The Bill of Rights

[xotrevor]

Shortly after the ratification of the U.S. Constitution, the Founding generation added the Bill of Rights—the Constitution’s first 10 amendments. These amendments guarantee many of our most cherished liberties, including the freedom of religion, the freedom of speech, the right to keep and bear arms, and the right to a jury trial. After the Constitutional Convention, the absence of a bill of rights emerged as a key part of the debates over ratification. Anti-Federalists—those who opposed the Constitution —pointed to the missing bill of rights as a fatal flaw in the new document. Several states ratified the Constitution with an understanding that amendments would be promptly added by the new government. This module will explore the origins of the Bill of Rights, explain its importance to the debate over the ratification of the U.S. Constitution, and walk through the specific rights enshrined in each of the first 10 amendments.

The Bill of Rights is the first 10 Amendments to the Constitution. It spells out Americans’ rights in relation to their government. It guarantees civil rights and liberties to the individual—like freedom of speech, press, and religion. It sets rules for due process of law and reserves all powers not delegated to the Federal Government to the people or the States. And it specifies that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

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The First Amendment provides several rights protections: to express ideas through speech and the press, to assemble or gather with a group to protest or for other reasons, and to ask the government to fix problems. It also protects the right to religious beliefs and practices. It prevents the government from creating or favoring a religion.

The Text

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.

11On September 25, 1789, Congress transmitted to the states twelve proposed amendments. Two of these, which involved congressional representation and pay, were not adopted. The remaining ten amendments, known as the Bill of Rights, were ratified on December 15, 1791.

The Meaning

Freedom of Speech and of the Press: The First Amendment allows citizens to express and to be exposed to a wide range of opinions and views. It was intended to ensure a free exchange of ideas, even if the ideas are unpopular.

Freedom of speech encompasses not only the spoken and written word, but also all kinds of expression (including non-verbal communications, such as sit-ins, art, photographs, films and advertisements). Under its provisions, the media— including television, radio and the Internet— is free to distribute a wide range of news, facts, opinions and pictures. The amendment protects not only the speaker, but also the person who receives the information. The right to read, hear, see and obtain different points of view is a First Amendment right as well.

But the right to free speech is not absolute. The U.S. Supreme Court has ruled that the government sometimes may be allowed to limit speech. For example, the government may limit or ban libel (the communication of false statements about a person that may injure his or her reputation), obscenity, fighting words, and words that present a clear and present danger of inciting violence. The government also may regulate speech by limiting the time, place or manner in which it is made. For example, the government may require activists to obtain a permit before holding a large protest rally on a public street.

Freedom of Assembly and Right to Petition the Government: The First Amendment also protects the freedom of assembly, which can mean physically gathering with a group of people to picket or protest; or associating with one another in groups for economic, political or religious purposes.

The First Amendment also protects the right not to associate, which means that the government cannot force people to join a group they do not wish to join. A related right is the right to petition the government, including everything from signing a petition to filing a lawsuit.

Freedom of Religion: The First Amendment’s free exercise clause allows a person to hold whatever religious beliefs he or she wants, and to exercise that belief by attending religious services, praying in public or in private, proselytizing or wearing religious clothing, such as yarmulkes or headscarves. Also included in the free exercise clause is the right not to believe in any religion, and the right not to participate in religious activities.

Second, the establishment clause prevents the government from creating a church, endorsing religion in general, or favoring one set of religious beliefs over another. As the U.S. Supreme Court decided in 1947 in Everson v. Board of Education of Ewing Township, the establishment clause was intended to erect “a wall of separation between church and state,” although the degree to which government should accommodate religion in public life has been debated in numerous Supreme Court decisions since then.

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The Second Amendment protects the right to keep and bear arms.

The Text

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.

The Meaning

Right to Bear Arms: The principal debate surrounding the Second Amendment has been whether the right to use and buy guns belongs to individuals or only to a militia. Starting in 2008, in two cases, the Supreme Court accepted the view that Americans have the right to arm themselves for personal use in their home and applied it to federal, state and local laws. The courts have permitted the government to limit some rights of gun manufacturers, owners and sellers. Today, questions about the Second Amendment center on bans on assault weapons, mandatory background checks, waiting periods, and other restrictions on gun sales or use. Gun control legislation varies widely among the fifty states.

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The Third Amendment prevents government from forcing homeowners to allow soldiers to use their homes. Before the Revolutionary War, laws gave British soldiers the right to take over private homes.

