Bill of Rights

CONSTITUTION:BILL OF RIGHTS

Chapter 3

The “Doh!” Survey In 2006, the McCormick Tribune Foundation

conducted a random telephone survey of 1,000 American adults. The survey was conducted on January 20-22, 2006 by

Synovate, an independent market research firm. The survey asked each participant to:

Name all five of the fictional Simpsons family members. Name all five of the fundamental freedoms guaranteed

by the First Amendment. Are you SMARTER than the average

American???

The “Doh!” Survey The survey produced the following results:

220/1,000 Americans could name all five of the Simpsons family members – that is 22%

1/1,000 Americans was able to name all five freedoms guaranteed under the First Amendment – that is 0.1%

Ironically, Americans believe all of the following were First Amendment rights… Right against self-incrimination (38%) Women’s suffrage (36%) Right to drive (22%) Right to own and raise pets (21%)

Amendment I (1791) “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.”

Amendment I The opening phrase of the First Amendment states

“Congress shall make no law.” This phrase immediately tells exactly who this amendment

is aimed at and that entity is Congress. It does not however, prohibit the states from making such

laws, nor does it prohibit individuals from restricting these rights to those under their authority, such as a parent and child or employer and an employee.

For more than 100 years, the First Amendment was understood to only apply to the federal government, but after the Civil War and the passage of the Fourteenth Amendment, the courts began to forbid states to interfere with these rights.

Amendment I The Establishment clause states that “Congress

shall make no law respecting an establishment of religion.” This clause prohibits the government from establishing a

state religion or denomination and from directing people in what they must believe.

The Free Exercise clause states that “Congress shall make no law respecting the establishment of religion or the free exercise thereof.” This clause deals with the restriction on Congress to

regulate an individual’s religious practices. In general, Congress cannot tell people how they

can or cannot express their religious beliefs.

Amendment I Sometimes, however, minority religious organizations

(cults) may want to practice something that is not generally accepted or that the state has a very strong interest in regulating. For example: polygamy, ritual sacrifice, and drug usage have all

been banned because there is a compelling public interest in eliminating these behaviors.

The Freedom of Speech clause states that “Congress shall make no law… abridging the freedom of speech.” British history contained a long string of suppression by those

in authority, imprisoning subjects for voicing their religious and political beliefs.

The Founders intended to prevent this from ever happening in their newly formed republic.

Amendment I Generally, freedom of speech is considered to be

not only the words people speak, but any type of expression that is used to convey an idea. Such things as picketing, wearing symbols, or burning

the flag are considered protected forms of speech because they are expressing the ideas of the people participating in them.

Negatively speaking, many people abuse this right by slandering those they disagree with or using ugly and offensive language, racial epithets or hateful language about individuals who are different than they are.

Amendment I The Freedom of the Press clause states that “Congress

shall make no law… abridging the freedom… of the press.” This was a very important principle to the Founders

because of the importance the press played during the Revolutionary War. The press turned out to be a very important instigation in getting

Americans to consolidate their views against England and in spreading the concepts that would justify a break with England.

English history contained no freedoms for the press whatsoever. All publications were subject to governmental review before

publication. The colonists desired the right to criticize their government

freely as well as to discuss other topics whenever they chose.

Amendment I The Freedom of Assembly clause states “Congress

shall make no law… abridging… the right of the people peaceably to assemble…” This clause protects the right to assemble in peace to all

Americans. This clause was very important to the colonists because

without the right to assemble, they could not coordinate their opposition to the British government. Additionally, it is recognized to be of upmost importance if the

Founders were to be successful in establishing a government of the people.

Numerous organizations, such as civil rights groups, women’s suffrage groups, and labor unions, have relied upon this clause in American history.

Amendment I The Freedom of Petition clause states “Congress shall

make no law… abridging the freedom of the people… to petition the Government for a redress of grievances.”

The freedom to petition the government was vital to the colonists because of their experience with trying to get George III and Parliament to respond to their grievances. The colonists were angered about the monarchy’s refusal to

acknowledge their grievances that they mentioned this fact in the Declaration of Independence.

The freedom to petition the government for redress of grievance has come to include the right to do such things as picketing, protesting, conducting peaceful sit-ins or boycotts, and addressing government officials through any media available.

Amendment II (1791) “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.”

Amendment II (1791) The right to bear arms was of vital importance to the

Founders because they did not want the government to overpower the citizens if the government should become corrupt. If citizens were not allowed to own their own firearms then they

could easily be controlled and enslaved by the government. In recent years, the meaning of the Second Amendment

has been debated vehemently. On one hand, the first part of the amendment speaks directly of

a “well regulated militia” and implies that some relationship must exist between the private gun owner’s rights and more formal state activities.

On the other hand, the second part of the amendment appears to trumpet the “people’s” right to own firearms at their discretion.

Amendment II Several court decisions have created limitations on

the ability of Americans to own and carry firearms. Limitations on owning a firearm include increasing the

requirement of licensing, educational classes, and background checks.

Limitations on carrying a firearm include creating zones where guns are not permitted.

