Discussions on the Bill of Rights

Austin Helms
Mississippi College
2004

Amendment I

       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.
       (Oak Hill, 1999, p.45)

        The first amendment ratified (the third proposed) for the then new Constitution of the United States is often considered the most important amendment. Some even believe it to be the most important part of the Constitution (Mount, 2003d). In one sentence, this amendment guarantees five basic rights that many Americans have come to take for granted.

         “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” (Oak Hill, 1999, p. 45). Freedom of religion is probably one of the most debated freedoms given in the Bill of Rights. It is no doubt that the Founding Fathers were hoping to establish religion in the United States in exact opposition to the government-controlled Church of England. Many of the first colonists to the “New World” came to seek relief from religious persecution. In framing the Constitution, the authors clearly wanted the keep government out of religion (Mount, 2003d).

         Since then, there have been many court disputes over the interpretation of this amendment. The question of how much involvement the government should have has always been an issue. Many court cases that came out of the late-1950s and into the 1970s (i.e., Engel v. Vitale, Sherbert v. Verner, among others) showed the government taking a stance of neutrality and voluntarism as a measure of limiting the power of the State in religion (FindLaw, 2004c). This allows the courts to make judgments when an issue arrives in the court involving disputes among two or more churches (such as property battles after a schism).

         “Congress shall make no law…abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” These last four freedoms (speech, press, assemble and petition) are often grouped together under the umbrella phrase “freedom of expression.” As colonials, our Founding Fathers were not allowed to speak out against the British Crown. The fact that England was taxing them without giving them voice was one of the main causes of the American Revolution. This in mind, the framers of the Constitution obviously wanted the voice of the people to be heard.

         Throughout the articles of the Constitution, the authors provided for several checks and balances among the three branches of government. The purpose of this was to limit the powers of each branch and therefore allow for a more stable government. The freedom of expression is another one of these checks. In fact, Constitutional scholar Steve Mount believes the First Amendment provides that the people act as a fourth branch of government, “constantly keeping tabs on the government's activities and actions” (Mount, 2003d, p. 3).

         Of course, there have been many disputes among the actual use of these freedoms. Most of the espionage cases in post-WWI America soon found themselves challenged under the freedoms given in the First Amendment. Apparently freedom of expression could not mean absolute freedom to do and say as one wishes. As Justice Holmes said in Schenck v. United States (1919), “…the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic” (FindLaw, 2004c, p. 3).

         The effectiveness of the First Amendment, as can be seen, depends on how well we use the rights given to us. Abuse of basic freedoms, especially when it causes an infringement on another’s rights, can quickly cause the value of our Constitution to greatly deplete. This is not a new battle, however. It is one that has been brought forth with every new generation since this great document was penned, and it is one that will continue as long as there is a Constitution. Still, the battle is well worth fighting.

Amendment II

         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. (Oak Hill, 1999, p. 45)

         The Second Amendment has been under scrutiny since the barrage of school shootings in the 1990s. Even today, the issue seems at best ambiguous. There are many different sides of the right to bear arms in the U.S., and not all are black and white. Nearly every phrase within the Amendment, from “well regulated Militia” to “the people,” has been overly defined in attempt to find the meaning of this oft disputed Amendment. “Is the amendment one that was created to ensure the continuation and flourishing of the state militias as a means of defense, or was it created to ensure an individual's right to own a firearm?” asks Mount (2003f, p. 1).

         Whether the Amendment means individual or state rights, it is a prohibition to federal action that does not broaden to include state or private constraints (FindLaw, 2004f). In fact, in the ruling of U.S. v. Miller (1939), the Supreme Court declared Article 11 of the National Firearms Act unconstitutional. In its decision, the Court gave a definition of the “Militia” in the Amendment as “all males physically capable of acting in concert for the common defense” who, when called upon, “were expected to appear bearing arms supplied by themselves and of the kind in common use at the time” (Second Amendment Stuff, 1999, p. 2). The decision failed, however, to impart whether only those who qualified for the Militia were the only ones allowed to bear a weapon.