The Text

No Soldier shall, in time of peace, be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

The Meaning

The Third Amendment is intended to protect citizens’ rights to the ownership and use of their property without intrusion by the government. The drafters of the Constitution, like many other colonists, were resentful of laws, in place before the Revolutionary War, that allowed British soldiers to take over private homes for their own use. Thus, the amendment bars the government from forcing individuals to provide lodging to soldiers in their homes, except during war when the interest of national security may override an individual’s right of private property.

Rarely discussed in detail in Supreme Court decisions, the Third Amendment has more commonly been held up as evidence that the framers meant the Constitution to protect individuals from government intrusion into their homes, family lives and personal affairs.

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The Fourth Amendment bars the government from unreasonable search and seizure of an individual or their private property.

The Text

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.

The Meaning

Protection against Unreasonable Search and Seizure: The Fourth Amendment protects people against unreasonable searches and seizures by government officials. A search can mean everything from a frisking by a police officer to a blood test to a search of an individual’s home or car. A seizure occurs when the government takes control of an individual or something in his or her possession. Items that are seized often are used as evidence when the individual is charged with a crime.

The Fourth Amendment imposes certain limitations on police investigating a crime and prevents the use of illegally obtained evidence at trial. But it does not restrict all searches. For example, courts have ruled that school officials may search school lockers and require that students who participate in extracurricular activities undergo random drug testing.

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The Fifth Amendment provides several protections for people accused of crimes. It states that serious criminal charges must be started by a grand jury.  A person cannot be tried twice for the same offense (double jeopardy) or have property taken away without just compensation. People have the right against self-incrimination and cannot be imprisoned without due process of law (fair procedures and trials.)

The Text

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.

The Meaning

Grand Jury Protection: The Fifth Amendment requirement that serious federal criminal charges be started by a grand jury (a group of citizens who hear evidence from a prosecutor about potential crimes) is rooted in English common law. Its basic purpose is to provide a fair method for beginning criminal proceedings against those accused of committing crimes. Grand jury charges can be issued against anyone except members of the military, who are instead subject to courts-martial in the military justice system.

To avoid giving government unchecked powers, grand jurors are selected from the general population and their work, conducted in secret, is not hampered by rigid rules about the type of evidence that can be heard. In fact, grand jurors can act on their own knowledge and are free to start criminal proceedings on any information that they think relevant.

It is these broad powers that have led some critics to charge that grand juries are little more than puppets of prosecutors. Grand juries also serve an investigative role— because grand juries can compel witnesses to testify in the absence of their lawyers.

A significant number of states do not use grand juries, instead they begin criminal proceedings using informations or indictments. The right to a grand jury is one of only a few protections in the Bill of Rights that has not been applied to the states by the Fourteenth Amendment.

Protection against Double Jeopardy: This portion of the Fifth Amendment protects individuals from being “twice put in jeopardy of life or limb,” that is, in danger of being punished more than once for the same criminal act. The U.S. Supreme Court has interpreted the double jeopardy clause to protect against a second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same crime. Like other provisions in the Bill of Rights that affect criminal prosecutions, the double jeopardy clause is rooted in the idea that the government should not have unlimited power to prosecute and punish criminal suspects. Rather, the government gets only one chance to make its case.

Right against Self-Incrimination: This provision of the Fifth Amendment is probably the best-known of all constitutional rights, as it appears frequently on television and in movies— whether in dramatic courtroom scenes (“I take the Fifth!”) or before the police question someone in their custody (“You have the right to remain silent. Anything you do say can be used against you in a court of law.”) The right protects a person from being forced to reveal to the police, prosecutor, judge, or jury any information that might subject him or her to criminal prosecution. Even if a person is guilty of a crime, the Fifth Amendment demands that the prosecutors come up with other evidence to prove their case. If police violate the Fifth Amendment by forcing a suspect to confess, a court may suppress the confession, that is, prohibit it from being used as evidence at trial.

The right to remain silent also means that a defendant has the right not to take the witness stand at all during his or her trial, and that the prosecutor cannot point to the defendant’s silence as evidence of guilt. There are, however, limitations on the right against self-incrimination. For example, it applies only to testimonial acts, such as speaking, nodding, or writing. Other personal information that might be incriminating, like blood or hair samples, DNA or fingerprints, may be used as evidence. Similarly, incriminating statements that an individual makes voluntarily— such as when a suspect confesses to a friend or writes in a personal diary— are not protected.

Right to Due Process: The right to due process of law has been recognized since 1215, when the Magna Carta (the British charter) was adopted. Historically, the right protected people accused of crimes from being imprisoned without fair procedures (like indictments and trials, where they would have an opportunity to confront their accusers). The right of due process has grown in two directions: It affords individuals a right to a fair process (known as procedural due process) and a right to enjoy certain fundamental liberties without governmental interference (known as substantive due process). The Fifth Amendment’s due process clause applies to the federal government’s conduct. In 1868 the adoption of the Fourteenth Amendment expanded the right of due process to include limits on the actions of state governments.

