also, most states had bills of rights. To the Anti-Federalists, those who opposed the Constitution, the prospect of establishing a strong central government without an explicit list of rights guaranteed to the people was unthinkable. Throughout the ratification process, individuals and state ratification conventions called for the adoption of a bill of rights.
The First Federal Congress took up the question of a bill of rights almost immediately. Congress proposed twelve amendments to the states. Ten of these were added to the Constitution and on December 15, 1791, after ratification by Virginia, the 11th state to ratify the Bill of Rights went into effect and became embodied in our Constitution
The Bill of Rights, as Ratified
The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition:
We hear a good deal nowadays about “a wall of separation” between church and state in America. To some people’s surprise, this phrase cannot be found in either the Constitution or the Declaration of Independence. Actually, the phrase occurs in a letter from Thomas Jefferson, as a candidate for office, to an assembly of Baptists in Connecticut.
The first clause of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This clause is followed by guarantees of freedom of speech, of publication, of assembly, and of petitioning. These various aspects of liberty were lumped together in the First Amendment for the sake of convenience; Congress had originally intended to assign “establishment of religion” to a separate amendment because the relationships between state and church are considerably different from the civil liberties of speech, publication, assembly, and petitioning.
The purpose of the “Establishment Clause” was two-fold: (1) to prohibit Congress from imposing a national religion upon the people; and (2) to prohibit Congress (and the Federal government generally) from interfering with existing church-state relations in the several States. Thus the “Establishment Clause” is linked directly to the “Free Exercise Clause.” It was designed to promote religious freedom by forbidding Congress to prefer one religious sect over other religious sects. It was also intended, however, to assure each State that its reserved powers included the power to decide for itself, under its own constitution or bill of rights, what kind of relationship it wanted with religious denominations in the State. Hence the importance of the word “respecting”: Congress shall make no law “respecting,” that is, touching or dealing with, the subject of religious establishment.
In effect, this “Establishment Clause” was a compromise between two eminent members of the first Congress—James Madison and Fisher Ames. Representative Ames, from Massachusetts, was a Federalist. In his own State, and also in Connecticut, there still was an established church—the Congregational Church. By 1787–1791, an “established church” was one which was formally recognized by a State government as the publicly preferred form of religion. Such a church was entitled to certain taxes, called tithes that were collected from the public by the State. Earlier, several others of Britain’s colonies had recognized established churches, but those other establishments had vanished during the Revolution.
Now, if Congress had established a national church—and many countries, in the eighteenth century, had official national churches—probably it would have chosen to establish the Episcopal Church, related to the Church of England. Episcopalians constituted the most numerous and influential Christian denomination in the United States. Had the Episcopal Church been so established nationally, the Congregational Church would have been disestablished in Massachusetts and Connecticut. Therefore, Fisher Ames and his Massachusetts constituents in 1789 were eager for a constitutional amendment that would not permit Congress to establish any national church or disestablish any State church.
The motive of James Madison for advocating the Establishment Clause of the First Amendment was somewhat different. Madison believed that for the Federal government to establish one church—the Episcopal Church, say—would vex the numerous Congregationalist, Presbyterian, Baptist, Methodist, Quaker, and other religious denominations. After all, it seemed hard enough to hold the United States together in those first months of the Constitution without stirring up religious controversies. So Madison, who was generally in favor of religious toleration, strongly advocated an Establishment Clause on the ground that it would avert disunity in the Republic.
In short, the Establishment Clause of the First Amendment was not intended as a declaration of governmental hostility toward religion such as banning displays of the Ten Commandments in public buildings or Christmas Trees in the public square, or even of governmental neutrality in the debate between believers and non-believers. It was simply a device for keeping religious passions out of American politics. The phrase “or prohibiting the free exercise thereof” was meant to keep the Congress from ever meddling in the disputes among religious bodies or interfering with the mode of worship.
During the nineteenth century, at least, State governments would have been free to establish State churches, had they desired to do so. The Establishment Clause restrained only Congress—not State legislatures. But the States were no more interested in establishing a particular church than was Congress, and the two New England States where Congregationalism was established eventually gave up their establishments—Connecticut in 1818, Massachusetts in 1833.
The so-called “Wall of Separation” was developed by the racist, anti-Catholic, anti-Jewish, KKK member Justice Hugo Black. He believed that the First Amendment erected a metaphorical wall of separation between church and state. During his career Black wrote several important opinions relating to church-state separation. He delivered the opinion of the court in Everson v. Board of Education (1947), which held that the establishment clause was applicable not only to the federal government, but also to the states.