         The term “the people” came under question in the case of United States v. Verdugo-Urquirdez (1990). There was no difficulty in clarifying this point, however. The Supreme Court unanimously held that “the people” in the Second Amendment held the same connotation as it did in the Preamble of the Constitution, every citizen and legal alien in the United States (Second Amendment Stuff, 1999).

         With this definition, it would seem that the Supreme Court supports that the right to bear arms is an individual right. However, Chuck Klein, author and advocate of Constitutional correctness (as opposed to political correctness), contended that it is “inconceivable that a Thomas Jefferson or a James Madison would refuse to take a musket away from a drunk, a child or someone conspicuously deranged” (Klein, 2001, p. 1). Of course, a child is not a man in the cultural opinion of the Founding Fathers, and a felon has given up many of his constitutional rights. According to Klein (2001), though, a man who is drunk or mentally unstable is not a citizen, however temporarily.

         Of course, this brings up the issue of “original intent” of the authors. The idea of a militia was considerably different in the 18th century than they are now. A standing army was a tool of oppression used by the empirical powers of the time. The “army” of the American Revolution was basically a loose alliance of colony militia. After the war, these militias were needed to fight against bandit and Native American attacks. State militias have evolved into the National Guard located in every state. Times have changed considerably (Mount, 2003f).

         As shown, the Second Amendment still remains an issue today. This will most likely be the case until the Supreme Court makes a clear-cut decision on the matter of gun control. However, the topic is so controversial that it may be quite a while until that day comes.

         Comparison to the First Amendment. When comparing the Second Amendment to Amendment I, one must recall that the First Amendment declares the freedom of religion and expression, which includes speech, press and the rights of assembly and petition. The Second Amendment gives the right to bear arms to the individual and/or the State.

         Arguably, the right to bear arms could be categorized as a right to expression. However, in recalling the previous discussion of the First Amendment, the freedom of expression must not infringe on another citizen’s rights. Many feel that the right to bear arms causes such an infringement because of the potential dangers involved.

         Like the First Amendment, the value of Amendment II is dependent on the wise usage of this liberty. Abuse of one’s right to a weapon can lead to serious harm, not unlike the exploitation of an individual’s freedom of expression.

Amendment III

         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. (Oak Hill, 1999, p. 45)

         The Third Amendment to the Constitution is quite possibly one of the least controversial legal issues in the history of the United States. Apparently, British soldiers forced many a Founding Father to allow them to stay at their residence at the owner’s expense. So, in framing the new Constitution, the authors wanted to make sure that it never happened again. It is as simple as that, and scholars have treated it accordingly throughout the Constitution’s history.

         There is only one recorded case that deals with freedoms prescribed in the Third Amendment. In the case of Engblom v. Carey (1982), a group of prison guards went on strike in New York. When the Governor called in the National Guard to take over for the prison guards, some of the troops were housed in a building owned by the prison which, consequently, was the same building some of the guards rented as a residence. Two of the guards sued on the basis that their Third Amendment rights had been violated (Mount, 2003d).

         The lower state court dismissed the case, and through appeal and reappeal, the higher courts kept the state court’s ruling. The Curcuit Court based the ruling on two main points: first, the building was not required to be used by the guards, and second, the guards did not own this property (Mount, 2003d). Other than this case, there has been no other recorded challenge on the meaning of the Third Amendment.

         However, there seems to be people who are tired of the disregard toward the Third Amendment. “Pity the Third Amendment,” Tom Bell (1999), law professor at Chapman University, says lightheartedly, “The Third Amendment has…suffered from a lack of serious and sustained legal analysis.” Amendment III has had its violations in the past, particularly during the War of 1812 and the Civil War, Bell notes, but there was no court case to pursue the infringement.

