Videos Explaining the Bill of Rights in the Constitution
Bill of Rights
OATH OF OFFICE; KNOW THE LAW; KNOW YOUR ENEMY!
https://www.bitchute.com/video/7TfaEOqCZHk/
BILL OF RIGHTS; PREAMBLE
https://www.bitchute.com/video/20t_Ua_ILPY/
FIRST AMENDMENT; BILL OF RIGHTS
https://www.bitchute.com/video/hlGLjCAVWbI/
SECOND AMENDMENT; BILL OF RIGHTS
https://www.bitchute.com/video/Dy2DHC1Sh0M/
THIRD AMENDMENT; BILL OF RIGHTS
https://www.bitchute.com/video/k_IDGFl7NDo/
FOURTH AMENDMENT; SEARCH AND SEIZURE
https://www.bitchute.com/video/WcsQDC0XA2I/
FIFTH AMENDMENT; GRAND JURIES; DOUBLE JEOPARDY; SELF-INCRIMINATION; DUE PROCESS; JUST COMPENSATION
https://www.bitchute.com/video/aJp1FjSJzb4/
SIXTH AMENDMENT; US CONSTITUTION; SPEEDY PUBLIC TRIAL; IMPARTIAL JURY; COUNSEL
https://www.bitchute.com/video/erBRjjA4pdbk/
SELF-REPRESENTATION AND COUNSEL OF CHOICE; SIXTH AMENDMENT
https://www.bitchute.com/video/yqDMwiNSRQE/
SEVENTH AMENDMENT; JURY TRIALS; ACCESS TO FEDERAL CIVIL COURTS
https://www.bitchute.com/video/fwO6XAkb178U/
EIGHTH AMENDMENT; NO EXCESSIVE BAIL; NO EXCESSIVE FINES; NO CRUEL PUNISHMENTS
https://www.bitchute.com/video/3q5VAQp1jgXj/
NINTH AMENDMENT; US CONSTITUTION; INALIENABLE RIGHTS
https://www.bitchute.com/video/prx3nk6EcwN3/
TENTH AMENDMENT; FEDERAL POWERS LIMITED
https://www.bitchute.com/video/ZLHnqIQGtTg/
United States Bill of Rights
The incorporation of the Bill of Rights (or incorporation for short) is the process by which American courts have applied portions of the U.S. Bill of Rights to the states. Prior to 1925, the Bill of Rights was held only to apply to the federal government. Under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments.
Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.
History
The doctrine of incorporation has been traced back to either Chicago, Burlington and Quincy Railroad v. City of Chicago (1897) in which the Supreme Court appeared to require some form of just compensation for property appropriated by state or local authorities (although there was a state statute on the books that provided the same guarantee) or, more commonly, to Gitlow v. New York (1925), in which the Court expressly held that States were bound to protect freedom of speech. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights.[1]
Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation has not yet been addressed include the Fifth Amendment right to an indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil lawsuits.
Incorporation applies both procedurally and substantively to the guarantees of the states. Thus, procedurally, only a jury can convict a defendant of a serious crime, since the Sixth Amendment jury-trial right has been incorporated against the states; substantively, for example, states must recognize the First Amendment prohibition against a state-established religion, regardless of whether state laws and constitutions offer such a prohibition. The Supreme Court has declined, however, to apply new procedural constitutional rights retroactively against the states in criminal cases (Teague v. Lane, 489 U.S. 288 (1989)) with limited exceptions, and it has waived constitutional requirements if the states can prove that a constitutional violation was "harmless beyond a reasonable doubt."[citation needed]
Rep. John Bingham, the principal framer of the Fourteenth Amendment, advocated that the Fourteenth applied the first eight Amendments of the Bill of Rights to the States.[2] The U.S. Supreme Court subsequently declined to interpret it that way. Until the 1947 case of Adamson v. California, Supreme Court Justice Hugo Black argued in his dissent that the framers' intent should control the Court's interpretation of the 14th Amendment, and he attached a lengthy appendix that quoted extensively from Bingham's congressional testimony.[3] Although the Adamson Court declined to adopt Black's interpretation, the Court during the following twenty-five years employed a doctrine of selective incorporation that succeeded in extending to the States almost all of the protections in the Bill of Rights, as well as other, unenumerated rights. The 14th Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.[4]
Selective versus total incorporation
In the 1940s and 1960s the Supreme Court gradually issued a series of decisions incorporating several of the specific rights from the Bill of Rights, so as to be binding upon the States.[5] A dissenting school of thought championed by Justice Hugo Black supported that incorporation of specific rights, but urged incorporation of all specific rights instead of just some of them. Black was for so-called mechanical incorporation, or total incorporation, of Amendments 1 through 8 of the Bill of Rights (Amendments 9 and 10 being patently connected to the powers of the federal government alone).[6] Black felt that the Fourteenth Amendment required the States to respect all of the enumerated rights set forth in the first eight amendments, but he did not wish to see the doctrine expanded to include other, unenumerated "fundamental rights" that might be based on the Ninth Amendment. Black felt that his formulation eliminated any arbitrariness or caprice in deciding what the Fourteenth Amendment ought to protect, by sticking to words already found in the Constitution. Although Black was willing to invalidate federal statutes on federalism grounds, he was not inclined to read any of the first eight amendments as states' rights provisions as opposed to individual rights provisions.[6] Justice Black felt that the Fourteenth Amendment was designed to apply the first eight amendments from the Bill of Rights to the states, as he expressed in his dissenting opinion in Adamson v. California.[7] This view was again expressed by Black in his concurrence in Duncan v. Louisiana: "'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States' seem to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States."[8]
Due process interpretation
Justice Felix Frankfurter, however, felt that the incorporation process ought to be incremental, and that the federal courts should only apply those sections of the Bill of Rights whose abridgment would "shock the conscience," as he put it in Rochin v. California (1952). Such a selective incorporation approach followed that of Justice Moody, who wrote in Twining v. New Jersey (1908) that "It is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law." The due process approach thus considers a right to be incorporated not because it was listed in the Bill of Rights, but only because it is required by the definition of due process, which may change over time. For example, Moody's decision in Twining stated that the 5th Amendment right against self-incrimination was not inherent in a conception of due process and so did not apply to states, but was overruled in Malloy v. Hogan (1964). Similarly, Justice Cardozo stated in Palko v. Connecticut (1937) that the right against double jeopardy was not inherent to due process and so does not apply to the states, but that was overruled in Benton v. Maryland (1969). Frankfurter's incrementalist approach did carry the day, but the end result is very nearly what Justice Black advocated, with the exceptions noted below.
Incorporation under Privileges or Immunities
Some have suggested that the privileges or immunities clause would be a more appropriate textual basis than the due process clause for incorporation of the Bill of Rights.[9] It is often said that the Slaughter-House Cases "gutted the privileges or immunities clause" and thus prevented its use for applying the Bill of Rights against the states.[10] In his dissent to Adamson v. California, however, Justice Hugo Black pointed out that the Slaughter-House Cases did not directly involve any right enumerated in the Constitution:
[T]he state law under consideration in the Slaughter-House cases was only challenged as one which authorized a monopoly, and the brief for the challenger properly conceded that there was "no direct constitutional provision against a monopoly." The argument did not invoke any specific provision of the Bill of Rights, but urged that the state monopoly statute violated "the natural right of a person" to do business and engage in his trade or vocation.[11]
Thus, in Black's view, the Slaughterhouse Cases should not impede incorporation of the Bill of Rights against the states, via the Privileges or Immunities Clause. Some scholars go even further, and argue that the Slaughterhouse Cases affirmatively supported incorporation of the Bill of Rights against the states.[12] In dicta, Justice Miller's opinion in Slaughterhouse went so far as to acknowledge that the "right to peaceably assemble and petition for redress of grievances ... are rights of the citizen guaranteed by the Federal Constitution," although in context Miller may have only been referring to assemblies for petitioning the federal government.[13]
In the 2010 landmark case McDonald v. Chicago, the Supreme Court declared the Second Amendment is incorporated through the Due Process Clause. However, Justice Thomas, the fifth justice in the majority, criticized substantive due process and declared instead that he reached the same incorporation only through the Privileges or Immunities Clause. No other justice attempted to question his rationale. This is considered by some as a "revival" of the Privileges or Immunities Clause,[14] however as it is a concurring opinion and not the majority opinion in the case, it holds no legal weight in lower courts; it is merely an indication that SCOTUS may be inclined, given the proper question, to reconsider and ultimately reverse the Slaughterhouse Cases.
Specific amendments
Many of the provisions of the First Amendment were applied to the States in the 1930s and 1940s, but most of the procedural protections provided to criminal defendants were not enforced against the States until the Warren Court of the 1960s, famous for its concern for the rights of those accused of crimes, brought state standards in line with federal requirements. The following list enumerates, by amendment and individual clause, the Supreme Court cases that have incorporated the rights contained in the Bill of Rights. (The Ninth Amendment is not listed; its wording indicates that it "is not a source of rights as such; it is simply a rule about how to read the Constitution."[15] The Tenth Amendment is also not listed; by its wording, it is a reservation of powers to the states and to the people.)
Amendment I
Guarantee against establishment of religion
• This provision has been incorporated against the states. See Everson v. Board of Education, 330 U.S. 1 (1947).[16]
Guarantee of free exercise of religion
• This provision has been incorporated against the states. See Cantwell v. Connecticut, 310 U.S. 296 (1940).
Guarantee of freedom of speech
• This provision has been incorporated against the states. See Gitlow v. New York, 268 U.S. 652 (1925)(dicta).
Guarantee of freedom of the press
• This provision has been incorporated against the states. See Near v. Minnesota, 283 U.S. 697 (1931).
Guarantee of freedom of assembly
• This provision has been incorporated against the states. See DeJonge v. Oregon, 299 U.S. 353 (1937).
Right to petition for redress of grievances
• This provision has been incorporated against the states. See Edwards v. South Carolina, 372 U.S. 229 (1963).[17][18]
Guarantee of freedom of expressive association
• This right, though not in the words of the first amendment, was first mentioned in the case NAACP v. Alabama, 357 U.S. 449 (1958)[19] and was at that time applied to the states. See also Roberts v. United States Jaycees, 468 U.S. 609 (1984), where the U.S. Supreme Could hold that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends."
Amendment II
Right to keep and bear arms
• This right has been incorporated against the states. See McDonald v. Chicago (2010).
Amendment III
Freedom from quartering of soldiers
• This provision has been incorporated against the states within the jurisdiction of the United States Court of Appeals for the Second Circuit, but has not been incorporated against the states elsewhere.
In 1982, the Second Circuit applied the Third Amendment to the states in Engblom v. Carey. This is a binding authority over Connecticut, New York, and Vermont, but is only a persuasive authority over the remainder of the United States.
The Tenth Circuit has suggested that the right is incorporated because the Bill of Rights explicitly codifies the "fee ownership system developed in English law" through the Third, Fourth, and Fifth Amendments, and the Fourteenth Amendment likewise forbids the states from depriving citizens of their property without due process of law. See United States v. Nichols, 841 F.2d 1485, 1510 n.1 (10th Cir. 1988).
Amendment IV
Unreasonable search and seizure
• This right has been incorporated against the states by the Supreme Court's decision in Wolf v. Colorado, 338 U.S. 25 (1949)
• The remedy of exclusion of unlawfully seized evidence, the Exclusionary rule, has been incorporated against the states. See Mapp v. Ohio, 367 U.S. 643 (1961). In Mapp, the Court overruled Wolf v. Colorado, 338 U.S. 25 (1949), in which the Court had ruled that while the Fourth Amendment applied to the states (meaning that they were bound not to engage in unreasonable searches and seizures), the exclusionary rule did not (meaning that they were free to fashion other remedies for criminal defendants whose possessions had been illegally seized by the police in violation of the Fourth Amendment).
Warrant requirements
• The various warrant requirements have been incorporated against the states. See Aguilar v. Texas, 378 U.S. 108 (1964).
• The standards for judging whether a search or seizure undertaken without a warrant was "unreasonable" also have been incorporated against the states. See Ker v. California, 374 U.S. 23 (1963).
Amendment V
Right to indictment by a grand jury
• This right has been held not to be incorporated against the states. See Hurtado v. California, 110 U.S. 516 (1884).
Protection against double jeopardy
• This right has been incorporated against the states. See Benton v. Maryland, 395 U.S. 784 (1969).
Constitutional privilege against self-incrimination
• This right has been partially incorporated against the states.
1. Self Incrimination in Court "See Twining v. New Jersey(1905) and Adamson v California(1948) See Griffin v. California, 380 U.S. 609 (1965).
2. Miranda See Malloy v. Hogan, 378 U.S. 1 (1964).
• A note about the Miranda warnings: The text of the Fifth Amendment does not require that the police, before interrogating a suspect whom they have in custody, give him or her the now-famous Miranda warnings. Nevertheless, the Court has held that these warnings are a necessary prophylactic device, and thus required by the Fifth Amendment by police who interrogate any criminal suspect in custody, regardless of whether he or she is ultimately prosecuted in state or federal court.
Protection against taking of private property without just compensation
• This right has been incorporated against the states. See Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).
Amendment VI
Right to a speedy trial
• This right has been incorporated against the states. See Klopfer v. North Carolina, 386 U.S. 213 (1967).
Right to a public trial
• This right has been incorporated against the states. See In re Oliver, 333 U.S. 257 (1948).
Right to trial by impartial jury
• This right has been incorporated against the states. See Duncan v. Louisiana, 391 U.S. 145 (1968), which guarantess the right to a jury trial in non-petty cases.[20] See also Parker v. Gladden, 385 U.S. 363 (1966), where the Supreme Court ruled "that the statements of the bailiff to the jurors are controlled by the command of the Sixth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment. It guarantees that 'the accused shall enjoy the right to a * * * trial, by an impartial jury * * * [...].'"[20] However, the size of the jury, as well as the requirement that it unanimously reach its verdict, vary between federal and state courts. Even so, the Supreme Court has ruled that a jury in a criminal case may have as few as six members. Williams v. Florida, 399 U.S. 78 (1970). If there are twelve, only nine jurors need agree on a verdict. Furthermore, there is no right to a jury trial in juvenile delinquency proceedings held in state court. See McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
Right to a jury selected from residents of the state and district where the crime occurred
• This right has not been incorporated against the states. See Caudill v. Scott, 857 F.2d 344 (6th Cir. 1988); Cook v. Morrill, 783 F.2d 593 (5th Cir. 1986); Zicarelli v. Dietz, 633 F.2d 312 (3d Cir. 1980).
Right to notice of accusations
• This right has been incorporated against the states. See In re Oliver, 333 U.S. 257 (1948). See also Rabe v. Washington, 405 U.S. 313 (1972).[20]
Right to confront adverse witnesses
• This right has been incorporated against the states. See Pointer v. Texas, 380 U.S. 400 (1965).