Today, court decisions interpreting the Fourteenth Amendment’s due process right generally apply to the Fifth Amendment and vice versa.

Takings Clause: The takings clause of the Fifth Amendment strikes a balance between the rights of private property owners and the right of the government to take that property for a purpose that benefits the public at large. When the government takes private property, it is required to pay just compensation to the property owner for his or her loss. The takings power of the government, sometimes referred to as the power of eminent domain, may be used for a wide range of valid public uses (for a highway or a park, for example). For the most part, when defining just compensation, courts try to reach some approximation of market value.

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The Sixth Amendment provides additional protections to people accused of crimes, such as the right to a speedy and public trial, trial by an impartial jury in criminal cases, and to be informed of criminal charges. Witnesses must face the accused, and the accused is allowed his or her own witnesses and to be represented by a lawyer.

The Text

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 Meaning

Right to a Jury Trial: In a criminal case, the government prosecutes or charges a defendant with a violation of the criminal law and begins proceedings (bail hearings, arraignments and trials) to prove that charge beyond a reasonable doubt.

The Sixth Amendment provides many protections and rights to a person accused of a crime. One right is to have his or her case heard by an impartial jury— independent people from the surrounding community who are willing to decide the case based only on the evidence. In some cases where there has been a significant amount of news coverage, the Supreme Court has ruled that jury members may be picked from another location in order to ensure that the jurors are impartial.

When choosing a jury, both prosecutors and defense attorneys may object to certain people being included. Some of these objections, called challenges, are for cause (the potential juror has said or done something that shows he or she may not act fairly). Others are peremptory (no real reason need be given, but one side does not want to have that person serve). Lawyers cannot use peremptory challenges to keep people off a jury because of race or gender.

Right to a Speedy Trial: This right is considered one of the most important in the Constitution. Without it, criminal defendants could be held indefinitely under a cloud of unproven criminal accusations. The right to a speedy trial also is crucial to assuring that a criminal defendant receives a fair trial. If too much time elapses between the alleged crime and the trial, witnesses may die or leave the area, their memories may fade, and physical evidence may be lost.

The Public Trial Guarantee: Like the right to a speedy trial, the right to a public trial serves the interests of both criminal defendants and the public. Defendants are protected from secret proceedings that might encourage abuse of the justice system, and the public is kept informed about how the criminal justice system works. Like most constitutional protections, however, the right to a public trial is not absolute. A criminal defendant may voluntarily give up (waive) his or her right to a public proceeding or the judge may limit public access in certain circumstances. For example, a judge might order a closed hearing to prevent intimidation of a witness or to keep order in the courtroom.

Right to Be Informed of Criminal Charges: The Sixth Amendment right to “be informed of the nature and cause of the accusation” is another protection meant to ensure that the accused receives a fair trail. A speedy, public trial that is heard by an impartial jury is meaningless if a defendant is left in the dark about exactly the crime with which he or she is charged.

Right to Be Confronted by Adverse Witnesses: The so-called confrontation clause prevents prosecutors from relying on witnesses’ out-of-court statements to make their case. Rather, it requires that prosecutors put their witnesses on the stand, under oath. As the U.S. Supreme Court explained in its 1970 opinion, California v. Green, the defendant’s ability to confront a hostile witness in person puts pressure on the witness to tell the truth, allows the defendant’s counsel to cross-examine the witness (which may reveal him or her to be unreliable), and gives the jury an up-close view of the witness, so that they can decide for themselves if the witness is believable.

There are exceptions to the confrontation clause, of course. If a knowledgeable witness is unavailable at the time of trial, for example, a previous statement will be allowed into evidence, so long as the witness made it under conditions that were similar to those at trial (for example, if the statement was made under oath). Defendants also may be prevented from confronting witnesses against them when the well-being of the witness is at issue. For example, child witnesses may be allowed to testify in the judge’s chambers rather than in open court.

Right to Assistance of Counsel: The Sixth Amendment guarantees a criminal defendant the right to have an attorney defend him or her at trial. That right is not dependent on the defendant’s ability to pay an attorney; if a defendant cannot afford a lawyer, the government is required to provide one. The right to counsel is more than just the right to have an attorney physically present at criminal proceedings. The assistance provided by the attorney must be effective. This does not mean that the defendant has a right to an attorney who will win his or her case. A defendant can receive effective assistance of counsel and still be convicted and sent to jail.