         The Third Amendment seems to be disappearing into obscurity. The only Supreme Court case to mention the Third Amendment with any sort of weight is Griswold v. Connecticut, in which, the Amendment is mentioned as one of many in an attempt to point out the Constitution’s protection of the right of privacy. This is a role that the Third Amendment took on following cases. On a smaller scale, Amendment III has been mentioned in cases to prove that the U.S. distinguishes between times of peace and times of war (Bell, 1999).

         It is easy to dismiss the Third Amendment as “a charming relic from more dangerous times” (Bell, 1999, p. 20). Perhaps it is more prudent to study the Amendment in its historical context. Its addition to the Constitution “marked the end of an ancient and troubled chapter in Anglo-American legal history…” (Fields, 1991, p. 22). The quartering of troops during the numerous British campaigns in colonial America was an arduous practice, and Americans could relax knowing that their new government would not support such a habit. Bell relates that if the Third Amendment is forgotten, hopefully America will not need its protection. “But,” he says, “if memory fails and history repeats, one can only hope that the troops will not stay long” (Bell, 1999, p. 20).

         Comparison to the First Amendment. If one holds to the belief that freedom of expression (particularly that of the press) is a check on the powers of the government, then the Third Amendment should come as reassurance of that idea. It is obvious that the Founding Fathers wanted a government of the people and for the people. The Third Amendment reinforces the right of free expression by giving the people the right to say “no” to its government.

         The real test would be if the second part of that clause (“but in a manner prescribed by law”) was to be invoked. There is a possibility that the quartering of troops in private home would infringe on the First Amendment rights of the owners. If the nation found two of its amendments in direct conflict with each other, which of the two would have to be modified?

Amendment IV

         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. (Oak Hill, 1999, p. 46)

         The right to privacy has been a right that Americans take seriously and never for granted. The Fourth Amendment of the U.S. Constitution gives the “right…to be secure” to everyone under its rule. FindLaw contends that “few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment” (2004d, p. 1).

         Under the rule of imperial Britain, English authorities could obtain writs of assistance to search a colonial’s home expected of violating revenue laws. These writs were in effect until the death of the monarch who issued them. After the death of King George II in 1760, there was opposition to reinstating the writs. However, the British authorities struck down the idea (FindLaw, 2004d). The colonials wanted protection against such intrusions when they forged their new country.

         Nearly all Fourth Amendment cases deal with two primary issues: illegal search and seizure and unlawful arrests. According to the Amendment, in order for a warrant to be valid in searches and seizures, the warrant must “particularly [describe] the place to be searched, and the persons or things to be seized” (Oak Hill, 1999, p. 46). An adequate warrant would fully explain everything to be searched or apprehended so that the officer would not have to depend on his own judgment (Roberts, 2004).

         In arrest procedures, the courts have read the Amendment with the common law practices of the time it was written in mind (Roberts, 2004.). Probable cause to arrest a person must be established in all instances. The Fourth Amendment is not violated if officers stop an individual on the street without probable cause and questions them as long as they are willing to listen. Since the person can (if in their right might) at any time stop the conversation, they have not been seized.

         Other cases have defined various guidelines on searches and seizures. On criminal matters, Riverside County v. McLaughlin held that detention for over 48 hours without probable cause violates the individual’s Fourth Amendment rights (Lectric, 2004). Several court cases have also defined how and when an individual’s fingerprints can be taken. The distinction has been made on if the individual is a “free person” or not. “There exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state” (Lectric, 2004, p. 1).

         Cases on the Fourth Amendment have also covered sobriety checkpoints (Michigan Dep't of State Police v. Sitz), blanket searches (Ybarra v. Illinois), and searches involving intrusions beyond the body’s surface, such as blood tests (Schmerber v. California). The Exclusionary Rule has also been developed through the court cases involving the Fourth Amendment. However, due to the length and brevity of this essay, space will not allow discussions on these matters.

         Comparison to the First Amendment. Many would argue that the relative ease authorities encounter when proving probable cause makes this Amendment almost worthless. The same individuals would argue that the same ease violates our First Amendment right of expression. However, one look at Fourth Amendment cases would show that the courts are doing their part in defending the validity of this Amendment. Many a criminal has been set free due to the failure of the officers in developing probable cause or even issuing a warrant.

