Evaluation of the U.S. Constitution and the Bill of Rights

U.S. Constitution and the Bill of Rights

 The Bill of Rights is one of the most important documents in U.S. history.  In September 1787, the Constitutional Convention assembled 39 of the 55 delegates to sign the newly negotiated United States Constitution.  However, the vote was not unanimous, those voting no wanted more protection for the people, and less government control. 

 Those that opposed the constitution wanted greater protections for the people’s individual liberties.  The Federalists were at odds with the Anti-Federalists.  The Federalists wanted the power to remain at the state level while the Anti-Federalists argued that the Bill of Rights would place very specific limits on the governments power.  Before the Bill of Rights was signed into power in 1791, there was no clear conclusive idea to what the government could not do, only what it could do.  Americans wanted a strong, clear, fair government for themselves and this would guarantee the individual rights of the citizens would not be trampled upon. 

 Thomas Jefferson said, “A Bill of Rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”

 There were a few groups of people that were left out of being “protected” by the Bill of Rights.  Whole groups such as Native Americans, Blacks and women were considered second class citizens and instead of constitutional rights they lived by “codes.”  With no access to the rule of law they could not own property, make contracts, or go into the courtroom.  Eventually our government adopted additional amendments.  The 13^th, 14^th, 15, and 19^th amendments were passed, giving these groups the full rights of U.S. citizenship.  This was a huge accomplishment for the people of the United States, they were growing and evolving with the needs of the people and learning how to become a better government.

Amendment 1

 The First Amendment guarantees that everyone has a right to express their ideas through all forms.  Speech and the press, to hold protests if they peacefully gather, and the right to ask the government to change or fix problems.  The First Amendment to the United States Constitution also prohibits the passing or creation of any law which establishes a religious body and directly impedes an individual’s right to practice whichever religion they see fit.

The First Amendment is the core of all civil rights and civil liberties law in the United States.   Most of all state laws are based on the First Amendment, however, speech that is focused on certain subjects such as child pornography or speech that incites an imminent threat, are regulated and not tolerated.  The First Amendment was very important to the founding fathers.  The freedoms it provided were beyond measure to the citizens of the United States.  The First Amendment is probably the most well-known amendment.  Most think that this is the reason the U.S. is a “free country”.  The founding fathers knew they had to keep the people at peace and in a state in which would not spark controversy and cause them to break away from their government in the first place. 

A notable case involving the New York Times vs. The United States argued that the U.S. government attempted to stop the publication from publishing classified documents concerning the Vietnam war.  Applying the doctrine of prior restraint from the Near vs. Minnesota case, the court found that the claims that the publication of the documents would interfere with foreign policy and prolong the war were to speculative and could not overcome the strong presumption against prior restraint. 

Amendment 2

 The Second Amendment of the U.S. constitution gives the citizens the right to bear arms and create a militia to keep the peace.  This gave the colonists a way to protect themselves from the ever-growing Indian attacks and other enemies and animals. 

There were no police, so these men would act as law enforcement in protection of their town. In this context, the amendment was clearly meant to give all people the right to bear arms and join a local militia. However, times have changed, and our ever-growing, liberty-stealing government creates more and more police forces, be it local or federal. Personally, I am somewhere in between. I don’t believe there is a need for militia anymore, since we have city/county and state police departments. But I do believe every legal, law abiding citizen should have the right to own guns, and a right to join local militias. Once the government has all the police power, there will be no one to stop them from taking the guns. Once the citizens are unarmed, the power of the government will know no bounds, as there will be no one capable of stopping them from establishing an oligarchy, stealing wealth and land from the people, and committing treasonous acts against the citizens who keep them wealthy.

The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed. Where the government refuses to stand for re-election and silences those who protest; where courts have lost the courage to oppose or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Thomas Jefferson had this to say: “The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.”

Amendment 3

 The Third Amendment of the U.S. constitution combines a upfront ban on nonconsensual, peacetime quartering of soldiers in citizens’ houses with a condition that wartime quartering be done by means approved by the legislature.  It specifically forbids soldiers from temporarily taking up residence in private citizens’ houses during any peace time, unless they have the expressed consent from the homeowner to do so.  This was particularly necessary during the American Revolutionary War. 

