2“Rights and Responsibilities” The meaning behind “rights and responsibilities”Americans’ understanding of the Bill of RightsWhat does it all mean?“Rights and responsibilities”—nearly every civics or government course in America centers on these three words. Thomas Jefferson wrote in the Declaration of Independence that people “are endowed by their Creator with certain inalienable rights…,” meaning that these rights begin at birth and cannot be taken away. In practice, of course, it’s not quite that easy. One must be responsible with their rights in order to keep and enjoy them.For years, surveys have shown that Americans have a general idea of which rights they possess, but do not have a solid understanding of the extent or limitations of these rights. One recent survey showed that while many high school students feel the First Amendment goes too far in granting rights, these same students have a poor grasp of understanding how much control the government exercises over these rights. Other studies have shown that many Americans, when presented the Bill of Rights in modern language, believe that the rights it describes are overly broad or unworkable in today’s society.What does all of this mean? Citizens of the United States have a responsibility to know and understand their rights; those who don’t may find that the rights they thought they had aren’t actually there. Benjamin Franklin best summed this up soon after the drafting of the Constitution: when asked whether the new country he had helped found was a republic or a monarchy, he stated, “A republic, if you can keep it.”
3“Rights and Responsibilities” Rights and their responsibilities are inseparableThe Framers drew from the past to build for the futureRoman RepublicEnlightenment philosophyEnglish lawAmerican colonial historyThe rights granted evolved over timeThe idea of enjoying one’s rights and taking responsibility for them has a historical basis, and the two ideas are inseparable. Each preserves and strengthens the other. The most effective way to retain one’s rights is to know and understand them.Many concepts in the Bill of Rights can be traced back to several points in human history: the Roman Republic, the Enlightenment, traditions from English law, and colonial experiences in America before and during the Revolution. The framers of the Bill of Rights drew from many sources to craft in words the traditions, laws, and governing policies of past civilizations. The protection of rights such as private property, due process of law, a fair trial, a punishment befitting the crime, no taxation without representation, and freedom of speech evolved over centuries and was incorporated into the Bill of Rights.
4The Roman RepublicThe Roman Republic’s influence on the Bill of Rights:Roman law based on laws of natureLaws established equality and justiceLimited the power of the stateCreated laws that protected property, contracts, and promoted equalityStressed the responsibility of civic virtueThe leaders of the Roman Republic believed that people were ultimately governed by the laws of nature, which limited the powers of the state. The first five words of the First Amendment embody this idea of limited state power: “Congress shall make no law…” The Romans believed that laws should establish equality and justice: therefore, they created laws regulating contracts, inheritance, and property rights in order to provide a certain equality among different segments of society.The Romans, however, placed more emphasis on the rights of groups than on individual rights. They spoke highly of “civic virtue,” the obligation of society to set aside personal interests and promote the common welfare. The Romans believed that understanding civic virtue didn’t come to people automatically, and that its aspects of generosity, courage, self-control, and fairness had to be taught. People, they thought, should learn the importance of actively participating in government, a responsibility all citizens had toward their community.
5Influences from English Law Magna Carta (1215)Defined the power of the monarchyProtected barons’ rights to property, trial by their peers, and taxation only by consentGlorious Revolution (1689)Placed Parliament above the monarchyGave Parliament freedom of speechNo quartering of troops in people’s homesNo punishment without causeThe Framers of the Bill of Rights also drew heavily from English law, since many of the rights colonists had enjoyed as subjects of the Crown (and had defended in the Revolution) had been established centuries earlier.The Magna Carta (1215) resulted from a conflict between King John and 40 of his barons. For years, the king had violated their rights to property and justice and taxed them without their consent. The barons demanded that the king abide by common law and honor their ancient rights. At first he refused, but he eventually met their terms in order to gain funding and support for his wars in France. The Magna Carta defined the power of the monarchy regarding legal procedures and proclaimed that the law constrains even the will of the king. Based upon this precedent, the Framers incorporated into the Bill of Rights familiar provisions such as no taxation without the consent of the governed, no seizure of property without just compensation, trial by a jury of one’s peers, and no punishment without a trial.The rights enumerated in the Magna Carta underwent many revisions and repeals, but were eventually extended to the general population. During England’s Glorious Revolution of 1689, Parliament (now the major legislative body for British citizens) firmly established both fundamental rights for the people and limitations on the monarch’s power, including Parliament’s legislative supremacy over the king, the right of citizens to petition the government, freedom of speech within Parliament, and (in accordance with the Petition of Right) no quartering of troops in people’s homes or punishment of citizens without just cause.The Magna Carta
6Enlightenment Philosophy Humanists promoted the dignity of the individual and identified the rights of manVoltaire advocated freedom of speech, religion, and the right to a fair trialLocke spoke of the right to life, liberty, and propertyGovernment should protect these rightsThe period known as the Enlightenment was an intellectual movement that began in the 17th century that extended well into the 18th century. Advances made in science, mathematics, and the arts during the Renaissance led to the questioning of a number of European traditions. This inquiry meshed with the philosophy of humanism: the study of the values, capacity, and achievements of human beings. Humanists believed in the dignity and potential of the individual. They argued that human reason was superior to all other modes of thinking (such as superstition, faith, or brute force) and that humans could improve their world first by understanding it and then changing it. Enlightenment thinkers brought to humanist philosophy came a stronger emphasis on the rights of the individual, as opposed to the group rights promoted by the Romans.Two of the most influential Enlightenment philosophers who spoke of the rights of man were Francois Marie Arouet (better known as Voltaire) and John Locke. Voltaire, though known for his preference for an “enlightened monarchy,” nonetheless strongly advocated such civil rights as freedom of speech, the right to a fair trial, and freedom of religion. In his work Two Treatises on Civil Government, John Locke brought forth the idea that people have natural rights to life, liberty, and property acquired through their labor. People, he thought, should create governments that would protect these rights.LockeVoltaire
7Colonial American Experiences Experiences before and during the American RevolutionEnglish rights to life, liberty, and property brought to the American ColoniesMost Americans had more equality than the BritishPlentiful land and economic opportunitiesThe English brought their rights to the American colonies during the early stages of settlement. A curious thing began to happen as colonists carved out their livelihoods and established their governing institutions: the English rights to life, liberty, and property were applied more broadly in the colonies. In Britain, land had become the primary factor in determining a person’s rights, economic status, and political clout. A number of powerful families already owned much of the land in Britain, and they passed their holdings (the monetary value along with the power it brought) on to the next generation. The majority of British citizens had little opportunity to enjoy the same rights as landowners.In the colonies, however, land was cheap and plentiful. While colonial society did have its own class and social distinctions, the wide range of economic opportunities available made such differences less important. Any white male with 50 acres of land had the right to vote in most colonies. Moreover, wealth and family connections didn’t automatically bring success. Everybody had to work hard, and in turn everyone expected to enjoy the same general level of political rights. As a result, most Americans enjoyed far more social, political, and economic equality than most Englishmen.The Pilgrims’ landing
8Colonial American Experiences: Rights Experiences before and during the American RevolutionMassachusetts Body of Liberties (1641) reflected broadening of rights granted to citizensRights not extended to majority of colonial population (women, slaves)Many colonial charters placed a strong emphasis on the individual and on the rights they possessed. The Massachusetts Body of Liberties (1641) preserved the right of free men to own property and prevented the government from taking property without fair compensation. The Body of Liberties also reinforced a person’s right to trial by jury, protection from self-incrimination, and cruel and unusual punishment. Although only landed white men had the right to vote, the Body of Liberties also granted non-voters the right to assemble, petition the government, and speak and write freely.Nonetheless, only a minority of the colonial population (landed white men) enjoyed such rights. In some colonies, only Protestants were allowed to vote and hold office. Most women had limited rights when it came to their children or their property. A married woman had to defer to the will of her husband in these matters.In one of the most perplexing contradictions of America’s political development, the institution of slavery by definition treated human beings as property. In the mid-1700s, African Americans made up one-fifth of the one million people who lived in the colonies, and most were bound in slavery. As the property of another, their natural rights were virtually nonexistent. Although some free blacks owned property and ran businesses, only a few enjoyed the same rights as whites.Seal of Massachusetts Bay Colony
9Why a Bill of Rights?Initially, the Constitution had no bill of rightsFederalists agreed to include a bill of rights in order to gain ratificationDrafted and approved by the first Congress in 1789Approved by the states in 1791 through the amendment processInitially, the Constitution had no bill of rights. In the final days of the 1787 Constitutional Convention, several delegates suggested adding protections for some of the most basic rights, such as trial by jury and freedom of the press. However, many other delegates rejected these suggestions as unnecessary because most state constitutions already had these protections, and no branch of the federal government had the power to take them away.The lack of a bill of rights gave the Anti-Federalists ample reason to reject the new constitution. It was during the state ratification conventions, (particularly in Massachusetts, Virginia, and New York) that the inclusion of a bill of rights became a condition for approval. This organized and emotional opposition against the Constitution worried many Federalists, who believed that if ratification failed a second constitutional convention would be held at which the Anti-Federalists might have even greater influence in the development of the new government. James Madison and other Federalists saw the promise of a bill of rights as the only way the proposed Constitution would survive the ratification process.When the new Congress met in April of 1789, James Madison proposed several amendments to the Constitution. Congress submitted 12 of them to the states, and by 1791 ten were approved. These provisions denied the government the power to interfere with free expression and assembly, granted citizens the right to possess firearms, provided protection against unwarranted intrusion, guaranteed the right to due process and trial by a jury of one’s peers, and barred unreasonable punishment. The Bill of Rights also ensured that all other rights not expressly mentioned remained with the people or the states.James Madison
10Discussion QuestionsWhat was the Roman concept of civic virtue and the common welfare?What were some of the rights granted by English law that are found in the U.S. Bill of Rights?How did Enlightenment-era humanists view the rights of man and the purpose of government?How were the rights of Englishmen different for Americans in the 13 colonies?Were these rights given to all Americans? Why or why not?Why was the Bill of Rights not included in the original Constitution, and only added later?Suggested answers:Roman society placed more emphasis on group rights than on individual rights. Romans stressed the need to set aside personal interests in favor of promoting the common welfare of the state and its citizens.The right to a trial by one’s peers, right to freedom of speech in Parliament, no quartering of troops in people’s homes, and no punishment without cause shown (due process).Enlightenment-era humanists believed in the dignity and potential of the individual and emphasized the individual’s rights. They believed the purpose of government was to protect the personal and property rights of citizens.The rights of life, liberty, and property were applied more broadly. American colonists had more social, political, and economic equality than most Englishmen.No. Basically, only white men with property enjoyed these rights. In some colonies, only Protestants were allowed to vote and hold office. Women’s rights were limited when it came to their children and their property. African Americans slaves made up about one-fifth of the population, and even those African Americans who were free did not enjoy rights equal to those of free white men.The Anti-Federalists were very concerned about the lack of rights in the original Constitution and feared that this gave the federal government the power to violate their rights. James Madison, a strong proponent of constitutional ratification, agreed to include a bill of rights as the new Congress’s first order of business.
11The First Amendment“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”The first five words of the First Amendment, “Congress shall make no law…,” firmly establish the intent of the Bill of Rights: to limit the government’s power and protect citizen’s rights. When the Bill of Rights was written, the term “Congress” meant the congress of the federal government. It was believed at the time that individuals’ rights were protected by state constitutions, but since the Constitution was the “supreme law of the land,” individuals’ rights needed to be protected from encroachment by the federal government. The First Amendment contains protections in five areas of expression: religion, speech, the press, assembly, and petitioning the government.
12First Amendment: Freedom of Religion “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”Two provisionsEstablishment clause: government cannot establish an official religionFree-exercise clause: government cannot prevent anyone from practicing a religionThe First Amendment’s clause regarding religion is actually two clauses: the “establishment clause” and the “free-exercise clause.” The First Amendment’s protection of freedom of religion actually protects the institution of religion and an individual’s method of worship. By stating that “Congress shall make no law respecting an establishment of religion,” the government is prohibited from establishing an official religion in the nation to the exclusion of others. Congress is also prohibited from interfering with individuals’ rights to practice their beliefs. As we shall see, these rights are not unconditional and their meaning has evolved over the years.
13First Amendment: Origins of Religious Freedom In many 17th-century European countries, Catholicism was the official religionThe Reformation: challenged the relationship between church and statePilgrims from England fled to America to avoid persecutionEstablished religious settlements with little tolerance for religious differencesAs Europeans were settling the American colonies, Europe itself was undergoing a religious revolution known as the Reformation. During this time, a reform movement headed by Protestants in England, the Germanic kingdoms, France, and Spain (to a degree) was challenging the established order of the Catholic Church. Religious authorities had established Catholicism as the official religion in these countries, and to worship in any other way was a considered a crime against the state, resulting in a loss of liberties and often punishable by death. Indeed, many of the early settlers who came to America had been victims of this religious persecution. However, isolated in a new world and believing that their faith was the only thing that would keep them alive, early colonial leaders instituted governments with official religions and showed little tolerance for those who didn’t follow their faith. Many groups, such as the Puritans of Massachusetts, felt their religious duty included saving their world from the corruption of religion in Europe. The Puritans banished those who disagreed with their religious rule and, in some cases, put nonbelievers to death.
14First Amendment: Religious Freedom in Colonial America Colonial America more tolerant of religious differences than EuropeThe “Great Awakening” expanded religious tolerance and practicesFramers’ views on separation of church and stateProtected religion from government influenceProtected individuals’ right to worship as they wantedIn 18th-century colonial America, people had become more tolerant of religious differences, though Christianity was still the dominant religion. Through immigration and the freedom to settle anywhere, many different religious groups emerged, thus preventing any one from dominating the others. At the same time, America was experiencing a period of religious revival known as the “Great Awakening,” which drew many away from established religions and into smaller religious sects. New ideas about how to worship flourished. The novel concept of not having any official religion strongly influenced the Framers of the Bill of Rights. Denying Congress the power to establish a state religion allowed many different ones to exist, resulting in the open expression of views and sharing beliefs with people of different faiths in an environment of tolerance.The authors of the First Amendment viewed the establishment clause broadly. They sought to prevent the practice of an official national faith declared by a government that would favor certain religious organizations over others. This denial would also keep the government (as well as other religions) from interfering with an individual’s religious practices. In the Framers’ minds, this separation was complete, with no benefit given to any particular religion or to religion in general.