However, if an attorney’s performance is not up to reasonable standards for the profession or if the attorney’s ability to put on a full defense is hindered by the prosecutor’s misconduct, then the defendant may be able to challenge his or her conviction. This provision does not guarantee the right to an attorney in most civil cases.

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The Seventh Amendment extends the right to a jury trial in Federal civil cases.

The Text

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.

The Meaning

The Seventh Amendment extends the right to a jury trial to federal civil cases such as car accidents, disputes between corporations for breach of contract, or most discrimination or employment disputes. In civil cases, the person bringing the lawsuit (the plaintiff) seeks money damages or a court order preventing the person being sued (the defendant) from engaging in certain conduct. To win, the plaintiff must prove his or her case by “preponderance of the evidence,” that is by over fifty percent of the proof.

Although the Seventh Amendment itself says that it is limited to “suits at common law,” meaning cases that triggered the right to a jury under English law, the amendment has been found to apply in lawsuits that are similar to the old common law cases. For example, the right to a jury trial applies to cases brought under federal statutes that prohibit race or gender discrimination in housing or employment. But importantly, the Seventh Amendment guarantees the right to a jury trial only in federal court, not in state court.

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The Eighth Amendment bars excessive bail and fines and cruel and unusual punishment.

The Text

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Meaning

No Excessive Bail: The first portion of the Eighth Amendment concerns bail— the money paid by a defendant in a criminal case in exchange for his or her release from jail before trial. Bail is returned to the defendant when he or she appears at trial but is forfeited to the government if he or she does not appear. In this way, bail provides an incentive for a defendant to remain in the area and participate in the trial.

Bail also promotes the ideal of being innocent until proven guilty, in that a defendant is not punished with jail time before he or she actually has been convicted. Bail also assists a defendant in preparing his or her case for trial, for it is far more difficult to consult with counsel when one is in police custody. The Eighth Amendment ensures that bail cannot be “excessive,” at an amount so high that it would be impossible for all but the richest defendants to pay it.

The Eighth Amendment however, does not guarantee an absolute right to be released on bail before trial. The U.S. Supreme Court has identified circumstances when a court may refuse bail entirely, such as when a defendant shows a significant risk of running away or poses a considerable danger to the community.

Prohibition against Cruel and Unusual Punishment: The better-known component of the Eighth Amendment is the prohibition against cruel and unusual punishment. Although this phrase originally was intended to outlaw certain gruesome methods of punishments— such as torture, burning at the stake, or crucifixion— it has been broadened over the years to protect against punishments that are grossly disproportionate to (meaning much too harsh for) the particular crime.

Except for a brief period in the 1970s, the death penalty has not been considered by the U.S. Supreme Court to be cruel and unusual punishment. As a result, Eighth Amendment challenges to the death penalty have focused on the methods used to carry out executions, whether certain offenders (for example, juveniles or the mentally retarded) should be subject to the sentence and whether death sentences are decided in a fair manner and by an impartial jury.

It is not just criminal sentences themselves that are subject to the cruel and unusual test; the Eighth Amendment’s cruel and unusual provision has been used to challenge prison conditions such as extremely unsanitary cells, overcrowding, insufficient medical care and deliberate failure by officials to protect inmates from one another.

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The Ninth Amendment states that listing specific rights in the Constitution does not mean that people do not have other rights that have not been spelled out.

The Text

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Meaning

The Ninth Amendment is a constitutional safety net intended to make clear that individuals have other fundamental rights, in addition to those listed in the First through Eighth Amendments. Some of the framers had raised concerns that because it was impossible to list every fundamental right, it would be dangerous to list just some of them (for example, the right to free speech, the right to bear arms, and so forth), for fear of suggesting that the list was complete.

This group of framers opposed a bill of rights entirely and favored a more general declaration of fundamental rights. But others, including many state representatives, had refused to ratify the Constitution without a more specific list of protections, so the First Congress added the Ninth Amendment as a compromise.

Because the rights protected by the Ninth Amendment are not specified, they are referred to as “unenumerated.” The Supreme Court has found that unenumerated rights include such important rights as the right to travel, the right to vote, the right to keep personal matters private and to make important decisions about one’s health care or body.

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The Tenth Amendment says that the Federal Government only has those powers delegated in the Constitution. If it isn’t listed, it belongs to the states or to the people.

Tenth Amendment Is No Barrier To Enacting Labor Laws

1941

In a switch from its earlier pro–states’ rights rulings, particularly Hammer v. Dagenhart, the U.S. Supreme Court rules unanimously in United States v. Darby that the federal government acted within its authority in passing the Fair Labor Standards Act (FLSA). The Court finds that the law, which establishes numerous minimum wage and maximum labor standards nationwide, falls within Congress’ authority to regulate interstate commerce.