Right to compulsory process (subpoenas) to obtain witness testimony
• This right has been incorporated against the states. See Washington v. Texas, 388 U.S. 14 (1967).
Right to assistance of counsel
• This right has been incorporated against the states. See Powell v. Alabama 287 U.S. 85 (1932), for capital cases, see Gideon v. Wainwright, 372 U.S. 335 (1963) for all felony cases, and see Argersinger v. Hamlin, 407 U.S. 25 (1972) for imprisonable misdemeanors.[20] In subsequent decisions, the Court extended the right to counsel to any case in which a jail sentence is imposed.
Amendment VII
Right to jury trial in civil cases
• This right has been held not to be incorporated against the states. See Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916).
Re-Examination Clause
• This clause has been applied to the states. See The Justices v. Murray, 76 U.S. 9 Wall. 274 (1869).
Amendment VIII
Protection against excessive bail
• This provision may have been incorporated against the states. In Schilb v. Kuebel, 404 U.S. 357 (1971), the Court stated in dicta: "Bail, of course, is basic to our system of law, and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment." In Murphy v. Hunt, 455 U.S. 478 (1982), the Court did not reach the issue because the case was dismissed as moot. Bail was included in the list of incorporated rights in McDonald footnote 12, citing Schilb.
Protection against excessive fines
• This provision has not been incorporated. See McDonald v. City of Chicago, footnote 13 (2010).
Protection against cruel and unusual punishments
• This provision has been incorporated against the states. See Robinson v. California, 370 U.S. 660 (1962). This holding has led the Court to suggest, in dicta, that the excessive bail and excessive fines protections have also been incorporated. See Baze v. Rees, 128 S. Ct. 1520, 1529 (2008).
Reverse incorporation
A similar legal doctrine to incorporation is that of reverse incorporation. Whereas incorporation applies the Bill of Rights to the states though the Due Process Clause of the Fourteenth Amendment, in reverse incorporation, the Equal Protection Clause of the Fourteenth Amendment has been held to apply to the federal government through the Due Process Clause located in the Fifth Amendment.[21] For example, in Bolling v. Sharpe, 347 U.S. 497 (1954), which was a companion case to Brown v. Board of Education, the schools of the District of Columbia were desegregated even though Washington is federal. Likewise, in Adarand Constructors, Inc. v. Peña 515 U.S. 200 (1995), an affirmative action program by the federal government was subjected to strict scrutiny based on equal protection.
References
See, e.g., Constitutional Rights Foundation discussion, giving summary, extensive WWW links and timeline; JRank Law Library; Encyclopedia.com Article;BYU Law Review Article
1. Congressional Globe: Debates and Proceedings, 1833–1873
2. Adamson v. California, 332 U.S. 46, 92-118 (1947)
3. "Primary Documents in American History", Library of Congress
4. Steffen W. Schmidt, Mack C. Shelley, Barbara A. Bardes: American Government and Politics Today, Page 71. Thomson Wadsworth, 2004.
5. Amar, Akhil Reed: The Bill of Rights: Creation and Reconstruction , Page 234. Yale University Press, 1998
6. Curtis, Michael Kent (1994) [1986]. No State Shall Abridge (Second printing in paperback ed.). Duke University Press. pp. 5, 202. ISBN 0-8223-0599-2.
7. Curtis, Michael Kent (1994) [1986]. No State Shall Abridge (Second printing in paperback ed.). Duke University Press. p. 202. ISBN 0-8223-0599-2.
8. See Doherty, Brian. "Killing Slaughterhouse: Understanding the controversial 1873 decision at the center of the Supreme Court's upcoming gun rights fight," Reason Magazine Retrieved 2010-01-26.
9. See Pilon, Roger. "Lawless Judges: Refocusing the Issue for Conservatives," Georgetown Journal of Law and Public Policy Volume II, page 21 (2000).
10. Adamson v. California, 332 U.S. 46 (1947) (Black, J., dissenting).
11. See Wildenthal, Bryan. “The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment". Ohio State Law Journal, Vol. 61 (2000).
12. Slaughter-House Cases, 83 U.S. 36 (1873).
13. Privileges or Immunities Clause alive again
14. Laurence H. Tribe, American Constitutional Law 776 n. 14 (2nd ed. 1998)
15. Justice Thomas, in a concurring opinion in Elk Grove Unified School District v. Newdow, expressed his view that Everson was wrongly decided and that incorporation of the Establishment Clause is not justified under the Constitution. See Nussbaum, Martha Craven (2008). Liberty of conscience: in defense of America's tradition of religious equality. Basic Books. pp. 105 et seq. and Chapter 4. ISBN 0-465-05164-2.Nebraska Law Review Article.
16. Hartman, Gary, Roy M. Mersky, and Cindy L. Tate (2004). "Landmark Supreme Court Cases: "Edwards v. South Carolina."". New York: Facts On File, Inc., 2004. American History Online. Retrieved 15 August 2013.
17. "Pearson Prentice Hall: Supreme Court Cases - Edwards v. South Carolina, 1963". Pearson Education, Inc. Pearson Education, Inc. Retrieved 15 August 2013.
18. Vance, Laurence M. "Does the First Amendment Protect the Freedom of Association? The Future of Freedom Foundation". The Future of Freedom Foundation.
19. "Bill of Rights Institute: Incorporation". Bill of Rights Center. Retrieved 11 October 2013.
20. Columbia Law Review, May 2004
Further reading
J. Lieberman (1999). A Practical Companion to the Constitution. Berkeley: University of California Press.
• Regina McClendon, Public Law Research Institute (1994) (stating that "[t]he almost total incorporation of the Bill of Rights lends support to the theory that incorporation of the Second Amendment is inevitable")."Limits On The Power Of States To Regulate Firearms". W3.uchastings.edu. Retrieved 2008-09-06.
• American Jurisprudence, 2d ed., "Constitutional Law" § 405.
• Ernest H. Schopler, Comment Note—What Provisions of the Federal Constitution's Bill of Rights Are Applicable to the States, 23 L. Ed. 2d 985 (Lexis).
PLEASE GO TO THE SITE BELOW TO PICK UP THE LINKS.
http://en.m.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights
Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.
History
The doctrine of incorporation has been traced back to either Chicago, Burlington and Quincy Railroad v. City of Chicago (1897) in which the Supreme Court appeared to require some form of just compensation for property appropriated by state or local authorities (although there was a state statute on the books that provided the same guarantee) or, more commonly, to Gitlow v. New York (1925), in which the Court expressly held that States were bound to protect freedom of speech. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights.[1]
Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation has not yet been addressed include the Fifth Amendment right to an indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil lawsuits.
Incorporation applies both procedurally and substantively to the guarantees of the states. Thus, procedurally, only a jury can convict a defendant of a serious crime, since the Sixth Amendment jury-trial right has been incorporated against the states; substantively, for example, states must recognize the First Amendment prohibition against a state-established religion, regardless of whether state laws and constitutions offer such a prohibition. The Supreme Court has declined, however, to apply new procedural constitutional rights retroactively against the states in criminal cases (Teague v. Lane, 489 U.S. 288 (1989)) with limited exceptions, and it has waived constitutional requirements if the states can prove that a constitutional violation was "harmless beyond a reasonable doubt."[citation needed]
Rep. John Bingham, the principal framer of the Fourteenth Amendment, advocated that the Fourteenth applied the first eight Amendments of the Bill of Rights to the States.[2] The U.S. Supreme Court subsequently declined to interpret it that way. Until the 1947 case of Adamson v. California, Supreme Court Justice Hugo Black argued in his dissent that the framers' intent should control the Court's interpretation of the 14th Amendment, and he attached a lengthy appendix that quoted extensively from Bingham's congressional testimony.[3] Although the Adamson Court declined to adopt Black's interpretation, the Court during the following twenty-five years employed a doctrine of selective incorporation that succeeded in extending to the States almost all of the protections in the Bill of Rights, as well as other, unenumerated rights. The 14th Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.[4]
Selective versus total incorporation
In the 1940s and 1960s the Supreme Court gradually issued a series of decisions incorporating several of the specific rights from the Bill of Rights, so as to be binding upon the States.[5] A dissenting school of thought championed by Justice Hugo Black supported that incorporation of specific rights, but urged incorporation of all specific rights instead of just some of them. Black was for so-called mechanical incorporation, or total incorporation, of Amendments 1 through 8 of the Bill of Rights (Amendments 9 and 10 being patently connected to the powers of the federal government alone).[6] Black felt that the Fourteenth Amendment required the States to respect all of the enumerated rights set forth in the first eight amendments, but he did not wish to see the doctrine expanded to include other, unenumerated "fundamental rights" that might be based on the Ninth Amendment. Black felt that his formulation eliminated any arbitrariness or caprice in deciding what the Fourteenth Amendment ought to protect, by sticking to words already found in the Constitution. Although Black was willing to invalidate federal statutes on federalism grounds, he was not inclined to read any of the first eight amendments as states' rights provisions as opposed to individual rights provisions.[6] Justice Black felt that the Fourteenth Amendment was designed to apply the first eight amendments from the Bill of Rights to the states, as he expressed in his dissenting opinion in Adamson v. California.[7] This view was again expressed by Black in his concurrence in Duncan v. Louisiana: "'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States' seem to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States."[8]
Due process interpretation
Justice Felix Frankfurter, however, felt that the incorporation process ought to be incremental, and that the federal courts should only apply those sections of the Bill of Rights whose abridgment would "shock the conscience," as he put it in Rochin v. California (1952). Such a selective incorporation approach followed that of Justice Moody, who wrote in Twining v. New Jersey (1908) that "It is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law." The due process approach thus considers a right to be incorporated not because it was listed in the Bill of Rights, but only because it is required by the definition of due process, which may change over time. For example, Moody's decision in Twining stated that the 5th Amendment right against self-incrimination was not inherent in a conception of due process and so did not apply to states, but was overruled in Malloy v. Hogan (1964). Similarly, Justice Cardozo stated in Palko v. Connecticut (1937) that the right against double jeopardy was not inherent to due process and so does not apply to the states, but that was overruled in Benton v. Maryland (1969). Frankfurter's incrementalist approach did carry the day, but the end result is very nearly what Justice Black advocated, with the exceptions noted below.
Incorporation under Privileges or Immunities
Some have suggested that the privileges or immunities clause would be a more appropriate textual basis than the due process clause for incorporation of the Bill of Rights.[9] It is often said that the Slaughter-House Cases "gutted the privileges or immunities clause" and thus prevented its use for applying the Bill of Rights against the states.[10] In his dissent to Adamson v. California, however, Justice Hugo Black pointed out that the Slaughter-House Cases did not directly involve any right enumerated in the Constitution:
[T]he state law under consideration in the Slaughter-House cases was only challenged as one which authorized a monopoly, and the brief for the challenger properly conceded that there was "no direct constitutional provision against a monopoly." The argument did not invoke any specific provision of the Bill of Rights, but urged that the state monopoly statute violated "the natural right of a person" to do business and engage in his trade or vocation.[11]
Thus, in Black's view, the Slaughterhouse Cases should not impede incorporation of the Bill of Rights against the states, via the Privileges or Immunities Clause. Some scholars go even further, and argue that the Slaughterhouse Cases affirmatively supported incorporation of the Bill of Rights against the states.[12] In dicta, Justice Miller's opinion in Slaughterhouse went so far as to acknowledge that the "right to peaceably assemble and petition for redress of grievances ... are rights of the citizen guaranteed by the Federal Constitution," although in context Miller may have only been referring to assemblies for petitioning the federal government.[13]
In the 2010 landmark case McDonald v. Chicago, the Supreme Court declared the Second Amendment is incorporated through the Due Process Clause. However, Justice Thomas, the fifth justice in the majority, criticized substantive due process and declared instead that he reached the same incorporation only through the Privileges or Immunities Clause. No other justice attempted to question his rationale. This is considered by some as a "revival" of the Privileges or Immunities Clause,[14] however as it is a concurring opinion and not the majority opinion in the case, it holds no legal weight in lower courts; it is merely an indication that SCOTUS may be inclined, given the proper question, to reconsider and ultimately reverse the Slaughterhouse Cases.
Specific amendments
Many of the provisions of the First Amendment were applied to the States in the 1930s and 1940s, but most of the procedural protections provided to criminal defendants were not enforced against the States until the Warren Court of the 1960s, famous for its concern for the rights of those accused of crimes, brought state standards in line with federal requirements. The following list enumerates, by amendment and individual clause, the Supreme Court cases that have incorporated the rights contained in the Bill of Rights. (The Ninth Amendment is not listed; its wording indicates that it "is not a source of rights as such; it is simply a rule about how to read the Constitution."[15] The Tenth Amendment is also not listed; by its wording, it is a reservation of powers to the states and to the people.)
Amendment I
Guarantee against establishment of religion
• This provision has been incorporated against the states. See Everson v. Board of Education, 330 U.S. 1 (1947).[16]
Guarantee of free exercise of religion
• This provision has been incorporated against the states. See Cantwell v. Connecticut, 310 U.S. 296 (1940).
Guarantee of freedom of speech
• This provision has been incorporated against the states. See Gitlow v. New York, 268 U.S. 652 (1925)(dicta).
Guarantee of freedom of the press
• This provision has been incorporated against the states. See Near v. Minnesota, 283 U.S. 697 (1931).
Guarantee of freedom of assembly
• This provision has been incorporated against the states. See DeJonge v. Oregon, 299 U.S. 353 (1937).
Right to petition for redress of grievances
• This provision has been incorporated against the states. See Edwards v. South Carolina, 372 U.S. 229 (1963).[17][18]
Guarantee of freedom of expressive association
• This right, though not in the words of the first amendment, was first mentioned in the case NAACP v. Alabama, 357 U.S. 449 (1958)[19] and was at that time applied to the states. See also Roberts v. United States Jaycees, 468 U.S. 609 (1984), where the U.S. Supreme Could hold that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends."
Amendment II
Right to keep and bear arms
• This right has been incorporated against the states. See McDonald v. Chicago (2010).
Amendment III
Freedom from quartering of soldiers
• This provision has been incorporated against the states within the jurisdiction of the United States Court of Appeals for the Second Circuit, but has not been incorporated against the states elsewhere.
In 1982, the Second Circuit applied the Third Amendment to the states in Engblom v. Carey. This is a binding authority over Connecticut, New York, and Vermont, but is only a persuasive authority over the remainder of the United States.
The Tenth Circuit has suggested that the right is incorporated because the Bill of Rights explicitly codifies the "fee ownership system developed in English law" through the Third, Fourth, and Fifth Amendments, and the Fourteenth Amendment likewise forbids the states from depriving citizens of their property without due process of law. See United States v. Nichols, 841 F.2d 1485, 1510 n.1 (10th Cir. 1988).
