First ten amendments to the U.S. Constitution, guaranteeing individual rights, such as freedom of speech, freedom of the press, separation of church and state, the right to counsel, the right against self-incrimination, and due process.
When the Constitutional Convention adjourned in September, 1787, and submitted its new Constitution
Currier and Ives print depicting the signing of the Declaration of Independence in 1776.
In December, 1791, the Bill of Rights was ratified, launching more than two hundred years of Supreme Court decisions interpreting, defining, and refining the nature of the relationship between the government and its citizens.
The Constitution was essentially a plan of government, establishing the legislative, executive, and federal branches and delineating their powers and responsibilities. Although the Constitution purported to grant only limited powers to Congress to pass laws in specified areas, it also provided that Congress had the authority to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This elastic catch-all clause worried those who feared that the Constitution would install an all-powerful national government, free to dominate the people and the states. It was the Bill of Rights that gave these critics some measure of solace that the new federal government would not become the same tyrannical seat of power that they had so recently fought to escape.
From the outset, the Supreme Court played a special role in giving meaning to the Bill of Rights. In March of 1789, Thomas Jefferson wrote to Madison that “the Bill of Rights is necessary because of the legal check which it puts into the hands of the judiciary.” Jefferson was referring to a “legal check” on unwarranted government interference with the rights of the citizens.
James Madison, the chief architect of the Bill of Rights.
The Bill of Rights touches on every realm of human affairs. It has fallen to the Supreme Court to interpret its elusive and elastic language. In every generation, the Court has been called on to grapple with the challenge of applying its 413 words, written in the late eighteenth century, to circumstances unknown to the authors, arising in the nineteenth, twentieth, and twenty-first centuries. The Bill of Rights protects both substantive and procedural rights. In contrast to the Constitution itself, which says what the government can do, the Bill of Rights says what the government cannot do.
The most powerful articulation of individual rights against government intrusion is found in the First Amendment
Specifically, under the First Amendment, Congress is prohibited from making laws “respecting an establishment of religion or prohibiting the free exercise thereof.” In one phrase, the First Amendment simultaneously guarantees the right of individuals to follow the beliefs and practices of their chosen religious faiths, while at the same time, it prohibits the government from singling out any particular religious denomination as a state-sponsored church. The First Amendment built what Jefferson called a “wall of separation” between church and state.
The free exercise and establishment clauses generated great consternation for the Court on controversial issues. From prayer in school to religious symbols on public property, from religious invocations at high school graduations to vouchers using public funds to subsidize parochial schools, the Court struggled to ensure that government remains neutral, but not hostile, in matters of religion.
The First Amendment next prohibits Congress from “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.”
No majority of Supreme Court justices ever treated the protections guaranteed by the First Amendment as absolute. Instead, the Court recognized exceptions for obscenity, libel, criminal solicitation, perjury, false advertising, and fighting words. Within and beyond these categories, the Court has shifted, especially in times of war or during external threats, from the protection of wide-open, robust debate to the punishment of controversial ideas.
The Second Amendment
The Third Amendment,
The Fourth Amendment
The Fourth Amendment also guarantees that“no Warrants shall issue, but upon probable cause.” Here again the Court developed rules to determine whether probable cause exists. In essence, the Court uses a standard of reasonableness based on all of the facts and circumstances surrounding a challenged search or arrest. The Court places itself in the position of the reasonable police officer, relying on particularized suspicion and past experience, but rejecting mere hunches or guesswork.
The Fifth Amendment
The Sixth Amendment
Under the Sixth Amendment, the accused has a “right to a speedy
Anyone accused of a crime is also entitled to “an impartial jury” chosen from the geographical area where the crime was committed. The Sixth Amendment guarantees that no one may sit on a jury if he or she has a demonstrable bias or prejudice against the accused, either individually, or because of his or her gender, race, religion, ethnicity, or any other immutable characteristic. Generally, trial judges go to great lengths to question prospective jurors in order to ferret out those who cannot discharge their duties in an impartial manner.