 The modern relevance of the Third Amendment has it as being generally non-existent.  Today, the federal government is not likely to ask people to house soldiers in their homes, even during wartime.  That being said, the modern relevance has more to do with protecting the American people from the government being able to intrude upon their homes.  It is also the only amendment that concerns the relationship the citizens have with the military, both during peace time and wartime.  The rights granted in this amendment emphasize the importance of civilian control over the homes and property. 

 Because of its clear text, there have been few court opinions discussing the Third Amendment.  The quartering problem has largely been solved today by paying communities to host military bases.  Whenever the Supreme Court has cited the Third Amendment, it has been as part of non-originalist interpretations that list it as one of the sources of “penumbras, formed by emanations: that create a zone of privacy in no specific clause of the Constitution.  For example, the Court cited it in the name of marital privacy as support for constitutional restrictions on state governments’ abilities to regulate the sale of contraceptives in Griswold V. Connecticut (1965). 

Amendment 4

 The Fourth Amendment protects our rights to privacy at home, in my car, and within emails and is one of the most fundament rights protecting us as persons.  For example, the Fourth Amendment protects people from the unlawful search and seizure by police of their persons, homes and their belongings.  If violated the victim can sue for wrongful arrest, among various other things.  The requirements that law enforcement must follow require that they must have a search warrant before searching, although in some specific instances, probable cause to believe a suspect is doing or hiding something illegal is enough to allow them to search a person’s private property.  Warrants must be not be broad and vague in detail.  They must be specific about who, or what they can search and what they are searching for.  This Amendment was founded to keep the government in check from collecting or searching a person or their property without a warrant or permission from the person. 

 An example of a Fourth Amendment violation occurred in the case of Terry v. Ohio.  Here, a police officer noticed a group of young men, loitering in front of a jewelry store.  This caused him to suspect they were “casing the joint” with the intent of robbing the store.  He approached the men, told them he was a police office, and frisked them.  During the frisk, the officer found illegal, concealed weapons.  He arrested the men, and after their trial the courts found them guilty.  The men appealed their case all the was up to the Supreme Court citing illegal search and seizure.  But the Supreme Court upheld their convictions.

 Maybe today, the Founding Fathers would not be able to make sense of our reality and the new technologies we use to control our lives.  However, we are still trying to make sense of the constitutional protection of our privacy which they have formulated and still use it as a legal protection against the invasion of our privacy. 

Amendment 5

 The Fifth Amendment provides some of the most important fundaments rights that an individual has in all legal matters.  It basically states that no person shall be charged with capital crimes without a Grand Jury’s permission, except in cases regarding the military while under service in wartime or public danger. 

The double jeopardy clause protects us from being put on trial again for the same charges of the crime they have already been accused of.  The Constitution says that should the defendant be tried again on the same charge or charges, that they can’t be executed or imprisoned for life without the possibility of parole.   However, you the Fifth Amendment does not protect you from being charged with multiple crimes.  In Blockburger v. United States (1932), the Court held that double jeopardy is not absolute.  Someone who commits a single act, but breaks two separate laws in the process, may be tried separately under each charge. 

 You can’t be forced to testify against yourself.  The right to remain silent acts as protection against saying things and incriminating themselves.  A person may “Plead the Fifth” and not be required to answer the question that was asked of the, The Courts also ruled that you must be informed of your right to remain silent prior to being investigated for any crime. When under oath, you are expected to tell the truth, even if that truth was to put you in trouble.  Taking the fifth allows you to tell the truth about the case without incriminating yourself. 

 The Fifth Amendment also protects citizens from manifest destiny.  That is the federal government cannot simple come in and take land or other property of citizens without giving them something back.  In fact, the Constitution states that the owner shall be compensated a fair value of the item or items taken, this is called Eminent Domain. 

Amendment 6

 The Sixth Amendment works in conjunction with the Fifth Amendment.  It guarantees that all citizens have the right to a speedy and public trial, within the district the crime was committed, by and impartial jury.  The accused must be informed of the charges against them, confronted with the witnesses to the crime, be able to bring forth witnesses of their own to speak for them, and be awarded a court attorney if they are not able to afford one themselves. 

