CHAPTER 4- THE BILL OF RIGHTS
4.1- aDDING THE bILL OF rIGHTS
As 18th Century Americans debated the Constitution, some pointed to the way the British had abused the colonists' civil rights before the revolution. They believed that the Constitution was missing ways to protect the rights of individuals from possible future abuse by the government. Some leaders agreed to ratify the new Constitution only if a "Bill of Rights" was added.
Protecting Citizens' Rights:
Virginia already had a Declaration of Rights written in 1776 by George Mason, a member of the Virginia House of Delegates.
Mason stated that people could form no government that took away their rights to life, liberty, and the pursuit of happiness and safety. These words are similar to what Thomas Jefferson wrote in the first part of the Declaration of Independence.
The Virginia Declaration of Rights also ensured other freedoms such as:
Ratifying the Bill of Rights:
On September 25, 1789, the First Congress of the United States under the Constitution proposed 12 amendments to the Constitution. These proposed additions answered most of the concerns people had about the original Constitution. By December 15, 1791, three-fourths of the states had ratified the 10 amendments now known as the Bill of Rights. These amendments are:
First Amendment:
Protecting Citizens' Rights:
Virginia already had a Declaration of Rights written in 1776 by George Mason, a member of the Virginia House of Delegates.
Mason stated that people could form no government that took away their rights to life, liberty, and the pursuit of happiness and safety. These words are similar to what Thomas Jefferson wrote in the first part of the Declaration of Independence.
The Virginia Declaration of Rights also ensured other freedoms such as:
- The right of people accuse of a crime to know who their accusers are.
- The right to Trial by Jury
- The right of the press to speak freely.
- The right of the people to practice the religion of their choice.
Ratifying the Bill of Rights:
On September 25, 1789, the First Congress of the United States under the Constitution proposed 12 amendments to the Constitution. These proposed additions answered most of the concerns people had about the original Constitution. By December 15, 1791, three-fourths of the states had ratified the 10 amendments now known as the Bill of Rights. These amendments are:
First Amendment:
- Guarantees and protects freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and the right to petition the government for issues that they feel violate their rights.
- Discusses the right to bear arms.
- Prohibits the government from forcing people to house and feed soldiers in their homes.
- Protects citizens from unreasonable searches and seizures.
- Guarantees that a person accuse of a crime will not be denied the right to life, liberty, or property without due process of law.
- Guarantees the right of an accused person in a criminal case to trial by jury, representation by an attorney, and a speedy trial.
- Guarantees citizens the right to a trial by jury in civil cases.
- Protects accused persons against imprisonment or punishment that is excessive.
- Declares that people have rights beyond those mentioned in the Constitution.
- Declares that the powers not specifically given to the Federal Government belong to the States or the People.
4.2- INSIDE THE BILL OF RIGHTS
George Mason not only wrote the earlier Virginia Declaration of Rights, he also refused to ratify the Articles of the Constitution because he felt citizen's rights were not sufficiently defined and protected by the document. Many others agreed, and the first 10 amendments to the Constitution were added to address their concerns.
The First Amendment:
The First Amendment guarantees religious and political freedoms.
The success of a democracy depends on the ability of the people to make informed decisions. To do so citizens must be able to:
Freedom of Religion:
Many early colonists came to America from England, which had an official religion- The Church of England. Those who practiced another religion were often mistreated. The First Amendment prevents the government from establishing a state religion or from favoring one religion over another. This principle is often referred to as the "Separation of Church and State," although that phrase is not used in the Constitution.
The interpretation of this amendment is more complicated than it sounds. The Supreme Court is often asked to interpret whether certain activities violate this amendment. Some of the issues they have considered include:
Freedom of Speech:
The First Amendment guarantees that Americans can say what they believe to be true, in public or private, without fear of punishment. Open discussion helps improve our laws and systems. Over the years the supreme court has faced two major issues with this aspect of the First Amendment:
1- Expanding the definition of Free Speech:
Since the First Amendment was written, the idea of "Speech" has been interpreted as more than speaking your mind in words. The right to express yourself in art, music, or even the way you dress has been supported by the Supreme Court decisions. The phrase "Freedom of Expression" is usually used to describe these rights. The First Amendment protects many types of self-expression.