         Does the ability to establish probable cause lead to prior restraint, a direct violation of First Amendment rights? The fear of search and seizure could keep an American citizen from saying or printing whatever they want. Sure, the Founding Fathers meant to protect our rights while at the same time giving the government the means to apprehend criminals. However, it would seem that the “probable cause” clause of the Fourth Amendment could act as a preventative measure against freedom of expression.

Amendment V

         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. (Oak Hill, 1999, p. 46)

         The Fifth Amendment of the U.S. Constitution logically flows after the protections against illegal search and seizures and unlawful arrests put forth in the Fourth Amendment. Amendment V deals with criminal proceedings after a person has been arrested and covers a wide range of rights. Protection from being held for a crime without being suitably indicted, from being tried twice for the same crime, from being forced to testify against oneself and from private property being taken without “just compensation” are all rights contained within the Fifth Amendment.

         The Amendment also offers due process assurances. Although the Supreme Court has been little help on the issue, due process generally refers to “how and why laws are enforced. It applies to all persons, citizen or alien, as well as to corporations” (Mount, 2003b, p. 1). The idea of due process has its roots in 1215 with the signing of the Magna Carta in which King John promised that “[n]o free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land” (FindLaw, 2004b, p. 11). Through various court cases, due process has come to guarantee right to a fair trial, the right to present at one’s trial, the right to an unbiased jury, that laws be written in an easily understandable manner and that taxes only be taken for public purposes, among others (Mount, 2003b).

         Perhaps the most glamorized part of the Fifth Amendment has been the protection against self-incrimination. Most scripted courtroom scenes involved a witness “pleading the Fifth.” According to FindLaw (2004b), this idea came from the maxim “nemo tenetur seipsum accusare,” which means “no man is bound to accuse himself.” This assurance gives the defendant the option of testifying or not in his or her own trial. Also, the prosecution cannot tell the jury that the defendant’s silence is any implication of his or her guilt “though, of course, the jury members may well come to that conclusion on their own” (Straight Dope, 1999, p. 1).

         Another issue touched upon in Amendment V is double jeopardy. In Green v. United States (1957), the opinion issued said, “The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense” (FindLaw, 2004b, p. 2). The courts have issued some interesting findings on this clause. For example, in the double trail of Rodney King’s beatings, the criminal trial found the officers not guilty. In federal court, however, the officers were found guilty of violating King’s civil rights by beating him. In essence, “they were not guilty of beating him, but guilty of violating his civil rights while beating him” (Straight Dope, 1999, p. 2).

         Comparison to the First Amendment. The First Amendment is often considered to express our basic rights as human beings. Every amendment following is an extension of this principle. The Fifth continues to extend “unalienable rights” to the citizens of the United States.

         Freedom of expression guaranteed in the First Amendment certainly does not extend to committing crimes. However, unlike many of the precedents put forth by the countries created long before the U.S., the Fifth Amendment gives a person accused of a crime almost every possible chance to prove their innocence (or at least avoid being convicted). In this case, the Fifth Amendment almost does away with prior restraint. A person can practice their rights of expression (speech, press, assemble and petition) knowing that the Constitution gives guarantees them due process under the Fifth Amendment. This is how it would work in an ideal world. However, this Amendment does offer some reassurance to the American judicial system.

Amendment VI

         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. (Oak Hill, 1999, p. 46)

         Amendment VI is the final Amendment in the series of criminal proceedings. This Amendment contains at least six clauses that are worth examining. The first two deals with pretrial procedures, and the last four have to do with the actual trial.

         The notification clause (“…to be informed of the nature and cause of the accusation…”) gives the individual the right to be told of what he or she is being charged with in enough time to prepare adequate defense. Depending on the severity of the crime brought forth, that time period is variable. In misdemeanor cases and minor offenses, it may involve no more than an appearance in the courtroom to state your case. In capital matters, however, there is a whole array of activities called criminal procedure. This involves pretrial confinement; the adequacy of the prosecution’s case; making sure the prosecution has not violated the defendant’s rights; plea bargaining; deciding on jurisdiction and place of trial; discerning the defendants competency to stand trial; and pretrial motions (O’Connor, 2002a).