15First Amendment: Establishment and Free-Exercise Clauses Two ways the courts view the establishment and free-exercise clauses:Broad view: No public aid for any religion by either federal or state governmentsNarrow view: Government prohibited only from giving preference to one religion over anotherThe broad interpretation of the establishment and free-exercise clauses holds that neither federal nor state governments (which include local governments and schools) can have any relationship with religion. Governments cannot use public money to support any religion, religious activity, or institution that is religiously based, nor give aid to any religion—even impartially. The only exception is when the government provides the religious organization with the same support given to all segments of society, such as police and fire protection. The government may also make it easier for people to exercise their religion, but must do so in equal measure. For example, school districts may excuse students from school during a religious holiday, but this policy must apply to students of all religions.A narrower interpretation holds that the establishment clause prohibits a government from giving one religious group preference over another. This view believes the First Amendment does not prohibit government from supporting religion as long as it does so impartially. Therefore, such practices as placing the motto “In God We Trust” on currency or stating “one nation, under God” in the Pledge of Allegiance are permissible.
16First Amendment: Establishment and Free-Exercise Clauses Supreme Court interpretation of the establishment clauseEverson v. Board of Education (1947): denied the government from aiding or favoring any religionSupreme Court interpretation of the free-exercise clauseWestside Community Schools v. Mergens (1990): required public schools to allow student religious groups to meet at schoolStriking a balance between the broad and narrow interpretations has not been without controversy. Most establishment-clause cases involve religion’s relationship with schools. Prior to the institution of the public school system, churches ran schools and taught religious values along with other subjects. Today, the government funds and operates public schools. As public entities, they are subject to the same restrictions as the federal and state governments.Further clouding the issue, the Supreme Court has ruled in favor of both interpretations. In Everson v. Board of Education (1947), the court ruled that the establishment clause applies to the states as well. The decision denied both state and the federal governments from establishing a church, aiding one religion, aiding all religions, or giving preferential treatment to one religion over the other.However, the court’s ruling in Westside Community Schools v. Mergens (1990) drew a crucial distinction between the government’s endorsement of religion (which the establishment clause forbids) and allowing private speech on public school property (which the free speech and free-exercise clauses protect). Under First Amendment protections, schools must permit religious clubs to meet just as they do other types of extracurricular clubs, reinforcing students’ right to free speech.
17Discussion QuestionsList and describe the two clauses in the First Amendment’s freedom of religion.Why do you think the Puritans became intolerant of other religious beliefs, even though they had been banished from England for their own beliefs?What factors led to an increase in religious tolerance in colonial America?What do you think was the Framers’ intent in writing the establishment and free-exercise clauses in the First Amendment?Suggested answers:The establishment clause and the free-exercise clause. The establishment clause means that government cannot institute, declare, or endorse any religion or religious practice. It cannot use public money to support any religion or religious activity, or give aid to any religion. The free-exercise clause means that people are free to worship any religion they choose or to not worship at all.Many Puritans felt that strict adherence to their religion provided their only means of survival, both physically and spiritually. Therefore, they saw deviation from the established order as dangerous.Colonial America had no shortage of land on which to settle. If one group expressed religious intolerance toward another group or individual, the persecuted party could settle elsewhere. In addition, a movement known as the “Great Awakening” fostered many different expressions of religion, which prevented any one religion from dominating others.To clearly define a separation between the government and religion. The Framers felt that government should not have any influence on or promotion of religion.
18First Amendment: Freedom of Speech “…or abridging the freedom of speech,…”First Amendment: Freedom of SpeechFreedom of speech is an essential part of democracyPromotes intellectual growth and human dignityAllows for the communication of new and better ideasEssential to the operation of representative democracyVital for bringing about peaceful changeAlso safeguards individual rightsFreedom of speech is essential to the advancement and operation of a democracy. A government concerned about maintaining control over its population restricts speech as its first line of defense. While many people would also argue that the government shouldn’t protect the right of citizens to express obnoxious or hostile views, freedom of speech and expression provides important benefits to society, the government, and the individual:The ability to express ideas and communicate with others contributes to intellectual growth. Human dignity increases when people can express their thoughts and ideas and hear from others with differing views.Free discussion allows for the development of new and better ideas, which benefits a community and allows it to improve and change with the times.The operation of representative government depends upon honest and open communication between citizens and local, state, and national representatives. To do so, people not only need access to their representatives, but access to information, ideas, and different points of view.Allowing people to express their feelings, concerns, and ideas works as a pressure valve to release tensions when people feel wronged or mistreated. It also gives the government or other members of society important information on how their actions have been received.Being able to speak out against perceived violations of one person’s rights helps protect against violations of the rights of all people.
19First Amendment: Origins of Free Speech First protected in the American colonies in the Massachusetts Body of Liberties (1641)Not found in Magna CartaNot found in the original U.S. ConstitutionIncorporation a condition for ratificationThe Massachusetts Body of Liberties (1641) contained the first written protection of free speech in the colonies. This was significant because the Magna Carta made no mention of it, and the English Bill of Rights (1689) limited freedom of speech to legislators speaking in Parliament. During the American Revolution, freedom of speech (coupled with the freedom of the press) proved indispensable in bringing about its success, having helped establish the Revolution’s fundamental principles long before the first shot was fired. In addition, these freedoms also provided valuable information to all segments of society on the events and progress of the war.The Framers of the U.S. Constitution and of the various state constitutions believed freedom of speech to be inviolate and therefore did not require its explicit inclusion. The discussion at the Constitutional Convention over whether to include protections for speech and the press was short and garnered little debate. However, as a hotly contested point during state ratification conventions, its incorporation became a primary condition for the Constitution’s approval. But even when added to the Bill of Rights and ratified, the general view of freedom of speech limited its application to political arenas.
20First Amendment: Government Limitations on Free Speech Sedition Act (1798)Dissenters during Civil War (later deemed unconstitutional)World War I: Espionage Act of 1917In several instances, the government has sought to limit free speech. Within seven years of the passage of the Bill of Rights, a Federalist Congress, sensitive to the criticism by the rival Democratic-Republicans, enacted the Sedition Act (1798). This controversial measure effectively outlawed criticism of the government, subjecting offenders to fines and even harassment. One critic, Representative Matthew Lyon of Vermont, was convicted of sedition and sentenced to prison, yet still won reelection to his seat in Congress. With a federalist-dominated judiciary, the Democratic-Republicans never challenged the law in court, but instead let the law expire in 1801 after winning both the presidency and the Congress.During the Civil War, several who spoke out against President Lincoln’s administration of the war were jailed without trial. Though the Supreme Court later deemed these arrests unconstitutional in Ex parte Milligan, the damage had already been done.As America entered World War I, Congress passed the Espionage Act of 1917, which prevented anyone from calling for resistance to the U.S. war effort. Congress amended the law the following year with another Sedition Act, which made speaking out against the government a crime.
21First Amendment: Government Limitations on Free Speech (continued) Schenk v. U.S.“Clear and present danger” requirementAfter WWI, many states passed laws that criminalized dissentIn 1919 the Supreme Court heard the case of Schenk v. United States, wherein the court ruled that the Espionage Act did not violate First Amendment free-speech protections. However, in a majority opinion, Justice Oliver Wendell Holmes wrote that in cases questioning the extent of First Amendment’s protection, law enforcement had to consider whether the words or actions involved created a “clear and present danger” of substantial harm to the government. As an illustration, Holmes stated that even the most rigorous protection of free speech “would not protect a man in falsely shouting fire in a theater and causing a panic.”After the war, many states passed laws that criminalized dissent. From 1917 to the 1950s, many people were prosecuted under these laws, resulting in several Supreme Court cases.
22First Amendment: Free-Speech Court Decisions Expanded from political speech to include symbolic speechTinker v. Des Moines School District (1967): free speech in schoolsOver the years, the Supreme Court has clarified the definition of speech and the limitations on it. People may express their ideas in ways other than the spoken word, including through gestures, demonstrations, music, and clothing. Symbolic speech, in which a person’s actions constitute the message, has also been granted protection as a legitimate form of expression. The Supreme Court has considered as symbolic speech such acts as burning the American flag and wearing certain adornments as a declaration of protest.In 1969, at the height of the Vietnam War, the Supreme Court heard the case of Tinker v. Des Moines School District. Thirteen-year-old Mary Beth Tinker, her older brother John, and their friend Christopher Eckhardt were suspended from school for refusing to remove the black armbands they wore to protest the war. The court ruled that the First Amendment protects these kinds of actions as symbolic speech, and because the Tinkers protested silently and did not disrupt classroom activities, overturned their suspension.
23First Amendment: Free-Speech Court Decisions (continued) Texas v. Johnson (1989): burning the U.S. flagUnited States v. Eichman (1990): reaffirmed right to burn flag as free speechIn Texas v. Johnson (1989), the Supreme Court struck down a Texas law that prohibited desecration of the flag. The court held that the government may not prohibit the expression of an idea simply because it offends society. This was a hotly contested decision that met with public outcry and congressional action. In response to Texas v. Johnson, Congress passed the Flag Protection Act of 1989, which prohibited the desecration of the flag. The court later reaffirmed its Texas v. Johnson ruling in United States v. Eichman (1990), ruling that the Flag Protection Act violated the First Amendment because it outlawed disrespect for the flag, not the actual act of burning it (the proper way to dispose of an old or damaged flag, which the decision pointed out). The ruling reminded Congress that only a constitutional amendment—not the mere passage of a law—can reverse a Supreme Court decision.
24First Amendment: Origins of Press Freedom “…or of the press,…”Invention of the printing pressThe John Peter Zenger trialPamphlets and papers during the RevolutionNot mentioned in the original ConstitutionWith the invention of the printing press by Johannes Gutenberg in the 15th century, it became much easier to widely distribute ideas. Books, pamphlets, flyers, and many other forms of printed matter could be reproduced quickly and disseminated to any audience that could read them. To protect themselves from sedition (i.e., open criticism by the citizenry) and to maintain order, many governments censored these materials. The British as well as colonial governments issued edicts that required printers be licensed, and in many cases censors had to approve the materials before publication.In 1735 the colony of New York charged a printer named John Peter Zenger with seditious libel for printing articles critical of the royal governor, even though what he printed was factual. Although put on trial and threatened with death, Zenger refused to reveal the names of his writers. The jury acquitted Zenger on the grounds that the truth was a valid defense for seditious libel.Along with freedom of speech, freedom of the press was indispensable to the success of the American Revolution. Pamphlets and papers were published and distributed throughout the colonies to keep people informed of events and decisions.As with other First Amendment protections, the original version of the Constitution made no mention of protecting freedom of the press. However, the promise of its inclusion in a bill of rights helped ensure the document’s ratification.Minute sheet from the trial of John Peter Zenger
25First Amendment: Extent of Press Freedom “…or of the press,…”Original intent of Framers was to protect political speechResults of Supreme Court decisionsPlaced limitations on freedom of the pressProtections against clear and present danger and libel“Prior restraint”Near v. MinnesotaThe authors of the Bill of Rights held a narrow view of preserving freedom of the press, limiting it to political discourse. They probably didn’t intend to protect speech such as seditious libel. As mentioned earlier, a Federalist Congress passed the Alien and Sedition Acts in 1798, which outlawed criticism of the government. Some of the men who had helped write the First Amendment themselves voted to pass these laws. The acts expired three years later, but not before the federal government could jail and fine several citizens for violating their provisions.The courts have upheld laws curtailing speech and press freedoms that create a clear and present danger to society or others, such as printing information that could threaten national security or the lives of military personnel. Another example is libel—printing false or inaccurate information with the intent of ruining someone’s reputation or causing them harm.A free press is grounded on the principle that the government may not censor material before it is published. This practice is known as “prior restraint.” In the case of Near v. Minnesota (1931), Jay Near was the publisher of a scandal sheet that accused local officials of having connections with organized crime. A Minnesota law stipulated that anyone who published “malicious, scandalous, and defamatory” material could be stopped from publishing the material. The Supreme Court held that the law violated the First Amendment, as it constituted prior restraint on the publication.
26First Amendment: Supreme Court Tests of Press Freedom Libel or informing the public?New York Times Co. v. Sullivan (1964)Threat to national security or the public’s right to know?New York Times Co. v. United States (1971)—the “Pentagon Papers” caseHowever, what if someone writes an article that accuses a public official of wrongdoing? What if someone publishes classified information that may threaten national security? In 1964, the New York Times published an advertisement by a civil rights group that accused the police of Montgomery, Alabama, of unjust treatment of civil rights protesters. The commissioner of police, L.B. Sullivan, sued the Times in state court for libel, charging that several of the statements in the ad were inaccurate. Sullivan won the case, and the Times appealed to the U.S. Supreme Court. The court overturned the judgment of the state court in NY Times v. Sullivan, stating that small errors of fact did not adequately justify a libel suit brought by a public official. The court went on to say that an official must prove that the publication printed the errors with malice—that is, printing false statements knowingly or without care as to their truthfulness. The commissioner could not prove malice, and the case was overturned.In 1971 the New York Times and the Washington Post published what became known as the “Pentagon Papers”—a secret government analysis of the causes of the Vietnam War. The U.S. government accused the papers of publishing illegally leaked documents. In New York Times v. United States (1971), the Supreme Court ruled that the government had not proven that publishing the documents would endanger American forces or compromise national security.In cases involving censorship of the press, the plaintiff must prove the publisher’s intent to defame, or that publication presents a clear and present danger to national security.