2- Limiting Free Speech:
However, the Supreme Court also recognizes some limitations to free speech. People may be stopped from expressing themselves when they:
Freedom of the Press:
The First Amendment gives people the right to publish their ideas- make information known by word of mouth or in writing. Without a free press, wrongdoing by government officials couldn't be exposed. Newspapers and television could only report the official version of events.
The First Amendment also gives people the right to read what others have published. The government cannot ban books or other material, even if some people find them offensive- insulting or morally wrong. This ensures that American people can get varied information and hear many different points of view. The press has the same limitations on free speech as the individual citizen. Deliberately publishing untrue statements about someone is a crime called Libel.
Freedom of Assembly:
The First Amendment guarantees that Americans can meet for demonstrations, parades, political rallies, or for any reason to discuss and share their opinions, as long as the assemblies are peaceful. The government may make slaws about when and where meetings can be held, but they cannot ban them.
Other assembly rights protected by the First Amendment include your right to form or join organizations, such as political parties, social clubs, labor unions, and political action groups.
Freedom to Petition:
Freedom to Petition gives citizens the right to tell members of the government what they want. Petitioning allows you to be a part of solving problems and making laws to improve your community and country.
A petition is a formal request that an action be taken. Americans have the right to petition the government through their representatives. A petition can be a simple letter to a government official commenting on a law or a formal written request signed by thousands of citizens.
The Second Amendment:
The Second Amendment provides for the right to bear arms.
During the Revolution, small, local armies called militias helped fight the British. These militias also helped prohibit peace and defend states and communities after the war. The members of a militia did such an important job that the right to bear- or carry/own- weapons is protected in the Second Amendment.
Today, many citizens debate what this amendment means. Private ownership of guns is legal. So is government regulations of guns and similar weapons. States require registration and background checks on owners and limit the types of weapons a person can own. Some cities have banned civilians from having certain kinds of weapons.
The Third Amendment:
The Third Amendment prohibits the government from forcing people to house and feed soldiers in their homes.
Before and during the Revolution, British laws forced American colonists to allow British soldiers to live in their houses. The colonists also had to feed the soldiers. the Third Amendment made it illegal for the government to take over private homes for use by the military.
The Fourth Amendment:
The Fourth Amendment protects citizens from unreasonable searches and seizures.
The Fourth Amendment protects the privacy of your home, your physical self, and your property. British common law recognized the right of people to defend their homes against unlawful entry, even by representatives of the King. "A man's house is is castle," wrote Sir Edward Coke, the great 16th century English legal scholar. In the 18th century, William Pitt, the British statesman who often supported the colonists in Parliament wrote, "The poorest man may in his cottage bid defiance to all the force of the crown. it may be frail- the roof may shake- the wind may blow through it- the storm may enter, the rain may enter- but the King of England cannot enter- all his force dares not cross the threshold..."
Sometimes known as the Privacy Amendment, the Fourth Amendment prohibits authorities from:
The Fourth Amendment allows searches and seizures when there is probable cause- when reasonable people might assume that a crime has been committed. If law officers have reason to think that a suspect has committed a crime and that evidence might be found, they may request a warrant- a legal document issued by a judge. The judge may or may not grant it.
Courts are often asked to rule on the question of probable cause- to define what is reasonable and what types of property can be searched or seized.
The Fifth Amendment:
The Fifth Amendment guarantees that a person accused of a crime will not be denied the right to life, liberty, or property without due process of law.