The remainder of the First Amendment is a guarantee of reasonable freedom of speech, publication, assembly, and petition. A key word in this declaration that the Congress must not abridge these freedoms is the article “the”—abridging the freedom of speech and press. For what the Congress had in mind, in 1789, was the civil freedom to which Americans already were accustomed, and which they had inherited from Britain. In effect, the clause means “that freedom of speech and press which prevails today.” In 1789, this meant that Congress was prohibited from engaging in the practice of “prior censorship”—prohibiting a speech or publication without advance approval of an executive official. The courts today give a much broader interpretation to the clause. This does not mean, however, that the First Amendment guarantees any absolute or perfect freedom to shout whatever one wishes, print whatever one likes, assemble in a crowd wherever or whenever it suits a crowd’s fancy, or present a petition to Congress or some other public body in a context of violence. Civil liberty as understood in the Constitution is ordered liberty, not license to indulge every impulse and certainly not license to overthrow the Constitution itself.
As one of the more famous of Supreme Court Justices, Oliver Wendell Holmes, put this matter, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Similarly, statutes that prohibit the publication of obscenities, libels, and calls to violence are generally held by the courts to conform to the First Amendment. For example, public assemblies can be forbidden or dispersed by local authorities when crowds threaten to turn into violent mobs. And even public petitions to the legislative or the executive branch of government must be presented in accordance with certain rules, or else they may be lawfully rejected.
The Constitution recognizes no “absolute” rights. Justice Robert H. Jackson of the Supreme Court observed years ago that “The Bill of Rights is not a suicide pact.” Instead, the First Amendment is a reaffirmation of certain long-observed civil freedoms, and it is not a guarantee that citizens will go unpunished however outrageous their words, publications, street conduct, or mode of addressing public officials. The original, and in many ways the most important, purpose of freedom of speech and press is that it affords citizens an opportunity to criticize government—favorably and unfavorably—and to hold public officials accountable for their actions. It thus serves to keep the public informed and encourages the free exchange of ideas.
The Second Amendment: The Right to Bear Arms:
This amendment consists of a single sentence: “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.”
Although today we tend to think of the “militia” as the armed forces or national guard, the original meaning of the word was “the armed citizenry.” One of the purposes of the Second Amendment was to prevent Congress from disarming the State militias. The phrasing of the Amendment was directly influenced by the American Revolutionary experience. During the initial phases of that conflict, Americans relied on the militia to confront the British regular army. The right of each State to maintain its own militia was thought by the founding generation to be a critical safeguard against “standing armies” and tyrants, both foreign and domestic.
The Second Amendment also affirms an individual’s right to keep and bear arms. Since the Amendment limits only Congress, the States are free to regulate the possession and carrying of weapons in accordance with their own constitutions and bills of rights. “The right of the citizens to keep and bear arms,” observed Justice Joseph Story of the Supreme Court in his Commentaries on the Constitution (1833), “has justly been considered as the palladium of the liberties of the republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” Thus a disarmed population cannot easily resist or overthrow tyrannical government. The right is not absolute, of course, and the Federal courts have upheld Federal laws that limit the sale, possession, and transportation of certain kinds of weapons, such as machine guns and sawed-off shotguns. To what extent Congress can restrict the right is a matter of considerable uncertainty because the Federal courts have not attempted to define its limits.
McDonald v. Chicago (2010), was a landmark decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states. The Court held that the right of an individual to "keep and bear arms" protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. The decision cleared up the uncertainty left in the wake of District of Columbia v. Heller as to the scope of gun rights in regard to the states.
Today this amendment is under constant fire from Progressives who want to impose increased limitations of the citizen’s rights to bear arms. Some politicians and celebrity voices have gone so far as to call for a total repeal of the Second Amendment, which would by near impossible as to do would require the support of two-thirds of both houses of Congress and ratification by three-fourth of the states. Instead the states and Congress are attempting to pass draconian restrictions of citizens, restrictions that if the dictum expressed in McDonald and Heller are upheld will fail. This is just a waste of time and a ploy by progressive to make headlines.
The Third Amendment: Quartering Troops:
“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 is no doubt the least talked about or challenged amendment forbidding Congress to station soldiers in private houses without the householders’ permission in time of peace, or without proper authorization in time of war. The amendment was bound up with memories of British soldiers who were quartered in American houses during the War of Independence. It is an indication of a desire, in 1789, to protect civilians from military bullying. This is the least-invoked provision of the Bill of Rights, and the Supreme Court has never had occasion to interpret or apply it.