27Discussion QuestionsDo you feel people should be allowed to make statements that call for an elimination of the Bill of Rights? Why or why not?Explain how freedom of speech and of the press helped bring about the American Revolution.During times of crisis such as war or natural disasters, should people be allowed to criticize the government and demand a change in leadership? When has such expression been restricted in U.S. history?What types of expression would constitute a “clear and present danger” to the nation and thus not receive free speech protections?Should other types of expression such as burning the flag be protected as free speech? Why or why not? Should the government pass laws that criminalize making disparaging or insulting remarks about a particular race, gender, or religion?Suggested answers:Answers may vary. To help students address this question, go back to slide 18 and review the five reasons that freedom of speech forms an essential part of a democracy.Freedom of speech and of the press established the ideals of the Revolution years before actual fighting began: Enlightenment philosophers; the circulars and pamphlets distributed following the Stamp Act; Thomas Paine’s Common Sense; and newspaper articles that kept people informed of events.Answers may vary. Examples of restricted expression include the Alien and Sedition Acts of 1798; banning all citizen petitions from Congress during the Civil War; the Espionage Act of 1917 and the Sedition Act of 1918.Answers may vary. Point out that “clear and present danger” means that the expression could directly lead to violence, civil disorder, or pose a threat to national security. Examples include publishing secrets proven to compromise national security, lying under oath, libel, or yelling fire in a crowded theater.Answers may vary.
28First Amendment: Freedoms of Assembly and Petition “…or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”Freedoms of assembly and petition linked to freedom of speech and pressThese freedoms serve many diverse causes and groupsThe freedom to assemble and to petition the government for a change in policy are essential rights linked closely to free speech and freedom of the press. These rights allow people to meet in groups, work together, and press for changes in situations needing improvement. This can be true for church groups, social clubs, political parties, or community service organizations. These groups may take their messages public in forms such as speeches, written documents, or demonstrations to draw attention to particular issues. Such demonstrations may promote a wide variety of causes, including civil rights, cures for cancer, abortion rights (or restrictions), better employment conditions, pro- or anti-war rallies, fairer or tougher immigration laws, the Ku Klux Klan, or for lowering the drinking age.
29First Amendment: Origins of Assembly and Petition Magna Carta itself (1215)English Petition of Right (1628)American colonists notrepresented in ParliamentInitially not part of the Constitution; later included in the Bill of RightsThe right to petition the government can be traced back to the Magna Carta, when the 40 barons forced King John to respect their rights. In fact, the Magna Carta itself was a petition to redress grievances. As Parliament evolved and became more of a voice in English politics, it and other segments of the British government repeatedly petitioned the monarchs to change policies or stop certain practices that violated the rights of citizens. In 1628, Parliament presented the Petition of Right to Charles I, requesting that the king honor their rights as defined in the Magna Carta and adding that no soldiers be housed in citizens’ homes and no martial law be imposed during peace time.For American colonists, participating in the political process necessarily meant petitioning the British government, since they could not send representatives to Parliament. As Parliament and the king failed to address or wholly ignored these petitions, the colonists became convinced of the violations of their rights and stated so in the Declaration of Independence.As with other First Amendment rights, the rights of assembly and petition were briefly discussed during the writing of the Constitution, and while considered important, were not included because the delegates believed such fundamental rights were protected in any democracy. In addition, most state constitutions protected these rights, so the delegates considered their mention in the Constitution redundant and unnecessary. However, as with the other First Amendment rights their inclusion became mandatory for ratification.The Engligh Petition of Right
30First Amendment: Historical Restrictions on Assembly and Petition “Gag rule” banning congressional discussion of anti-slavery petitions (1836)Denying assembly and petition to homeless (1890s/1930s)Breaking up peaceful demonstrations during civil rights movement (1950s and 1960s)During the 19th and 20th centuries, both state and federal governments periodically violated citizens’ rights of assembly and petition. In 1836, after heated debate and much political wrangling the Senate established a “gag rule” to prevent congressional debate on petitions related to slavery in the District of Columbia.The economic depressions of the 1890s and 1930s left a great many people out of work and homeless. Groups organized to demonstrate in Washington, D.C., and petition the government for relief. In both instances, the president ordered the demonstrations broken up and their leaders arrested.The civil rights movement of the 1950s and 1960s faced much resistance from state and local governments as well as private individuals and groups. During the 1963 civil rights protests in Birmingham, Alabama, the Commissioner of Public Safety, Eugene “Bull” Connor, ordered fire hoses and police dogs turned on African American demonstrators to disperse the crowd. Though never legally addressed, these actions constituted clear violations of the people’s right to peacefully assemble.1830s political cartoon about the congressional “gag rule”
31First Amendment: Assembly and Petition—Supreme Court Decisions DeJonge v. Oregon (1937): Incorporating freedom of assembly to the statesCox v. New Hampshire (1941): Time, place, and manner of assembly may be restricted but not eliminatedLloyd Corporation v. Tanner (1972): Private property exempt from freedom of assemblyFeiner v. New York (1951): Limitations on the right to assemblyThe Supreme Court has ruled on many cases that helped define the extent of the freedoms of assembly and petition. In DeJonge v. Oregon (1937), the court incorporated the freedom of assembly to the states through the Due Process clause of the 14th Amendment, but stipulated that the assembly must be peaceful and may not cause civil disturbances or block public streets.In the case of Cox v. New Hampshire (1941) the court ruled that the government may restrict the time, place, and manner of assemblies, but the regulations cannot be so stringent as to prevent peaceful assemblies altogether—alternatives must be allowed.The court ruled in Lloyd Corporation v. Tanner (1972) that freedom of assembly does not apply to shopping malls because they are privately owned and thus not subject to the restrictions placed on government.While the right to peacefully assemble and petition the government is protected from government interference, as the previous cases imply, these are not unqualified rights. The Supreme Court has ruled that the government can stop an assembly under certain circumstances. In Feiner v. New York (1951), the court agreed that the police had acted constitutionally when they arrested a speaker who was leading an assembly to protest racial inequality. The decision stated that when a speaker crosses the bounds of argument or persuasion and tries to incite a riot through his words, the government has a right to prevent violence by stopping the assembly.
32First Amendment: Assembly and Petition vs. Government Responsibility Government has a responsibility to keep the peaceThe right to assemble extends to meetings in public areasGovernment has a right to impose restrictions based on time, place, and manner of assemblyRestrictions must not make it impossible to express ideasWhen people with assemble and petition to voice their issues and concerns, they will naturally express strong views, be they political, economic, or social. However, the government has the responsibility for making sure that such demonstrations are peaceful and do not endanger or inconvenience the public. The courts have ruled that the right to assemble extends to meetings in public areas: streets, parks, and buildings, for example. Historically, these locations have been important forums for people who cannot afford or lack access to more expensive means of communication, such as through media outlets.As with freedom of expression, the government has a right to impose restrictions on an assembly based on its time, place, and manner (that is: when, where, and how people assemble). But any restriction must be designed to protect a legitimate interest (public or private) and not intentionally suppress speech or assembly. The restrictions must not make it impossible to express ideas. Moreover, such restrictions must be applied in a non-discriminatory manner. For example, protesters can peacefully demonstrate, but cannot cause a riot or block public streets through sit-ins. Such actions would violate the rights of others who may or may not be targets of the demonstration. As a further example, unless given permission, assemblies and demonstrations cannot take place in shopping malls or other areas of private business because they violate the rights of the property owners to conduct their business.Soldiers stand guard at a demonstration against the Vietnam War
33Discussion QuestionsExplain how the freedoms of assembly and petition are closely tied to the rights of free speech and a free press.Explain how the rights of assembly and petition facilitate the exercise of democracy and benefit both the government and the people.Review the three examples of government limitation or denial of the rights to assemble or petition (slide 30). Why do you think the government imposed these restrictions during these times?What obligations does the government have in imposing any restrictions on the rights of assembly and petition? Why does it have these obligations?Why do you think the Framers thought it important to include the rights of assembly and petition in the Bill of Rights to serve the needs of all classes of people?Suggested answers:Answers may vary, but students should understand how each right is interrelated with others and that one enables the other. Examples: Free speech advances the causes addressed and supported in an assembly. A free press allows ideas to be expressed and explained in petitions made to the government.The rights of assembly and petition provide avenues for all people to express their opinions, grievances, and beliefs. It also serves the government by allowing for peaceful diffusion of emotions that might otherwise, if denied, be expressed in more violent ways.Answers may vary, but students should understand the government was more concerned about maintaining order and not about addressing the changes citizens sought.The government’s obligations are to make sure that other groups’ or individuals’ rights are not violated and that the restrictions aren’t discriminatory. These obligations are intended to protect others’ rights and not suppress speech or assembly.Answers may vary.
34The 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.”Probably no other amendment has created as much controversy as the second. Though not an extensively worded amendment, its two clauses have spurred intense debate for over 100 years.
35Second Amendment: Two Problematic Clauses “A well regulated militia, being necessary to the security of a free state,…Most scholars agree that the amendment’s first clause serves as a preamble and defines its purpose: since a militia is necessary to the security of the country, the people’s right to keep and bear arms shall not be violated. But there are two ways of interpreting this: Does the first clause give the people the right to bear arms only as part of a “well regulated militia,” such as the National Guard? Or does the phrase “the right of the people” in the second clause mean the rights apply to the common citizen, as opposed to individuals in a well regulated army? (Note to teacher: take a few minutes to discuss this with the class, asking students, “What do you think?”)…the right of the people to keep and bear arms, shall not be infringed.”
36Second Amendment: Origins British army occupied the colonies to enforce orderAmericans resented a standing army of foreign troopsColonial militia became known as “minutemen”As tensions grew between the colonists and the British in the mid-1700s, Parliament saw fit to deploy its army to some colonies to maintain order and enforce the laws of taxation. Americans grew to resent this occupation by a foreign power, even if it was to guarantee their protection. They preferred a militia of part-time citizen-soldiers composed of community members who they knew and trusted to not infringe upon their rights. This system required all free adult males to own weapons and be ready to assemble at a moment’s notice when called upon. Due to their constant readiness to assemble, some of these groups of citizen-soldiers became known as “minutemen.”It was this very militia that confronted the British at the battles of Lexington and Concord. To the British army, the citizen-soldiers that challenged them at Lexington Green seemed a rag-tag band of outlaws who interfered with officials’ law enforcement activities. The American version tells the story of brave “freedom fighters” boldly standing up to oppression. It is this image that helps define the Second Amendment.Minutemen at the battle of Lexington
37Second Amendment: Varying Interpretations “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.”Who has the right to bear arms?Does the Second Amendment provide each individual with the right to own a gun, or merely allow each state to maintain a well-regulated militia?Why does the Second Amendment need defining? The Framers purposefully left many parts of the Constitution and Bill of Rights vague in order to make the document adaptable to changing times. The Second Amendment is perhaps one of the most vague and possibly most confusing amendments.To a gun-ownership advocate, the second part of the Second Amendment affirms that “the people” hold the right to bear arms, meaning individuals; in a similar fashion, in the First, Fourth, and Ninth Amendments “the people” refers to individuals, not the states. To a gun-control advocate, the first clause of the amendment defines the meaning of the second: citizens could keep arms in order to serve as part of a “well regulated militia.” The National Guard embodies our modern-day version of this, composed of citizen soldiers controlled by the individual states, ready to be called up when necessary. Guardsmen are trained in the use of their weapons (which are kept in armories) and do not take them home when training is complete.
38Second Amendment: Court Decisions U.S. v. Miller (1939): The federal government has the right to require that firearms be registeredQuilici v. Morton Grove (1982): U.S. Court of Appeals ruled right to bear arms does not apply to individualsA sawed-off shotgun, similar to the type under question in U.S. v. MillerOnly a few Supreme Court cases have addressed the Second Amendment. However, none has defined whether the amendment applies to individuals or provides a collective right for the people to bear arms.In the case of United States v. Miller (1939), the Supreme Court made its most definitive ruling on the Second Amendment to date. Miller had been arrested for transporting a firearm (a sawed-off shotgun) across a state line. He claimed that the Federal Firearms Act of 1934, which required the registration of guns, was unconstitutional because it violated his right to bear arms. The court ruled that the Firearms Act was indeed constitutional in asking that certain firearms be registered. The court deemed a sawed-off shotgun was not part of a “well regulated militia,” and thus the government had a right to require its registration. Furthermore, registration didn’t deny a person the right to own a gun.The court has held that the Second Amendment does not apply to the states, so it does not bar local or state governments from instituting gun-control measures. In 1981, the town of Morton Grove, Illinois, voted to prohibit the possession of handguns in the home. The following year, the U.S. Court of Appeals for the Seventh Circuit ruled in Quilici v. Morton Grove that the Second Amendment does not apply to the states, that the right to bear arms is exclusively connected to the functioning of a militia, and that the Second Amendment does not guarantee the right to keep and bear arms. The U.S. Supreme Court declined to hear the case, allowing the lower court ruling to stand.
39Discussion QuestionsWhy did colonial Americans resent a “standing army” of British soldiers?Explain how a gun-ownership advocate might interpret the Second Amendment.Explain how a gun-control advocate might interpret the Second Amendment.In U.S. v. Miller, what did the Supreme Court say about the Federal Firearms Act of 1934?What did the U.S. Court of Appeals say about Morton Grove’s law banning firearms? How do you think this case would be decided if the Supreme Court chose to rule on it? Explain your answer.Suggested answers:Students should mention the British occupation of some colonies to maintain order. Colonists resented this occupation and organized their own militias, comprised of private citizens who owned weapons.Students should mention that the amendment and its history indicate that private citizens are allowed to possess firearms.Students should mention that only in the context of a well-regulated militia do citizens have the right to possess firearms.It stated that the act did not violate the Second Amendment because the state had legitimate reasons to have certain firearms registered. Furthermore, registration did not deny individuals the right to possess firearms.The court upheld the city’s right to issue the ban, reaffirming that the Second Amendment only applies to the federal government, that the right to bear arms is inescapably connected to the operational functions of a militia, and that the the Second Amendment does not guarantee the right to keep and bear arms.
40The 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.”The Third Amendment to the Constitution has a long history of influence on the American psyche, but little history of litigation. In fact, the Supreme Court has yet to rule on any case involving the quartering of troops in people’s homes.