Amendment IV
Unreasonable search and seizure
• This right has been incorporated against the states by the Supreme Court's decision in Wolf v. Colorado, 338 U.S. 25 (1949)
• The remedy of exclusion of unlawfully seized evidence, the Exclusionary rule, has been incorporated against the states. See Mapp v. Ohio, 367 U.S. 643 (1961). In Mapp, the Court overruled Wolf v. Colorado, 338 U.S. 25 (1949), in which the Court had ruled that while the Fourth Amendment applied to the states (meaning that they were bound not to engage in unreasonable searches and seizures), the exclusionary rule did not (meaning that they were free to fashion other remedies for criminal defendants whose possessions had been illegally seized by the police in violation of the Fourth Amendment).
Warrant requirements
• The various warrant requirements have been incorporated against the states. See Aguilar v. Texas, 378 U.S. 108 (1964).
• The standards for judging whether a search or seizure undertaken without a warrant was "unreasonable" also have been incorporated against the states. See Ker v. California, 374 U.S. 23 (1963).
Amendment V
Right to indictment by a grand jury
• This right has been held not to be incorporated against the states. See Hurtado v. California, 110 U.S. 516 (1884).
Protection against double jeopardy
• This right has been incorporated against the states. See Benton v. Maryland, 395 U.S. 784 (1969).
Constitutional privilege against self-incrimination
• This right has been partially incorporated against the states.
1. Self Incrimination in Court "See Twining v. New Jersey(1905) and Adamson v California(1948) See Griffin v. California, 380 U.S. 609 (1965).
2. Miranda See Malloy v. Hogan, 378 U.S. 1 (1964).
• A note about the Miranda warnings: The text of the Fifth Amendment does not require that the police, before interrogating a suspect whom they have in custody, give him or her the now-famous Miranda warnings. Nevertheless, the Court has held that these warnings are a necessary prophylactic device, and thus required by the Fifth Amendment by police who interrogate any criminal suspect in custody, regardless of whether he or she is ultimately prosecuted in state or federal court.
Protection against taking of private property without just compensation
• This right has been incorporated against the states. See Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).
Amendment VI
Right to a speedy trial
• This right has been incorporated against the states. See Klopfer v. North Carolina, 386 U.S. 213 (1967).
Right to a public trial
• This right has been incorporated against the states. See In re Oliver, 333 U.S. 257 (1948).
Right to trial by impartial jury
• This right has been incorporated against the states. See Duncan v. Louisiana, 391 U.S. 145 (1968), which guarantess the right to a jury trial in non-petty cases.[20] See also Parker v. Gladden, 385 U.S. 363 (1966), where the Supreme Court ruled "that the statements of the bailiff to the jurors are controlled by the command of the Sixth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment. It guarantees that 'the accused shall enjoy the right to a * * * trial, by an impartial jury * * * [...].'"[20] However, the size of the jury, as well as the requirement that it unanimously reach its verdict, vary between federal and state courts. Even so, the Supreme Court has ruled that a jury in a criminal case may have as few as six members. Williams v. Florida, 399 U.S. 78 (1970). If there are twelve, only nine jurors need agree on a verdict. Furthermore, there is no right to a jury trial in juvenile delinquency proceedings held in state court. See McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
Right to a jury selected from residents of the state and district where the crime occurred
• This right has not been incorporated against the states. See Caudill v. Scott, 857 F.2d 344 (6th Cir. 1988); Cook v. Morrill, 783 F.2d 593 (5th Cir. 1986); Zicarelli v. Dietz, 633 F.2d 312 (3d Cir. 1980).
Right to notice of accusations
• This right has been incorporated against the states. See In re Oliver, 333 U.S. 257 (1948). See also Rabe v. Washington, 405 U.S. 313 (1972).[20]
Right to confront adverse witnesses
• This right has been incorporated against the states. See Pointer v. Texas, 380 U.S. 400 (1965).
Right to compulsory process (subpoenas) to obtain witness testimony
• This right has been incorporated against the states. See Washington v. Texas, 388 U.S. 14 (1967).
Right to assistance of counsel
• This right has been incorporated against the states. See Powell v. Alabama 287 U.S. 85 (1932), for capital cases, see Gideon v. Wainwright, 372 U.S. 335 (1963) for all felony cases, and see Argersinger v. Hamlin, 407 U.S. 25 (1972) for imprisonable misdemeanors.[20] In subsequent decisions, the Court extended the right to counsel to any case in which a jail sentence is imposed.
Amendment VII
Right to jury trial in civil cases
• This right has been held not to be incorporated against the states. See Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916).
Re-Examination Clause
• This clause has been applied to the states. See The Justices v. Murray, 76 U.S. 9 Wall. 274 (1869).
Amendment VIII
Protection against excessive bail
• This provision may have been incorporated against the states. In Schilb v. Kuebel, 404 U.S. 357 (1971), the Court stated in dicta: "Bail, of course, is basic to our system of law, and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment." In Murphy v. Hunt, 455 U.S. 478 (1982), the Court did not reach the issue because the case was dismissed as moot. Bail was included in the list of incorporated rights in McDonald footnote 12, citing Schilb.
Protection against excessive fines
• This provision has not been incorporated. See McDonald v. City of Chicago, footnote 13 (2010).
Protection against cruel and unusual punishments
• This provision has been incorporated against the states. See Robinson v. California, 370 U.S. 660 (1962). This holding has led the Court to suggest, in dicta, that the excessive bail and excessive fines protections have also been incorporated. See Baze v. Rees, 128 S. Ct. 1520, 1529 (2008).
Reverse incorporation
A similar legal doctrine to incorporation is that of reverse incorporation. Whereas incorporation applies the Bill of Rights to the states though the Due Process Clause of the Fourteenth Amendment, in reverse incorporation, the Equal Protection Clause of the Fourteenth Amendment has been held to apply to the federal government through the Due Process Clause located in the Fifth Amendment.[21] For example, in Bolling v. Sharpe, 347 U.S. 497 (1954), which was a companion case to Brown v. Board of Education, the schools of the District of Columbia were desegregated even though Washington is federal. Likewise, in Adarand Constructors, Inc. v. Peña 515 U.S. 200 (1995), an affirmative action program by the federal government was subjected to strict scrutiny based on equal protection.
References
See, e.g., Constitutional Rights Foundation discussion, giving summary, extensive WWW links and timeline; JRank Law Library; Encyclopedia.com Article;BYU Law Review Article
1. Congressional Globe: Debates and Proceedings, 1833–1873
2. Adamson v. California, 332 U.S. 46, 92-118 (1947)
3. "Primary Documents in American History", Library of Congress
4. Steffen W. Schmidt, Mack C. Shelley, Barbara A. Bardes: American Government and Politics Today, Page 71. Thomson Wadsworth, 2004.
5. Amar, Akhil Reed: The Bill of Rights: Creation and Reconstruction , Page 234. Yale University Press, 1998
6. Curtis, Michael Kent (1994) [1986]. No State Shall Abridge (Second printing in paperback ed.). Duke University Press. pp. 5, 202. ISBN 0-8223-0599-2.
7. Curtis, Michael Kent (1994) [1986]. No State Shall Abridge (Second printing in paperback ed.). Duke University Press. p. 202. ISBN 0-8223-0599-2.
8. See Doherty, Brian. "Killing Slaughterhouse: Understanding the controversial 1873 decision at the center of the Supreme Court's upcoming gun rights fight," Reason Magazine Retrieved 2010-01-26.
9. See Pilon, Roger. "Lawless Judges: Refocusing the Issue for Conservatives," Georgetown Journal of Law and Public Policy Volume II, page 21 (2000).
10. Adamson v. California, 332 U.S. 46 (1947) (Black, J., dissenting).
11. See Wildenthal, Bryan. “The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment". Ohio State Law Journal, Vol. 61 (2000).
12. Slaughter-House Cases, 83 U.S. 36 (1873).
13. Privileges or Immunities Clause alive again
14. Laurence H. Tribe, American Constitutional Law 776 n. 14 (2nd ed. 1998)
15. Justice Thomas, in a concurring opinion in Elk Grove Unified School District v. Newdow, expressed his view that Everson was wrongly decided and that incorporation of the Establishment Clause is not justified under the Constitution. See Nussbaum, Martha Craven (2008). Liberty of conscience: in defense of America's tradition of religious equality. Basic Books. pp. 105 et seq. and Chapter 4. ISBN 0-465-05164-2.Nebraska Law Review Article.
16. Hartman, Gary, Roy M. Mersky, and Cindy L. Tate (2004). "Landmark Supreme Court Cases: "Edwards v. South Carolina."". New York: Facts On File, Inc., 2004. American History Online. Retrieved 15 August 2013.
17. "Pearson Prentice Hall: Supreme Court Cases - Edwards v. South Carolina, 1963". Pearson Education, Inc. Pearson Education, Inc. Retrieved 15 August 2013.
18. Vance, Laurence M. "Does the First Amendment Protect the Freedom of Association? The Future of Freedom Foundation". The Future of Freedom Foundation.
19. "Bill of Rights Institute: Incorporation". Bill of Rights Center. Retrieved 11 October 2013.
20. Columbia Law Review, May 2004
Further reading
J. Lieberman (1999). A Practical Companion to the Constitution. Berkeley: University of California Press.
• Regina McClendon, Public Law Research Institute (1994) (stating that "[t]he almost total incorporation of the Bill of Rights lends support to the theory that incorporation of the Second Amendment is inevitable")."Limits On The Power Of States To Regulate Firearms". W3.uchastings.edu. Retrieved 2008-09-06.
• American Jurisprudence, 2d ed., "Constitutional Law" § 405.
• Ernest H. Schopler, Comment Note—What Provisions of the Federal Constitution's Bill of Rights Are Applicable to the States, 23 L. Ed. 2d 985 (Lexis).
PLEASE GO TO THE SITE BELOW TO PICK UP THE LINKS.
http://en.m.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights
How the Founders Decided to Add the Bill of Rights
Do we really need a list of the rights Americans enjoy? That was the question the Founders debated before the Bill of Rights was ratified 222 years ago this weekend.
Many of those who framed the Constitution, including Alexander Hamilton and James Madison, believed that a separate Bill of Rights was unnecessary. Hamilton’s view was that the people already have their rights, and attempting to list them would only serve to artificially limit them. “The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS,” he wrote inFederalist 84.
But others, including Thomas Jefferson, argued for the addition of a specific bill “providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land.” Most of that, which Jefferson called for in letter he wrote to Madison after the Constitutional Convention, indeed ended up in the Bill of Rights.
Madison eventually embraced the idea. He recognized that by listing specific rights, the Constitution would remind citizens and members of government that those rights were inalienable. He ended up drafting the Bill and introducing it as a Member of Congress from Virginia. Of the 17 rights Madison included, 12 were sent to the states for ratification by Congress and the 10 amendments in the Bill of Rights were added to the Constitution when Virginia became the ninth state to ratify on December 15, 1791.
Over the centuries, the rights have been limited in some ways and expanded in others—often too far. For example, misguided laws have limited donations to political campaigns, a key aspect of free speech.
But, like the Constitution itself, the most important thing is that the Bill exists. Its rights are written down for all to see. And we can always return to them if we can build the political momentum.
That means that even though the growth of the federal government in recent decades seems to have made the 10th 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”) a dead letter, in reality it isn’t. As programs such as Obamacare implode, reformers can turn to the actual written words of that amendment for guidance and return important powers to the states.
A better America, one that’s true to our history, remains politically possible. Happy birthday to the Bill of Rights.
http://blog.heritage.org/2013/12/15/founders-decided-add-bill-rights/
Many of those who framed the Constitution, including Alexander Hamilton and James Madison, believed that a separate Bill of Rights was unnecessary. Hamilton’s view was that the people already have their rights, and attempting to list them would only serve to artificially limit them. “The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS,” he wrote inFederalist 84.
But others, including Thomas Jefferson, argued for the addition of a specific bill “providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land.” Most of that, which Jefferson called for in letter he wrote to Madison after the Constitutional Convention, indeed ended up in the Bill of Rights.
Madison eventually embraced the idea. He recognized that by listing specific rights, the Constitution would remind citizens and members of government that those rights were inalienable. He ended up drafting the Bill and introducing it as a Member of Congress from Virginia. Of the 17 rights Madison included, 12 were sent to the states for ratification by Congress and the 10 amendments in the Bill of Rights were added to the Constitution when Virginia became the ninth state to ratify on December 15, 1791.
Over the centuries, the rights have been limited in some ways and expanded in others—often too far. For example, misguided laws have limited donations to political campaigns, a key aspect of free speech.
But, like the Constitution itself, the most important thing is that the Bill exists. Its rights are written down for all to see. And we can always return to them if we can build the political momentum.
That means that even though the growth of the federal government in recent decades seems to have made the 10th 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”) a dead letter, in reality it isn’t. As programs such as Obamacare implode, reformers can turn to the actual written words of that amendment for guidance and return important powers to the states.
A better America, one that’s true to our history, remains politically possible. Happy birthday to the Bill of Rights.
http://blog.heritage.org/2013/12/15/founders-decided-add-bill-rights/
Each of the 10 Amendments in the Bill of Rights will be located here.
The First Amendment
History of the First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. — The First Amendment to the U.S. Constitution
The First Amendment was written because at America’s inception, citizens demanded a guarantee of their basic freedoms.
Our blueprint for personal freedom and the hallmark of an open society, the First Amendment protects freedom of speech, press, religion, assembly and petition.
Without the First Amendment, religious minorities could be persecuted, the government might well establish a national religion, protesters could be silenced, the press could not criticize government, and citizens could not mobilize for social change.
When the U.S. Constitution was signed on Sept. 17, 1787, it did not contain the essential freedoms now outlined in the Bill of Rights, because many of the Framers viewed their inclusion as unnecessary. However, after vigorous debate, the Bill of Rights was adopted. The first freedoms guaranteed in this historic document were articulated in the 45 words written by James Madison that we have come to know as the First Amendment.
The Bill of Rights — the first 10 amendments to the Constitution — went into effect on Dec. 15, 1791, when the state of Virginia ratified it, giving the bill the majority of ratifying states required to protect citizens from the power of the federal government.
The First Amendment ensures that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or force citizens to confess by word or act their faith therein,” as Justice Robert Jackson wrote in the 1943 case West Virginia v. Barnette.
And as Justice William Brennan wrote in New York Times Co. v. Sullivan in 1964, the First Amendment provides that “debate on public issues … [should be] … uninhibited, robust, and wide-open.”
However, Americans vigorously dispute the application of the First Amendment.
