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The Bill of Rights

Page history last edited by mberry 11 years, 7 months ago

 

 previous section 'Federalists and Anti Federalists'  

  next section 'Amendments' 

 

The Bill of Rights

 

  The Bill of Rights was first introduced to Congress in 1789 by James Madison but it wasn't until 2 years later on December 15, 1791 that it was put  into effect. The Bill of Rights was created in response to the implications of power that the Constitution lent to the government, and the lack of the entitlement of rights to the people. One of the arguments against ratification of the Constitution was that it failed to protect human liberties, and guaranteed too much power to the government. The Bill of Rights is important because of its symbolic suggestion of the freedom and individual liberty that Americans enjoy today. Below is an explanation of each amendment, (old English is confusing ain't it?)  and its importance and relevance to today!  

 

 (1)

James Madison (March 16, 1751- June 28, 1836)

 

 Before we get into the nitty gritty, you may want to check out the following links. If singing helps you remember long boring stuff like the Constitution, click here for the Bill of Rights rap and here for the Awesome Amendments sing-a-long!

 

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." (2)

Meaning and Significance- The First Amendment entitles the American people to peacefully assemble, and to petition the government without being prosecuted. People have the freedom of speech which means everyone can speak opinions and beliefs without limitation, censorship, or fear of prosecution. This clause would become highly contested in lots of Supreme Court cases (see Chapter 3).  Freedom of religion means that either a single person, or a congregation of people have the right to assemble, teach, and pray, to whatever God (if any) that they believe in or for whatever reason they want. It also implies a separation of church and state. Neither freedom of speech nor freedom of religion can be obstructed by government. This is probably one of the most controversial amendments because the question before us is always 'what exactly does the First Amendment protect?' Can a person burn a flag or have a gay parade or pray to the Sun god?  What are the limitations to it? The only limitations that seem to be consistently upheld by the Supreme Court have been threats to national security.

 

Second Amendment

"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." (2)

Meaning and Significance- The Second Amendment entitles the American people to keep and bear arms if they so desire, free of government interference. Some states have extremely loose laws regarding guns, like Alaska for instance. In Alaska, a person does not need a permit to carry a gun and they may carry a gun concealed in public places with the restriction of day cares, courthouses and shelters among other places.  F.Y.I. Nearly everyone in Alaska owns a gun!  Some places have more strict gun laws like Washington D.C. , which is reluctant to even let a person carry a handgun in their house. In the meantime, D.C.'s murder rate has risen over 134% since these strict gun laws were implemented. (3) Food for thought. This amendment was created in response to the out of control British government that had tried to reclaim the separatist colonies of America. After the Revolutionary War, the new central government of the United States decided it was essential that the people be able to protect themselves against government tyranny...just in case. It is also a means of self defense and safety.

 

 

Think about it!

 Why do you think D.C. has such strict gun laws? Do you think it is justified? Do you think it has something to do with their lack of trust in the people or simply just for safety?

 

Third Amendment

"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." (2)

Meaning and Significance -The Third Amendment protects the American people from the quartering of soldiers during times of peace and during times of war. No American should be forced to keep soldiers in their house against their will. This was also written in response to the Revolutionary War. From 1775 to 1783, "lobsterbacks" (as the Patriots referred to the Tory soldiers) could force themselves in the colonists homes for food, shelter etc. though they were on the opposing side. This imposed the governments control over the people, which the Americans strongly defied. This amendment relinquishes some government control over the people. Think you know all about the  Revolutionary War? Play The Road to Revolution (4) to find out. 

 

                                                                                 "Fun" Fact!

During the Revolutionary War, colonists tarred and feathered either those that failed to join the revolutionary cause, or Tories and Lobsterbacks. Colonists would immobilize an unsuspecting person, pour scalding hot tar on him, and cover him with feathers to be paraded around the town. It was sometimes fatal.  