Anyone accused of a crime has a right under the Sixth Amendment “to be informed of the nature and cause of the accusation.” Obviously, in order to defend himself, the accused must know what he is being accused of so that he can establish an alibi or find witnesses who may assist in proving his innocence. Only by knowing the charges can the accused’s attorney challenge the sufficiency of the indictment of the validity of the statute or regulation involved.
Closely allied to this right is the important right under the Sixth Amendment “to be confronted with the witnesses
Also, under the Sixth Amendment, an accused has the right “to have compulsory process for obtaining witnesses in his favor.” In other words, the accused has the right to subpoena other persons and require them to come to court to testify and to bring papers and documents. Because the government already has this power, this right ensures a level playing field, where an accused can force reluctant witnesses to present evidence that may exonerate him or her or prove that a witness for the prosecution is lying. Without this right, an accused would be confined to presenting only testimony or documents from persons who voluntarily chose to take the time to come to court.
Finally, and perhaps most importantly, the Sixth Amendment guarantees the accused the right “to have Assistance of Counsel for his defense.” No person should face a criminal trial without competent legal counsel at his or her side. Only attorneys trained in the rules of evidence and trial procedures can adequately navigate through the complexities of a criminal trial. Indeed, so vital is the right to legal counsel that the law requires the state to provide a lawyer free of charge for the most serious crimes where the accused cannot afford one.
It is worth noting, before leaving the Sixth Amendment, that it contains no reference to the fundamental principle considered the very foundation of Anglo-Saxon law that one is innocent until proven guilty. Indeed, the presumption of innocence appears nowhere in the Bill of Rights or the Constitution. Yet, this essential right has repeatedly been recognized by the courts and remains a vital guarantee of American justice.
The Seventh Amendment
The Seventh Amendment also guarantees that once a fact has been decided by a jury, it may not be otherwise reexamined in any federal court, except as provided by common law. Here again, because juries were viewed by the Founders as a protection against injustice and tyranny, it was important to ensure that once a jury had decided the facts in a case, a judge could not overturn that finding, except in limited circumstances provided in the common law.
Further protections for criminal defendants are found in the Eighth Amendment
Closely related is the Eighth Amendment’s prohibition against “excessive fines.” This provision ensures that once convicted, an individual will be fined in proportion to his or her crime or in keeping with guidelines for similar offenses under similar circumstances.
The most important provision of the Eighth Amendment states that “cruel and unusual punishment”
By far, the most serious and controversial application of the prohibition on cruel and unusual punishment came in 1972 when the Court used it to strike down the death penalty (which was then reinstated four years later). The Court found that to the extent the death penalty was administered in an arbitrary and capricious manner, amounting to little more than a lottery, it constituted cruel and unusual punishment in violation of the Eighth Amendment.
Generally, in determining whether a punishment is cruel and unusual, the courts consider a variety of factors, including the age of the defendant, the attitude of the defendant, the availability of less severe punishments, contemporary standards of decency, the frequency of imposition, the disparity in punishments for the same or lesser crimes, the proportionality to the offense, the inhuman shocking or barbarous nature of the punishment, and the totality of the circumstances.
One of the least known but most important provisions of the Bill of Rights is the Ninth Amendment
As set forth in the Declaration of Independence, people are born with certain inalienable rights. They are not granted their rights by a benevolent government; they are born with those rights and they establish governments in order to preserve and protect them. Thus, people speak of the Bill of Rights as “guaranteeing” constitutional rights, not “creating” them.
The Founders firmly believed in those principles. Indeed at first, the drafters of the Constitution did not include a Bill of Rights because they did not contemplate that the Constitution posed any threat to the inalienable rights of all citizens. However, as noted at the outset, many feared that a new and powerful national government would seize all the power it could, thereby jeopardizing personal rights and liberties.