41Third Amendment: Origins Protection against quartering dates back to 12th centuryGrievance in Parliament’s Petition of Right (1628)Established firmly in English law by English Bill of Rights (1689)King James IIEarly protections against housing troops in private homes appear in the charters of English towns dating back to the 12th century. However, these laws did not exist for every town and weren’t always enforced in those where they did. The problem grew worse in the 17th century under the Stuart kings. Parliament had refused to provide Charles I with adequate funds to house his standing army, so the army sought housing in private homes. In 1628, Parliament requested in the Petition of Right that the king remove all soldiers from people’s homes; however, Charles did not honor this request. The later Stuart kings continued the practice until the Glorious Revolution of 1689, when James II was ousted for (among several other transgressions) quartering his troops in private homes. With the English Bill of Rights (1689), Parliament reaffirmed its position on the quartering of soldiers as a direct violation of personal liberties.King Charles I
42Third Amendment: Colonial Experiences Thousands of British troops came to North America during the French and Indian WarTroops stayed to enforce laws of taxationCitizens confronted British soldiers in the Boston MassacreBritish abuses immediately prior to and during the Revolutionary War directly inspired the Third Amendment. During the French and Indian War, thousands of British troops had been relocated to North America. In 1756, British troops were defending western territories in New York from the French and their Native American allies. Citizens of Albany refused to quarter British troops in their homes while barracks were being built, so the British commander took the homes by force.Following the war, England thought the Americans should shoulder some of the costs for their own defense. Parliament passed the Quartering Act of 1765, which required colonial legislatures to pay for British soldiers stationed in North America. The colonists refused, seeing the act as yet another tax as well as a violation of common law. As more British troops were stationed in colonial cities and towns to collect taxes on imports, tensions increased. In Boston, townspeople gathered outside the Customs House to protest the increased taxes and the mounting number of British soldiers in the city. The crowd grew and began threatening the troops protecting the Customs House. The troops fired into the crowd, killing five colonists. Parliament passed a second Quartering Act in 1774 as part of a series of laws to further control unruly Boston citizens. The law authorized British troops to be quartered in private homes, as well as in public guest houses.The Boston Massacre, by Paul Revere (1770)
43Third Amendment: Early American Developments Quartering of soldiers was one of the grievances stated in the Declaration of IndependenceProhibition on quartering of troops not mentioned during Constitutional ConventionIncluded in the Bill of Rights in 1791When the colonies declared their independence from Britain in 1776, one of the grievances stated was that the king had agreed to laws “for quartering large bodies of troops among us.” After the war, several states included in their state constitutions protections against the quartering of troops. The subject arose during the Virginia ratification convention for the U.S. Constitution when Patrick Henry objected to a lack of a prohibition against quartering of troops during peacetime. As with other Bill of Rights protections missing from the Constitution, the Bill of Rights passed by Congress in 1791 included a ban on quartering of troops in citizens’ homes.Patrick Henry
44Third Amendment: Today Troops can be quartered in private homes during wartime.No Supreme Court decisions directly concerning quartering troops in people’s homesCourts have cited the Third Amendment as a further protection of the right to privacy from government intrusionIt’s important to point out that the Third Amendment does allow for the quartering of troops in privates houses without the owner’s consent during wartime. However, the clause “in a manner prescribed by law” requires that procedures be set in place to compensate the homeowners. This became a problem during the Civil War, when Union troops were quartered in private homes in violation of the Third Amendment. Since Congress itself never authorized such an action, no compensation was offered.The Supreme Court has never heard a case specifically concerning the Third Amendment regarding either a federal or state action. Yet the Third Amendment has been cited as further evidence of a citizen’s constitutional right to privacy. The Supreme Court has identified the principle that “a man’s home is his castle” when ruling on police investigations and state intrusions into people’s private lives.Union troops were quartered in private homes during the Civil War
45The 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.”The courts have interpreted the Fourth Amendment as safeguarding the right to privacy, although the text does not specifically mention the word “privacy.” Closely tied to the Third Amendment, it reflects the principle that “A man’s home is his castle.” The protection of one’s privacy from intrusion by government officials acts as an important corollary to freedoms of conscience, thought, religion, and expression, as well as to property rights. Such protection has become even more imperative today with the advent of advanced surveillance technology and with much of our personal information stored in relatively insecure computer databases.
46Fourth Amendment: Origins Semayne’s Case (1603) acknowledged need for balance between privacy and the duties of law enforcementWrits of assistance allowed government officers wide latitude in searching private homesJames Otis’s court challenge (1761)The protection of personal dwellings and materials has a rich history in England. This was demonstrated in Semayne's Case, decided in England in This civil case recognized the right of the homeowner to defend his house against unlawful entry, even by the king’s agents. The case also affirmed the authority of appropriate officers to enter a private dwelling in order to arrest a subject or otherwise carry out the king’s orders. Thus the balance struck between an individual’s right to privacy and the need for the government to enforce the law was defined, though not completely resolved.As a common practice, the English government used general warrants to search anywhere within the homes of private citizens for anything at all and seize anything it pleased. In order to enforce revenue laws and reduce the smuggling of untaxed goods, British customs officials used writs of assistance, which were general warrants allowing officials to enter any dwelling (including private homes) to seize prohibited or untaxed goods. James Otis, a well-known and successful Boston lawyer, challenged the writs of assistance in open court in Though he lost his case, other patriots noted his efforts during the early days of the Revolution, and after independence the constitutions of eight states incorporated prohibitions against general warrants.James Otis
47Fourth Amendment: Later Colonial Experiences Purpose is to prevent arbitrary actions and protect persons from invasions of privacyViolations by the Continental Congress during the Revolutionary WarFramers incorporated colonial experiences and English heritage into the Fourth AmendmentAmendment’s restrictions create tension between government’s duty and citizen’s privacyFrom their colonial experience and their English heritage, the authors of the Fourth Amendment wanted to ensure that citizens would be free from arbitrary actions by the government and could protect their personal property. The general understanding held that warrants couldn’t always be obtained and that some searches were necessary, such as during an arrest. But with tensions ever-increasing prior to the Revolution, British officials sometimes found it convenient to employ general warrants not just to enforce the law but as a way to intimidate and harass colonial merchants, who they knew (but couldn't prove) were smuggling.However, these types of violations weren’t exclusive to the British authorities. During the Revolution, the Continental Congress ordered the Pennsylvania executive committee to search the homes of Philadelphians of suspect loyalty, mostly Quakers. The committee conducted warrantless and brutal searches. People were arrested and deported without trial to other states.Thus, any government may be capable of violating citizens’ rights—even while fighting to preserve them.It is important to point out that the essence of the Fourth Amendment is to make it more difficult for the authorities to do their job when it comes to searching private homes and seizing personal property. Such a precondition creates a tension between the government’s duty to provide law and order and the people’s right to privacy.
48Fourth Amendment: Two Clauses First clause“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”Second clause“…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 Fourth Amendment consists of two main clauses. The first outlines the right of the people to be secure from unreasonable searches and seizures. This clause defines the protections so as to include not only the persons themselves but also their houses, papers, and effects.The second clause explains that warrants may only be issued based on probable cause, which means that the authorities must have a substantial reason to suspect a person of breaking the law. But even a strong suspicion is not enough: authorities must present to a judge their reasons for the search, swear an oath that they believe a crime is being or has been committed, and that the information or materials obtained in the search will serve as evidence in proving the commission of a crime. To further restrict the search, the warrant must state the place to be searched and the persons or things to be seized. The authorities, therefore, cannot simply enter a dwelling and snoop around.
49Fourth Amendment: Tests and Trials The original wording has fared well over timeSupreme Court cases have limited what searches may entail:Olmstead v. United States (1928): listening devicesKatz v. United States (1967): the “reasonable expectation of privacy” doctrineCalifornia v. Greenwood (1988): garbage bagsThe Fourth Amendment specifically protects citizens from unreasonable searches of “their persons, houses, papers, and effects.” The Framers of the amendment didn’t intend to list everything that could conceivably need protection; instead, they only mentioned items commonly subject to searches and seizures. The word “effects” covers most people’s general understanding of possessions considered private and needing protection. Over time, the courts have more clearly defined what items are and are not protected from searches and seizures.The courts have further defined under what conditions warrants should or should not be issued. Originally, the Supreme Court took the view that the Fourth Amendment limited its protection to actual invasions of a specific location or a person’s body. Under this interpretation, in Olmstead v. United States (1928), the court ruled that wiretapping didn’t require a warrant if the listening devices were located outside the person’s private property. However, the Supreme Court overturned this decision in a similar case, Katz v. United States (1967), when it ruled that “the Fourth Amendment protects people, not places.” This decision established the “reasonable expectation of privacy” doctrine, stating that Mr. Katz had a reasonable expectation that his conversations on a telephone—even a public one—were private.Later court cases further clarified the reasonable expectation doctrine as well. In California v. Greenwood (1988), the court ruled that garbage bags placed on the curb outside of a home in full view of the public did not merit a reasonable expectation of privacy. Any contraband found in sealed garbage bags could be seized as evidence.
50Fourth Amendment: Exclusionary Rule Supreme Court cases have further clarified the meaning of unreasonable search or seizure:Weeks v. United States (1914): established the “exclusionary rule”Silverthorne Lumber Co. v. United States (1920): “fruit of the poisonous tree” doctrineMapp v. Ohio (1961): extended exclusionary rule to states through the Fourteenth AmendmentThe Supreme Court has also defined what constitutes an unreasonable search or seizure in several cases over the past century. Various court rulings have cited the “exclusionary rule,” which states that evidence obtained via an illegal search is inadmissible in a court of law.In Weeks v. United States (1914), police detained and arrested Mr. Weeks at his place of business. Meanwhile, other officers searched his home without a warrant. The search turned up evidence that Mr. Weeks was sending lottery tickets through the mail, a violation of federal law. Based on this evidence, he was later tried and convicted. The Supreme Court overturned the lower court’s decision, ruling that the warrantless search had violated Weeks’s Fourth Amendment rights. This set legal precedent and established the exclusionary rule: evidence gathered illegally cannot be used in a court of law. The Supreme Court extended this provision even further in Silverstone Lumber Co. v. United States (1920), wherein it established the “fruit of the poisonous tree” doctrine. This states that not only is any evidence obtained through an illegal search inadmissable, but that any confessions stemming from illegally seized evidence are inadmissible as well.The Supreme Court extended the exclusionary rule derived from the Fourth Amendment to the states through the Fourteenth Amendment. In the case of Mapp v. Ohio (1961), the local police entered Mr. Mapp’s home to seize gambling paraphernalia and arrest him. The police, claiming they had a warrant (though none was produced), searched the premises and found pornography, with which Mapp was tried and convicted for possession of obscene materials. The judge knew the search was illegal yet still admitted the evidence, since the exclusionary rule didn’t yet apply to state authorities. Mapp appealed to the Supreme Court, which ruled that the due process clause of the Fourteenth Amendment requires that all illegally obtained evidence be excluded from state as well as federal court proceedings.
51Fourth Amendment: Exceptions to the Exclusionary Rule United States v. Leon (1984): “good faith” doctrineNix v. Williams (1984): “inevitable discovery” doctrineThe exclusionary rule is not intended to let criminals go free, but to penalize police for misconductAs the Supreme Court worked to further refine the parameters of the exclusionary rule, it began to find justifiable reasons to allow exceptions. One of these early exceptions was the “good faith” doctrine, which was established in U.S. v. Leon (1984). This doctrine allows for the admissability of illegally obtained evidence, provided that the police were truly unaware while obtaining it that they were violating a person’s Fourth Amendment rights. Another doctrine emerged from a decision delivered the same year, the “inevitable discovery” doctrine established in Nix v. Williams. Here, the court ruled that evidence not mentioned in a warrant but likely to have been discovered anyway (because it was in plain view or perhaps offered up) is admissable in a court of law.It is important to point out that the exclusionary rule is not designed to protect the constitutional rights of suspects, but to deter and penalize police misconduct when it occurs. When a court invokes the exclusionary rule, it does so not to exonerate a criminal act, but to throw out illegally obtained evidence and emphasize that police will have to find other evidence for trial.Controversy surrounds the exclusionary rule, as many suspected criminals have gone free due to illegally seized evidence. In recent years, the courts have further defined the exclusionary rule and have added several additional exceptions as to when evidence acquired without a search warrant may be used in court.
52Fourth Amendment: Other Exceptions to the Exclusionary Rule Other exceptions to the exclusionary rule include:Automobile searches: A vehicle may be searched if there is probable cause that a crime is or has been committed. Any part of the passenger section can be searched. A search of the trunk requires specific justification, such as noise, a smell, or some other indication.Border searches: The governments secure the borders through its transportation routes and international airports. A person and their possessions can be searched for contraband or dangerous materials. “Profiling” of suspicious individuals is also allowed.Exigent circumstances: Police may conduct warrantless searches under certain circumstances, such as a perceived emergency (shots fired or someone screaming for help, or a crime being committed in plain view). This also includes instances in which evidence must be quickly obtained because a delay would allow its destruction or removal (tissue samples, fingernail scrapings).Border searchesExigent circumstancesAutomobiles
53Fourth Amendment: Other Exceptions to the Exclusionary Rule (continued) Plain view: This refers to warrantless searches during which any of the five senses detect a crime being committed, as long as the police have lawful access to the object and discover it accidentally (for instance, finding a gun or drugs when a driver opens his glove box to produce his registration and proof of insurance).Stop and frisk: This exception was first established in Terry v. Ohio (1968), wherein the court ruled that a person acting suspiciously could be stopped and frisked for weapons, which then could be seized and introduced in court as evidence.Student searches: Although public school students have Fourth Amendment protections, their rights differ from those of adults in similar circumstances. School officials have an obligation to maintain an atmosphere of learning and safety. In New Jersey v. T.L.O (1985), the Supreme Court ruled that, under reasonable circumstances, school officials don’t need probable cause in order to search a student’s locker or purse. This permits school officials to conduct a search if they believe it will turn up evidence of a crime or a school violation, but not simply as a disciplinary measure.Plain viewStudent searchesStop and frisk
54Discussion QuestionsWhat types of things does the Fourth Amendment protect from unreasonable searches? How does the amendment limit the power of the government?How were the Fourth Amendment’s protections extended to the states?What are some advantages and disadvantages of the exclusionary rule?Do you think exceptions to the exclusionary rule are justified? Why or why not?Suggested answers:Students should identify the items stated in the amendment (persons, houses, papers, and effects), but also point out that “effects” can mean many things, including private phone conversations. The amendment limits the power of government by making sure that a search or seizure has been conducted with a court-approved warrant that specifies the place to be searched and the person or items to be seized.Remind students that the Bill of Rights originally pertained only to the federal government. Through a series of court cases, many of the limitations on government power have been extended to the states though the Fourteenth Amendment’s due-process clause. This was the case for the Fourth Amendment in Mapp v. Ohio.Answers may vary, but students should identify advantages such as keeping the police and other authorities honest and not above the law. For disadvantages, students could mention that the exclusionary rule may disallow evidence that could convict a criminal in court, that it doesn’t directly protect the victims of a crime, and that it breeds disrespect for the criminal justice system.Answers may vary.