Most people believe in the right to free speech, but debate whether it should cover flag-burning, hard-core rap and heavy-metal lyrics, tobacco advertising, hate speech, pornography, nude dancing, solicitation and various forms of symbolic speech. Many would agree to limiting some forms of free expression, as seen in the First Amendment Center’s State of the First Amendment survey reports.
Most people, at some level, recognize the necessity of religious liberty and toleration, but some balk when a religious tenet of a minority religion conflicts with a generally applicable law or with their own religious faith. Many Americans see the need to separate the state from the church to some extent, but decry the banning of school-sponsored prayer from public schools and the removal of the Ten Commandments from public buildings.
Further, courts wrestle daily with First Amendment controversies and constitutional clashes, as evidenced by the free-press vs. fair-trial debate and the dilemma of First Amendment liberty principles vs. the equality values of the 14th Amendment.
Such difficulties are the price of freedom of speech and religion in a tolerant, open society.
First Amendment Center
Significant historical events, court cases, and ideas that have shaped our current system of constitutional First Amendment jurisprudence:
1215
Abuses by England’s King John cause a revolt by nobles, who compel him to recognize rights for both noblemen and ordinary Englishmen. This document, known as the Magna Carta, establishes the principle that no one, including the king or a lawmaker, is above the law, and establishes a framework for future documents such as the Declaration of Independence and the Bill of Rights.
1628
The Petition of Right is a statement of the objectives of the 1628 English legal-reform movement that leads to civil war and the deposing of King Charles I in 1649. This important document sets out the rights and liberties of the common man as opposed to the prerogatives of the crown and expresses many of the ideals that later led to the American Revolution.
1641
The Massachusetts General Court formally adopts the first broad statement of American liberties, the Massachusetts Body of Liberties. The document includes a right to petition and a statement about due process.
1663
The new Charter of Rhode Island grants religious freedom.
1689
John Locke’s Letter Concerning Toleration is published. It provides the philosophical basis for George Mason’s proposed Article Sixteen of the Virginia Declaration of Rights of 1776, which deals with religion. Mason’s proposal provides that “all Men should enjoy the fullest toleration in the exercise of religion.”
1708
Connecticut passes the first dissenter statute and allows “full liberty of worship” to Anglicans and Baptists.
1735
New York publisher John Peter Zenger is tried for libel after publishing criticism of the Royal Governor of New York. Zenger is defended by Andrew Hamilton and acquitted. His trial establishes the principle that truth is a defense to libel and that a jury may determine whether a publication is defamatory or seditious.
1771
The State of Virginia jails 50 Baptist worshipers for preaching the Gospel contrary to the Anglican Book of Common Prayer.
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. — The First Amendment to the U.S. Constitution
The First Amendment was written because at America’s inception, citizens demanded a guarantee of their basic freedoms.
Our blueprint for personal freedom and the hallmark of an open society, the First Amendment protects freedom of speech, press, religion, assembly and petition.
Without the First Amendment, religious minorities could be persecuted, the government might well establish a national religion, protesters could be silenced, the press could not criticize government, and citizens could not mobilize for social change.
When the U.S. Constitution was signed on Sept. 17, 1787, it did not contain the essential freedoms now outlined in the Bill of Rights, because many of the Framers viewed their inclusion as unnecessary. However, after vigorous debate, the Bill of Rights was adopted. The first freedoms guaranteed in this historic document were articulated in the 45 words written by James Madison that we have come to know as the First Amendment.
The Bill of Rights — the first 10 amendments to the Constitution — went into effect on Dec. 15, 1791, when the state of Virginia ratified it, giving the bill the majority of ratifying states required to protect citizens from the power of the federal government.
The First Amendment ensures that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or force citizens to confess by word or act their faith therein,” as Justice Robert Jackson wrote in the 1943 case West Virginia v. Barnette.
And as Justice William Brennan wrote in New York Times Co. v. Sullivan in 1964, the First Amendment provides that “debate on public issues … [should be] … uninhibited, robust, and wide-open.”
However, Americans vigorously dispute the application of the First Amendment.
Most people believe in the right to free speech, but debate whether it should cover flag-burning, hard-core rap and heavy-metal lyrics, tobacco advertising, hate speech, pornography, nude dancing, solicitation and various forms of symbolic speech. Many would agree to limiting some forms of free expression, as seen in the First Amendment Center’s State of the First Amendment survey reports.
Most people, at some level, recognize the necessity of religious liberty and toleration, but some balk when a religious tenet of a minority religion conflicts with a generally applicable law or with their own religious faith. Many Americans see the need to separate the state from the church to some extent, but decry the banning of school-sponsored prayer from public schools and the removal of the Ten Commandments from public buildings.
Further, courts wrestle daily with First Amendment controversies and constitutional clashes, as evidenced by the free-press vs. fair-trial debate and the dilemma of First Amendment liberty principles vs. the equality values of the 14th Amendment.
Such difficulties are the price of freedom of speech and religion in a tolerant, open society.
First Amendment Center
Significant historical events, court cases, and ideas that have shaped our current system of constitutional First Amendment jurisprudence:
1215
Abuses by England’s King John cause a revolt by nobles, who compel him to recognize rights for both noblemen and ordinary Englishmen. This document, known as the Magna Carta, establishes the principle that no one, including the king or a lawmaker, is above the law, and establishes a framework for future documents such as the Declaration of Independence and the Bill of Rights.
1628
The Petition of Right is a statement of the objectives of the 1628 English legal-reform movement that leads to civil war and the deposing of King Charles I in 1649. This important document sets out the rights and liberties of the common man as opposed to the prerogatives of the crown and expresses many of the ideals that later led to the American Revolution.
1641
The Massachusetts General Court formally adopts the first broad statement of American liberties, the Massachusetts Body of Liberties. The document includes a right to petition and a statement about due process.
1663
The new Charter of Rhode Island grants religious freedom.
1689
John Locke’s Letter Concerning Toleration is published. It provides the philosophical basis for George Mason’s proposed Article Sixteen of the Virginia Declaration of Rights of 1776, which deals with religion. Mason’s proposal provides that “all Men should enjoy the fullest toleration in the exercise of religion.”
1708
Connecticut passes the first dissenter statute and allows “full liberty of worship” to Anglicans and Baptists.
1735
New York publisher John Peter Zenger is tried for libel after publishing criticism of the Royal Governor of New York. Zenger is defended by Andrew Hamilton and acquitted. His trial establishes the principle that truth is a defense to libel and that a jury may determine whether a publication is defamatory or seditious.
1771
The State of Virginia jails 50 Baptist worshipers for preaching the Gospel contrary to the Anglican Book of Common Prayer.
History of the Second Amendment
After going virtually unchallenged for more than one hundred years, Americans’ right to own guns was one of the hottest political topics of the second half of the 20th Century. The issue has calmed somewhat in the early days of the 21st Century, but if history is our guide, the debate is going nowhere until an inevitable and definitive ruling is handed down by the nation’s courts: does the Second Amendment apply to individual citizens?
1791: The Second Amendment is Ratified
The ink had hardly dried on the ratification papers of the Constitution before a political movement was undertaken to amend the framing document to declare gun ownership as a right.
A select committee assembled to review amendments proposed by James Madison authored the language that would become the Second Amendment to the Bill of Rights: “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.”
1871: NRA Founded
The National Rifle Association was founded by a pair of Union soldiers in 1871, not as a political lobby but as an effort to promote the shooting of rifles. However, the organization would grow to become the face of America's pro-gun lobby in the 20th Century.
1822: Bliss v. Commonwealth Brings ‘Individual Right’ Into Question
The Second Amendment’s intent for individual Americans first came into question in 1822, in Bliss v. Commonwealth. The court case arose in Kentucky after a man was indicted for carrying a sword concealed in a cane. He was convicted and fined $100.
Bliss appealed the conviction, citing a provision in the Commonwealth’s constitution that states: “The right of the citizens to bear arms in defense of themselves and the state, shall not be questioned.”
In a majority vote with just one judge dissenting, the court overturned the conviction against Bliss and ruled the law unconstitutional and void.
1856: Dred Scott v. Sandford Upholds Individual Right
The Second Amendment as an individual right was affirmed by the Supreme Court of the United States in its decision in Dred Scott v. Sandford in 1856. With the rights of slaves in question, the nation’s highest court opined on the intent of the Second Amendment for the first time, writing that affording slaves full rights of American citizenship would include the right “to keep and carry arms wherever they went.”
1934: National Firearms Act Brings About First Major Gun Control
The first major effort to eliminate private ownership of firearms came with the National Firearms Act of 1934. A direct response of the rise of gangster violence in general, and the Saint Valentine’s Day massacre in particular, the National Firearms Act sought to circumvent the Second Amendment by controlling firearms through a tax excise ($200 for each gun sale).
The National Firearms Act targeted fully-automatic weapons, short-barreled shotguns and rifles, pen and cane guns, and other firearms defined as “gangster weapons.”
1938: Federal Firearms Act Requires License for Dealers
The Federal Firearms Act of 1938 required anyone selling or shipping firearms to be licensed through the U.S. Department of Commerce. The Federal Firearms License (FFL) stipulated that guns could not be sold to persons convicted of certain crimes and required sellers to log the names and addresses of anyone they sold guns to.
1968: Gun Control Act Ushers In New Regulations
Thirty years after America’s first sweeping reform of gun laws, the assassination of President John F. Kennedy helped to usher in new federal legislation with wide-ranging implications. The Gun Control Act of 1968 prohibited mail order sales of rifles and shotguns, increased license requirements for sellers and broadened the list of persons prohibited from owning a firearm to include convicted felons, drug users and the mentally incompetent.
1994: Brady Act and Assault Weapons Ban
Two new federal laws passed by a Democrat-controlled Congress and signed by President Bill Clinton in 1994 became the hallmark of gun control efforts of the latter 20th Century.
The first, the Brady Handgun Violence Protection Act, required a five-day waiting period and background check for the sale of handguns, while also requiring a National Instant Criminal Background Check System to be created. The second, the Assault Weapons Ban (officially entitled the Violent Crime Control and Law Enforcement Act) banned a number of rifles defined as “assault weapons,” including many semi-automatic, military-style rifles such as the AK-47 and SKS.
2004: Assault Weapons Ban Sunsets
A Republican-controlled Congress refused to pass a reauthorization of the Assault Weapons Ban in 2004, allowing the ban to expire. President George W. Bush was criticized by gun control supporters for not actively pressuring Congress to renew the ban, while gun rights supporters criticized him for indicating that he would sign a reauthorization if Congress passed it.
2008: D.C. v. Heller is a Major Setback for Gun Control
Gun rights proponents were thrilled in 2008 when the U.S. Supreme Court ruled in District of Columbia v. Heller that the Second Amendment extends gun ownership rights to individuals. The decision affirmed an earlier decision by a lower appeals court and struck down handgun bans in Washington D.C. as unconstitutional.
The case was lauded as the first Supreme Court case to affirm the right of an individual to keep and bear arms in accordance with the Second Amendment. However, the ruling applied only to federal enclaves, such as the District of Columbia. Justices did not opine on the Second Amendment’s application to the states.
2010: Gun Owners Score Another Victory in McDonald v. Chicago
Gun rights supporters scored their second major Supreme Court victory in 2010, when the high court affirmed the individual right to own guns in McDonald v. Chicago.
The ruling, which was an inevitable follow-up to D.C. v. Heller, marked the first time that the Supreme Court ruled the provisions of the Second Amendment extend to the states. The ruling overturned an earlier decision by a lower court in a legal challenge to Chicago’s ordinance banning the possession of handguns by its citizens.
http://civilliberty.about.com/od/guncontrol/a/Second-Amendment-History.htm
Second Amendment - U.S. Constitution
Amendment Text | Annotations
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.
2nd Amendment Annotations
Prior to the Supreme Court's 2008 decision in District of Columbia v. Heller,1the courts had yet to definitively state what right the Second Amendment protected. The opposing theories, perhaps oversimplified, were (1) an "individual rights" approach, whereby the Amendment protected individuals' rights to firearm ownership, possession, and transportation; and (2) a "states' rights" approach, under which the Amendment only protected the right to keep and bear arms in connection with organized state militia units.2 Moreover, it was generally believed that the Amendment was only a bar to federal action, not to state or municipal restraints.3
However, the Supreme Court has now definitively held that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia, and to use that weapon for traditionally lawful purposes, such as self-defense within the home. Moreover, this right applies not just to the federal government, but to states and municipalities as well.
In Heller, the Court held that (1) the District of Columbia's total ban on handgun possession in the home amounted to a prohibition on an entire class of "arms" that Americans overwhelmingly chose for the lawful purpose of self-defense, and thus violated the Second Amendment; and (2) the District's requirement that any lawful firearm in the home be disassembled or bound by a trigger lock also violated the Second Amendment, because the law made it impossible for citizens to use arms for the core lawful purpose of self-defense.
The Court reasoned that the Amendment's prefatory clause, i.e., "[a] well regulated Militia, being necessary to the security of a free State," announced the Amendment's purpose, but did not limit or expand the scope of the operative clause, i.e., "the right of the people to keep and bear Arms, shall not be infringed." Moreover, the prefatory clause's history comported with the Court's interpretation, because the prefatory clause stemmed from the Anti-Federalists' concern that the federal government would disarm the people in order to disable the citizens' militia, enabling a politicized standing army or a select militia to rule.
Further, the Court distinguished United States v.Miller,4 in which the Court upheld a statute requiring registration under the National Firearms Act of sawed-off shotguns, on the ground that Miller limited the type of weapon to which the Second Amendment right applied to those in common use for lawful purposes.
In McDonald v. Chicago,5 the Court struck down laws enacted by Chicago and the village of Oak Park effectively banning handgun possession by almost all private citizens, holding that the Fourteenth Amendment incorporated the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense.
The Court reasoned that this right is fundamental to the nation's scheme of ordered liberty, given that self-defense was a basic right recognized by many legal systems from ancient times to the present, and Heller held that individual self-defense was "the central component" of the Second Amendment right. Moreover, a survey of the contemporaneous history also demonstrated clearly that the Fourteenth Amendment's Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation's system of ordered liberty.
Footnotes
554 U.S. ____ (2008).
A sampling of the diverse literature in which the same historical, linguistic, and case law background is the basis for strikingly different conclusions includes: Staff of Subcomm. on the Constitution, Senate Comm. on the Judiciary, 97th Congress, 2d Sess., The Right to Keep and Bear Arms(Comm. Print 1982); Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment (1984); Gun Control and the Constitution: Sources and Explorations on the Second Amendment (Robert J. Cottrol, ed. 1993); Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (1984); Symposium, Gun Control, 49 Law & Contemp. Probs. 1 (1986); Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989).
SeePresser v. Illinois, 116 U.S. 252, 265 (1886); see also Miller v. Texas, 153 U.S. 535 (1894); Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897).