 The right to a public trial ensures the individual that the proceedings are not conducted in a corrupt or unjust way.  This clause ensures the delivery of a sound and fair trial through the observance of the public.  The right of the defendant to have the ability to confront and cross-examine witnesses diminishes the admission of hearsay.  All defendants have the right to be represented by an attorney of their choice.  However, the court may deny this right when it is deemed that the defendant is incapable or incompetent to waive their right to counsel.  If the defendant is claimed competent, they may also elect to Self-Representation, to act as counsel for themselves. 

 In the trial of Gideon v. Wainwright the individual at the center of this case, Clarence Gideon, was charged in Florida state court with felony breaking and entering for breaking into a Florida pool hall.  When he appeared in court without a lawyer, Gideon requested that the court appoint one for him.  But the court did not appoint one.  He was found guilty and sentenced to 5 years in prison.  After his conviction he sent a handwritten petition to the Supreme Court challenging his conviction.  He argued that the did not have a fair trial because he had not been given a lawyer to help him with his defense.  The Court agreed, reversed the decision of the lower court and held the Sixth Amendment’s right to counsel for Gideon was violated. 

Amendment 7

 The Seventh Amendment protects the right of every American citizen accused of a crime to have a trial by a jury of his or her peers in a civil court case.  The writer’s objective in drafting this Amendment as an addition to the Bill of Rights was to ensure that the government would not eliminate the practice of trial by jury.  Their major concern her was that, if trials were decided solely by judges, the judges would, more often than not, side with the government.  Thus, in turn giving the government too much power. 

 The Seventh Amendment concerns only those courts, that are under the United States authority, meaning the countries Federal Courts.  This also applies to all Federal Courts in U.S. territories, as well as those found in the District of Columbia.  For example, the Seventh Amendment does not apply to State Courts.  However, when a state court is enforcing a right that was initially drafted by the government, the states are not permitted to eliminate the defendant’s right to a trial by jury.

 An example of the Seventh Amendment being debated in a court of law concerned accusations of copyright infringement.  Krypton v. Columbia, Krypton operated three television stations that ran popular television shows.  The owner became delinquent on his royalty payments and Columbia revoked Krypton’s license to run the shows.  But Krypton kept airing the shows and Columbia sued him for copyright infringement.  The trial court found Krypton’s infringement to be willful and would not allow a jury trial.  The court held that every single broadcast aired after the license revoke was a separate infringement and awarded damages to Columbia in the amount of 8.8 million dollars

Amendment 8

 The Eighth Amendment safeguards that no citizen that has committed any severity of a crime will be unreasonably punished in any way.  The courts may not impose an unreasonable amount of bail that does not fit the crime, shall not charge anyone with extreme fines, nor impose any cruel and unusual punishments. 

 Because of this amendment there are very strict laws concerning the death penalty, for example, death by firing squad, drawing and quartering, public dissection, burning alive, or disembowelment are not allowed.  There are also very forbidden punishments such as no one can take away a person citizenship or make them do hard and painful labor. 

 In 1972 a case came to the courts challenging the death penalty.  In the case of Furman v. Georgia, William Henry Furman confessed to killing a resident of the home he was robbing.  During the robbery the resident was shot by Furman.  Furman insisted that the during the robbery once he was discovered that he tried to flee and tripped and fell causing the gun to discharge. This statement conflicted with his earlier statement that he blindly fired a shot while fleeing.  In either event, because the shooting occurred during the commission of a felony, Furman was found guilty, convicted of murder and sentenced to death.  

 The case was appealed and later reversed and remanded the lower court’s rulings. In deciding the case, the Court also considered two other cases involving the death penalty.  Jackson v. Georgi challenged the constitutionality of capital punishment for rape, while Branch v. Texas involved a murder conviction.  All of the defendants were African American.  Their final reasoning was that imposing the death penalty in this case constitutes cruel and unusual punishment in violation of the Eight Amendment.  That his punishment did not fit the crime.