55The Fifth Amendment“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 Fifth Amendment guarantees five very diverse rights. Perhaps the most widely known is the right against self-incrimination in criminal cases—that is, not being compelled to be a witness against oneself. Commonly referred to as “taking the Fifth,” witnesses invoke this provision by stating, “I refuse to answer on the grounds that my testimony might tend to incriminate me.”The amendment also provides other important protections:Having serious criminal charges evaluated by a grand juryFreedom from being tried twice for the same offense (double jeopardy)Benefiting from due process of lawReceiving just compensation when private property is taken for public use
56Fifth Amendment: Common Legal Terms Infamous crime: a serious criminal offenseDouble jeopardy: being tried twice for the same crime“Taking the fifth”: invoking the right against self-incriminationDue process of lawSubstantiveProceduralJust compensation for imposing “eminent domain”“No person shall be held to answer for…[an] infamous crime unless on…[an] indictment of a Grand Jury.” By “infamous crime,” the amendment refers to a serious crime, one that would place the person in prison or subject to a severe fine if proven guilty.“Double jeopardy” refers to trying a person twice for the same crime. This provision applies solely to criminal trials, not to civil trials which involve lawsuits. It does not prohibit trying a person for a different crime committed at the same time as the first.In trials portrayed on television or in the movies, witnesses often declare they are “taking the Fifth.” By invoking the Fifth Amendment, they are claiming their right against incriminating themselves for a crime they might or might not have committed.The concept of due process of law evolved centuries ago, though its meaning and extent are still being determined to some degree. There are two kinds of due process: substantive, which refers to the content of a law applied during legal proceedings; and procedural, which refers to the process by which the legal proceedings are conducted.When the government takes one’s private property for public use, that is called imposing eminent domain. The Fifth Amendment permits the government to do this, as long as the owner receives “just compensation,” which normally means the fair market value of the property.
57Fifth Amendment: Historical Origins Greek and Roman lawBoth established protections against double jeopardyMagna CartaProtections of property and due processThe Star ChamberAbuse of power in the English courtsMany of the Fifth Amendment’s provisions have roots deeply embedded in history. The concept of double jeopardy is one of the oldest in Western civilization. The Greeks and Romans both made mention of it in their writings and their laws.Protections of property and guarantees to due process find their origins in English common law, and both rights appear in the Magna Carta. However, the protection against double jeopardy in medieval England applied solely to defendants accused of capital crimes. It did not apply to cases that retried a previously acquitted defendant or were dismissed prior to judgment and was often times abused by the British crown.The protection against self-incrimination developed through England’s experience with the Star Chamber, a closed court that existed during the reign of James I and his son Charles I. These kings used the court to suppress opposition to royal policies and try powerful nobles resisting the power of the monarchy. Star Chamber proceedings were held in secret, and persons put before it were not told what crimes they were accused of. Agents of the king forced defendants to take an oath to answer all questions truthfully. Political or religious dissenters who told the truth were punished for their beliefs and forced to incriminate others; those who lied to protect themselves risked being found guilty of perjury and imprisoned or tortured. The Star Chamber also used torture to elicit confessions when it suspected the accused of lying.
58Fifth Amendment: Colonial Origins Grand jurySelf-incriminationDouble jeopardyThe colonial American legal systems used grand juries extensively. A grand jury effectively protected innocent persons from unfounded charges by others seeking political, financial, or personal gain.The right against self-incrimination has a history that goes back many centuries. Societies did not develop the ban on self-incrimination in order to be more lenient towards criminals or make the job of prosecuting them more difficult. It was established to discourage the practice of torture and to prevent other related abuses of power. Puritan John Wheelwright invoked his right against self-incrimination in 1637 when he defended Anne Hutchinson’s right to freedom of speech and opinion. Colonial authorities later banished him from the Massachusetts Bay Colony, but his efforts were recognized by other colonies, which gradually made provisions to protect against self-incrimination.The Massachusetts colonial charter guaranteed the right against double jeopardy and expanded the protection to all crimes and offenses. However, only two state constitutions made any mention of double jeopardy at the time of the Bill of Rights’ framing. James Madison made sure to incorporate this provision into the draft of the Bill of Rights he presented to Congress.Anne Hutchinson on trial
59Fifth Amendment: Colonial Origins (continued) Due processJust compensationDispossessed loyalists during the Revolution, fleeing to CanadaMost American colonies followed English tradition in granting substantive and procedural due process. Both carried the same level of importance and were understood as necessary components of due process when the Bill of Rights was ratified in 1791.From the time of the Magna Carta, a general understanding has held that the government could take personal property for its use when necessary. In early English history, the power of “eminent domain” allowed the government to take private land without compensation, but English law eventually required the government to obtain ownership through legal channels such as legislation in Parliament, where both sides could debate the issue. Colonial governments adopted similar procedures. However, not all colonists believed that people should sacrifice personal property for the greater good. Some colonial legislatures abused the power of eminent domain, much to the strong displeasure of their citizens, while others discriminated in favor of their own residents over those from other colonies. During the Revolutionary War, eminent domain was invoked to seize property from colonists suspected of disloyalty. Due to the potential for government to abuse this power and not provide compensation, the Framers added the just compensation clause to the Fifth Amendment.
60Fifth Amendment: Supreme Court Decisions Campbell v. Louisiana (1999): indictment by a grand juryMiranda v. Arizona (1966): right against self-incriminationGreen v. United States (1957): clarified double jeopardyIndictment by a grand jury: The case of Campbell v. Louisiana supported the right to a grand jury free of discrimination. Terry Campbell, a white man, moved to quash the indictment against him by citing a long history of racial discrimination in the selection of grand-jury forepersons in Evangeline Parish, Louisiana. No African American had served as a foreperson for the past 16 years, despite the fact that blacks made up 20 percent of the parish’s registered voters. In a unanimous opinion, the court held that a grand jury ought to be free of discrimination because racial bias in jury selection casts doubt on the integrity of the entire trial process.Right against self-incrimination: The Fifth Amendment right to counsel and protection against self-incrimination was protected in the case of Miranda v. Arizona (1966). The court held that statements made during an interrogation in which the suspect is unaware of his constitutional right against self-incrimination are inadmissible, and that police should inform the accused of their rights before interrogation begins.Right against double jeopardy: the defendant, Mr. Green, was tried on two counts of murder. The jury found him guilty of the lesser charge, but couldn’t decide on the more serious charge. His conviction was overturned on appeal, and he was retried for the more serious charge and found guilty. The Supreme Court ruled in Green v. United States that since Green was not found guilty of the more serious charge in the first trial he could be retried for that charge.
61Fifth Amendment: Supreme Court Decisions (continued) Goss v. Lopez (1975): juveniles’ right to due processLucas v. South Carolina Coastal Council (1992) and Kelo v. City of New London (2005): right to just compensationStudents have a right to a hearing before being suspended, and to have their parents at that hearingRight to due process: This right is granted to all citizens, including to juveniles when punished by school authorities. In Goss v. Lopez (1975), the court held that nine students who were given ten-day suspensions were entitled to hearings before receiving the suspensions, and to have their parents informed and present at these hearings.Right to just compensation: Mr. Lucas had purchased land in hopes of selling it to developers. A South Carolina law banned all development on private land in order to protect barrier islands from erosion and destruction. The Supreme Court ruled in Lucas v. South Carolina Coastal Council (1992) that South Carolina’s ban on development had rendered Lucas’s property worthless; thus, the law was unconstitutional in that it didn’t provide for just compensation for the property owner’s loss. In a more recent case, Kelo v. City of New London (2005), the Supreme Court extended the government’s right to acquire private property intended for development when it serves the public good. A sharply divided Supreme Court ruled that the local government could take private property from one individual and give it to another private individual or group if the land had a public use. But the government would have to provide just and fair compensation. In this case, the developers wanted to build a hotel and office complex as part of a comprehensive redevelopment effort initiated by the local government. The City of New London claimed that the development would serve the public good because it would expand the tax base.
62The 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 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 defense.”The Sixth Amendment attempts to balance the enormous power of the state and all its agents that may attempt to prove guilt—the police, the schools, the FBI, government security agencies, and the three branches of government—against the right of the individual to prove his or her innocence.
63Sixth Amendment: Due Process and Rights Preserves procedural due processThe six provisionsRight to a speedy and public trialRight to a jury trial in the same locale as the crimeRight to be informed of all chargesRight to confront accusers in courtRight to produce supporting evidence or witnessesRight to legal counselThe Sixth Amendment guarantees six rights crucial to receiving procedural due process. If a person is arrested for an alleged crime, the government is obligated to honor these specific rights:The right to a public trial, conducted within a reasonable period of timeThe right to a jury trial in the state or district where the alleged crime was committedThe police or authorities must inform the accused of the crimes they are believed to have committedThe right to confront one’s accusers in a court of lawThe right to call witnesses and/or produce evidence to support one’s innocenceThe right to legal counsel for assistance with court proceedings
64Sixth Amendment: Origins and Colonial Experiences Magna CartaMassachusetts Body of LibertiesProtections in state constitutionsAnti-Federalists concerned about protecting the jury system for civil trialsOrigins of the Sixth Amendment can be traced to English common law and the Magna Carta. Provisions therein prohibited delayed justice and punishment without a trial. These protections were brought over to colonial America in the 17th century. Finding some of these provisions lacking, the people of Massachusetts established the Body of Liberties, which protected the rights to a speedy trial, trial by jury, and the aid of legal counsel.After independence, many states enshrined these rights in their constitutions. During the ratification process for the U.S. Constitution, many Anti-Federalists worried that the federal government might abolish the right to trial by jury in civil cases and stressed the need for a provision that would guarantee the right to a jury trial in all cases.The Sixth Amendment ensures that criminal defendants receive a fair trial and adds important rights as well, such as the right to call witnesses and have the aid of an attorney.
65Sixth Amendment: Speedy and Public Trial “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”A speedy trial still provides time to prepare a case, but doesn’t unnecessarily punish the accusedA public trial helps ensure the government will abide by the rulesToday, all trials must be public, but certain restrictions may be imposed to ensure due process“Justice delayed is justice denied.” These words sum up the meaning behind the right to a speedy trial. Accused persons are presumed innocent until proven guilty. The right to a speedy trial still provides the accused ample time to prepare their defense. They can choose to postpone or move a trial date if it will help build their case. But a delayed trial can hamper the defendant’s chances for a fair trial. Evidence can be lost, and the memories of witnesses can become less certain. If unable to post bail, the accused serves a period of punishment in jail without even being convicted. The right of the accused to a public trial helps to ensure the proceedings are fair and conducted according to the rules. As mentioned earlier, Charles I of England used the Star Chamber, a closed court, to prosecute those who opposed the monarchy. Under these circumstances, the accused had no hope for fair proceedings and were often tortured prior to any verdict.Today, trials are public. The First Amendment gives the public a right to attend criminal trials in most cases. Judges normally cannot ban the media or issue gag rules to limit trial coverage. However, some trials may become “too open” when they involve a public personality or an infamous crime. In these cases, the presiding judge can move the trial to another location or isolate the jury from prejudicial publicity to ensure due process.
66Sixth Amendment: Trial by Jury “…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, …”Granted to nobles in Magna CartaSo valued that the Constitution and Bill of Rights mention it three timesRare today due to plea bargainingIndividuals for an impartial jury selected through voir direThe ability to present their case to a jury is a very precious right of accused persons. The Framers of the Constitution believed this so strongly that the the document mentions the right to a jury trial three times: for criminal trials in Article III and in the Sixth Amendment, and for civil trials in the Seventh Amendment. Experiences with juryless courts during the Stamp Act period outraged colonists who felt their rights as Englishmen were being violated.In medieval times, juries emanated from the local community. The Magna Carta prevented English nobles from punishment, except by lawful judgment of their peers, which meant their aristocratic equals. Today, jury trials are becoming relatively rare, not because the government denies the accused their rights but because of plea bargaining, a process in which the defendant pleads guilty in exchange for a reduced sentence.Attorneys for both the defense and prosecution select jurors in a process called voir dire. They question potential jurors about their knowledge of the case to discover any biases or prejudices. Either attorney can challenge the selection of a potential juror. Juries must be chosen from a representative cross-section of the community and must be free from discrimination against gender and racial groups.
67Sixth Amendment: Knowing the Charges “…and to be informed of the nature and cause of the accusation;…”Defendants must be informed of the crimes they are accused of committingKnowing the charges allows the accused to prepare their defenseIf no law required officials to inform accused persons of what crime they allegedly committed, then authorities could conceivably arrest someone and hold them in jail for no reason at all. Knowing the charges gives the accused the necessary information (the nature of the crime, and when and where it occurred) to prepare an adequate defense. In addition to being told of the offense at the time of arrest, accused persons also formally hear the charges at an arraignment, a court hearing at which the defendant enters a plea of guilty or not guilty. In the case of a capital or other serious offense considered a felony, an arraignment occurs after a grand jury has met, reviewed the evidence, and returned an indictment.