 

 

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." (2)

Meaning and Significance - The Fourth Amendment protects the people against unreasonable searches and seizures without probable cause and suspicion which is the standard by which policeman have the right to make an arrest, conduct a personal or property search, or to obtain a search warrant. This ensures people the security of their possessions and their person, from suspicionless interference.  This is another means of protecting people from the government.  This amendment dates back to a man in English law named Sir Edward Coke.  Coke considered everyone's house his own, and for his own safety, allowed anyone's houses or possessions to be searched and seized at anytime.  Critics of Coke, like John Wilkes, were convicted of libel and often arrested, with their writings destroyed. Nowadays, laws regarding the Fourth Amendment are very strict with regard to probable cause, warrants, and the writ of assistance. If the Fourth Amendment is violated, evidence may not even be taken into account in court.

 

Fifth Amendment

"No person shall be held to answer for any 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." (2)

Meaning and Significance -  The Fifth Amendment ensures due process which is the government's respect for the legal rights and processes in the judicial system which are ensured to all people according to the law. It also prevents double jeopardy which forbids a person from being tried twice for the same crime under the same set of facts. It furthermore prevents self incrimination, which is accusing oneself of a crime in which they can then be prosecuted by interrogation or other means. If someone were to divulge information, it must be because of the persons own free will. Finally it prevents eminent domain which is the power of the state to seize a persons property or their rights against their will and abuse of the standard justice system.  For more info on Fifth Amendment Supreme Court cases, click on the following links; United States v. Calandra (5) involves the Grand Jury and the exclusionary rule , United States v. Ball(6) involves double jeopardy, Malloy v. Hogan (7) involves self incrimination, and Ashcraft v. Tennessee (8) involves interrogation. 

 

                                                                           Did You Know?

In the case of Ashcraft v. Tennessee, involving the murder of his wife, Ashcroft was questioned for 36 hours straight under high powered lights, after which he continued to declare himself not guilty.

 

 

 

 

Sixth Amendment

"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 where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense." (2)

Meaning and Significance -The Sixth Amendment ensures the rights of an accused person to a trial by jury, a speedy and public trial, the right to counsel and to be informed of the charges against them. It also ensures that an accused person be confronted with the witnesses against them, which is known as the Confrontation Clause. This gives a person the utmost advantage and fairness in their judicial proceedings along with unbiased representation in the state in which the crime occurred. 

 

                                                                          Think About It!

Are court cases always fair? Is it possible to find an impartial jury? How much does the media play in convicting people based on assumptions (e.g. Tiger Woods and his sex scandals).

 

Seventh Amendment

"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." (2)

Meaning and Significance -The Seventh Amendment ensures the accused of a civil trial by jury and in arguments over money that exceed $20. It also declares the role of a judge in a case and preserves the right to common law, which states that a judge may nullify a verdict on the grounds that it contradicts evidence. Further, common law regards the idea that similar evidence cannot be treated differently under different circumstances or 'one for all' so to speak. The founding of precedent was based on common law. A precedent is when the judge uses cases preceding it that involved similar facts or ideas to determine the ruling of the present case.     

 

Eighth Amendment

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (2)

Meaning and Significance - The Eighth Amendment guards against cruel and unusual punishment for those incarcerated which is defined as suffering or humiliation by the government. Cruel and unusual punishment can be something so minute as to sentence a drug addict 90 days in jail for this 'illness' as in the court case Robinson v. California (9) or punishment as drastic as the death penalty like in Furman v. Georgia (10).  There are four principles that guide the idea of 'cruel and unusual punishment''; 1) a severe punishment that is patently unnecessary, 2) a severe punishment that is obviously inflicted in a wholly arbitrary fashion, 3) a severe punishment that is clearly and totally rejected throughout society, and 4) that a punishment must not by its severity be degrading to human dignity which progressive Justice Willlaim J. Brennan Jr.,  described. The Eighth Amendment also prevents excessive fines and excessive bail which is considered more than necessary or usual amounts of bail to assure that the accused will make court appearances. For instance, it was deemed unlawful for a person to be fined $500, 000 for not reporting his taking of $20,000. This resulted in the Excessive Fines Clause which states that a person cannot be fined a "gross disproportionality" as compared to their offense. Likewise for excessive bail. This part of the Constitution resulted from the common excessive fines and bail that were imposed in England. No excessive bail may be imposed, but for severe crimes, bail may not be posted at all.  