However, when James Madison set about to draft the Bill of Rights during the First Congress in 1789, he faced a dilemma: How could he write a comprehensive list of all rights enjoyed by Americans without the risk of leaving some out? The solution was the Ninth Amendment. There, Madison, with utter simplicity, stated that the fact that “certain rights” were enumerated in the Constitution did not mean that “others retained by the people” were denied or disparaged. Consequently, any analysis of constitutional rights cannot stop by merely examining the specific rights; the “certain rights” spelled out in the first eight amendments. One must go further to determine whether there are “others retained by the people.”
One of the most profound applications of the Ninth Amendment relates to the right of privacy. Few rights are more important to Americans than the right to be let alone, yet the right to privacy
Trivialized by certain judges and scholars as a mere “water blot” on the Constitution, the Ninth Amendment, on serious examination, may well reflect the true meaning of the Bill of Rights.
Parallel to the Ninth Amendment, the Tenth Amendment
The Tenth Amendment is rather obscure on the question of whether the reserved powers belong to the states or to the people. This was surely intentional. Having made his point that the national government was a creature of limited powers, Madison and his colleagues left it to others, including state legislatures, state courts, and the people themselves to sort out their respective relationships when it came to these reserved powers.
The Bill of Rights continues to serve the majestic purposes for which it was written more than two hundred years ago. Sometimes with intentional ambiguity, often with passionate eloquence and always with elusive simplicity, the Bill of Rights represents one of the most masterful declarations of individual rights and civil liberties in human history. Yet, as a charter written by people to last the test of time, the Bill of Rights demands continuous study and interpretation to meet the challenges of the next century.
The Bill of Rights, edited by Thomas Tandy Lewis (2 vols. Pasadena, Calif.: Salem Press, 2002), provides Comprehensive coverage of the Bill of Rights, with articles on each of the amendments, the Constitution, the incorporation doctrine, and many other topics, as well as 280 individual court cases. Christopher E. Smith’s Constitutional Rights: Myths and Realities (Belmont, Calif.: Thompson Wadsworth, 2004) offers a thorough discussion of the rights included in the Bill of Rights that challenges conventional wisdom about the application of constitutional rights. Don Nardo’s The Bill of Rights (San Diego, Calif.: Greenhaven Press, 1998) provides an overview of the original debate over the need for a bill of rights and explores some of the later debates about rights. Books that examine the origins of the Bill of Rights include Akhil Reed Amar’s The Bill of Rights: Creation and Reconstruction (New Haven, Conn.: Yale University Press, 1998), Leonard Levy’s Origins of the Bill of Rights (New Haven, Conn.: Yale University Press, 1999), and The Essential Bill of Rights: Original Arguments and Fundamental Documents (Lanham, Md.: University Press of America, 1998), edited by Gordon Lloyd and Margie Lloyd. Works that examine the legacy of the Bill of Rights include Ellen Alderman and Caroline Kennedy’s In Our Defense: The Bill of Rights in Action (New York: Bard, 1998), The Bill of Rights, the Courts and the Law: The Landmark Cases that Have Shaped American Society (3d ed., Charlottesville, Va.: Virginia Foundation for the Humanities and Public Policy, 1999) by Lynda Butler et al., and Nat Hentoff’s Living the Bill of Rights: How to Be an Authentic American (New York: HarperCollins, 1998). 1791-1991: The Bill of Rights and Beyond by the Commission on the Bicentennial of the United States Constitution, edited by Herbert M. Atherton et al. (Washington, D.C.: Commission on the Bicentennial of the U.S. Constitution, 1990) provides an interesting look back at the Bill of Rights.
British background to U.S. judiciary
Constitution, U.S.
Eighth Amendment
Fifth Amendment
First Amendment
Fourth Amendment
Incorporation doctrine
Jefferson, Thomas
Lovett, United States v.
Ninth Amendment
Second Amendment
Seventh Amendment
Sixth Amendment
Tenth Amendment
Third Amendment