68Sixth Amendment: Confrontation of Witnesses “…to be confronted with the witnesses against him;…”Facing opposing witnesses helps provide for honest testimonyAlso enables the accused to challenge witnesses’ testimonyIn certain sensitive matters, testimony may be given through electronic meansWitnesses accusing someone of a crime must testify in front of the accused. In most cases, they may not testify in secret or at another location. This is based on the idea that a witness is more likely to give testimony truthfully when brought face-to-face with the accused. It also enables the accused to challenge the witness’s truthfulness in open court through cross-examination.At times the nature of the crime may be such that a face-to-face confrontation would not compel the witness to tell the truth. Many states allow alleged victims of child abuse to testify without directly confronting the accused. In Maryland v. Craig (1990), the Supreme Court upheld state laws that permit testimony through the use of closed-circuit television, where witnesses testify in another room and their image appears on a courtroom television screen.
69Sixth Amendment: Calling of Witnesses “…have compulsory process for obtaining witnesses in his favor…”Accused persons can call witnesses in their defenseAccused persons also hold subpoena powerTo keep the scales of justice balanced, due process allows the accused as well as the government the right to call witnesses to give supporting testimony. As does the government, accused persons have the power of a subpoena, a court order that forces a witness to testify or produce evidence. This allows them to gather relevant information to present a valid defense.
70Sixth Amendment: Legal Counsel “…and to have the assistance of counsel for his defense.”Helps the accused receive competent counsel on legal mattersIf the accused cannot afford counsel, one will be appointed for them at government expenseMost importantly, the right to counsel helps the accused navigate the difficult waters of the criminal justice system. During the colonial era, a defendant had no right to a lawyer, a carryover from English common law. The judge who presided over the case acted as the presumably arbitrary force that looked out for the defendant’s interests.When the Sixth Amendment was ratified, it only protected the right to have a lawyer present during a trial. Over time, the Supreme Court has ruled that accused persons have the right to an attorney at all points in the judicial process, and that if a defendant cannot afford an attorney, the government must provide one at no cost.
71Sixth Amendment: Supreme Court Decisions Barker v. Wingo (1972): established guidelines for a speedy trialDuncan v. Louisiana (1968): right to trial by juryMiranda v. Arizona (1966): grants the accused the right to counsel (“Miranda warning”)Powell v. Alabama (1932) and Gideon v. Wainwright (1963): counsel must be provided and paid for by the governmentGideon’s original handwritten petitionThe Sixth Amendment’s complexity has resulted in many court cases meant to clarify and define its provisions. Notable cases include:Barker v. Wingo (1972): The Supreme Court established general guidelines for a speedy trial for both federal and state cases.Duncan v. Louisiana (1968): The court ruled that a black teenager who was found guilty for slapping a white youth on the elbow and was imprisoned for 60 days was entitled a trial by jury. The decision stated that the guarantee of a jury trial was “fundamental to the American scheme of justice,” and that the Sixth and Fourteenth Amendments obligate states to provide such trials.Miranda v. Arizona (1966): The best known clause of the Sixth Amendment asserts the right to have the assistance of legal counsel. This clause and the protections against self-incrimination afforded by the Fifth Amendment make up the “Miranda warning.” During an arrest, authorities must deliver the Miranda warning, typically: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”A series of cases from the 1930s to the 1960s helped specify the right to counsel in federal cases and expanded it to the states through the Fourteenth Amendment. In Powell v. Alabama (1932), the court ruled that in death-penalty cases, the states must provide counsel to poor people. Gideon v. Wainwright (1963) established that persons who cannot afford an attorney must be provided one at the government’s expense.
72Discussion QuestionsList the five protections of the Fifth Amendment. Discuss which you think is the most important, and why.Define the two forms of due process: substantive and procedural. How does the protection of due process limit the government’s actions? Do you think the government should be limited in this way? Why or why not?Taken as a whole, what is the purpose of the rights enumerated in the Sixth Amendment?Which rights in the Fifth and Sixth Amendments appear to favor the accused over the duty of the government to convict them of a crime? Explain your answer.What problems may arise over this apparent favoritism toward defendants? How should these problems be addressed?Suggested answers:The right to a speedy and public trial, the right to a jury trial in same locale as the crime, the right to be informed of the charges, the right to confront your accusers in court, the right to call witnesses in your favor, and the right to legal counsel. Reasons why may vary.Substantive due process refers to the content of a law applied during legal proceedings. Procedural due process refers to the standardized manner in which legal proceedings are conducted. Due process prevents the government from operating under its own rules or from changing the rules during the proceedings. Answers may vary on the opinion questions.The Sixth Amendment ensures accused persons the right to adequately defend themselves against criminal charges.Though certain rights appear to favor the accused over the government, none is intended to give either side an unfair advantage. Students might mention several clauses that seem to give accused persons the advantage (right to government-paid counsel, no self-incrimination, etc.). Both the government and the accused have the power of subpoena to call witnesses and present evidence, but the government’s comparatively vast resources and manpower enable it to conduct a much more thorough investigation; the accused rarely has this power, due to limited resources.This question extends further the discussion topics raised by questions 4 and 5. Have students further probe the clauses that seem to give an unfair advantage to accused persons, and ask them how the presumption of innocence helps explain the purpose of these rights.
73Seventh Amendment“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”The Seventh Amendment is the third mention in the Constitution and Bill of Rights of trial by jury, a testament to the Framers’ belief in the importance of the jury system. It grants the right to a jury trial to parties in civil cases, or cases where no crime has been committed but one party seeks compensation for a perceived wrong. Examples of cases that fall under this category include breaches of contract, discrimination disputes, and compensation sought for damages incurred in car accidents. Compensation may range from an apology, a cessation of action, a monetary award, or a reinstatement to a previous or preferred position.The most common experience people have with the justice system is in civil court, where disputes between individuals are heard. For most of us, the right to have our side of the story heard objectively by people free of bias is the true essence of democracy. In the jury box, citizens meet face to face in order to work out the differences among themselves and come to some level of agreement. They examine the facts, cross-check the statements, and weigh the evidence to the best of their ability to attain fairness and justice.
74Seventh Amendment: Historical Precedent Norman lawEnglish common lawAdmiralty courts and the Declaration of IndependenceRight not in the Constitution, but in the Bill of RightsThe right to a jury trial has its roots in English common law dating back the Norman Conquest. Norman dukes would gather information from local landowners to give testimony about landownership and ancestry. This method was brought to England by the Norman Conquest (1066): men would be summoned not only to testify in the proceedings but also to give a verdict on a dispute. Though not specifically protecting the right to trial by jury, the Magna Carta exempted English noblemen from punishment except by lawful judgment of other noblemen.In the atmosphere of increasing hostility in the ten years before the American Revolution, jury trials in civil as well as criminal cases became very important to colonists. The British use of Admiralty courts to review maritime disputes led only to greater concerns, as these trials could occur anywhere, were conducted without juries, and their judges received compensation based on the amount of fines they levied. Thus the Declaration of Independence mentions among its grievances that the British king had deprived the colonists of the benefit of trial by jury.Delegates to the Constitutional Convention of 1787 briefly discussed a motion to require jury trials in civil court proceedings, but summarily discarded the motion for lack of support. It was, however, one of the complaints listed by the Anti-Federalists during the ratification debates and was subsequently added to the draft of the Bill of Rights that Congress approved in 1791.The right to a jury trial dates back to the Norman conquest
75Seventh Amendment: Jury Trial Alternatives in the Past The importance of a trial by jury in civil casesPast methods of settling disputesActs of faith and trials by ordealArbitrary decisions of all-powerful rulersBrute force (“might makes right”)A trial by ordealIn ancient times, disputes between persons were settled by the judgment of a supreme being or the wisdom of an omnipotent ruler. Medieval civil trials often resolved disputes through trial by ordeal, in which a person had to pass a physical test, such as enduring extreme pain or trauma, to prove that he or she was telling the truth.Throughout history, cases in dispute have been settled by the arbitrary decisions of all-powerful rulers, who made judgments based on his or her personal set of values. The story of King Solomon best exemplifies this method: Two women came to him, each claiming to be the mother of the same child. Not knowing which woman was telling the truth, Solomon ordered as an equitable and artful solution: cut the child in half and divide it between the women. One woman immediately cried for the other to take the child, rather than have it be killed. Solomon gave the child to the first woman, the rightful mother, knowing that a mother’s instincts were to protect her child from harm, even if it meant losing the child to another woman.A more common method of settling disputes involves the application of brute force. If one is stronger than their adversary, they can win the dispute. While an effective means for the physically stronger party, no justice or fairness follows directly from the concept of “might makes right.”
76Seventh Amendment: First Clause and Clarifications First clause guarantees a jury trial in civil cases exceeding $20In Re Henderson Distilled Spirits (1872): right to waive a jury trialCapitol Traction Co. v. Hoft (1899): right to a 12-person juryColgrove v. Battin (1973): right to a six-person juryMinneapolis and St. Louis R. Co. v. Bombolis (1916): Seventh Amendment only applies to federal casesThe Seventh Amendment guarantees the right to a jury trial when the controversy exceeds $20. The original draft of the amendment set this amount in Twenty dollars in those days represented a substantial sum of money. Estimates as to its present value range from four hundred to seven thousand dollars. The $20 figure was most likely selected to provide parties with smaller-value claims access to the justice system.The Seventh Amendment also lends credibility to the saying that the Constitution and Bill of Rights are “living documents.” Like many other amendments, case law has interpreted and clarified its meaning over the years.In Re Henderson Distilled Spirits (1872), the U.S. Supreme Court ruled that parties can waive the right to a jury in a civil trial, provided that both parties agree. This often occurs when the both litigants decide that the cost of legal representation would outweigh the amount in dispute.The Supreme Court ruled in Capital Traction Co. v. Hoft (1899) that the Seventh Amendment has roots in traditions of common law and that a civil jury is to have 12 members. However, the court later ruled in Colgrove v. Battin that a civil jury composed of six and not 12 members does not violate Seventh Amendment protections.The Supreme Court’s decision in Minneapolis and St. Louis R. Co. v. Bombolis (1916) did not extend the right to a jury trial in civil cases to the states, though most states do honor this right.
77Seventh Amendment: Second Clause Second clause defines the supremacy of the juryWilliam PennJudges may not influence the juryBaltimore & Carolina Line v. Redman (1935): delineating the roles of judge and juryThe amendment’s second clause defines the power of the jury in civil cases. The Framers of the Bill of Rights knew well of the ability of a judge to inappropriately influence the members of a jury. In 1670, Quakers had experienced persecution in England for practicing their faith. William Penn and other members of his congregation had been tried for unlawful assembly. Due-process violations, including pressure from the judge to convict, littered the proceedings. When the jury returned a verdict of not guilty, the enraged judge not only threw Penn in jail but the jurors as well. The imprisoned men eventually won their freedom, and in time all English juries became free from control by judges. The Framers of the Bill of Rights included the provision that no jury’s verdict shall be reexamined in any court of the United States. This is not to say that the unsuccessful party of a lawsuit cannot choose to appeal the case, only that a court cannot reverse the decision of a jury.The case of Baltimore & Carolina Line v. Redman (1935) reinforced this provision. The Supreme Court upheld the principle that the jury decides the facts of the case, while the judge determines how the law applies to those facts. Therefore, a judge may advise the jury of the verdict required should certain facts prove to be true, and may also provide legal instructions before they deliberate. However, the job of determining what the facts mean falls to the jury.William Penn
78Seventh Amendment: Juries’ Abilities Concerns about juries’ abilitiesTechnology has become too sophisticatedJuries alone can’t determine all the factsMarkman v. Westview Instruments, Inc. (1996)Judges have better skills of interpretationRuling could spread to other areas of the lawThe increased complexity of technological advances in many areas (medicine, software development, engineering, etc.) sometimes blur the lines dividing the facts and the law, resulting in growing unease about the ability of juries to understand complex issues surrounding the facts of a case. In cases falling into these categories, such as patent disputes, medical malpractice suits, and industrial negligence, juries have traditionally favored the litigant seeking damages. This has raised the concern that civil juries may be incapable of understanding issues of technical complexity, especially when lawyers bring in alleged experts to confuse the jury. Juries have been criticized of late for their ignorance or misunderstanding of the facts and for awarding outrageous damages based more on emotion than on the facts of the case.In Markman v. Westview Instruments, Inc. (1996), the Supreme Court unanimously ruled that judges—rather than juries—are to determine the legal parameters of a patent, and that to do this judges need to evaluate the facts of the case, not just the law. The court found that patent cases of the 18th century differed from modern patent infringement cases and provided no guidance on how a jury may ascertain the facts. The decision stated that judges possess better interpretive skills than juries for evaluating expert testimony and conducting sophisticated analysis to determine whether one inventor’s product infringed on another’s patent. Many feel that such a ruling might apply to claims in other areas of the law that demand specialized knowledge.
79Seventh Amendment: Tort Reform Definition of tort reformArguments for and againstDue to issues of complexity in civil cases and the awarding of damages they feel are excessive, many have begun to call for tort reform. The word “tort” comes from French law and means a wrong, or a breach of obligation. So a tort case is a civil case in which one person takes another to court to settle a dispute. Therefore, “tort reform” would involve modifications to the system that governs civil cases. Supporters of tort reform complain that Americans have brought too many “frivolous” lawsuits that have no legal basis or that have resulted in “outrageous” settlements.Supporters of tort reform also argue that the present system costs too much to maintain, and that the rulings in civil suits are not consistent throughout the states. Juries, they say, often don’t understand the complexity of the issues at hand and tend to punish perceived “villains” with high settlements. There is also the claim that such litigation takes the place of legislation: court decisions that determine negligence or fault on the part of a manufacturer effectively serve a regulatory function that should belong to Congress.Individuals and groups opposing tort reform contend that lawsuits encourage corporations to produce safer products and be more responsible to consumers. They compare the legal battle between individuals and giant corporations to that between David and Goliath, where the jury system serves as David’s slingshot.Civil suits against corporations: David versus Goliath, or a “frivolous” use of the legal system?