The Fourth Amendment: Search and Seizure:
“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 is a requirement for search warrants when the public authority decides to search individuals or their houses, or to seize their property in connection with some legal action or investigation. In general, any search without a warrant is unreasonable. Under certain conditions, however, no warrant is necessary—as when the search is incidental to a lawful arrest.
Before engaging in a search, the police must appear before a magistrate and, under oath, prove that they have good cause to believe that a search should be made. The warrant must specify the place to be searched and the property to be seized. This requirement is an American version of the old English principle that “Every man’s house is his castle.” In recent decades, courts have extended the protections of this amendment to require warrants for the search and seizure of intangible property, such as conversations recorded through electronic eavesdropping. The 2001 Patriot Act has walked all over the Amendment.
The Fifth Amendment: Rights of Persons:
“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 offense 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.”
Here we have a complex of old rights at law that were intended to protect people from arbitrary treatment by the possessors of power, especially in actions at law. The common law assumes that a person is innocent until he is proven guilty. This amendment reasserts the ancient requirement that if a person is to be tried for a major crime, he must first be indicted by a grand jury. In addition, no person may be tried twice for the same offense. Also, an individual cannot be compelled in criminal cases to testify against himself, “nor be deprived of life, liberty, or property, without due process of law”; and the public authorities may not take private property without just compensation to the owner.
The immunity against being compelled to be a witness against one’s self is often invoked in ordinary criminal trials and in trials for subversion or espionage. This right, like others in the Bill of Rights, is not absolute. A person who “takes the Fifth” —t hat is, refuses to answer questions in a court because his answers might incriminate him — thereby raises “a legitimate presumption” in the court that he has done something for which he might be punished by the law. If offered immunity from prosecution in return for giving testimony, either he must comply or else expect to be jailed, and kept in jail, for contempt of court. And, under certain circumstances, a judge or investigatory body such as a committee of Congress may refuse to accept a witness’s contention that he would place himself in danger of criminal prosecution were he to answer any questions.
The Fifth Amendment’s due process requirement was originally a procedural right that referred to methods of law enforcement. If a person was to be deprived of his life, liberty or property, such a deprivation had to conform to the common law standards of “due process.” The Amendment required a procedure, as Daniel Webster once put it, “that hears before it condemns, proceeds upon inquiries, and renders judgment only after a trial” in which the basic principles of justice have been observed.
The prohibition against taking private property for public use without just compensation is a restriction on the Federal government’s power of eminent domain. Federal courts have adopted a rule of interpretation that the “taking” must be “direct” and that private property owners are not entitled to compensation for indirect loss incidental to the exercise of governmental powers. Thus the courts have frequently held that rent-control measures, limiting the amount of rent which may be charged, are not a “taking,” even though such measures may decrease the value of the property or deprive the owners of rental income. As a general rule, Federal courts have not since 1937 extended the same degree of protection to property rights as they have to other civil rights.
Once again this Amendment has been trampled on by the Patriot Act and in 1942 Franklin Roosevelt’s Executive Order 9066 interned over 120,000 Japanese-Americans without due process. While the Supreme Court ruled for the plaintiff in Korematsu v. United States it held Roosevelt’s interment order to be constitutional.
The Sixth Amendment: Rights of the Accused:
“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.”
Here again the Bill of Rights reaffirms venerable protections for persons accused of crimes. The Amendment guarantees jury trial in criminal cases; the right of the accused “to be informed of the nature and cause of the accusation”; also the rights to confront witnesses, to obtain witnesses through the arm of the law, and to have lawyers’ help.
These are customs and privileges at law derived from long usage in Britain and America. The recent enlargement of these rights by Federal courts has caused much controversy. The right of assistance of counsel, for example, has been extended backward from the time of trial to the time the defendant is first questioned as a suspect, and forward to the appeals stage of the process. Under the so-called “Miranda” rule, police must read to a suspect his “Miranda” rights before interrogation. Only if a suspect waives his rights may any statement or confession obtained be used against him in a trial. Otherwise the suspect is said to have been denied “assistance of counsel.”
The Sixth Amendment also specifies that criminal trials must be “speedy.” Because of the great backload of cases in our courts, this requirement is sometimes loosely applied today. Yet, as one jurist has put the matter, “Justice delayed is justice denied.”
The 1966 landmark Miranda v. Arizona decision of the Warren Court further enforced this Amendment.
The Seventh Amendment: Trial by Jury in Civil Cases:
“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 reexamined in any court of the United States, than according to the rules of the common law.”