The Fifth Amendment addresses five major issues involving due process of law. It guarantees:
Indictment by a Grand Jury
Before someone can be put on trial for a serious crime, the evidence must be presented to a grand jury- a group of citizens who decide whether the evidence suggests that the person may have committed a crime. The Grand Jury can then issue an indictment- a formal accusation that leads to a trial. This process protects people from being tried without evidence, and it also prevents the courts from being tied up in pointless trials.
Double Jeopardy
Double jeopardy means that you can't be tried again for a crime once you've been found not guilty of that crime. Even if more evidence is found after the trial, the government cannot try the person again.
Self Incrimination
Citizens can't be forced to testify against themselves in court. They also can't be forced to incriminate themselves- to say something that could be used to convict them of a crime or make others think that might have committed a crime. Refusing to answer a question in court is sometimes called "Taking the Fifth," or using the Fifth Amendment to protect your rights.
Due Process
No person's life, liberty, or property can be taken away without due process- following procedures set up by the constitution and other laws of the land. Due process also means that laws must be reasonable to an average person.
Eminent Domain:
The government has the power of eminent domain- the right to take private property for public use. However, the Fifth Amendment prohibits the government from taking a person's property without paying a fair price for it.
Example: If a person owns a house and land that will be needed when the government builds a new highway, the government has the right to take the land even if the landowner objects. The Fifth Amendment ensures that the government must pay the landowner a fair market price for that land.
Sixth Amendment
The Sixth Amendment guarantees certain rights of an accused person.
The Sixth Amendment protects people accuse of crimes in four ways the accused person has the right to:
Know the Nature of Charges
People have the right to be told what charges have been brought against them. In other words, the accused must be told what crime he or she is accused of and who made the accusations. This provision assures that the accused can prepare an effective defense.
Know the Witnesses
The accused has the right to know who will act as witnesses and to challenge those witnesses in court, usually though his or her lawyer, to test their reliability and truthfulness. The accused may also use his own witness to testify in his defense.
A Speedy Public Trial and Impartial Jury
Anyone accuse of a crime has the right to a speedy and public trial by an impartial jury- a group of people who are not prejudiced or biased toward the defendant or the case. Courts usually see a trial date as soon as the evidence and witnesses are ready, so that the accused isn't held in jail any longer than necessary.
A Lawyer
The accused has the right to be represented by an attorney. Sometimes people can't afford to hire attorneys. In these cases, the government will pay for an attorney for the accused.
Seventh Amendment
The Seventh Amendment guarantees citizens the right to a trial by jury in civil cases.
Not all court cases deal with crimes. Sometimes people or groups may disagree about property or money and ask a court to decide the issue. Participants may settle "out of court" and avoid a trial completely. Regardless, they are entitled to have the case heard by a jury, if they so desire.
The Eighth Amendment
The Eighth Amendment protects accused persons against imprisonment or punishment that is excessive.
This breaks down into two elements:
Excessive Bail
The Eighth Amendment gives the accused person a choice of either:
Courts must set bail high enough to discouraged the accused person from running away and not showing up for the trial. However, the Eighth Amendment prohibits courts from setting bail so high that a person can't possibly afford it. Judges don't have to release a prisoner on bail if:
Cruel and Unusual Punishment
In the 1700s', this amendment protected people from branding, and other physical punishments that had been used in the past. Today, it usually means that the penalty should fit the crime. For example: Putting a person in jail for life for stealing a quart of milk- would seem unreasonable to most people. On the other hand, if someone deliberately takes another person's life, most reasonable people would consider some time in prison to be a reasonable punishment.
Some people argue that the death penalty is, by its very nature, always "cruel and unusual." Currently the decision to use the Death Penalty is decided through popular sovereignty in a State. Some States have banned it all together. Some States have banned certain types of executions.
The Ninth Amendment
The Ninth Amendment declares that people have rights beyond those mentioned in the Constitution.
The writers knew that the Bill of Rights couldn't list every possible right, but they wanted people to know that additional rights existed, even if they weren't specifically mentioned. There fore, they wrote the Ninth and Tenth Amendments to help deal with issues our country might face in the future.