In 2008, the Supreme Court ruled for the first time that certain gun control laws may violate an individual’s Second Amendment right to “bear arms,” but it remains unclear whether that ruling applies to state governments.

Amendment III (1791) “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.”

Amendment III (1791) The Third Amendment has been all but lost to history.

The amendment forbids the government from quartering troops on an individual’s private property during peacetime and only as prescribed by law during times of war.

The Quartering Act, which required the American colonists to provide shelter and supplies for British troops, was one of the grievances that provoked the Declaration of Independence and ultimately the Revolution. Many colonists resented having to house British soldiers in

private homes so the Third Amendment aimed to protect private citizens from such invasions.

Amendment IV (1791) “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.”

Amendment IV (1791) “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.”

Amendment IV (1791) Like the First Amendment, the Fourth Amendment is a

uniquely American right. The Fourth Amendment protects American citizens from illegal

searches and seizures of their private property and requires that a warrant be issued in order for a government official to search or seize private property.

The Fourth Amendment had its origins in the British “writs of assistance” that were used by colonial officials to search for smuggled contraband. The colonists had a habit of trying to evade custom duties on

imported goods because taxes were so steep. In response, the customs officials would get a “writ of

assistance,” which gave them authority to search any private property, any time they wished.

Amendment IV (1791) The Fourth Amendment generally requires that

in order for a search to be conducted of private property, a warrant must be issued by a judge and only when there has been probable cause demonstrated that a crime has been committed.

Additionally, the amendment includes a controversial exclusionary rule, which excludes from trial all evidence seized in violation of a defendant’s constitutional rights. If evidence of a crime is obtained outside of this

process, the search and seizure is deemed illegal and the evidence is no longer admissible in court.

Amendment V (1791) “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.”

Amendment V (1791) The Fifth Amendment is a collection of various

rights, most of which are important primarily to those accused of a crime.

The Fifth Amendment includes: Grand Jury clause

Grand Jury Exception clause Double Jeopardy clause Self-Incrimination clause Due Process clause Eminent Domain clause

Amendment V (1791) The Grand Jury clause states the right to be

indicted by a Grand Jury for serious federal crimes. This protection uses a group of average citizens to

review the evidence first before declaring whether or not a potential case should go to trial.

This is a protection against corrupt government officials who might attempt to try someone unfairly.

The Grand Jury Exception clause makes an exception to the right to have evidence examined by a Grand Jury for military personnel. The Founders did this because of the unique situations that

occur for military personnel on the battlefield – regular citizens and judges would not be able to relate to the situations faced by soldiers.

Amendment V (1791) The Double Jeopardy clause states the right to not be

tried or punished twice for the same offense. Modern courts apply this rule to all cases unless the first trial is

found to be fraudulent. The Self-Incrimination clause states the right to not

testify against oneself in criminal proceedings. At one time, English subjects could be tortured for not

confessing to crimes of which they were accused. This led to many faulty confessions and convictions because

people would confess to the crime, even if they did not do it, to avoid being tortured.

This practice was finally challenged and the right to not testify against oneself became standard practice in English law.

Amendment V (1791) The Due Process clause states that the right to de

deprived of life, liberty, or property can only come by due process of law. This right asserts that the government must follow all written laws

and procedures when dealing with criminal and administrative matters.

The due process clauses of the Fifth and Fourteenth Amendments have been subject of much controversy due to many rulings by the U.S. Supreme Court.

Many believe the Court has used “due process” to wrest power away from state legislatures and Congress due to using very broad definitions of “life, liberty, and property,” that have created many “rights” not listed in the Constitution.

Amendment V (1791) The Eminent Domain clause states the right to be

paid a reasonable amount of money if the government needs your property for public use.

If the government needs your property to build a highway or a school, it must pay you a reasonable amount of money for the transaction. The private citizen has no right to refuse the transaction,

only the right to be fairly compensated. In recent years, some jurisdictions have attempted to

use this procedure to take private property from one party and sell it to another. The constitutionality of this procedure has been the subject of

debate; however, the court has upheld the procedure when the new use of the property would somehow benefit the public.

Amendment VI (1791) “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.”

Amendment VI (1791) The Sixth Amendment offers the accused numerous

constitutional protections. The Sixth Amendment guarantees the accused of seven

specific rights: The right to a speedy trial The right to a public trial The right to be judged by an impartial jury The right to be notified of the nature and circumstances of the

alleged crime The right to confront witnesses who will testify against the

accused The right to find witnesses who will speak in favor of the accused The right to have a lawyer

Amendment VI (1791) The Speedy Trial clause guarantees that you must

be tried quickly and not left to sit in jail for a long period of time before trial.

The Public Trial clause guarantees that trials must be concluded in public in order to prevent false charges or other underhandedness by court officials.

The Trial by Jury clause guarantees the accused that a jury of his/her peers will decide his/her fate, rather than court officials who might be corrupt.

The Arraignment clause guarantees that you must be informed of the charges against you.

Amendment VI (1791) The Confrontation clause guarantees you the

right to confront and challenge any witnesses testifying against you.