307 U.S. 174 (1939).
No. 08-1521 (June 28, 2010).
http://constitution.findlaw.com/amendment2/amendment.html
1791: The Second Amendment is Ratified
The ink had hardly dried on the ratification papers of the Constitution before a political movement was undertaken to amend the framing document to declare gun ownership as a right.
A select committee assembled to review amendments proposed by James Madison authored the language that would become the Second Amendment to the Bill of Rights: “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.”
1871: NRA Founded
The National Rifle Association was founded by a pair of Union soldiers in 1871, not as a political lobby but as an effort to promote the shooting of rifles. However, the organization would grow to become the face of America's pro-gun lobby in the 20th Century.
1822: Bliss v. Commonwealth Brings ‘Individual Right’ Into Question
The Second Amendment’s intent for individual Americans first came into question in 1822, in Bliss v. Commonwealth. The court case arose in Kentucky after a man was indicted for carrying a sword concealed in a cane. He was convicted and fined $100.
Bliss appealed the conviction, citing a provision in the Commonwealth’s constitution that states: “The right of the citizens to bear arms in defense of themselves and the state, shall not be questioned.”
In a majority vote with just one judge dissenting, the court overturned the conviction against Bliss and ruled the law unconstitutional and void.
1856: Dred Scott v. Sandford Upholds Individual Right
The Second Amendment as an individual right was affirmed by the Supreme Court of the United States in its decision in Dred Scott v. Sandford in 1856. With the rights of slaves in question, the nation’s highest court opined on the intent of the Second Amendment for the first time, writing that affording slaves full rights of American citizenship would include the right “to keep and carry arms wherever they went.”
1934: National Firearms Act Brings About First Major Gun Control
The first major effort to eliminate private ownership of firearms came with the National Firearms Act of 1934. A direct response of the rise of gangster violence in general, and the Saint Valentine’s Day massacre in particular, the National Firearms Act sought to circumvent the Second Amendment by controlling firearms through a tax excise ($200 for each gun sale).
The National Firearms Act targeted fully-automatic weapons, short-barreled shotguns and rifles, pen and cane guns, and other firearms defined as “gangster weapons.”
1938: Federal Firearms Act Requires License for Dealers
The Federal Firearms Act of 1938 required anyone selling or shipping firearms to be licensed through the U.S. Department of Commerce. The Federal Firearms License (FFL) stipulated that guns could not be sold to persons convicted of certain crimes and required sellers to log the names and addresses of anyone they sold guns to.
1968: Gun Control Act Ushers In New Regulations
Thirty years after America’s first sweeping reform of gun laws, the assassination of President John F. Kennedy helped to usher in new federal legislation with wide-ranging implications. The Gun Control Act of 1968 prohibited mail order sales of rifles and shotguns, increased license requirements for sellers and broadened the list of persons prohibited from owning a firearm to include convicted felons, drug users and the mentally incompetent.
1994: Brady Act and Assault Weapons Ban
Two new federal laws passed by a Democrat-controlled Congress and signed by President Bill Clinton in 1994 became the hallmark of gun control efforts of the latter 20th Century.
The first, the Brady Handgun Violence Protection Act, required a five-day waiting period and background check for the sale of handguns, while also requiring a National Instant Criminal Background Check System to be created. The second, the Assault Weapons Ban (officially entitled the Violent Crime Control and Law Enforcement Act) banned a number of rifles defined as “assault weapons,” including many semi-automatic, military-style rifles such as the AK-47 and SKS.
2004: Assault Weapons Ban Sunsets
A Republican-controlled Congress refused to pass a reauthorization of the Assault Weapons Ban in 2004, allowing the ban to expire. President George W. Bush was criticized by gun control supporters for not actively pressuring Congress to renew the ban, while gun rights supporters criticized him for indicating that he would sign a reauthorization if Congress passed it.
2008: D.C. v. Heller is a Major Setback for Gun Control
Gun rights proponents were thrilled in 2008 when the U.S. Supreme Court ruled in District of Columbia v. Heller that the Second Amendment extends gun ownership rights to individuals. The decision affirmed an earlier decision by a lower appeals court and struck down handgun bans in Washington D.C. as unconstitutional.
The case was lauded as the first Supreme Court case to affirm the right of an individual to keep and bear arms in accordance with the Second Amendment. However, the ruling applied only to federal enclaves, such as the District of Columbia. Justices did not opine on the Second Amendment’s application to the states.
2010: Gun Owners Score Another Victory in McDonald v. Chicago
Gun rights supporters scored their second major Supreme Court victory in 2010, when the high court affirmed the individual right to own guns in McDonald v. Chicago.
The ruling, which was an inevitable follow-up to D.C. v. Heller, marked the first time that the Supreme Court ruled the provisions of the Second Amendment extend to the states. The ruling overturned an earlier decision by a lower court in a legal challenge to Chicago’s ordinance banning the possession of handguns by its citizens.
http://civilliberty.about.com/od/guncontrol/a/Second-Amendment-History.htm
Second Amendment - U.S. Constitution
Amendment Text | Annotations
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.
2nd Amendment Annotations
Prior to the Supreme Court's 2008 decision in District of Columbia v. Heller,1the courts had yet to definitively state what right the Second Amendment protected. The opposing theories, perhaps oversimplified, were (1) an "individual rights" approach, whereby the Amendment protected individuals' rights to firearm ownership, possession, and transportation; and (2) a "states' rights" approach, under which the Amendment only protected the right to keep and bear arms in connection with organized state militia units.2 Moreover, it was generally believed that the Amendment was only a bar to federal action, not to state or municipal restraints.3
However, the Supreme Court has now definitively held that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia, and to use that weapon for traditionally lawful purposes, such as self-defense within the home. Moreover, this right applies not just to the federal government, but to states and municipalities as well.
In Heller, the Court held that (1) the District of Columbia's total ban on handgun possession in the home amounted to a prohibition on an entire class of "arms" that Americans overwhelmingly chose for the lawful purpose of self-defense, and thus violated the Second Amendment; and (2) the District's requirement that any lawful firearm in the home be disassembled or bound by a trigger lock also violated the Second Amendment, because the law made it impossible for citizens to use arms for the core lawful purpose of self-defense.
The Court reasoned that the Amendment's prefatory clause, i.e., "[a] well regulated Militia, being necessary to the security of a free State," announced the Amendment's purpose, but did not limit or expand the scope of the operative clause, i.e., "the right of the people to keep and bear Arms, shall not be infringed." Moreover, the prefatory clause's history comported with the Court's interpretation, because the prefatory clause stemmed from the Anti-Federalists' concern that the federal government would disarm the people in order to disable the citizens' militia, enabling a politicized standing army or a select militia to rule.
Further, the Court distinguished United States v.Miller,4 in which the Court upheld a statute requiring registration under the National Firearms Act of sawed-off shotguns, on the ground that Miller limited the type of weapon to which the Second Amendment right applied to those in common use for lawful purposes.
In McDonald v. Chicago,5 the Court struck down laws enacted by Chicago and the village of Oak Park effectively banning handgun possession by almost all private citizens, holding that the Fourteenth Amendment incorporated the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense.
The Court reasoned that this right is fundamental to the nation's scheme of ordered liberty, given that self-defense was a basic right recognized by many legal systems from ancient times to the present, and Heller held that individual self-defense was "the central component" of the Second Amendment right. Moreover, a survey of the contemporaneous history also demonstrated clearly that the Fourteenth Amendment's Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation's system of ordered liberty.
Footnotes
554 U.S. ____ (2008).
A sampling of the diverse literature in which the same historical, linguistic, and case law background is the basis for strikingly different conclusions includes: Staff of Subcomm. on the Constitution, Senate Comm. on the Judiciary, 97th Congress, 2d Sess., The Right to Keep and Bear Arms(Comm. Print 1982); Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment (1984); Gun Control and the Constitution: Sources and Explorations on the Second Amendment (Robert J. Cottrol, ed. 1993); Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (1984); Symposium, Gun Control, 49 Law & Contemp. Probs. 1 (1986); Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989).
SeePresser v. Illinois, 116 U.S. 252, 265 (1886); see also Miller v. Texas, 153 U.S. 535 (1894); Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897).
307 U.S. 174 (1939).
No. 08-1521 (June 28, 2010).
http://constitution.findlaw.com/amendment2/amendment.html
The Third Amendment
The Third Amendment to the United States Constitution was added to the Bill of Rights by the Founding Fathers to protect American citizens from being forced to house and feed federal troops against their will. The Third Amendment reads like this:
"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 law was extremely important to our Founding Fathers, but it is not so well known to modern Americans. America's Founders had just experienced the quartering of troops on their private property by the British government during the Revolutionary War and before.
The Third Amendment says that troops cannot be quartered on private property at all during peacetime, and only as prescribed by law during wartime.
By the way, in case you aren't sure what "quartering" means, it means that the government cannot "quarter" troops in your home or on your land. A modern word that we use to say the same thing would be "housing." The government cannot "house" or "quarter" soldiers on your property. The word is used in the way that we today would call someone's room his "quarters." Got it?
Third Amendment History
Americans' experience with the quartering of troops in their homes began shortly after the French and Indian War ended in 1763. The British Parliament decided it was necessary to keep a permanent supply of troops in the colonies in order to protect them from further uprisings of the French and Indians.
This rankled the colonists in two ways. First of all, Parliament wanted them to pay the expenses of housing the troops in America. This violated the precedents of English law that required that all taxation must be with the consent of the people. The colonists reasoned that they had not given their consent to pay for these troops and that, therefore, the requirement that they pay for them was against the law.
Secondly, English law forbade the presence of a standing army without the consent of the people, in preference to a citizen army. Standing armies were viewed as threats to freedom because they could quickly and easily overpower the common person. So, the colonists rightly viewed the presence of a standing army in their midst without their consent as a threat to their freedom. Both of these rights, freedom from taxation without consent and freedom from standing armies without consent, were guaranteed to English citizens in English law since the English Bill of Rights of 1689.
Third Amendment History - The First Quartering Act
Quartering Act of 1765
The first Quartering Act was enacted on May 15, 1765. It required that British soldiers be housed in American barracks and public inns first, but if there was not enough room in these, that other buildings belonging to the citizenry such as stables, alehouses, barns and uninhabited buildings should be used.
The Quartering Act required that the citizens who owned the properties must pay for the food for these troops and also stated that the citizens would not receive any compensation for the use of their property. You can read the Quartering Act of 1765 here.
The colonists generally refused to cooperate with the Quartering Act. The resistance was strongest in New York. Violence broke out in August, 1766 between British troops and the colonists over New York's refusal to pay for the quartering of troops. Parliament suspended the governor and the provincial assembly over this issue. Eventually, the Quartering Act expired in 1770 and was not renewed. It never was successful in its intent to cover the expenses of keeping British troops permanently in America.
"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 law was extremely important to our Founding Fathers, but it is not so well known to modern Americans. America's Founders had just experienced the quartering of troops on their private property by the British government during the Revolutionary War and before.
The Third Amendment says that troops cannot be quartered on private property at all during peacetime, and only as prescribed by law during wartime.
By the way, in case you aren't sure what "quartering" means, it means that the government cannot "quarter" troops in your home or on your land. A modern word that we use to say the same thing would be "housing." The government cannot "house" or "quarter" soldiers on your property. The word is used in the way that we today would call someone's room his "quarters." Got it?
Third Amendment History
Americans' experience with the quartering of troops in their homes began shortly after the French and Indian War ended in 1763. The British Parliament decided it was necessary to keep a permanent supply of troops in the colonies in order to protect them from further uprisings of the French and Indians.
This rankled the colonists in two ways. First of all, Parliament wanted them to pay the expenses of housing the troops in America. This violated the precedents of English law that required that all taxation must be with the consent of the people. The colonists reasoned that they had not given their consent to pay for these troops and that, therefore, the requirement that they pay for them was against the law.
Secondly, English law forbade the presence of a standing army without the consent of the people, in preference to a citizen army. Standing armies were viewed as threats to freedom because they could quickly and easily overpower the common person. So, the colonists rightly viewed the presence of a standing army in their midst without their consent as a threat to their freedom. Both of these rights, freedom from taxation without consent and freedom from standing armies without consent, were guaranteed to English citizens in English law since the English Bill of Rights of 1689.
Third Amendment History - The First Quartering Act
Quartering Act of 1765
The first Quartering Act was enacted on May 15, 1765. It required that British soldiers be housed in American barracks and public inns first, but if there was not enough room in these, that other buildings belonging to the citizenry such as stables, alehouses, barns and uninhabited buildings should be used.
The Quartering Act required that the citizens who owned the properties must pay for the food for these troops and also stated that the citizens would not receive any compensation for the use of their property. You can read the Quartering Act of 1765 here.
The colonists generally refused to cooperate with the Quartering Act. The resistance was strongest in New York. Violence broke out in August, 1766 between British troops and the colonists over New York's refusal to pay for the quartering of troops. Parliament suspended the governor and the provincial assembly over this issue. Eventually, the Quartering Act expired in 1770 and was not renewed. It never was successful in its intent to cover the expenses of keeping British troops permanently in America.
Creation of the Third Amendment
As a result of this experience with having their private property used by the government without their permission, the Founding Fathers wanted a guarantee that they would be protected from this abuse in the future by the new government they were creating.
Many people were skeptical that the new Constitution adequately protected their rights and they demanded that a Bill of Rights be added to it. A bill of rights is a list of rights that are specifically mentioned that the government has no right to interfere with. Bills of rights were added to make the rights of the citizens very clear, so there would be no room for government officials to "weasel" their way into tampering with them.
Once the states began to debate the newly proposed Constitution, it became apparent that the Constitution would not pass without changing the minds of its critics. Proponents of the Constitution were called Federalists. They wanted a stronger central government because the current government, governed by the Articles of Confederation, could barely function. The Federalists were led by James Madison, Alexander Hamilton, John Adams and George Washington.
The anti-Federalists opposed the Constitution. They were against a strong federal or central government because they feared the government would grow too powerful and take away the rights of the people. Men such as Patrick Henry, George Mason and Elbridge Gerry were leading anti-Federalists.
The Federalists came up with a compromise offer known as the Massachusetts Compromise, that would eventually persuade enough anti-Federalists to vote to support the Constitution so it could go into effect. In the Massachusetts Compromise, the Federalists promised that the First Congress would take into consideration the states' proposed amendments and add a bill of rights to the Constitution if the opponents would just vote yes to accept it. This promise persuaded enough of the critics to vote yes to accept the Constitution and it became the law of the land.
Keeping the promise, James Madison proposed a list of twenty amendments to the First Congress in a June 8, 1789 speech. Congress debated these amendments and eventually sent twelve of them to the states for their consideration. Ten of them were agreed upon by the states.
These first ten Amendments that were agreed upon, including the 3rd Amendment, finally became law on December 15, 1791 and are known as the Bill of Rights. You can read more about the History of the Bill of Rights here.