         The right to counsel clause (“…to have the Assistance of Counsel for his defence”) allows that an attorney must be permitted and even appointed for those who cannot afford one. Originally, the Sixth Amendment was interpreted with the right to counsel as a choice and at one’s expense (O’Connor, 2002a). Betts v. Brady (1942) ruled that no attorney should be paid for by the government except “in certain circumstances” (FindLaw, 2004h). However, Gideon v. Wainwright (1963) overruled Betts when the U.S. Supreme Court stated “that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him” (FindLaw, 2004h, p. 10).

         The speedy and public trial clause (“…shall enjoy the right to a speedy and public trial…”) uses ideas that have been utilized for centuries. The idea of a speedy trial hails back to the Magna Carta, and the specification is “an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of an accused to defend himself” as was stated in United States v. Ewell (1966) (FindLaw, 2004h, p. 2).

         The impartial jury clause (“…by an impartial jury…”) should prompt the selection of a jury with no prior knowledge of the case and with minimal prejudices toward parties in the case. The confrontation clause (“…to be confronted with the witnesses against him…”) was an attempt to help the fact gathering procedure of the trial (O’Connor, 2002b). The defendant has the right to confront each hostile witness. Finally, the compulsory process clause (“…to have compulsory process for obtaining witnesses…”) gives the defendant to force favorable witnesses on his behalf to appear.

         Comparison to the First Amendment. While the First Amendment ensures rather abstract concepts, the Sixth Amendment proves to be very practical in its application in U.S. trial situations. Although many people look at the many challenges against it (and any Amendment, for that matter) as a sign of fault, a more appropriate response would be to see the many years of rulings on this Amendment as a refining process.

         Keeping in mind that the First Amendment of the U.S. Constitution guarantees American citizens that their basic rights shall not be denied, the Sixth Amendment continues with this line of thought. Amendment VI should give Americans the same sense of security as its predecessor, the Fifth Amendment. We can practice our freedom of expression with the confidence that the American legal system will work to our benefit.

Amendment VII

        In suits at common law, where the value in controversy shall exceed twenty dollars, the right of
        trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any
        Court of the United States, than according to the rules of the common law. (Oak Hill, 1999, p. 47)

         The Seventh Amendment gives the right of a jury trial to those involved in civil suits, much like the Sixth Amendment gives criminal defendants the right to be tried by an impartial jury (Lady Liberty, 2004b). The issue of civil trial juries was first brought up in 1787 during the final stages of the Constitutional Convention. However, the attempt to include it in the Constitution was defeated. When it became obvious that the Constitution was going to have to include a Bill of Rights, what is now Amendment VII was one of the first proposed by James Madison (FindLaw, 2004g).

         This idea of common law dates back to Imperial England where there were two distinct types of law: common law and law of equity. Common law was based largely on precedent set by centuries of rulings made by judges (TheFreeDictionary.com, 2004b). Common law usually granted monetary relief. The courts of equity, however, gave the judges the power to pronounce judgment based on fairness between the two parties (TheFreeDictionary.com, 2004b). Non-monetary respite (such as an injunction) was granted in courts of equity. This distinction between these two courts was upheld in the Seventh Amendment (TheFreeDictionary.com, 2004b).

         These two courts were easy to distinguish until the passage of the Federal Rules of Civil Procedure (FRCP) in 1938. The FRCP merged the two courts into one. If for example, an individual wanted to sue someone for monetary damages and also requests a restraining order. Before 1938, the money and the injunction would have to be separated into two different trials. Now, with the FRCP, both requests can be filed in the same suit. The Supreme Court has held that the jury must make a verdict on the common law issues before the judge makes a ruling on equitable principles. This is done to prevent collateral estoppel—“predetermining the jury's handling of the facts and thus limiting the right to a jury trial on the legal issues” (WordIQ.com, 2004c, p. 1). Although the FRCP was designed to help Seventh Amendment issues, “the traditional distinction between [common] law and equity for purposes of determining when there was a constitutional right to trial by jury remained and led to some difficulty” (FindLaw, 2004g, p. 4).