Amendment 9

 This Amendment protects our individual rights that may no be expressly listed in the Constitution, and these rights cannot be violated.  Adding this Amendment made it clear that not all personal rights of the people have been stated in the Constitution, as it was impossible to outline them all individually.  There is no indication about which rights the Founding Fathers were speaking about when they said there were others that were protected.  Unlike the other Amendments the Ninth Amendment does not actually give any rights, but rather just makes a statement about them. 

 Today, the Ninth Amendment is used mostly to stop the governments form increasing its power rather than just restricting its power.  Often, courts try to use the Ninth Amendment to provide and impose rights that are not actually spoken about in the Constitution.  This is a constitutional safety net intended to make clear that individuals have other fundamental rights, these 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. 

 In 1965, the Supreme Court heard the case of Griswald v. Connecticut.  This case was brought about then Estelle Griswold, the executive director of Planned Parenthood founded a clinic in the town of New Haven to provided services to women.  Griswald and her partner were arrested and accused of practicing services aimed at preventing contraception and fined for the crime.  Griswald appealed the conviction, but it was upheld in both the appellate court and the Connecticut Supreme Court.  The case went on the U.S. Supreme Court in 1965.  In a 7-2 vote, the Court ruled that the state’s law was indeed unconstitutional and reversed the lower State Supreme Courts decision. 

Amendment 10

 The Tenth Amendment is the last entry of the original Bill of Rights.  It was put in place to assure the people that the federal government would not overstep its authority.  It states that the government has only the specific powers delegated to it by the constitution and all other powers are reserved for the States.  This reminds us of the importance of State government, and the role the people play in ensuring a just State government.  Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right.  The writers wanted to make it clear that the power of the federal government comes from the states and the people, not the other way around. 

 The Founding Fathers believed that the sharing of power between two different levels of government, each representing the people, was important to safely keeping power in the right hands. 

 The year 1937 is seen as a transformational year in the Court’s method to the application of national power; in that year, President Roosevelt sent to Congress a bill that would authorize him to appoint one new Supreme Court justice for each sitting justice who had serviced ten years or more and had not retired within six months after their seventieth birthday.  Under this “court-packing” plan, the number of Supreme Court justices was to be raised to fifteen.  Whether the Court was prejudiced by this bill and its likely passage cannot be known for sure; but shortly thereafter, the Court began upholding New Deal legislation of the kind that had previously been struck down.  Starting a new era of constitutional interpretation, the Supreme Court recognized a permanent enlargement in the scope of federal power, at the expense of the states.  Under this relaxed posture toward congressional power, the Court would later uphold a wide range of statutes over the next fifty years, including purely local incidents of loan sharking.

Conclusion

 Even thought the Bill of Rights was written over two hundred years ago, these amendments continue to have a direct impact on our daily lives.  The Bill of Rights has provided the citizens important guarantees that their rights are protected. 

 The Bill of Rights is a binding social contract, one in which Americans are fortunate to have.  It is a contract that connects the people to its government and prevents the governments form committing abuses against its people. 

 During the Constitutional Convention, many debates arose about what a new Constitution and the new government should look like.  Questions of representation in the new government were resolved through the Connecticut Compromise and Three-Fifths Compromise.  Other noteworthy debates included the debate over slavery, limitations of democracy, and how to prevent the federal government from gaining too much power.  Opinions on the new Constitution were deeply divided between Federalists and Anti-Federalists, and the Constitution only narrowly won approval. 

 Despite the innovative idea that “All men are created equal”, the rights of the population excluded slaves, free blacks, Native Americans, and Asians, and women were excluded from voting and property rights.  This laid the groundwork for the United States as a republic of white men. 

 We the people are very privileged here in America.  And the Bill of Rights is just one representation of that privilege.  The protection of our rights as individual people is one of the most important things that makes us American. 

Sources

• https://undergod.procon.org/sourcefiles/BillofRights.pdf
• https://www.aclu.org/other/bill-rights-brief-history
• https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/
• https://constitutioncenter.org/blog/survey-high-school-students-teachers-differ-on-the-first-amendment