Example: Many of the rights we take for granted are not listed in the Constitution:
The Tenth Amendment
The Tenth Amendment states that powers not specifically given to the Federal Government are given to the states or the people.
The Tenth Amendment stops the U.S. Government from taking more power than the Constitution gives it. This amendment helps balance power between the national and state governments. It also keeps Congress and the president from becoming too powerful.
Example: Federal law makes buyers wait five days for a background check before purchasing a gun. The federal government ordered local sheriffs and police chiefs to do the checks. Two sheriffs objected, saying that the federal government couldn't ask employees of a state to enforce federal law without giving them money and people to do it. The court agreed.
The First Amendment:
The First Amendment guarantees religious and political freedoms.
The success of a democracy depends on the ability of the people to make informed decisions. To do so citizens must be able to:
- Get reliable information about issues.
- Discuss ideas freely.
- Communicate ideas with their elected officials.
- Religion
- Speech
- The Press
- Assembly
- Petition
Freedom of Religion:
Many early colonists came to America from England, which had an official religion- The Church of England. Those who practiced another religion were often mistreated. The First Amendment prevents the government from establishing a state religion or from favoring one religion over another. This principle is often referred to as the "Separation of Church and State," although that phrase is not used in the Constitution.
The interpretation of this amendment is more complicated than it sounds. The Supreme Court is often asked to interpret whether certain activities violate this amendment. Some of the issues they have considered include:
- Can local governments require churches to pay taxes on church-owned property?
- Can public schools require students to pray? Can students participate in voluntary prayer in school?
- Can the government require people who don't believe in killing to serve in the military?
- Can public property be used to display religious symbols?
Freedom of Speech:
The First Amendment guarantees that Americans can say what they believe to be true, in public or private, without fear of punishment. Open discussion helps improve our laws and systems. Over the years the supreme court has faced two major issues with this aspect of the First Amendment:
1- Expanding the definition of Free Speech:
Since the First Amendment was written, the idea of "Speech" has been interpreted as more than speaking your mind in words. The right to express yourself in art, music, or even the way you dress has been supported by the Supreme Court decisions. The phrase "Freedom of Expression" is usually used to describe these rights. The First Amendment protects many types of self-expression.
2- Limiting Free Speech:
However, the Supreme Court also recognizes some limitations to free speech. People may be stopped from expressing themselves when they:
- Tell lies that may injure someone's reputation.
- This is called slander
- Create a false panic (for example, by yelling "Fire" in a crowded building- when there is no fire.)
- Encourage others to riot or destroy property.
- commit treason- endanger the country by giving information to or helping an enemy.
Freedom of the Press:
The First Amendment gives people the right to publish their ideas- make information known by word of mouth or in writing. Without a free press, wrongdoing by government officials couldn't be exposed. Newspapers and television could only report the official version of events.
The First Amendment also gives people the right to read what others have published. The government cannot ban books or other material, even if some people find them offensive- insulting or morally wrong. This ensures that American people can get varied information and hear many different points of view. The press has the same limitations on free speech as the individual citizen. Deliberately publishing untrue statements about someone is a crime called Libel.
Freedom of Assembly:
The First Amendment guarantees that Americans can meet for demonstrations, parades, political rallies, or for any reason to discuss and share their opinions, as long as the assemblies are peaceful. The government may make slaws about when and where meetings can be held, but they cannot ban them.
Other assembly rights protected by the First Amendment include your right to form or join organizations, such as political parties, social clubs, labor unions, and political action groups.
Freedom to Petition:
Freedom to Petition gives citizens the right to tell members of the government what they want. Petitioning allows you to be a part of solving problems and making laws to improve your community and country.
A petition is a formal request that an action be taken. Americans have the right to petition the government through their representatives. A petition can be a simple letter to a government official commenting on a law or a formal written request signed by thousands of citizens.
The Second Amendment:
The Second Amendment provides for the right to bear arms.