80Seventh Amendment: Tort Reform (continued) Proposals for reformPossible impact on jury systemProposals for tort reform range from the removal of juries from civil cases to capping non-economic awards. The complete elimination of juries would require a constitutional amendment, and capping non-economic awards would mean setting limits on the amount of punitive damages. Juries do not award punitive damages to compensate for a plaintiff’s loss, but to deter the defendant from continuing the action that caused the offense. Another proposal allows non-economic damages only in cases of gross negligence (that is, being knowingly reckless or irresponsible).The impact of these proposals also varies widely, and their costs or benefits depend on who evaluates them. Tort reform has become a political issue, with business and conservative political entities on the side of reform, and attorneys’ organizations and environmental and consumer groups opposed. Supporters believe the impact would be less litigation and restrictions on business, a more efficient civil justice system, and an end to unnecessarily high punitive damages. Some opponents recognize that calls for reform aren’t entirely misguided, but point out that some who support reform do so to advance their own agenda instead of improve the system. They also assert that abolishing the jury system or significantly reducing jury participation in the process would take away one of citizens’ fundamental rights.Should punitive damages be limited in civil suits?
81The Eighth Amendment“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”The Eighth Amendment is one of the most controversial in the Bill of Rights and contains language that has evolved with the times. How a society implements the amendment’s requirements reflects its character and its belief in fairness and justice. Written in language designed to address abuses by previous governments, the amendment establishes guidelines for bail, fines, and punishments. As with other amendments, the Eighth Amendment’s meaning has changed over time to reflect society’s “evolving standards of decency.”
82Eighth Amendment: Historical Precedent Cruel and unusual punishment banned by the English Bill of Rights as a reaction to the Star ChamberColonial justice sometimes involved cruel and unusual punishments as a deterrent to crimeProvision against was rejected during Constitution ratification but accepted in Bill of Rights ratificationThe authors of the Bill of Rights intended the Eighth Amendment to address certain abuses by government when prosecuting accused or convicted individuals. Excessive bail, exorbitant fines, and cruel and unusual punishment have long been tools of tyrannical governments for limiting liberty and inflicting fear and vengeance on their citizens.The Framers didn’t have to go back very far in history to find inspiration for crafting the language. In 1553 Parliament enacted protections against cruel and unusual punishment, believing that people’s respect for the law should be based on a respect for the government and not the fear of severe punishment. In 1689 the English Bill of Rights placed prohibitions on cruel and unusual punishment and excessive bail in reaction to the inhumane treatment of prisoners by the Star Chamber, a secret court used by the Stuart kings.During America’s colonial period, punishments considered acceptable included dismemberment, branding, and the cutting off of ears—all believed to deter crime. But in the call to limit the powers of Congress during the Constitution’s ratification process, the authors of the Eighth Amendment borrowed language from the Virginia Declaration of Rights that limited excessive bail and fines and restrict the imposition of cruel and unusual punishment.The pillory, a common punishment in colonial times
83Eighth Amendment: Rights and Freedoms Benefits of the Eighth AmendmentThe right to be free on bail prior to trialFreedom from excessive finesFreedom from “cruel and unusual punishment”The U.S. justice system operates on the premise that people are innocent until proven guilty. Therefore, they should be free from imprisonment while awaiting trial. But the government may have concerns that a suspect might flee due to guilt or even fear of unfair treatment. Posting bail allows the defendant freedom while preparing their defense, while also letting the government place a financial hold on suspects as an incentive to appear in court. Excessive bail has been defined as any amount that is beyond what is necessary to ensure a defendant shows up for trial. However, in United States v. Salerno (1987) the Supreme Court upheld the practice of denying bail if the judge believes the defendant might leave the area or is too dangerous to release.The freedom from excessive fines requires courts to impose amounts that are fair and reasonable in relation to the crime committed. This does not apply to punitive damages in civil lawsuits, in which a jury can impose a penalty beyond the damages incurred. Fines are intended to impose a penalty that serves as a deterrent to future illegal action.The freedom from cruel and unusual punishment stems from the premise that all persons deserve to be treated with dignity, no matter how heinous the crime. A government that inflicts excessive punishment degrades both the justice system and the society itself. This line isn’t always easy to draw, as passions and feelings of retribution may overrule objectivity. (Note to teacher: you may want discuss with students what is meant by “cruel and unusual punishment.”)
84Eighth Amendment: Changing Interpretations Standards for “cruel and unusual” punishment have changedIn colonial times, mandatory capital punishmentThroughout 19th century, state courts considered other factorsInconsistent application of capital punishmentWhat constitutes “cruel and unusual punishment” is not always clear. The Framers of the Eighth Amendment had a different standard in mind than we do today. Punishment considered acceptable then would most likely be deemed cruel and unusual by today’s standards. The possibility exists that standards today may be considered cruel or unusual to future societies.The most controversial issue surrounding the Eighth Amendment concerns the application of capital punishment. In several places, the Constitution’s language appears to accept the legitimacy of the death penalty: the Fifth and Fourteenth Amendments state that no one will be deprived of life or liberty without due process of law. The death penalty has been in use in the United States since colonial times. In many states, anyone convicted of murder or other serious crimes automatically received the death penalty. Therefore, the laws of those states did not allow judges or juries to take into account any other factors when sentencing, such as the person’s age or state of mind. During the 19th century, a number of states gradually began to consider circumstances other than the nature of the crime and examine whether every so-called capital crime warranted capital punishment. This allowed sentencing to more appropriately reflect the crime, but it also resulted in inconsistencies in how juries treated cases of similar circumstances. One pattern that emerged illustrated a racial bias in sentencing: since juries were mostly composed of white people, African Americans received death sentences far more than whites did for the same crimes.The infamous “ball and chain”—once common, now considered “cruel and unusual punishment”
85Eighth Amendment: Changing Interpretations (continued) Capital punishment questioned in the 1960sNo evidence that capital punishment deters crimeInconsistent and sometimes racist sentencing by juriesCost of appeals and execution greater than of life in prisonDuring the 1960s, the use of capital punishment came under question for several reasons:Sociological studies could not confirm that capital punishment deterred crime.Studies showed further inconsistencies in how juries dealt out sentences of capital punishment, and that often race and not the nature of the crime proved to be the most important factor when sentencing someone to death.Many people argued that the cost of executing a criminal, when factoring in all the appeals allowed a death-penalty conviction, added up to more than the cost of life imprisonment.Using technology developed in recent years, DNA evidence has proven that many individuals on death row never committed the crime for which they had been sentenced to death.Recent discoveries of innocence due to DNA analysis
86Eighth Amendment: Supreme Court Decisions Trop v. Dulles (1958): punishment standards evolve with societyFurman v. Georgia (1972): capital punishment as it then existed violated Eighth AmendmentGregg vs. Georgia (1976): death penalty not necessarily unconstitutional, though automatic sentencing isDoes the death penalty qualify as “cruel and unusual punishment”?As the controversy continued, the Supreme Court eventually heard cases that narrowed the meaning of the Eighth Amendment:In Trop v. Dulles (1958), the Supreme Court ruled that the standard for cruel and unusual punishment “must draw its meaning from evolving standards of decency” that reflect the progress of a society. Therefore, punishments considered acceptable at an earlier time might not be now. This also means that different areas of the country might consider some punishments acceptable and others not.In Furman v. Georgia (1972), the Supreme Court didn’t outlaw capital punishment, but stated that it violated the Eighth Amendment as it was presently being administered. The court ruled that judges and juries needed more guidance from states when deliberating death penalty cases. As a result of this ruling, all states suspended all pending executions. States began the process of revising the death-sentencing rules, while some states went back to the practice of automatic death penalties for serious crimes.In 1976 the Supreme Court heard the arguments of five cases concerning the new state laws, combined under the title Gregg v. Georgia (1976). At question was whether imposing the death penalty violated the Eight and Fourteenth Amendments. The court held that punishment by death did not violate the Eighth and Fourteenth Amendments under all circumstances. In cases in which the jury convicted the defendant of deliberately killing another individual, and in which the criminal court had limited jury discretion by dividing the trial into a conviction phase and a sentencing phase, then the death penalty may still apply. However, the court ruled in a related case that mandatory death-penalty sentencing violated the Eighth Amendment.
87Eighth Amendment: More Supreme Court Decisions Coker v. Georgia (1977): death penalty only for murder convictionsEnmund v. Florida (1982), and Tison v. Arizona (1987): felony-murder ruleStanford v. Kentucky (1989): permits executing 16- and 17-year-old minorsIn general, the Supreme Court has held that the death penalty should only be imposed for murder convictions. In Coker v. Georgia, the court struck down laws that allowed capital punishment in rape convictions. Rulings have also limited death sentences related to the felony-murder rule (in which accomplices to a felony during which a murder is committed could also be convicted of murder and eligible for the death sentence). In Enmund v. Florida (1982), the court held that minor accomplices could not be sentenced to death, but in Tison v. Arizona (1987), the court upheld the death penalty for major participants in a felony-murder.In the 1989 case Stanford v. Kentucky, the court narrowly upheld the constitutionality of executing sixteen-year-old offenders in a five-to-four decision. Noting that no national consensus existed on imposing capital punishment on offenders under 18 years old, the court asserted that the states must make the decision of whether to execute 16- or 17-year-olds, and therefore did not pronounce this practice cruel and unusual punishment. However, the dissenting justices expressed very strong concerns about the use of capital punishment on individuals under 18 years old.
88Eighth Amendment: More Supreme Court Decisions (continued) Atkins v. Virginia (2002): bars executing the mentally challengedRoper v. Simmons (2005): court reverses itself on executing minorsIn Atkins v. Virginia (2002), noting that an increasing number of states had barred death sentences for mentally challenged offenders, the court concluded that such executions violate the Eighth Amendment as “unusual punishment.”In 2005 the court revisited the issue of executions for persons under 18-years-old and heard the case of Roper v. Simmons. The court, referring to “the evolving standards of decency,” reversed its 1989 ruling in Stanford v. Kentucky, outlawing the death penalty for 16- and 17-year-olds. The justices in the majority ruled that modern society categorically views juveniles as less responsible than the average criminal. The minority opinion offered two dissenting arguments: First, the majority had improperly substituted its own judgment for society’s, noting that since 1989 only four state legislatures had abolished the death penalty (and not society as a whole). Second, since a 17-year-old could theoretically be just as responsible as an adult, the decision of whether to impose the death sentence should be left up to local juries or state legislatures, not the Supreme Court. The debate over the death penalty continues.
89Discussion QuestionsIn what ways does a civil trial differ from a criminal trial? In what ways are they similar?What are the benefits of a jury trial in a civil case? What are some of the drawbacks?How does releasing a defendant on bail benefit both the defendant and the prosecution?What does the phrase “evolving standards of decency” mean?How have the standards defining cruel and unusual punishment changed over the years? Why do you think this has happened?Why has capital punishment become so controversial since the 1960s?Suggested answers:Differences: A civil trial is for settling disputes among individuals or groups, while a criminal trial is to determine innocence or guilt. Similarities: both may involve juries, be held in courtrooms, and involve lawyers, and parties may call witnesses and present evidence.Answers may vary, but the general benefit is that jury trials are prime examples of democracy. They encourage people’s concerns to be heard by others like them, allowing an appeal beyond the bare facts to the circumstances of the situation in dispute. Drawbacks: Jury trials can be long and expensive, and juries aren’t always well informed about the issues surrounding the disputes.Releasing defendants on bail gives them time and freedom to prepare for trial and suspends punishment until guilt or innocence has been determined. For the prosecution, it provides time to prepare their case while helping to insure that the defendant will appear for trial (to reclaim their bail bond).It means that the determination of what constitutes excessive bail or fines or cruel and unusual punishment must be judged against the public’s sense of values and that this standard changes over time.Standards defining cruel and unusual punishment have moved from harsher punishment to more humane punishment. Answers may vary as to why, but generally the reason involves how society has evolved to become more aware of and sensitive to the circumstances surrounding crime.Studies haven’t conclusively proven that that capital punishment deters crime. Inconsistencies among juries as to who should receive capital punishment appeared to exhibit a racial bias. Also, recent advances in DNA analysis have proven many people on death row innocent.
90The Ninth Amendment“The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.”The Declaration of Independence states: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” This document builds a foundation for declaring the rights of citizens and government’s role in protecting those rights. The Ninth Amendment assures that the powers that the Constitution grants to the government do not take away other rights possessed by the people. However, since the inception of the nation, we have been trying to clarify who—the legislative branch, the judicial branch, or the even the people themselves—is best suited to define the extent of these rights and protect them.
91Ninth Amendment: Differing Views Two views of the Ninth AmendmentThere are two opposing views on the interpretation of the Ninth Amendment:Some believe that the Ninth Amendment’s statement that “other rights retained by the people” (outside of the rights enumerated in the Constitution) include several fundamental rights such as the right to privacy, the right to travel, and the right to vote. They believe that the courts should protect these rights because the other two branches of government possess the power to take them away.Those who disagree, and who advocate that the courts exercise “judicial restraint,” say that the legislative branch holds responsibility for protecting the people’s rights. Some take the argument even further, saying that this responsibility lies not with the federal legislature, but primarily with state legislatures because they better reflect the will of the people.The courts should protect people’s rightsThe legislature should protect people’s rights
92Ninth Amendment: History Debate at Convention of 1787: how to include all of the people’s rights in ConstitutionActual listing of rights rejected as impracticalRatification conventions demanded people’s rights be protected in a bill of rightsDuring the Constitutional Convention of 1787, delegates discouraged mentioning the people’s rights in the Constitution for different reasons. The most compelling reason involved practical concerns: Delegates felt that there were too many rights to list and furthermore believed that most rights violations would occur at the state level, where most state constitutions already contained provisions for protecting citizen’s rights.As resistance to the proposed Constitution grew in the state ratification conventions, the new government moved to address the issue. To avoid the problem of listing every right, the Framers of the Ninth Amendment crafted a catch-all phrase that simply left to the people the rights not enumerated in the Constitution.While its addition seemed to satisfy the concerns of the Anti-Federalists who feared the power that the proposed Constitution granted the federal government, the phrase itself didn’t help explain these rights for future generations, nor which branch of government was supposed to protect them.