The Compulsory clause guarantees the right to call witnesses to testify on your behalf and have the government force them to testify even if they do not wish to.

The Consul clause guarantees you the right to have an attorney assist you if you are charged with a crime.

Amendment VII (1791) “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.”

Amendment VII (1791) The Seventh Amendment is the only amendment in the

Bill of Rights that focuses on elements of civil trials exclusively. It preserves the distinction the English system draws between

courts of common law (in which juries grant monetary relief) and courts of equity (in which a judge grants non-monetary relief).

The Seventh Amendment guarantees the right to trial by jury in civil cases.

In such cases, a group of the accused’s own peers make the determination of guilt or innocence, rather than one individual in the employment of the government. The accused’s neighbors and peers are likely to have similar

interests and beliefs as the accused person.

Amendment VII (1791) The colonists had gone through a period of being

denied the right to trial by jury under the British Crown.

Due to high taxation and trade laws, colonists were heavily engaged in smuggling. Officials began to try and convict more and more colonists

for their smuggling operations, but colonial juries frequently acquitted the accused smugglers, even if they had blatantly violated the law.

George III, in turn, set up new courts without juries, so they could not undermine the convictions. This gave an enormous amount of power to judges who often

had personal motives to convict the accused.

Amendment VIII (1791) “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.”

Amendment VIII (1791) The Eighth Amendment offers protections that

come directly from the English Bill of Rights. The amendment asserts three protective rights

to all Americans: the Excessive Bail clause the Excessive Fines clause the Cruel and Unusual Punishment clause

Amendment VIII (1791) Bail is paid by an accused defendant in order to get out of

incarceration before the date of his/her trial. If the defendant shows up for their trial, the bail money is returned

to them, but if they fail to show up for their trial then they forfeit the money.

The Excessive Bail clause states must be set sufficiently high that the accused person has an incentive to show up for their trial so they do not lose their money, but it cannot be set so high that it is an unreasonable amount.

This was important to the Founding Fathers due to instances when judges required such high bail that there was no way the accused could pay. Judges often did this to punish people with different political beliefs.

Amendment VIII (1791) The Excessive Fines clause states that the

Courts will not allow fines that are grossly disproportional to the seriousness of the offense. This is one of the least used provisions of the Bill of

Rights. The Cruel and Unusual Punishment clause

states that punishments must be in proportionality to the crime committed. In general, a punishment is considered to be cruel

and unusual if the majority of the public would deem it to be so, but if the majority of the public approves of a certain type of punishment, it is usually allowed.

Amendment VIII (1791) Great Britain had a long and terrible history of cruel and

unusual punishments inflicted on convicted criminals. Examples include burning at the stake, draw and quartering,

crucifixion, castration, and the breaking wheel. America’s Founding Fathers wanted to make sure that

no such punishments were inflicted in the United States. Over time, however, the Supreme Court’s definition of

“cruel and unusual” has changed. In the original thirteen colonies, the death penalty was permitted

for crimes other than murder, whereas today it is only permitted for treason and murder.

Additionally, it is not allowed if the accused is younger than eighteen or mentally incompetent at the time of the crime.

Amendment VIII (1791) States with Capital Punishment:

Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming

United States government and military States without Capital Punishment:

Alaska, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin

District of Columbia

Amendment VIII (1791) All thirty-two states have lethal injection as their

primary method of execution; yet, numerous states have other method which the accused can consider.

Eight states’ secondary method is electrocution: Alabama, Arkansas, Florida, Kentucky, Oklahoma, South

Carolina, Tennessee, Virginia Three states’ secondary method is the gas

chamber: Arizona, Missouri, Wyoming

Three states’ secondary method is hanging: Delaware, New Hampshire, Washington

Two states’ secondary method is a firing squad: Oklahoma, Utah

Amendment IX (1791) “The enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage others retained by the people.”

Amendment IX (1791) The Ninth Amendment is one of the least referred to

amendments in the Bill of Rights and yet it is probably one of the most important and controversial.

In plain language, the amendment means that although the Constitution lists certain rights of the people that may not be violated by the government, there are other rights of the people that are not listed, that the government may not violate either. The Founding Fathers believed that man inherently has

natural rights by virtue of his being human and that the government should not violate those rights.

They also thought it was impossible for them to list all such rights.

Amendment IX (1791) The problem is that the modern Supreme Court

has taken it upon itself to determine what those extra, unlisted rights are. The states and the people have not challenged the

Court in this endeavor.

Amendment X (1791) “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.”

Amendment X (1791) The Tenth Amendment reserves any rights not granted to

the federal government in the Constitution to the states. The Founding Fathers were extremely concerned that the

government not be too powerful – after all, they had just fought a war to rid themselves of a tyrannical government.

The amendment states that any powers not specifically given to the federal government were reserved to the states.

In recent years, through a set of gradual changes, the right of the states has been largely abandoned. The Supreme Court and Congress have taken the initiative to

legislate in many areas that were once reserved to the states. This transition began with Franklin Delano Roosevelt and his New

Deal programs.