This guarantee of jury trial in civil suits at common law “where the value in controversy shall exceed twenty dollars” (a much bigger sum of money in 1789 than now) was included in the Bill of Rights chiefly because several of the States’ ratifying conventions had recommended it. It applies only to Federal cases, of course, and it may be waived. The primary purpose of the Amendment was to preserve the historic line separating the jury, which decides the facts, from the judge, who applies the law. It applies only to suits at common law, meaning “rights and remedies peculiarly legal in their nature.” It does not apply to cases in equity or admiralty law, where juries are not used. In recent years, increasingly large monetary awards to plaintiffs by juries in civil cases have brought the jury system somewhat into disrepute. It should be noted here that under the “due process and equal protection” clause” of the 14th Amendment most of these Bill of Rights Amendments have been applied to the states under the doctrine of “Incorporation.”
The Eighth Amendment: Bail and Cruel and Unusual Punishments:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
How much bail, fixed by a court as a requirement to assure that a defendant will appear in court at the assigned time, is “excessive”? What punishments are “cruel and unusual”? The monetary sums for bail have changed greatly over two centuries, and criminal punishments have grown less severe. Courts have applied the terms of this amendment differently over the years.
Courts are not required to release an accused person merely because he can supply bail bonds. The court may keep him imprisoned, for example, if the court fears that the accused person would become a danger to the community if released, or would flee the jurisdiction of the court. In such matters, much depends on the nature of the offense, the reputation of the alleged offender, and his ability to pay. Bail of a larger amount than is usually set for a particular crime must be justified by evidence.
As for cruel and unusual punishments, public whipping was not regarded as cruel and unusual in 1789, but it is probably so regarded today. In recent years, the Supreme Court has found that capital punishment is not forbidden by the Eighth Amendment, although the enforcement of capital punishment must be carried out so as not to permit jury discretion or to discriminate against any class of persons. Punishment may be declared cruel and unusual if it is out of all proportion to the offense.
The Ninth Amendment: Rights Retained by the People:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Are all the rights to be enjoyed by citizens of the United States enumerated in the first eight amendments and in the Articles of the original Constitution? If so, might not the Federal government, at some future time, ignore a multitude of customs, privileges, and old usages cherished by American men and women, on the ground that these venerable ways were not rights at all? Does a civil right have to be written expressly into the Constitution in order to exist? The Seven Articles and the first eight amendments say nothing, for example, about a right to inherit property, or a right of marriage. Are, then, rights to inheritance and marriage wholly dependent on the will of Congress or the President at any one time?
The Federalists had made such objections to the very idea of a Bill of Rights being added to the Constitution. Indeed, it seemed quite possible to the first Congress under the Constitution that, by singling out and enumerating certain civil liberties, the Seven Articles and the Bill of Rights might seem to disparage or deny certain other prescriptive rights that are important but had not been written into the document.
The Ninth Amendment was designed to quiet the fears of the Anti-Federalists who contended that, under the new Constitution, the Federal government would have the power to trample on the liberties of the people because it would have jurisdiction over any right that was not explicitly protected against Federal abridgment and reserved to the States. They argued in particular that there was an implied exclusion of trial by jury in civil cases because the Constitution made reference to it only in criminal cases.
Written to serve as a general principle of construction, the Ninth Amendment declares that “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” The reasoning behind the amendment springs from Hamilton’s 83rd and 84th essays in The Federalist. Madison introduced it simply to prevent a perverse application of the ancient legal maxim that a denial of power over a specified right does not imply an affirmative grant of power over an unnamed right.
This amendment is much misunderstood today, and it is sometimes thought to be a source of new rights, such as the “right of privacy,” over which Federal courts may establish jurisdiction. It should be kept in mind, however, that the original purpose of this amendment was to limit the powers of the Federal government, not to expand them.
The Tenth Amendment: Rights Retained by the States:
“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 last amendment in the Bill of Rights was probably the one most eagerly desired by the various State conventions and State legislatures that had demanded the addition of a bill of rights to the Constitution. Throughout the country, the basic uneasiness with the new Constitution was the dread that the Federal government would gradually enlarge its powers and suppress the States’ governments. The Tenth Amendment was designed to lay such fears to rest.
This amendment was simply a declaration 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.” The Federalists maintained that the Framers at Philadelphia had meant from the first that all powers not specifically assigned to the Federal government were reserved to the States or the people of the States.
The amendment declares that powers are reserved “to the States respectively, or to the people,” meaning they are to be left in their original state.