93Ninth Amendment: Debate and Controversies Enumerated rights: religion, speech, due processUnenumerated rights: privacy, travel, votingProtections for unenumerated rights implied by other parts of the Bill of RightsOpponents state the Ninth Amendment doesn’t create rights where they don’t existEnumerated rights (those explicitly stated in the Constitution or Bill of Rights) naturally receive the greatest protection. Therefore, several court cases have addressed the rights to religion, speech, assembly, gun possession, protection from unreasonable searches and seizures, due process, and excessive bail, fines, and punishment.The courts have recognized that the Ninth Amendment implies and protects certain unenumerated rights, such as the right to travel and to vote. However, the courts have always been careful to state that these directly relate to other provisions in the Bill of Rights—usually the Third, Fourth, and Fifth Amendments, and the due-process clause of the Fourteenth Amendment. Some courts have taken the lead in identifying and protecting the unenumerated rights of the Ninth Amendment. The Supreme Court ruled in 1972 that a woman’s right to an abortion stemmed from the individual’s right to privacy. Nowhere does the Constitution or Bill of Rights enumerate this right; however, it is understood to exist through the Fourth Amendment and is implied in the Ninth Amendment.Those opposed to this ruling have stated that the Ninth Amendment doesn’t create enforceable rights where they don’t exist, and that privacy, in the matter of abortion, doesn’t follow from the Fourth Amendment.
94Ninth Amendment: Supreme Court Decisions Kent v. Dulles (1958): right to travelGriswold v. Connecticut (1965): right to privacy for consenting adultsHarper v. Virginia Board of Elections (1966): voting rightsThe Bill of Rights does not enumerate the rights to travel, privacy, and voting, but court decisions have inferred their existence from a number of amendments and guaranteed them through the Ninth Amendment.The Supreme Court reviewed the right to travel in Kent v. Dulles (1958). The plaintiff in this case, Mr. Kent, had applied for and was refused a passport for a trip to England due to his communist affiliations. The Supreme Court, in a close 5-4 vote, upheld travel as an inherent right of liberty that could not be denied to American citizens.In Griswold v. Connecticut (1965), the Supreme Court struck down a Connecticut law that prohibited the use of contraceptives by married couples. The decision stated that amendments in the Bill of Rights protected marital privacy. In subsequent cases, the Supreme Court has ruled that the right to sexual privacy applies outside of marriage as well.A resident of Virginia, Annie Harper, claimed that the state’s poll tax denied poor people the right to vote and was therefore unconstitutional. The Supreme Court struck down the law in Harper v. Virginia Board of Elections (1966), stating that the law made wealth a standard for voting and violated the equal protection clause of the Fourteenth Amendment.
95The Tenth AmendmentThe powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people.”The first nine amendments to the Bill of Rights protect people’s rights. The tenth protects the power of the states. During the state ratification conventions, delegates recognized the extensive powers granted to the federal government by the Constitution, and as a result saw their own powers reduced. Delegates insisted that an amendment be written to preserve the states’ active place in the government.The uniqueness of the Constitutional experiment comes from the overlapping powers of separate sovereignties: the federal and state governments. Inherent to this experiment is a struggle for power and jurisdiction. When this relationship works, it’s called federalism (the sharing of powers and responsibility between the federal and state governments). When the relationship falters, the courts are called upon to settle the dispute. When the relationship is dysfunctional, civil war results.
96Tenth Amendment: Early American History Articles of Confederation limited the power of federal governmentConstitution expanded the power of federal governmentDelegates to the ratification conventions worried about the loss of state powerFederal government was limited and largely ineffective under the Articles of ConfederationThe Articles of Confederation, under which the government of the United States functioned from 1776 until 1789, specifically limited the power of the national government. Most of the power rested in the hands of the states, where most people felt it was safer from abuse or at least more subject to citizen control.The Constitution expanded the power of the federal government through enumerated and implied powers. The Constitution established the supremacy of the federal government in matters relating to these powers, but not in other areas. The compromise forged by the Tenth Amendment provides that the the people or the states possess the powers not delegated to the federal government by the Constitution or prohibited to the states. Note that the language does not say powers “expressly delegated” by the Constitution, only “delegated.” This gives the federal government the powers implied by the Constitution as well and would not limit these powers when it becomes necessary or proper to exert them. Conflict between the federal and state governments arises when both claim jurisdiction over a specific unenumerated responsibility or authority.
97Tenth Amendment: Early Federalism Debates Early debates over federalismJefferson and Madison’s nullification resolutionsChief Justice Marshall and Chief Justice TaneyAndrew Jackson versus John C. Calhoun: the Nullification Crisis of 1832The debate over federalism began early in U.S. history. In 1798 Congress passed the Alien and Sedition Acts to limit criticism of the government. Believing these acts to be unconstitutional, Thomas Jefferson and James Madison proposed the Kentucky and Virginia Resolutions, which set forth the idea that states could nullify acts of Congress they believed to be unconstitutional. The legislatures of those states approved both resolutions, though never implemented them. When Jefferson became president, he and the majority Democratic-Republican Congress let the Alien and Sedition Acts expire and averted a state-versus-federal showdown.Throughout the first half of the 19th century, the Supreme Court addressed several questions of federalism. In McCulloch v. Maryland (1819) and in later cases, Chief Justice John Marshall ruled that the Constitution, through the necessary-and-proper clause of Article I (sometimes called the “elastic clause”), gave Congress implied powers. Thus, the court declared that Congress had the power to establish a national bank, and the state of Maryland didn’t have the power to tax it.Marshall’s successor, Chief Justice Roger Taney, supported a states’-rights philosophy and endorsed the concept of “dual sovereignty,” in which the states and the federal government have authority in their areas of interest. But the Taney Court reversed many of the Marshall Court rulings by narrowly interpreting the Tenth Amendment, ruling that the federal government had authority only if the Constitution clearly granted such power.The issue of federalism nearly came to blows in 1832, when South Carolina threatened to secede from the Union over the high tariff (the “Tariff of Abominations”) imposed four years earlier by Congress. The South Carolina legislature passed an ordinance to nullify the tariff. In response, President Andrew Jackson threatened military action. Eventually Congress reached a compromise, and South Carolina backed down. The crisis had ended, but the questions remained: Did a state have the right to nullify federal law that it deemed unconstitutional? And if the state couldn't nullify the law, what recourse did it have?Chief Justice John MarshallPresident Andrew Jackson
98Tenth Amendment: Supreme Court Cases Hammer v. Dagenhart (1918): child-labor law struck downUnited States v. Butler (1936): federal regulation of agricultural productionUnited States v. Darby (1941): federal regulation of employmentThe amendments associated with the Civil War (the 13th, 14th, and 15th Amendments) significantly expanded the power of the federal government, effectively making the states legally subordinate to it. However, through much of the late 19th and early 20th centuries, the Supreme Court followed the dual sovereignty doctrine, narrowly interpreting the Tenth Amendment and limiting Congress’s powers in regulating commerce.In Hammer v. Dagenhart (1918), the Supreme Court struck down a federal child-labor law because it felt Congress had overstepped its power to regulate commerce. The court wrote that “the powers not expressly delegated to the national government are reserved” to the states and the people.As part of the New Deal legislation during the Depression, Congress passed the Agricultural Adjustment Act (AAA) to implement a tax on agricultural commodities within states. Revenue from the tax would be distributed to farmers who promised to grow fewer crops, which would then bring prices up to help them make a profit. In United States v. Butler (1936), the court found the AAA unconstitutional because it attempted to regulate and control agricultural production, a matter reserved to the states.As the Depression lumbered on, Congress and President Roosevelt continued to address the needs of the nation through federal law. Under the power to regulate interstate trade, Congress passed the Fair Labor Standards Act in This act regulated many aspects of employment, such as minimum wages, maximum weekly hours, and child labor. In United States v. Darby, the Supreme Court reversed its earlier stand and affirmed Congress’s right to exercise its powers reserved in the Commerce Clause. In writing the decision the court referred back to Gibbons v. Ogden (1824), stating that the regulation of interstate trade was indeed constitutional when intended to outlaw substandard labor conditions that impact interstate commerce.Child laborer, 1918
99Tenth Amendment: Supreme Court Cases (continued) Brown v. Board of Education (1954): desegregated public schoolsUnited States v. Lopez (1995): power of state over federal government to regulate gun possessionThe experience of World War II affected Americans’ ideas of individual liberty and government power. The United States became the standard bearer for the defense of liberty worldwide and at home. Since Plessy v. Ferguson (1896), segregation had not only been the custom in the United States, but also the law, and nowhere had the tradition become more entrenched than in public schools. Sixty years later, in Brown v. Board of Education (1954), the Supreme Court relied on the equal-protection clause of the Fourteenth Amendment and on the power of the federal court to issue the final word on public school desegregation. The court ruled that, despite the attempts of states and school districts to “equalize” tangible factors in schools, intangible issues still fostered and maintained inequality. Racial segregation had a detrimental effect on minority children because it labeled them inferior not only to the majority population, but also to themselves.During the 1970s and 1980s, the Supreme Court wavered on striking a clear balance between state and federal power. During William Rehnquist’s tenure as chief justice, the court issued a wide range of decisions that reaffirmed the role of the states and limited the powers of Congress. Beginning with United States v. Lopez (1995), in which the court struck down the Gun-Free School Zones Act of 1990, the Rehnquist Court struck down over 25 laws enacted by Congress.Thurgood Marshall (center), chief lawyer for the NAACP in the Brown case
100Discussion QuestionsWhat is the purpose of the Ninth Amendment? Why do you think the Bill of Rights includes this amendment?Describe the two views of the Ninth Amendment regarding which branch of government is best suited to protect people’s rights.Explain and give examples of enumerated and unenumerated rights. Describe the controversy over the court’s recognition of unenumerated rights.Explain how the Tenth Amendment differs from the previous nine amendments in its protection of power.Suggested answers:The Ninth Amendment explains that powers or rights enumerated in the Constitution shall not deny other rights to the people. Answers may vary, but during the constitutional ratification conventions many people expressed concern over the massive power of the federal government and wanted to ensure people the rights not expressly mentioned in the Constitution or forthcoming Bill of Rights.One view holds that the the courts would best protect the Constitution’s unenumerated rights because the other two branches possess powers that could take them away. The other view holds that the legislative branch, speaking for the citizens as their representatives, carries the responsibility of protecting unenumerated rights. Some members of the latter camp feel that state legislatures can best define and protect the rights of the people.Enumerated rights are those explicitly stated in the Constitution and Bill of Rights. Examples: religion, speech, assembly, gun possession, due process, no unreasonable searches and seizures, and no excessive bail, fines, or punishment. Unenumerated rights are those that are implied in the Constitution and Bill of Rights, such as privacy, travel, and voting. The controversy surrounds court decisions that protect rights not explicitly stated in the Constitution or Bill of Rights.The first nine amendments to the Bill of Rights protect the rights of people. The tenth protects the power of the states.
101Discussion Questions (continued) 5. What is the relationship between the Tenth Amendment and federalism? How can federalism cause tension between the federal and state governments?6. What were the doctrine of nullification and the Nullification Crisis of 1832? Do you think states should have the power to nullify an act of the federal government?7. Identify whether the Supreme Court during the following time periods supported states’ rights or federal supremacy: the Marshall Court, the Taney Court, 1918 to 1936, 1941 to 1995, and the Rehnquist Court.The Tenth Amendment says that powers neither granted to the federal government nor prohibited to the states are reserved for the states or the people. The Constitution sets up a system of government that gives overlapping powers to two separate and sovereign governing bodies. Tension arises when both of these bodies claim the same power.The doctrine of nullification asserted that a state could nullify any federal action it found to be unconstitutional. In the Nullification Crisis of 1832, South Carolina believed the tariff passed by Congress to be unconstitutional and threatened to secede if Congress didn’t repeal it. Answers may vary.Marshall Court: supported the national government; Taney Court: supported states’ rights; 1918 to 1936: supported states’ rights; 1941 to 1995: supported national government; Rehnquist Court: supported states’ rights.
102The Promise in the Bill of Rights Written rights don’t guarantee rightsThe Bill of Rights continued the dialogue on liberty and freedom discussed at the Federal convention14th amendment: Federal and state governments are held accountable to not violate people’s rightsDemocracy is best practiced by people defending their rightsThe Supreme Court serves as the forum for continued dialogue over people’s rights and freedomsEven though the first Congress did add a bill of rights to the new Constitution, these mere words didn’t guarantee protection against governmental abuse of power. Nor were they designed to protect every right, for everyone, in all circumstances. Over the next 200 years, debates about what these rights meant, and to whom and to what extent they should apply have continued the dialogue begun at the Federal Convention.When the Bill of Rights was enacted, its provisions only pertained to the federal government, because most believed sufficient protections existed in the states’ bills of rights. In an ironic twist of history, many of the precedent-setting Supreme Court cases originated from violations by state governments. But it was not until the enactment of the 14th amendment, after the Civil War, that the federal Constitution protected individuals against violations of their rights committed by the states. The 14th amendment reads, “No State shall… deprive any person of life, liberty, or property without due process of law.”The Greeks believed that what was most important was the role citizens played in government. Many Americans have answered this noble calling by using the court system to challenge government attacks on their freedoms and liberties. Some of these cases demonstrate why the Constitution’s framers chose to write the Bill of Rights, and why we still need them today. Others highlight the difference between the Framers’ era and our own. Still others raise difficult questions for the future. The interpretation of the these rights will continue to evolve and change with the times, sometimes reflecting society’s beliefs and sometimes setting a new path for society to follow.