During the Revolution, small, local armies called militias helped fight the British. These militias also helped prohibit peace and defend states and communities after the war. The members of a militia did such an important job that the right to bear- or carry/own- weapons is protected in the Second Amendment.
Today, many citizens debate what this amendment means. Private ownership of guns is legal. So is government regulations of guns and similar weapons. States require registration and background checks on owners and limit the types of weapons a person can own. Some cities have banned civilians from having certain kinds of weapons.
The Third Amendment:
The Third Amendment prohibits the government from forcing people to house and feed soldiers in their homes.
Before and during the Revolution, British laws forced American colonists to allow British soldiers to live in their houses. The colonists also had to feed the soldiers. the Third Amendment made it illegal for the government to take over private homes for use by the military.
The Fourth Amendment:
The Fourth Amendment protects citizens from unreasonable searches and seizures.
The Fourth Amendment protects the privacy of your home, your physical self, and your property. British common law recognized the right of people to defend their homes against unlawful entry, even by representatives of the King. "A man's house is is castle," wrote Sir Edward Coke, the great 16th century English legal scholar. In the 18th century, William Pitt, the British statesman who often supported the colonists in Parliament wrote, "The poorest man may in his cottage bid defiance to all the force of the crown. it may be frail- the roof may shake- the wind may blow through it- the storm may enter, the rain may enter- but the King of England cannot enter- all his force dares not cross the threshold..."
Sometimes known as the Privacy Amendment, the Fourth Amendment prohibits authorities from:
- Entering and searching a person's home without reason.
- Unreasonably taking a person's property.
- Seizing or arresting a person without just cause.
The Fourth Amendment allows searches and seizures when there is probable cause- when reasonable people might assume that a crime has been committed. If law officers have reason to think that a suspect has committed a crime and that evidence might be found, they may request a warrant- a legal document issued by a judge. The judge may or may not grant it.
- A search warrant gives officers the right to search a particular location and to take items of personal property that might serve as evidence of a crime.
- An arrest warrant gives officers permission to take a person into custody.
Courts are often asked to rule on the question of probable cause- to define what is reasonable and what types of property can be searched or seized.
The Fifth Amendment:
The Fifth Amendment guarantees that a person accused of a crime will not be denied the right to life, liberty, or property without due process of law.
The Fifth Amendment addresses five major issues involving due process of law. It guarantees:
- Indictment by a Grand Jury.
- Protection against Double Jeopardy
- Protection against Self-incrimination
- Due Process of Law
- Protection in Case of Eminent Domain
Indictment by a Grand Jury
Before someone can be put on trial for a serious crime, the evidence must be presented to a grand jury- a group of citizens who decide whether the evidence suggests that the person may have committed a crime. The Grand Jury can then issue an indictment- a formal accusation that leads to a trial. This process protects people from being tried without evidence, and it also prevents the courts from being tied up in pointless trials.
Double Jeopardy
Double jeopardy means that you can't be tried again for a crime once you've been found not guilty of that crime. Even if more evidence is found after the trial, the government cannot try the person again.
Self Incrimination
Citizens can't be forced to testify against themselves in court. They also can't be forced to incriminate themselves- to say something that could be used to convict them of a crime or make others think that might have committed a crime. Refusing to answer a question in court is sometimes called "Taking the Fifth," or using the Fifth Amendment to protect your rights.
Due Process
No person's life, liberty, or property can be taken away without due process- following procedures set up by the constitution and other laws of the land. Due process also means that laws must be reasonable to an average person.
Eminent Domain:
The government has the power of eminent domain- the right to take private property for public use. However, the Fifth Amendment prohibits the government from taking a person's property without paying a fair price for it.
Example: If a person owns a house and land that will be needed when the government builds a new highway, the government has the right to take the land even if the landowner objects. The Fifth Amendment ensures that the government must pay the landowner a fair market price for that land.
Sixth Amendment
The Sixth Amendment guarantees certain rights of an accused person.