         The Supreme Court has interpreted the Seventh and Fourteenth Amendments and found that Amendment VII has not been included in Amendment XIV and applies only to federal courts (TheFreeDictionary.com, 2004b). However, many states have adopted similar laws that provide for juries in civil matters. Under the FRCP, the right to a jury is considered waived if neither party moves for one in a timely manner (TheFreeDictionary.com, 2004b).

         Despite the Seventh Amendment rights, judges still have considerable power in determining a verdict. Over the years, the Supreme Court has held that a judge may speak out about the facts in dispute, guide the jury to pay close attention to certain facts and call for the jury to answer questions on the case (WordIQ.com, 2004c). The judge may also overturn a jury’s verdict.

         Comparison to the First Amendment. In the First Amendment of the U.S. Constitution, American citizens are guaranteed intangible freedoms. The Seventh Amendment, in the same line as the preceding three Amendments, guarantees very concrete rights in the judicial process. The rights promised in Amendment I are the basic rights belonging not only American citizens, but every person. The Seventh Amendment continues to give these rights to the individual.

         The First Amendment, in theory, does away with prior restraint from the government to the individual. The Seventh guarantees the right to a trial jury in civil matters under common law. With the knowledge that these two Amendments are in practice, every American should not feel compelled to keep quiet about matters that concern them. Of course, that sounds like a great philosophy, but with the rampant civil court abuse in our country (One call, that’s all), the Seventh Amendment seems to have little bearing in our minds.

Amendment VIII

         Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
         punishments inflicted. (Oak Hill, 1999, p. 47)

         Within the Eighth Amendment of the U.S. Constitution are three separate clauses that demand to be looked at separately.

         The excessive bail clause has its roots in British history. Parliament passed an edict in 1275 clearly defined offenses that were bailable or not. Eventually, it fell on to the judges to decide whether or not to set bail. Then, the British Bill of Rights were passed in 1698, in which it mandating that “excessive bail ought not be required” (WordIQ.com, 2004a, p. 1). However, the document still did not eliminate the distinguishing between bailable and non-bailable defenses. As a result, “the Eighth Amendment has been interpreted to mean that bail may be denied where the charges are sufficiently serious” (WordIQ.com, 2004a, p. 1). The amount of the bail is determined as a sum “reasonably calculated to ensure the asserted governmental interest” (FindLaw, 2004a, p. 3).

         The Supreme Court has been relatively silent on the issue of the excessive fines clause. They ruled that the Eighth Amendment is only a shield against fines required by the government (FindLaw, 2004a). Matters in civil cases and punitive damages have no application to this Amendment. The Court has held that the wealth of the convicted need not be looked at when setting a fine, even though they have never set a maximum fine amount (WordIQ.com, 2004a).

         The most dissected of the three clauses in the Eighth Amendment is the cruel and unusual punishment clause. Although the clause has been used in such cases as denying a natural born citizen his or her citizenship (WordIQ.com, 2004a), it is more likely to be invoked in cases resulting in capital punishment (the death penalty).

         “At first, the Court was inclined to an historical style on interpretation, determining whether or not a punishment was ‘cruel and unusual’ by looking to see if it or a sufficiently similar variant was considered ‘cruel and unusual’ in 1789” (FindLaw, 2004a, p. 1). However, it soon became clear that the United States could continue to punish criminals in the same manner as the Founding Fathers did. As Trop v. Dulles (1958) stated, the Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” (FindLaw, 2004a, p. 1).