It should be noted that the Tenth Amendment does not say that powers not expressly delegated to the United States are reserved to the States. The authors of the Bill of Rights considered and specifically rejected such a statement. They believed that an amendment limiting the national government to its expressed powers would have seriously weakened it.
During much of our history, the Tenth Amendment was interpreted as a limitation of the delegated powers of Congress. Since 1937 (and Roosevelt’s the Progressive Supreme Court), however, the Supreme Court has largely rejected this view, and the Amendment no longer has the same operative meaning or effect that it once had.
In many ways, such as the passage of ObamaCare, this Amendment has been weakened by various Supreme Court decisions aimed at giving the Federal government more and more power over our lives. This is especially true with the issues of EPA regulations, Gay marriage, and Abortion.
Rights versus Duties:
Some Americans seem to fancy that the whole Constitution is a catalog of people’s rights. But actually the major part of the Constitution—the Seven Articles—establishes a framework of national government and only incidentally deals with individuals’ rights.
In any society, duties are often even more important than rights. For example, the duty of obeying good laws is more essential than the right to be exempted from the ordinary operation of the laws. As has been said, every right is married to some duty. Freedom involves individual responsibility.
With that statement in mind, let us look at some of the provisions of the Bill of Rights to see how those rights are joined to certain duties.
If one has a right to freedom of speech, one has a duty to speak decently and honestly, not inciting people to riot or to commit crimes.
If one has a right to freedom of the press (or, in our time, freedom of the “media”), one has the duty to publish the truth, temperately — not abusing this freedom for personal advantage or vengeance.
If one has a right to join other people in a public assembly, one has the duty to tolerate other people’s similar gatherings and not to take the opportunity of converting a crowd into a mob.
If one has the right to bear a firearm you do not have the right to use it in an illegal of criminal manner.
If one enjoys an immunity from arbitrary search and seizure, one has the duty of not abusing these rights by unlawfully concealing things forbidden by law.
If one has a right not to be a witness against oneself in a criminal case, one has the duty not to pretend that he would be incriminated if he should testify: that is, to be an honest and candid witness, not taking advantage of the self-incrimination exemption unless otherwise one would really be in danger of successful prosecution.
If one has a right to trial by jury, one ought to be willing to serve on juries when so summoned by a court.
If one is entitled to rights, one has the duty to support the public authority that protects those rights.
For, unless a strong and just government exists, it is vain to talk about one’s rights. Without liberty, order, and justice, sustained by good government, there is no place to which anyone can turn for enforcement of his claims to rights. This is because a “right,” in law, is a claim upon somebody for something. If a man has a right to be paid for a day’s work, for example, he asserts a claim upon his employer; but, if that employer refuses to pay him, the man must turn to a court of law for enforcement of his right. If no court of law exists, the “right” to payment becomes little better than an empty word. The unpaid man might try to take his pay by force, true; but when force rules instead of law, a society falls into anarchy and the world is dominated by the violent and the criminal. Similarly does one man have the right to take the property of another simply because some law allows him to do?
Knowing these hard truths about duties, rights, and social order, the Framers endeavored to give us a Constitution that is more than mere words and slogans. Did they succeed? At the end of two centuries, the Constitution of the United States still functions adequately. Had Americans followed the French example of placing all their trust in a naked declaration of rights, without any supporting constitutional edifice to limit power and the claims of absolute liberty, it may be doubted whether liberty, order, or justice would have prevailed in the succeeding years. There cannot be better proof of the wisdom of the Framers than the endurance of the Constitution.
Finally these rights belong to you, the people. They are not the government’s rights to give out, modify or take away without the consent of the governed (you) through the ratification process as expressed in Article V of the Constitution. These rights are to be considered unalienable rights as expressed in the Declaration of Independence as contributing to your life, liberty and the pursuit of happiness. They are rights that control the overreach of government and do not take one right from another to give a new right to someone else.
In his 1944 Annual Message to Congress the Progressive Franklin Roosevelt called for a new bill of rights. He called for:
- The right to a useful and remunerative job in the industries, or shops or farms or mines of the Nation;
- The right to earn enough to provide adequate food and clothing and recreation;
- The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;
- The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;
- The right of every family to a decent home;
- The right to adequate medical care and the opportunity to achieve and enjoy good health;
- The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
- The right to a good education.
Every one of these rights not enumerated in the Constitution or Bill of Rights would emanate from government, which would have the power to rescind or modify that right. They would also take from one class of citizen to give to another class through corrosion and taxes. In that sense they would not be unalienable and like the French Declaration of Rights without any supporting constitutional edifice to limit power and the claims of absolute liberty.