The Sixth Amendment protects people accuse of crimes in four ways the accused person has the right to:
- Know the nature of the Charges.
- Know the Witness
- Have a Speedy, Public Trial and an Impartial Jury
- A Lawyer.
Know the Nature of Charges
People have the right to be told what charges have been brought against them. In other words, the accused must be told what crime he or she is accused of and who made the accusations. This provision assures that the accused can prepare an effective defense.
Know the Witnesses
The accused has the right to know who will act as witnesses and to challenge those witnesses in court, usually though his or her lawyer, to test their reliability and truthfulness. The accused may also use his own witness to testify in his defense.
A Speedy Public Trial and Impartial Jury
Anyone accuse of a crime has the right to a speedy and public trial by an impartial jury- a group of people who are not prejudiced or biased toward the defendant or the case. Courts usually see a trial date as soon as the evidence and witnesses are ready, so that the accused isn't held in jail any longer than necessary.
A Lawyer
The accused has the right to be represented by an attorney. Sometimes people can't afford to hire attorneys. In these cases, the government will pay for an attorney for the accused.
Seventh Amendment
The Seventh Amendment guarantees citizens the right to a trial by jury in civil cases.
Not all court cases deal with crimes. Sometimes people or groups may disagree about property or money and ask a court to decide the issue. Participants may settle "out of court" and avoid a trial completely. Regardless, they are entitled to have the case heard by a jury, if they so desire.
The Eighth Amendment
The Eighth Amendment protects accused persons against imprisonment or punishment that is excessive.
This breaks down into two elements:
- Protection against excessive bail.
- Protection against cruel and unusual punishment.
Excessive Bail
The Eighth Amendment gives the accused person a choice of either:
- Staying in jail
- Posting a cash guarantee, called bail, to permit him or her to go free until the trial. If the person shows up, or appears, for the trial, the bail is returned. If not, the court keeps the money and a warrant is put out for the person's arrest.
Courts must set bail high enough to discouraged the accused person from running away and not showing up for the trial. However, the Eighth Amendment prohibits courts from setting bail so high that a person can't possibly afford it. Judges don't have to release a prisoner on bail if:
- They believe the accused may run away, regardless of bail.
- There is evidence the accused would be a danger to society.
Cruel and Unusual Punishment
In the 1700s', this amendment protected people from branding, and other physical punishments that had been used in the past. Today, it usually means that the penalty should fit the crime. For example: Putting a person in jail for life for stealing a quart of milk- would seem unreasonable to most people. On the other hand, if someone deliberately takes another person's life, most reasonable people would consider some time in prison to be a reasonable punishment.
Some people argue that the death penalty is, by its very nature, always "cruel and unusual." Currently the decision to use the Death Penalty is decided through popular sovereignty in a State. Some States have banned it all together. Some States have banned certain types of executions.
The Ninth Amendment
The Ninth Amendment declares that people have rights beyond those mentioned in the Constitution.
The writers knew that the Bill of Rights couldn't list every possible right, but they wanted people to know that additional rights existed, even if they weren't specifically mentioned. There fore, they wrote the Ninth and Tenth Amendments to help deal with issues our country might face in the future.
Example: Many of the rights we take for granted are not listed in the Constitution:
- The right to live where we want.
- The right to choose which school your children will attend.
- The right to work at a job you want.
- The right to marry and have children or not.
- The right to travel freely.
The Tenth Amendment
The Tenth Amendment states that powers not specifically given to the Federal Government are given to the states or the people.
The Tenth Amendment stops the U.S. Government from taking more power than the Constitution gives it. This amendment helps balance power between the national and state governments. It also keeps Congress and the president from becoming too powerful.
Example: Federal law makes buyers wait five days for a background check before purchasing a gun. The federal government ordered local sheriffs and police chiefs to do the checks. Two sheriffs objected, saying that the federal government couldn't ask employees of a state to enforce federal law without giving them money and people to do it. The court agreed.