         In the landmark case, Furman v. Georgia (1972), the Courts overturned Furman’s death penalty. Furman was robbing a home when the owners came back. In his attempt to escape, he tripped and his gun accidentally shot and killed one of the victims (WordIQ.com, 2004b). Justice Potter wrote that the seemingly random application of the death penalty was “cruel and unusual in the same way that being struck by lightning is cruel and unusual” (FindLaw.com, 2004a, p. 51).

         In Solem v. Helm (1983), the Court gave three guidelines to decide if the punishment is unwarranted: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions” (WordIQ.com, 2004a, p. 2). In recent years, the Courts have declared that it is the legislative branch’s responsibility in deciding what punishments are “usual” or not, and only in severe cases should the Court have to rule on Eighth Amendment issues (TheFreeDictionary.com, 2004a).

         Comparison to the First Amendment. Amendment I ensures Americans their basic rights. It would seem that the freedom of religion, speech and the like would be a right to live. The Eight Amendment concurs with that interpretation. Does capital punishment infringe on an individual’s Constitutional right?

         The answer is no. When an American citizen purposely violates the laws of his or her land, they are, in essence, giving up the rights granted to them by their country. At this point, certain freedoms are denied to that individual. Of course, the Eighth Amendment does not specify that this right be only granted to American citizens. However, actions have consequences under United States law. That is not prior restraint and does not violate the First Amendment. Yes, we have the right to live, but we also have rules to live by.

Amendment IX

        The enumeration in the Constitution, of certain rights, shall not be construed to deny or
        disparage others retained by the people. (Oak Hill, 1999, p. 47)

         The notorious Ninth Amendment has been the issue of debate for quite some time. Is it a guarantee of unspecified rights that ought to be protected or, as Robert Bork believes, just a meaningless inkblot (Unlearned Hand, 2004). Regardless, America’s Founding Fathers chose to place it into the Constitution, and it is important to know why and what it guarantees.

         During the framing of the Constitution, the ratification of the document hinged on the inclusion of a Bill of Rights. The Federalists not only contended that a Bill of Rights was unnecessary, but they also insisted that if rights were listed out, then the government could abuse those not expressly illustrated (FindLaw, 2004e). The Ninth Amendment was Madison’s attempt to ease this line of thinking. As Madison said in his proposal to Congress:

         It has been objected also against a bill of rights, that, by enumerating particular exceptions to the
         grant of power, it would disparage those rights which were not placed in that enumeration; and it
         might follow by implication, that those rights which were not singled out, were intended to be
         assigned into the hands of the General Government, and were consequently insecure. This is one of
         the most plausible arguments I have ever heard against the admission of a bill of rights into this
         system; but, I conceive, that it may be guarded against. (FindLaw, 2004e, p. 2)

         If the people are granted rights not explicitly guaranteed in the Constitution, what are these other rights and where do they come from? As Atherton (2003) states, Thomas Jefferson set forth the principle in the Declaration of Independence, “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 [but not limited to] are Life, Liberty, and the Pursuit of Happiness” (Oak Hill, 1999, p.59).

         Initially, the Ninth Amendment was interpreted in a negative light, that is, it was used to prevent the government from gaining power since the people’s rights were not limited to what was listed (Lady Liberty, 2004a). However, in recent court cases, Amendment IX has been viewed more positively. Instead of limiting the government, it has been interpreted to guarantee such privileges as the right to privacy (Lady Liberty, 2004a).

         In Griswold v. Connecticut (1965), a law prohibiting the use of contraceptives was struck down as an invasion of privacy in a marriage. Although right to privacy is hinted at in the First, Third, Fourth and Fifth Amendments, it is not expressly guaranteed. The Court cited the Ninth Amendment as one of the sources of their decision (FindLaw, 2004e). Justice Goldberg, in his concurring opinion wrote, “To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever” (FindLaw, 2004e, p. 2).

         Comparison to the First Amendment. As great as the First Amendment is perceived, without the Ninth Amendment, it would be rather useless. Through Amendment IX, the eight preceding Amendments suddenly become more vibrant. The Founding Fathers knew certain rights had to be listed, but at the same time, they knew that the government, which existed for the people, should not limit the people of their new nation. Thus, with the inclusion of the Ninth Amendment, the First Amendment suddenly guaranteed more than it would seem at face value.