Third Amendment cases
The Third Amendment is one of the least cited parts of the Constitution in legal cases. It has never been addressed by the Supreme Court in over 200 years, but it has been referred to by the Court a few times. The reason it has been cited so few times is that there have been so few wars fought on American territory, especially since the Civil War. Another reason is that the American army now has substantial military bases to house its soldiers.
The only significant case involving the Third Amendment to be addressed by any court was called Engblom vs. Carey, which was decided in 1982. In this case, several New York corrections officials were evicted from their homes on the prison grounds during a strike. National Guard members were brought in to act as prison guards during the strike and some of them were housed in the homes of the missing officials.
The officials sued claiming that the Third Amendment protected them from having military personnel living in their homes. The state's position was that the officials did not own the homes so they were not the private property of these officials and, consequently, the Third Amendment could not be applied to them.
The officials lost their case originally on the grounds that they were not the owners of the homes, but on appeal, the 2nd Circuit Court agreed with them that their Third Amendment rights had been violated, saying that they had a reasonable right to call the prison property their own since they were the current occupants and controllers of the property.
If you would like to do a more in depth study on the 3rd Amendment, check out this article by Tom W. Bell. It is quite lengthy, but very thorough - The Third Amendment: Forgotten but Not Gone.
http://www.revolutionary-war-and-beyond.com/third-amendment.html#sthash.C4V3jpYJ.dpbs
As a result of this experience with having their private property used by the government without their permission, the Founding Fathers wanted a guarantee that they would be protected from this abuse in the future by the new government they were creating.
Many people were skeptical that the new Constitution adequately protected their rights and they demanded that a Bill of Rights be added to it. A bill of rights is a list of rights that are specifically mentioned that the government has no right to interfere with. Bills of rights were added to make the rights of the citizens very clear, so there would be no room for government officials to "weasel" their way into tampering with them.
Once the states began to debate the newly proposed Constitution, it became apparent that the Constitution would not pass without changing the minds of its critics. Proponents of the Constitution were called Federalists. They wanted a stronger central government because the current government, governed by the Articles of Confederation, could barely function. The Federalists were led by James Madison, Alexander Hamilton, John Adams and George Washington.
The anti-Federalists opposed the Constitution. They were against a strong federal or central government because they feared the government would grow too powerful and take away the rights of the people. Men such as Patrick Henry, George Mason and Elbridge Gerry were leading anti-Federalists.
The Federalists came up with a compromise offer known as the Massachusetts Compromise, that would eventually persuade enough anti-Federalists to vote to support the Constitution so it could go into effect. In the Massachusetts Compromise, the Federalists promised that the First Congress would take into consideration the states' proposed amendments and add a bill of rights to the Constitution if the opponents would just vote yes to accept it. This promise persuaded enough of the critics to vote yes to accept the Constitution and it became the law of the land.
Keeping the promise, James Madison proposed a list of twenty amendments to the First Congress in a June 8, 1789 speech. Congress debated these amendments and eventually sent twelve of them to the states for their consideration. Ten of them were agreed upon by the states.
These first ten Amendments that were agreed upon, including the 3rd Amendment, finally became law on December 15, 1791 and are known as the Bill of Rights. You can read more about the History of the Bill of Rights here.
Third Amendment cases
The Third Amendment is one of the least cited parts of the Constitution in legal cases. It has never been addressed by the Supreme Court in over 200 years, but it has been referred to by the Court a few times. The reason it has been cited so few times is that there have been so few wars fought on American territory, especially since the Civil War. Another reason is that the American army now has substantial military bases to house its soldiers.
The only significant case involving the Third Amendment to be addressed by any court was called Engblom vs. Carey, which was decided in 1982. In this case, several New York corrections officials were evicted from their homes on the prison grounds during a strike. National Guard members were brought in to act as prison guards during the strike and some of them were housed in the homes of the missing officials.
The officials sued claiming that the Third Amendment protected them from having military personnel living in their homes. The state's position was that the officials did not own the homes so they were not the private property of these officials and, consequently, the Third Amendment could not be applied to them.
The officials lost their case originally on the grounds that they were not the owners of the homes, but on appeal, the 2nd Circuit Court agreed with them that their Third Amendment rights had been violated, saying that they had a reasonable right to call the prison property their own since they were the current occupants and controllers of the property.
If you would like to do a more in depth study on the 3rd Amendment, check out this article by Tom W. Bell. It is quite lengthy, but very thorough - The Third Amendment: Forgotten but Not Gone.
http://www.revolutionary-war-and-beyond.com/third-amendment.html#sthash.C4V3jpYJ.dpbs
The Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Search and Seizure - Origins, Text, And History
Origins. Like most of the rest of the Bill of Rights, the Fourth Amendment has its origins in seventeenth-and eighteenth-century English common law. Unlike the rest of the Bill of Rights, the Fourth Amendment's origins can be traced precisely—it arose out of a strong public reaction to three cases from the 1760s, two decided in England and one in the colonies.
The two English cases are usefully treated as a pair. Both Wilkes v. Wood, 19 Howell's State Trials 1153 (C.P. 1763), and Entick v. Carrington, 19 Howell's State Trials 1029 (C.P. 1765), involved pamphleteers charged with seditious libel for criticizing the king's ministers and, through them, the king himself. In both cases, agents of the king issued a warrant authorizing the ransacking of the pamphleteers' homes and the seizure of all their books and papers. (An aside is necessary at this point: Warrants are means of giving government officials permission to search or arrest someone whom they otherwise might not be allowed to search or arrest. In American practice, warrants are issued only by judges or magistrates after reviewing an application from a police officer. In eighteenth-century England, warrants were sometimes issued by agents of the Crown on their own initiative.) These searches were duly carried out. Wilkes and Entick sued for damages, claiming that the warrants were void and that the searches pursuant to them were therefore illegal. Both Wilkes and Entick won, with powerful opinions issued by Lord Camden, the judge in both cases. These decisions made Camden a hero in the colonies; a number of towns and cities were named after him because of his opinions in Wilkes and Entick.
The third case was the Writs of Assistance Case (see Dickerson, 1939). British customs inspectors seeking to stamp out smuggling in colonial Boston were given blanket search warrants, called writs of assistance, that permitted them to search anyplace where they thought smuggled goods might be. (The writs also allowed the inspectors to compel private citizens to help them carry out the searches—hence the writs' name.) Some Boston merchants, represented by James Otis, sued, seeking a holding that the writs were invalid. The merchants lost, but Otis's argument, with its ringing defense of individual privacy, became famous and strengthened opposition to British rule. John Adams later said of Otis's argument that "then and there the child Independence was born."
Historians generally agree that the Fourth Amendment was designed to affirm the results in Wilkes and Entick, and to overturn the result in the Writs of Assistance Case. Three principles seem to follow. First, the government should not be allowed to search without some substantial justification, some reason to believe the place being searched contains the evidence being sought. That was the problem with the writs of assistance—they authorized searches based on no more than the unsupported suspicion of the inspector. Second, searches, particularly of private homes, should not go beyond their justification. That was the problem with the searches in Wilkes and Entick–the authorities did not simply search for and seize illegal writings, but took all the books and papers in the suspects' houses. Third, the government should not use blanket warrants to evade the first two principles. That was a problem in all three cases. English common law held it a trespass to invade someone's home without some kind of authorization; the warrants in Wilkes and Entick and the writs of assistance looked like efforts to evade that common law right. This explains why, at the time of the Founding era, search warrants—now viewed as a protection against police overreaching—were seen as more of a danger than a safeguard.
Notice that none of these three cases involved ordinary criminal law enforcement. None stemmed from the investigation of a murder, or a robbery, or a rape. Rather, each involved the investigation and prosecution of what might fairly be called dissidents—ordinary law-abiding citizens who disagreed strongly with the laws they were disobeying, and who enjoyed some substantial support among the citizenry. It is not at all clear from the Fourth Amendment's history that James Madison and his contemporaries wished to restrict the investigation of ordinary crimes; indeed, it is not clear that they even thought about the investigation of ordinary crimes.
Notice, too, that none of these cases involved searches by people whom we would recognize today as police officers. Police forces did not exist in the eighteenth century, either in England or in the colonies. It follows that the Framers could not possibly have thought about how best to regulate them. The Fourth Amendment's central role—reining in the police—is a role that it assumed much later. This point counsels in favor of a certain modesty when seeking to extract contemporary lessons from the Fourth Amendment's historical context.
Origins. Like most of the rest of the Bill of Rights, the Fourth Amendment has its origins in seventeenth-and eighteenth-century English common law. Unlike the rest of the Bill of Rights, the Fourth Amendment's origins can be traced precisely—it arose out of a strong public reaction to three cases from the 1760s, two decided in England and one in the colonies.
The two English cases are usefully treated as a pair. Both Wilkes v. Wood, 19 Howell's State Trials 1153 (C.P. 1763), and Entick v. Carrington, 19 Howell's State Trials 1029 (C.P. 1765), involved pamphleteers charged with seditious libel for criticizing the king's ministers and, through them, the king himself. In both cases, agents of the king issued a warrant authorizing the ransacking of the pamphleteers' homes and the seizure of all their books and papers. (An aside is necessary at this point: Warrants are means of giving government officials permission to search or arrest someone whom they otherwise might not be allowed to search or arrest. In American practice, warrants are issued only by judges or magistrates after reviewing an application from a police officer. In eighteenth-century England, warrants were sometimes issued by agents of the Crown on their own initiative.) These searches were duly carried out. Wilkes and Entick sued for damages, claiming that the warrants were void and that the searches pursuant to them were therefore illegal. Both Wilkes and Entick won, with powerful opinions issued by Lord Camden, the judge in both cases. These decisions made Camden a hero in the colonies; a number of towns and cities were named after him because of his opinions in Wilkes and Entick.
The third case was the Writs of Assistance Case (see Dickerson, 1939). British customs inspectors seeking to stamp out smuggling in colonial Boston were given blanket search warrants, called writs of assistance, that permitted them to search anyplace where they thought smuggled goods might be. (The writs also allowed the inspectors to compel private citizens to help them carry out the searches—hence the writs' name.) Some Boston merchants, represented by James Otis, sued, seeking a holding that the writs were invalid. The merchants lost, but Otis's argument, with its ringing defense of individual privacy, became famous and strengthened opposition to British rule. John Adams later said of Otis's argument that "then and there the child Independence was born."
Historians generally agree that the Fourth Amendment was designed to affirm the results in Wilkes and Entick, and to overturn the result in the Writs of Assistance Case. Three principles seem to follow. First, the government should not be allowed to search without some substantial justification, some reason to believe the place being searched contains the evidence being sought. That was the problem with the writs of assistance—they authorized searches based on no more than the unsupported suspicion of the inspector. Second, searches, particularly of private homes, should not go beyond their justification. That was the problem with the searches in Wilkes and Entick–the authorities did not simply search for and seize illegal writings, but took all the books and papers in the suspects' houses. Third, the government should not use blanket warrants to evade the first two principles. That was a problem in all three cases. English common law held it a trespass to invade someone's home without some kind of authorization; the warrants in Wilkes and Entick and the writs of assistance looked like efforts to evade that common law right. This explains why, at the time of the Founding era, search warrants—now viewed as a protection against police overreaching—were seen as more of a danger than a safeguard.
Notice that none of these three cases involved ordinary criminal law enforcement. None stemmed from the investigation of a murder, or a robbery, or a rape. Rather, each involved the investigation and prosecution of what might fairly be called dissidents—ordinary law-abiding citizens who disagreed strongly with the laws they were disobeying, and who enjoyed some substantial support among the citizenry. It is not at all clear from the Fourth Amendment's history that James Madison and his contemporaries wished to restrict the investigation of ordinary crimes; indeed, it is not clear that they even thought about the investigation of ordinary crimes.
Notice, too, that none of these cases involved searches by people whom we would recognize today as police officers. Police forces did not exist in the eighteenth century, either in England or in the colonies. It follows that the Framers could not possibly have thought about how best to regulate them. The Fourth Amendment's central role—reining in the police—is a role that it assumed much later. This point counsels in favor of a certain modesty when seeking to extract contemporary lessons from the Fourth Amendment's historical context.
The Fifth Amendment
The 5th Amendment is better known to most Americans than the other amendments in the Bill of Rights because of the familiar phrase "I plead the fifth," often used as a defense in criminal trials. The 5th Amendment also guarantees Americans several other basic rights, including the right to trial by Grand Jury for certain crimes, the right not to be tried or punished more than once for the same crime, the right to be tried only with due process of law and the right to be paid fair compensation for any property taken by the government for public use. The Fifth Amendment reads:
"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."
Clauses
The 5th Amendment is made up of 5 specific parts containing 6 different clauses, including:
"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."
Clauses
The 5th Amendment is made up of 5 specific parts containing 6 different clauses, including:
The Sixth Amendment
The 6th Amendment to the United States Constitution is a part of the American Bill of Rights, which is the first ten amendments to the Constitution. The Bill of Rights became law on December 15, 1791. The 6th Amendment focuses completely on the rights of a person accused of committing a crime by the government.
Of the 26 rights mentioned in the first eight amendments, 15 of them have something to do with the criminal court procedure. This was obviously something very important to the Founding Fathers. They were very familiar with a long list of government abuses from English history in which people were accused of things and punished unfairly. The English monarchy had punished, tortured and killed people for everything from disagreeing with the king to choosing a different religious path from the government's approved denomination.
The 6th Amendment contains 7 specific protections for people accused of crimes. The 6th Amendment reads like this:
"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."
The seven rights listed in the 6th Amendment include:
Of the 26 rights mentioned in the first eight amendments, 15 of them have something to do with the criminal court procedure. This was obviously something very important to the Founding Fathers. They were very familiar with a long list of government abuses from English history in which people were accused of things and punished unfairly. The English monarchy had punished, tortured and killed people for everything from disagreeing with the king to choosing a different religious path from the government's approved denomination.
The 6th Amendment contains 7 specific protections for people accused of crimes. The 6th Amendment reads like this:
"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."
The seven rights listed in the 6th Amendment include:
The Seventh Amendment
The 7th Amendment to the United States Constitution is part of the original Ten Amendments to the Constitution enacted by the First Congress. The 7th Amendment guarantees an accused person of the right to have a trial by jury in most civil cases and also guarantees that facts decided by those juries cannot be reexamined at a later date.
The right to trial by jury is one of the most frequently mentioned rights in the Bill of Rights - the First Ten Amendments to the United States Constitution. It was clearly very important to America's Founding Fathers to be mentioned so many times. The 7th Amendment protects this right in most civil cases. The 7th Amendment reads like this:
"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."