 

                                                                                  Did You Know?

Justice William J. Brennan Jr. (August 25, 1906- July 24, 1997) was appointed by Dwight Eisenhower in 1956 though they were of opposing parties.  It is presumed that Eisenhower did it to guarantee his presidential seat.

 

Ninth Amendment

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (2)

Meaning and Significance - The Ninth Amendment refers to the rights not included in the Constitution that are ensured to the people and may not be denied. You can think of it as the Kitchen Sink Amendment...ya know...everything but the Kitchen Sink.  The purpose of the Ninth Amendment was to limit governmental expansion and the restriction  on the rights of the people that the government may impose that the authors of the Bill of Rights may not have considered. This amendment was a result of the debate that a Federalist argued that a list of every amendment in the Constitution would be tedious and illogical. The authors also claimed that there was no way that they would recall and write down every right which would guarantee them absolute freedom from a tyrannical government. Therefore, the Ninth Amendment was created to guarantee them the countless rights that they may not have included 'on the fly.' 

 

Tenth 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" (2)

Meaning and Significance - The Tenth Amendment limits the federal government's power and guarantees rights that are not already prohibited, to be entitled to the states. Through this amendment, each state is allowed to retain its rights, independence, freedom, powers, and jurisdiction, not listed in the Constitution while the federal government must adhere to the laws listed in Constitution, and are only given the powers by which the Constitution implies. This amendment has allowed the states power in the government in a more concurrent way.  This prevents an overthrow of the state governments by the federal government and ensures the people that their particular interests and representation are retained.  It has led to controversy over federalism.

 

previous section 'Federalists and Anti Federalists' 

next section 'Amendments' 

 

 

Work Cited

 

(1) http:://www.ts4.com/Quotes/Pictures/James Madison.jpg 

(2) Yale Law School "Constitution of the United States: Bill of Rights" 2008 Lillian Goldman Law Library <http://avalon.law.yale.edu/18th_century/rights1.asp>

(3) O. Reynolds, Morgan and Caruth III, W.W."Myths About Gun Control" NCPA Policy Report No. 176 <http://www.ncpa.org/pdfs/st176.pdf> (Dec. 1992)

(4) Twin Cities Public Television. "The Road to Revolution" <http://www.pbs.org/ktca/liberty/road_q1.html> (2004)

(5) Net Industries "United States v. Calandra - Significance, Exclusionary Rule's Prime Purpose, Better For Some Guilty People To Go Free" <http://law.jrank.org/pages/13019/United-States-v-Calandra.html> (2010)

(6) Open Juror "35 F3d 572 United States v. Ball" Aug. 10, 1994

(7) Find Law "MALLOY v. HOGAN" 378 U.S. 1 (1964) <http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=378&invol=1> (2010)

(8) Net Industries "Ashcraft v. State of Tennessee - Significance, The Constitution Bars Coerced Confessions, Supervisory Power, Impact"

(9) Find Law "ROBINSON v. CALIFORNIA" 370 U.S. 660 (1962) <http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=370&invol=660> (2010)

(10) Find Law "FURMAN v. GEORGIA" 408 U.S. 238 (1972) <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=408&invol=238> (2010)

 

 

Comments (2)

mberry said

at 12:16 pm on Oct 28, 2009

There is solid information here. THere are quite a few typos here you guys! Proofread carefully! I would suggest proofing each other's work -- it is easier. Just edit the page for one another! Can you spice this up? Surely there are interesting links to groups that support or don't support the AMendments....can you explain how these have been interpreted over time? This seems to not incorporate the "tone" we agreed to as a class -- meaning it is a bit dry and staid. Jazz it up! But it is a good start!

mberry said

at 12:17 pm on Oct 28, 2009

oooh -- and you MUST have your sources CITED!! The images MUST have citations next to them...other sources can be cited at the end. Use Chicago Manual of Style for internet sources!

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