         However, as it has been with any Amendment (or the entire Constitution, for that matter), the power of the Ninth Amendment depends on the faith and usage the American people invest in it. The Ninth Amendment can only be further defined and thereby strengthened if it is consistently challenged. This is likely the reason the First Amendment has such authority in American culture. Out of all of the Amendments, the First is the most scrutinized, even more so with the backing the Ninth provides.

Amendment X

         The powers not delegated to the United States by the Constitution, not prohibited by it to the
         States, are reserved to the States respectively, or to the people. (Oak Hill, 1999, p. 47)

         Quite a bit of debate is stirred at the mention of the Tenth Amendment to the U.S. Constitution. More or less, the Amendment holds that powers not given to the federal government belong to the states or with the people (Mount, 2003a). With the constant expansion of the federal government, the Tenth Amendment seems to be almost ignored.

         In current times, the Tenth Amendment is regarded as a truism, i.e., a “claim that is so obvious or self-evident as to be hardly worth mentioning, except as a reminder or as a rhetorical or literary device” (WordIQ.com, 2004d, p. 1). However, according to Greenslade (2003), the federal government could use some reminding. “If the Amendment reserves every power not delegated to the federal government to the States or the people, then it follows that the Constitution established a federal government of limited enumerated powers” (Greenslade, 2003, p. 1).

         The federal government continues to increase its power and reach. “We have, through apathy and lack of will, allowed federal legislators and bureaucrats to assert their will over us and commandeer our funds for their own use.... most of it today outside the authority granted to them by the Constitution” (Duke, 2004, p. 1). How has the federal government come so far from what the Constitutional Framers had in mind to the image of the very government the Founding Fathers wanted to prevent (Greenslade, 2003)?

         During the writing of the U.S. Constitution, the states were wary of a federal government because they wanted to protect their sovereignty. They did not want to lose the power to make their own decisions and be free from the control a national government could assert. The Tenth Amendment was an attempt to reassure the states that they would still be in control of their respective borders (Lady Liberty, 2004c). Until the mid-nineteenth century, the Tenth Amendment was frequently claimed as a bar to federal involvement in state affairs. However, several court cases began to diminish the perceived power of the Tenth Amendment (Lady Liberty, 2004c). Federal Income Tax is an example of this.

         Conflicts between federal and state interests still plague the courts today. The courts have continually upheld the national government’s taxing power, police power and regulations affecting state policies (FindLaw, 2004i). Arguably the most violations of the Tenth Amendment happened during the Great Depression. As Greenslade (2004, p. 1) states:

         During President Franklin Roosevelt's "New Deal" assault on the Constitution, his administration
         did not want to expose its power grab to the scrutiny of the States and the American people…His
         administration, using the threat of a Court packing scheme, succeeded in getting the United States
         Supreme Court to judicially amend two key provisions in the body of the Constitution. The
         unconstitutional modification of one of these provisions has given the federal government virtually
         unlimited power over every aspect of human existence in the United States and all but nullified the
         Tenth Amendment.

         Comparison to the First Amendment. In the original usage of the Tenth Amendment, it strengthened the First Amendment much as the Ninth. In the Ninth and Tenth Amendments, “the principal of individual sovereignty and a limited government of delegated powers is firmly established” (Atherton, 2003, p. 1). The rights not expressly guaranteed by the Constitution are given to the states or the people and the federal government cannot violate these implied rights. However, the federal government has grown so quickly that the violations of the Tenth Amendment have been almost overlooked.

         While the First Amendment has been invoked numerous times, the Tenth Amendment has not received such scrutiny. This is an example of what can happen if Americans do not practice their given rights. They can be violated. It is up to the states and the people to stand up and demand that their rights be given back to them as expressly worded in the Tenth Amendment.

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References

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© 2005 Austin Helms