Purpose of the 7th Amendment
The 7th Amendment was included in the Bill of Rights for several basic reasons. The American colonists had just endured a period of not being allowed jury trials by the British government. This grievance was mentioned by Thomas Jefferson in the Declaration of Independence. The British Crown had created separate courts for the colonists that did not allow juries to decide the cases. Why did the Crown do this? Because the colonists' juries were consistently rejecting British law and undermining the wishes of the King and Parliament.
This was one of the colonists' ways of protecting themselves from unjust laws and it leads to the second reason the Founders included the 7th Amendment in the Bill of Rights - trial by jury provides a bulwark for the people against the government. Juries are not required to base their decisions on the wishes of government officials, but can choose to declare a person innocent of a crime they are accused of committing even if they are guilty. A jury would probably only do this however, if they believed the law itself was unjust.
History of the 7th Amendment -
Before the Revolution
The tradition of trial by jury began in England around the 12th century. Originally, juries were a group of twelve local men who were brought in to tell what they knew of the facts of a case. They were essentially the witnesses. Often juries were brought together to accuse political opponents of the king of various crimes in order to do away with their opposition. Eventually the tradition changed into a system whereby these twelve men would listen to evidence presented by both sides in the case and declare a verdict about whether or not the accused party was guilty.
During the years leading up to the Revolutionary War, American colonial juries became one of the leading places for American colonists to express their dissent against the British government. Starting in the 1600s, England had passed a series of laws which collectively became known as the Navigation Acts. These laws were designed primarily to strengthen England's trading position against her enemies, particularly the Netherlands.
The Navigation Acts required that goods produced in England or her colonies be shipped only on British ships and, in many cases, only to other British colonies or to England itself. The Acts restricted the colonies from trading with other nations, even if other nations provided cheaper products. This led the colonists to engage in smuggling to buy cheaper goods and to find markets where they could sell their own goods at a higher price.
As the smuggling increased, the Crown began to prosecute more and more colonists for violating the trade restrictions. As these cases went to trial, the juries often acquitted their fellow colonists of any wrongdoing, even though they had blatantly violated the law. This outraged the King, who set up new courts that didn't allow juries. Of course, the colonists were outraged that their right to be tried by a jury was denied. This grievance was specifically mentioned in the Declaration of Independence. You can view the grievance section of the Declaration of Independence here.
The right to trial by jury is one of the most frequently mentioned rights in the Bill of Rights - the First Ten Amendments to the United States Constitution. It was clearly very important to America's Founding Fathers to be mentioned so many times. The 7th Amendment protects this right in most civil cases. The 7th Amendment reads like this:
"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."
Purpose of the 7th Amendment
The 7th Amendment was included in the Bill of Rights for several basic reasons. The American colonists had just endured a period of not being allowed jury trials by the British government. This grievance was mentioned by Thomas Jefferson in the Declaration of Independence. The British Crown had created separate courts for the colonists that did not allow juries to decide the cases. Why did the Crown do this? Because the colonists' juries were consistently rejecting British law and undermining the wishes of the King and Parliament.
This was one of the colonists' ways of protecting themselves from unjust laws and it leads to the second reason the Founders included the 7th Amendment in the Bill of Rights - trial by jury provides a bulwark for the people against the government. Juries are not required to base their decisions on the wishes of government officials, but can choose to declare a person innocent of a crime they are accused of committing even if they are guilty. A jury would probably only do this however, if they believed the law itself was unjust.
History of the 7th Amendment -
Before the Revolution
The tradition of trial by jury began in England around the 12th century. Originally, juries were a group of twelve local men who were brought in to tell what they knew of the facts of a case. They were essentially the witnesses. Often juries were brought together to accuse political opponents of the king of various crimes in order to do away with their opposition. Eventually the tradition changed into a system whereby these twelve men would listen to evidence presented by both sides in the case and declare a verdict about whether or not the accused party was guilty.
During the years leading up to the Revolutionary War, American colonial juries became one of the leading places for American colonists to express their dissent against the British government. Starting in the 1600s, England had passed a series of laws which collectively became known as the Navigation Acts. These laws were designed primarily to strengthen England's trading position against her enemies, particularly the Netherlands.
The Navigation Acts required that goods produced in England or her colonies be shipped only on British ships and, in many cases, only to other British colonies or to England itself. The Acts restricted the colonies from trading with other nations, even if other nations provided cheaper products. This led the colonists to engage in smuggling to buy cheaper goods and to find markets where they could sell their own goods at a higher price.
As the smuggling increased, the Crown began to prosecute more and more colonists for violating the trade restrictions. As these cases went to trial, the juries often acquitted their fellow colonists of any wrongdoing, even though they had blatantly violated the law. This outraged the King, who set up new courts that didn't allow juries. Of course, the colonists were outraged that their right to be tried by a jury was denied. This grievance was specifically mentioned in the Declaration of Independence. You can view the grievance section of the Declaration of Independence here.
The Eighth Amendment
The Eighth Amendment to the U.S. Constitution reads:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The Eighth Amendment to the U.S. Constitution, ratified in 1791, has three provisions. The CRUEL AND UNUSUAL PUNISHMENTS CLAUSE restricts the severity of punishments that state and federal governments may impose upon persons who have been convicted of a criminal offense. The Excessive Fines Clause limits the amount that state and federal governments may fine a person for a particular crime. The Excessive Bail Clause restricts judicial discretion in setting bail for the release of persons accused of a criminal activity during the period following their arrest but preceding their trial.
Courts are given wide latitude under the Excessive Fines Clause of the Eighth Amendment. Fines imposed by a trial court judge or magistrate will not be overturned on appeal unless the judge or magistrate abused his or her discretion in assessing them (United States v. Hyppolite, 65 F.3d 1151 [4th Cir. 1995]). Under the "abuse-of-discretion" standard, appellate courts may overturn a fine that is ARBITRARY, capricious, or "so grossly excessive as to amount to a deprivation of property without due process of law" (Water-Pierce Oil Co. v. Texas, 212 U.S. 86, 111, 29 S. Ct. 220, 227, 53 L. Ed. 417 [1909]). Fines are rarely overturned on appeal for any of these reasons.
Trial court judges are given less latitude under the Excessive Bail Clause. Bail is the amount of money, property, or bond that a defendant must pledge to the court as security for his or her appearance at trial. If the defendant meets bail or is able to pay the amount set by the court, the defendant is entitled to recover the pledged amount at the conclusion of the criminal proceedings. However, if the defendant fails to appear as scheduled during the prosecution, then he or she forfeits the amount pledged and still faces further criminal penalties if convicted of the offense or offenses charged.
When fixing the amount of bail for a particular defendant, the court takes into consideration several factors: (1) the seriousness of the offense; (2) the WEIGHT OF EVIDENCE against the accused; (3) the nature and extent of any ties, such as family or employment, that the accused has to the community where he or she will be prosecuted; (4) the accuseds ability to pay a given amount; and (5) the likelihood that the accused will flee the jurisdiction if released.
In applying these factors, courts usually attempt to set bail for a reasonable amount. Setting bail for an unreasonable amount would unnecessarily restrict the freedom of a person who only has been accused of wrongdoing; who is presumed innocent until proven otherwise; and who is entitled to pursue a living and to support a family. At the same time, courts are aware that bail needs to be set sufficiently high to ensure that the defendant will return for trial. Defendants are less likely to flee the jurisdiction when they would forfeit large amounts of money as a result. Courts are also aware that they must protect communities from the harm presented by particularly dangerous defendants. In this regard, the U.S. Supreme Court has permitted lower courts to deny bail for defendants who would create abnormally dangerous risks to the community if released.
Appellate courts usually defer to lower courts' decisions when a criminal penalty is challenged under the Excessive Fines and Excessive Bail Clauses of the Eighth Amendment. They give much closer scrutiny to criminal penalties that are challenged under the Cruel and Unusual Punishments Clause. State and federal governments are prohibited from inflicting cruel and unusual punishments on a defendant, no matter how heinous the crime committed. The prohibition against CRUEL AND UNUSUAL PUNISHMENT by states derives from the doctrine of incorporation, through which selective liberties contained in the BILL OF RIGHTS have been applied to the states by the U.S. Supreme Court's interpretation of the DUE PROCESS and EQUAL PROTECTION Clauses of the FOURTEENTH AMENDMENT.
The Eighth Amendment requires that every punishment imposed by the government be commensurate with the offense committed by the defendant. Punishments that are disproportionately harsh will be overturned on appeal. Examples of punishments that have been overturned for being unreasonable are two Georgia statutes that prescribed the death penalty for rape and KIDNAPPING (Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 [1977]; Eberheart v. Georgia, 433 U.S. 917, 97 S. Ct. 2994, 53 L. Ed. 2d 1104 [1977]).
The U.S. Supreme Court has also ruled that criminal sentences that are inhuman, outrageous, or shocking to the social conscience are cruel and unusual. Although the Court has never provided meaningful definitions for these characteristics, the pertinent cases speak for themselves. For example, the Georgia Supreme Court explained that the Eighth Amendment was intended to prohibit barbarous punishments such as castration, burning at the stake, and quartering (Whitten v. Georgia, 47 Ga. 297 [1872]). Similarly, the U.S. Supreme Court wrote that the Cruel and Unusual Punishments Clause prohibits crucifixion, breaking on the wheel, and other punishments that involve a lingering death (In re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519 [1890]). The Court also invalidated an Oklahoma law (57 O.S. 1941 §§ 173, 174, 176–181, 195) that compelled the state government to sterilize "feeble-minded" or "habitual" criminals in an effort to prevent them from reproducing and passing on their deficient characteristics (Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 [1942]). Significantly, however, the Court had let stand, fifteen years earlier, a Virginia law (1924 Va. Acts C. 394) that authorized the sterilization of mentally retarded individuals who were institutionalized at state facilities for the "feeble-minded" (BUCK V. BELL, 274 U.S. 200, 47 S. Ct. 584, 71 L. Ed. 1000 [1927]).
A constitutional standard that allows judges to strike down legislation that they find shocking, but to let stand other legislation they find less disturbing, has an inherently subjective and malleable quality. A punishment that seems outrageous to one judge on one particular day might seem sensible to a different judge on the same day or to the same judge on a different day. For example, in Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992), the U.S. Supreme Court reviewed a case in which a prisoner had been handcuffed by two Louisiana corrections officers and beaten to the point where his teeth were loosened and his dental plate was cracked. Seven U.S. Supreme Court justices ruled that the prisoner had suffered cruel and unusual punishment under the Eighth Amendment. Two justices, ANTONIN SCALIA and CLARENCE THOMAS, disagreed.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The Eighth Amendment to the U.S. Constitution, ratified in 1791, has three provisions. The CRUEL AND UNUSUAL PUNISHMENTS CLAUSE restricts the severity of punishments that state and federal governments may impose upon persons who have been convicted of a criminal offense. The Excessive Fines Clause limits the amount that state and federal governments may fine a person for a particular crime. The Excessive Bail Clause restricts judicial discretion in setting bail for the release of persons accused of a criminal activity during the period following their arrest but preceding their trial.
Courts are given wide latitude under the Excessive Fines Clause of the Eighth Amendment. Fines imposed by a trial court judge or magistrate will not be overturned on appeal unless the judge or magistrate abused his or her discretion in assessing them (United States v. Hyppolite, 65 F.3d 1151 [4th Cir. 1995]). Under the "abuse-of-discretion" standard, appellate courts may overturn a fine that is ARBITRARY, capricious, or "so grossly excessive as to amount to a deprivation of property without due process of law" (Water-Pierce Oil Co. v. Texas, 212 U.S. 86, 111, 29 S. Ct. 220, 227, 53 L. Ed. 417 [1909]). Fines are rarely overturned on appeal for any of these reasons.
Trial court judges are given less latitude under the Excessive Bail Clause. Bail is the amount of money, property, or bond that a defendant must pledge to the court as security for his or her appearance at trial. If the defendant meets bail or is able to pay the amount set by the court, the defendant is entitled to recover the pledged amount at the conclusion of the criminal proceedings. However, if the defendant fails to appear as scheduled during the prosecution, then he or she forfeits the amount pledged and still faces further criminal penalties if convicted of the offense or offenses charged.
When fixing the amount of bail for a particular defendant, the court takes into consideration several factors: (1) the seriousness of the offense; (2) the WEIGHT OF EVIDENCE against the accused; (3) the nature and extent of any ties, such as family or employment, that the accused has to the community where he or she will be prosecuted; (4) the accuseds ability to pay a given amount; and (5) the likelihood that the accused will flee the jurisdiction if released.
In applying these factors, courts usually attempt to set bail for a reasonable amount. Setting bail for an unreasonable amount would unnecessarily restrict the freedom of a person who only has been accused of wrongdoing; who is presumed innocent until proven otherwise; and who is entitled to pursue a living and to support a family. At the same time, courts are aware that bail needs to be set sufficiently high to ensure that the defendant will return for trial. Defendants are less likely to flee the jurisdiction when they would forfeit large amounts of money as a result. Courts are also aware that they must protect communities from the harm presented by particularly dangerous defendants. In this regard, the U.S. Supreme Court has permitted lower courts to deny bail for defendants who would create abnormally dangerous risks to the community if released.
Appellate courts usually defer to lower courts' decisions when a criminal penalty is challenged under the Excessive Fines and Excessive Bail Clauses of the Eighth Amendment. They give much closer scrutiny to criminal penalties that are challenged under the Cruel and Unusual Punishments Clause. State and federal governments are prohibited from inflicting cruel and unusual punishments on a defendant, no matter how heinous the crime committed. The prohibition against CRUEL AND UNUSUAL PUNISHMENT by states derives from the doctrine of incorporation, through which selective liberties contained in the BILL OF RIGHTS have been applied to the states by the U.S. Supreme Court's interpretation of the DUE PROCESS and EQUAL PROTECTION Clauses of the FOURTEENTH AMENDMENT.
The Eighth Amendment requires that every punishment imposed by the government be commensurate with the offense committed by the defendant. Punishments that are disproportionately harsh will be overturned on appeal. Examples of punishments that have been overturned for being unreasonable are two Georgia statutes that prescribed the death penalty for rape and KIDNAPPING (Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 [1977]; Eberheart v. Georgia, 433 U.S. 917, 97 S. Ct. 2994, 53 L. Ed. 2d 1104 [1977]).
The U.S. Supreme Court has also ruled that criminal sentences that are inhuman, outrageous, or shocking to the social conscience are cruel and unusual. Although the Court has never provided meaningful definitions for these characteristics, the pertinent cases speak for themselves. For example, the Georgia Supreme Court explained that the Eighth Amendment was intended to prohibit barbarous punishments such as castration, burning at the stake, and quartering (Whitten v. Georgia, 47 Ga. 297 [1872]). Similarly, the U.S. Supreme Court wrote that the Cruel and Unusual Punishments Clause prohibits crucifixion, breaking on the wheel, and other punishments that involve a lingering death (In re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519 [1890]). The Court also invalidated an Oklahoma law (57 O.S. 1941 §§ 173, 174, 176–181, 195) that compelled the state government to sterilize "feeble-minded" or "habitual" criminals in an effort to prevent them from reproducing and passing on their deficient characteristics (Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 [1942]). Significantly, however, the Court had let stand, fifteen years earlier, a Virginia law (1924 Va. Acts C. 394) that authorized the sterilization of mentally retarded individuals who were institutionalized at state facilities for the "feeble-minded" (BUCK V. BELL, 274 U.S. 200, 47 S. Ct. 584, 71 L. Ed. 1000 [1927]).
A constitutional standard that allows judges to strike down legislation that they find shocking, but to let stand other legislation they find less disturbing, has an inherently subjective and malleable quality. A punishment that seems outrageous to one judge on one particular day might seem sensible to a different judge on the same day or to the same judge on a different day. For example, in Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992), the U.S. Supreme Court reviewed a case in which a prisoner had been handcuffed by two Louisiana corrections officers and beaten to the point where his teeth were loosened and his dental plate was cracked. Seven U.S. Supreme Court justices ruled that the prisoner had suffered cruel and unusual punishment under the Eighth Amendment. Two justices, ANTONIN SCALIA and CLARENCE THOMAS, disagreed.
The Ninth Amendment
The Ninth Amendment to the U.S. Constitution reads:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Ninth Amendment to the U.S. Constitution is somewhat of an enigma. It provides that the naming of certain rights in the Constitution does not take away from the people rights that are not named. Yet neither the language nor the history of the Ninth Amendment offers any hints as to the nature of the rights it was designed to protect.
Every year federal courts are asked to recognize new Unenumerated Rights "retained by the people," and typically they turn to the Ninth Amendment. However, the federal judiciary does not base rulings exclusively on the Ninth Amendment; the courts usually cite the amendment as a secondary source of fundamental liberties. In particular, the Ninth Amendment has played a significant role in establishing a constitutional right to privacy.
Ratified in 1791, the Ninth Amendment is an outgrowth of a disagreement between the Federalists and the Anti-Federalists over the importance of attaching a Bill of Rights to the Constitution. When the Constitution was initially drafted by the Framers in 1787, it contained no Bill of Rights. The Anti-Federalists, who generally opposed ratification because they believed that the Constitution conferred too much power on the federal government, supported a Bill of Rights to serve as an additional constraint against despotism. The Federalists, on the other hand, supported ratification of the Constitution without a Bill of Rights because they believed that any enumeration of fundamental liberties was unnecessary and dangerous.
The Federalists contended that a Bill of Rights was unnecessary because in their view the federal government possessed only limited powers that were expressly delegated to it by the Constitution. They believed that all powers not constitutionally delegated to the federal government were inherently reserved to the people and the states. Nowhere in the Constitution, the Federalists pointed out, is the federal government given the power to trample on individual liberties. The Federalists feared that if the Constitution were to include a Bill of Rights that protected certain liberties from government encroachment, an inference would be drawn that the federal government could exercise an implied power to regulate such liberties.
Alexander Hamilton, one of the leading Federalists, articulated this concern in The Federalist No. 84. Why should a Bill of Rights, Hamilton asked, "declare that things shall not be done which there is no power to do?" For instance, Hamilton said it was unnecessary for a Bill of Rights to protect the Freedom of the Press when the federal government is not granted the power to regulate the press. A provision "against restraining the liberty of the press," Hamilton said, "afford[s] the clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government."
The Federalists were also concerned that any constitutional enumeration of liberties might imply that other rights, not enumerated by the Constitution, would be surrendered to the government. A Bill of Rights, they feared, would quickly become the exclusive means by which the American people could secure their freedom and stave off tyranny. Federalist James Madison argued that any attempt to enumerate fundamental liberties would be incomplete and might imperil other freedoms not listed. A "positive declaration of some essential rights could not be obtained in the requisite latitude," Madison said. "If an enumeration be made of all our rights," he queried, "will it not be implied that everything omitted is given to the general government?"
Anti-Federalists and others who supported a Bill of Rights attempted to mollify the Federalists' concerns with three counterarguments. First, the Anti-Federalists underscored the fact that the Constitution guarantees certain liberties even without a Bill of Rights. For example, Article I of the Constitution prohibits Congress from suspending the writ of Habeas Corpus and from passing bills of attainder and Ex Post Facto Laws. If these liberties could be enumerated without endangering other unenumerated liberties, Anti-Federalists reasoned, additional liberties, such as freedom of the press and religion, could be safeguarded in a Bill of Rights.
Second, while acknowledging that it would be impossible to enumerate every human liberty imaginable, supporters of a Bill of Rights maintained that this obstacle should not impede the Framers from establishing constitutional protection for certain essential liberties. Thomas Jefferson, responding to Madison's claim that no Bill of Rights could ever be exhaustive, commented that "[h]alf a loaf is better than no bread. If we cannot secure all of our rights, let us secure what we can."
Third, Anti-Federalists argued that if there was a genuine risk that naming certain liberties would imperil others, then an additional constitutional amendment should be drafted to offer protection for all liberties not mentioned in the Bill of Rights. Such an amendment, the Anti-Federalists argued, would protect those liberties that might fall through the cracks of written constitutional provisions. This idea became the Ninth Amendment.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Ninth Amendment to the U.S. Constitution is somewhat of an enigma. It provides that the naming of certain rights in the Constitution does not take away from the people rights that are not named. Yet neither the language nor the history of the Ninth Amendment offers any hints as to the nature of the rights it was designed to protect.
Every year federal courts are asked to recognize new Unenumerated Rights "retained by the people," and typically they turn to the Ninth Amendment. However, the federal judiciary does not base rulings exclusively on the Ninth Amendment; the courts usually cite the amendment as a secondary source of fundamental liberties. In particular, the Ninth Amendment has played a significant role in establishing a constitutional right to privacy.
Ratified in 1791, the Ninth Amendment is an outgrowth of a disagreement between the Federalists and the Anti-Federalists over the importance of attaching a Bill of Rights to the Constitution. When the Constitution was initially drafted by the Framers in 1787, it contained no Bill of Rights. The Anti-Federalists, who generally opposed ratification because they believed that the Constitution conferred too much power on the federal government, supported a Bill of Rights to serve as an additional constraint against despotism. The Federalists, on the other hand, supported ratification of the Constitution without a Bill of Rights because they believed that any enumeration of fundamental liberties was unnecessary and dangerous.
The Federalists contended that a Bill of Rights was unnecessary because in their view the federal government possessed only limited powers that were expressly delegated to it by the Constitution. They believed that all powers not constitutionally delegated to the federal government were inherently reserved to the people and the states. Nowhere in the Constitution, the Federalists pointed out, is the federal government given the power to trample on individual liberties. The Federalists feared that if the Constitution were to include a Bill of Rights that protected certain liberties from government encroachment, an inference would be drawn that the federal government could exercise an implied power to regulate such liberties.
Alexander Hamilton, one of the leading Federalists, articulated this concern in The Federalist No. 84. Why should a Bill of Rights, Hamilton asked, "declare that things shall not be done which there is no power to do?" For instance, Hamilton said it was unnecessary for a Bill of Rights to protect the Freedom of the Press when the federal government is not granted the power to regulate the press. A provision "against restraining the liberty of the press," Hamilton said, "afford[s] the clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government."
The Federalists were also concerned that any constitutional enumeration of liberties might imply that other rights, not enumerated by the Constitution, would be surrendered to the government. A Bill of Rights, they feared, would quickly become the exclusive means by which the American people could secure their freedom and stave off tyranny. Federalist James Madison argued that any attempt to enumerate fundamental liberties would be incomplete and might imperil other freedoms not listed. A "positive declaration of some essential rights could not be obtained in the requisite latitude," Madison said. "If an enumeration be made of all our rights," he queried, "will it not be implied that everything omitted is given to the general government?"
Anti-Federalists and others who supported a Bill of Rights attempted to mollify the Federalists' concerns with three counterarguments. First, the Anti-Federalists underscored the fact that the Constitution guarantees certain liberties even without a Bill of Rights. For example, Article I of the Constitution prohibits Congress from suspending the writ of Habeas Corpus and from passing bills of attainder and Ex Post Facto Laws. If these liberties could be enumerated without endangering other unenumerated liberties, Anti-Federalists reasoned, additional liberties, such as freedom of the press and religion, could be safeguarded in a Bill of Rights.
Second, while acknowledging that it would be impossible to enumerate every human liberty imaginable, supporters of a Bill of Rights maintained that this obstacle should not impede the Framers from establishing constitutional protection for certain essential liberties. Thomas Jefferson, responding to Madison's claim that no Bill of Rights could ever be exhaustive, commented that "[h]alf a loaf is better than no bread. If we cannot secure all of our rights, let us secure what we can."
Third, Anti-Federalists argued that if there was a genuine risk that naming certain liberties would imperil others, then an additional constitutional amendment should be drafted to offer protection for all liberties not mentioned in the Bill of Rights. Such an amendment, the Anti-Federalists argued, would protect those liberties that might fall through the cracks of written constitutional provisions. This idea became the Ninth Amendment.
The Tenth Amendment
The 10th Amendment to the United States Constitution is a guarantee of States' rights. The Constitution designed the federal government to be a government of limited and enumerated, or listed, powers. This means that the federal government only has powers over the things that are specifically given to it in the Constitution. All other powers are reserved to the States. The 10th Amendment in the Bill of Rights reads like this:
"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."
Purpose of the 10th Amendment
Why did the Founding Fathers put the 10th Amendment into the Bill of Rights? The explanation is that they did not want the central government to become too powerful. They didn't want a government that was located far away from their homes dictating how they lived their daily lives. They wanted as much power as possible to be retained in their local state legislatures.
Today, the 10th Amendment idea of limiting the federal government's power has been severely weakened by many years of gradual changes in the view of what is and what is not a federal power. The main culprits in this weakening of the 10th Amendment have been the Supreme Court and Congress itself.
History of the 10th Amendment
To better understand the modern day position of the 10th Amendment in our culture, we have to look back at the history of this Amendment and the reasons the Founding Fathers added it in the Bill of Rights.
If you remember your history, you will remember that during the Revolutionary War, on July 2, 1776, the thirteen colonies all declared their independence from Great Britain at once. The day the declaration was voted upon and passed was July 2, not July 4 as most people think. The decision was publicly announced for the first time on July 4 and that is why Americans celebrate independence on that day.
"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."
Purpose of the 10th Amendment
Why did the Founding Fathers put the 10th Amendment into the Bill of Rights? The explanation is that they did not want the central government to become too powerful. They didn't want a government that was located far away from their homes dictating how they lived their daily lives. They wanted as much power as possible to be retained in their local state legislatures.
Today, the 10th Amendment idea of limiting the federal government's power has been severely weakened by many years of gradual changes in the view of what is and what is not a federal power. The main culprits in this weakening of the 10th Amendment have been the Supreme Court and Congress itself.
History of the 10th Amendment
To better understand the modern day position of the 10th Amendment in our culture, we have to look back at the history of this Amendment and the reasons the Founding Fathers added it in the Bill of Rights.
If you remember your history, you will remember that during the Revolutionary War, on July 2, 1776, the thirteen colonies all declared their independence from Great Britain at once. The day the declaration was voted upon and passed was July 2, not July 4 as most people think. The decision was publicly announced for the first time on July 4 and that is why Americans celebrate independence on that day.
The Founders wanted the central government to have very limited powers and the Articles of Confederation did just that. In fact, the government proved to be so weak that it could barely function. It had no power to collect taxes or force the delegates to attend. That's why they later dissolved this government and created the Constitution of the United States in its place. The Constitution still strictly limited what the federal government could do, but with enough power, this time, to sustain itself. That is the document that our government is still organized around. You can read the Articles of Confederation here and you can read the United States Constitution here.10th Amendment -
Ratifying the Constitution
After the Constitution was written in 1789, the States had to ratify it for it to become law. There was much discussion about the merits and weaknesses of the Constitution. Again, the States' rights issue came up. Many people were very concerned that the Constitution took away too much power from the States.
The Federalist party wanted to have a strong central government so it would have enough power to actually do things, unlike the government under the Articles of Confederation. George Washington, James Madison, Alexander Hamilton and John Adams were Federalists.
The Anti-Federalist party wanted more power to stay with the states to purposefully weaken the central government. Thomas Jefferson, Patrick Henry and George Mason were Anti-Federalists.
The Anti-Federalists believed the Constitution did not spell out specifically that certain natural rights of the people would be protected from intrusion by the government - rights such as freedom of speech, freedom of religion and freedom from cruel and unusual punishment. They wanted these things specifically added to the Constitution.
The Federalists believed the Constitution did not grant the federal government power over any of these things anyway, because the Constitution only grants certain specifically mentioned powers to it. Instead, they believed that adding specific mention of specific rights would actually be a danger to the people's rights. Why? Because they thought that if the Constitution listed certain rights and said those rights were protected, it would imply that any rights not listed, were not protected. Later, the Ninth Amendment was added to the Constitution to deal with this potential problem. It says:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
This means that just because a right is not mentioned doesn't mean that it isn't protected from intrusion by the government. So, they are saying that there are natural rights that every human being has, which are too many to list. The government cannot meddle in any those rights, even if they're not specifically mentioned.
Ratifying the Constitution
After the Constitution was written in 1789, the States had to ratify it for it to become law. There was much discussion about the merits and weaknesses of the Constitution. Again, the States' rights issue came up. Many people were very concerned that the Constitution took away too much power from the States.
The Federalist party wanted to have a strong central government so it would have enough power to actually do things, unlike the government under the Articles of Confederation. George Washington, James Madison, Alexander Hamilton and John Adams were Federalists.
The Anti-Federalist party wanted more power to stay with the states to purposefully weaken the central government. Thomas Jefferson, Patrick Henry and George Mason were Anti-Federalists.
The Anti-Federalists believed the Constitution did not spell out specifically that certain natural rights of the people would be protected from intrusion by the government - rights such as freedom of speech, freedom of religion and freedom from cruel and unusual punishment. They wanted these things specifically added to the Constitution.
The Federalists believed the Constitution did not grant the federal government power over any of these things anyway, because the Constitution only grants certain specifically mentioned powers to it. Instead, they believed that adding specific mention of specific rights would actually be a danger to the people's rights. Why? Because they thought that if the Constitution listed certain rights and said those rights were protected, it would imply that any rights not listed, were not protected. Later, the Ninth Amendment was added to the Constitution to deal with this potential problem. It says:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
This means that just because a right is not mentioned doesn't mean that it isn't protected from intrusion by the government. So, they are saying that there are natural rights that every human being has, which are too many to list. The government cannot meddle in any those rights, even if they're not specifically mentioned.