Seeing as how we have, o'er the past few Diem, made a mess of the U.S. Constitution, we thought it nice, if not entirely apropos, to toss in the Amendments while at it, if for no other reasons than to further alienate the inalienability of us all. If you missed our last thrilling episode, you can still catch it here.
But now to the Bat-cave.
The Constitution was amazing, yet in many ways inadequate. For one thing, it did not include a specific declaration of individual rights. It specified what the government could do but did not address itself to what it could not do. For another thing, it did not apply to everyone. The "consent of the governed" meant propertied white men only.
The absence of a bill of rights turned out to be an obstacle to the Constitution's ratification by the states. It would take four more years of ferocious debate before the new government's form would be resolved. The Federalists opposed including a bill of rights on the ground that it was unnecessary. The Anti-Federalists, who were afraid of a strong centralized government, refused to support the Constitution without one.
In the end, popular sentiment won out. Recently freed from the despotic English monarchy, the American people demanded guarantees that the new government would not trample upon their newly earned freedoms of speech, press and religion, nor upon their right to be free from warrantless searches and seizures. So, the Constitution's framers heeded Thomas Jefferson who argued: "A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference."
The American Bill of Rights, inspired by Jefferson and drafted by James Madison, was adopted, and in 1791 the Constitution's first ten amendments became the law of the land, if not of the sea.
Although First Amendment jurisprudence is almost entirely a phenomenon that began in the 20th century, common law protection for free speech began much earlier, in the 18th and 19th centuries.
An attorney friend of mine and I were talking just last evening about the so-called crime of libel and we each made reference to the fascinating case in 1964 of Sullivan v The New York Times wherein the newspaper ran an advertisement that the paper knew contained factual inaccuracies and ran the ad anyway.
The trial of printer John Peter Zenger in 1735 was a landmark in the development of common law protection for free speech. In the Zenger case, a New York jury returned a verdict of "not guilty" on a charge of seditious libel--in contrast to the practice in England where juries were permitted only to decide whether the defendant printed the allegedly libelous words. As a result of the precedent set in the Zenger case, and the reluctance of juries to support prosecutions for seditious libel, the common law of seditious libel in America became generally unenforceable.
Madison's original draft of the Bill of Rights contained two proposed amendments dealing with freedom of speech. One proposed amendment said "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, one of the great bulwarks of liberty, shall be inviolable." The other proposed amendment from Madison read: "No state shall violate the equal rights of conscience, or of the press." Congress, however, did not support Madison's efforts to apply free speech protections against the states, even though Madison called that amendment the "most valuable amendment on the whole list." (It would not be until the 1920s, when the Supreme Court held the First Amendment protections to be incorporated through the Fourteenth Amendment, that freedom of speech guarantees would apply against the states.)
The trial of printer John Peter Zenger in 1735 was a landmark in the development of common law protection for free speech. In the Zenger case, a New York jury returned a verdict of "not guilty" on a charge of seditious libel--in contrast to the practice in England where juries were permitted only to decide whether the defendant printed the allegedly libelous words. As a result of the precedent set in the Zenger case, and the reluctance of juries to support prosecutions for seditious libel, the common law of seditious libel in America became generally unenforceable.
Madison's original draft of the Bill of Rights contained two proposed amendments dealing with freedom of speech. One proposed amendment said "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, one of the great bulwarks of liberty, shall be inviolable." The other proposed amendment from Madison read: "No state shall violate the equal rights of conscience, or of the press." Congress, however, did not support Madison's efforts to apply free speech protections against the states, even though Madison called that amendment the "most valuable amendment on the whole list." (It would not be until the 1920s, when the Supreme Court held the First Amendment protections to be incorporated through the Fourteenth Amendment, that freedom of speech guarantees would apply against the states.)
The final version, which I hope is familiar to everyone, but probably is not, reads as follows: 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 absolutist approach to an interpretation of this most vital of all amendments is often associated with Justice Black, who held that the First Amendment meant exactly what it says: that Congress shall make no law abridging the freedom of speech. Under this approach, the only question is whether the action in conduct is truly "speech" (and therefore protected) or "conduct" (and therefore subject to reasonable governmental regulation). Even absolutists such as Justice Black recognized that words might be so closely connected with producing a specific action (such as entering into a contract with a hitman or yelling "Fire!" in a crowded theater) as to be unprotected. I, on the other hand, completely disagree and understand that freedom of speech is absolute and on a par with the freedom to have an idea, in which case the freedom of thought should never, under even the most unpleasant of circumstances, ever been restrained. Throwing a bomb or injuring another person is not an idea; it is an expressed act. Saying that something ugly should be done is the expression of an idea and not an action in and of itself and should not be abridged.
The Second Amendment has generated almost as much controversy as the First. It reads 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. The original draft of amendment read thus: "That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defense of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided as far as the circumstances and protection of the community will admit; and that in all cases the military should be under strict subordination to and governed by the civil power."
It's a tough issue because the clear intent of the Framers was to ensure that the people themselves--meaning property owners--were not to be pushed around by standing armies, a rather ambiguous term that might mean either invading armies (in which case the value of the Constitution might be mute anyway) or presumably legitimate armies getting carried away with their own power. The murkiness extends to the concept of a "well-regulated militia." The expression well-regulated suggests gun control. It cannot mean anything else. At the same time, the contemporary meaning of militia and the notion of the eighteenth century are likely not quite the same thing. What any of this has to do with foreign invaders taking away your right to point your gun at grandma is beyond me. I will say that no one needs to openly carrying assault rifles to prove that they are more American than the guy next door. I will also mention that when I lived in West Virginia, I responded to an advert about the opening of deer season by writing a letter to the sponsor of the ad saying that I thought it would be amusing if a deer popped up out of the woods and shot back at the hunter. The fellow who had placed the ad called my home a little after midnight and accused me of sedition.
The Third Amendment reads 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 first part is clear. The second part is unclear. Whose law? City, state, federal? What exactly is meant by war?
The Fourth Amendment has also endured its share of controversy. 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. Question One: Does this apply to the Internet? Question Two: What does "unreasonable" mean? Question Three: What is probably cause?
Answer one: Yes, according to me. Answer two: In the case of Hoffa v. United States in 1966, Justice Powell delivered the opinion of the Court, writing "What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion." Powell explained that because an informer named Partin had not entered Hoffa's hotel room by stealth or by force but had been invited, and that every conversation testified to by Partin was either directed at him or freely made in his presence, no legitimate interest protected by the Fourth Amendment had been violated.
In regard to the third question, we may look to Board of Education v Earls in 2002. In this case, the Tecumseh, Oklahoma School District has a drug testing policy that requires all middle and high school students who wish to participate in extracurricular activities to undergo a urinalysis that tests for the presence of illegal drugs. At the time of this case, this policy had only been applied to activities sanctioned by the Oklahoma Secondary Schools Activities Association. The school district was sued by some students and parents in an attempt to have this policy vacated on Fourth Amendment grounds.
The District Court hearing the suit granted the school District a Summary Judgement (a ruling without a full trial). On appeal, the Tenth Circuit Court of Appeals reversed the decision, holding that the testing of the students was a violation of the Fourth Amendment. They ruled that because the School District had failed to show that there was a drug abuse problem among a sufficient number of students who were to be tested and that the test was suspicionless, the testing program would not have an effect in reducing a problem with illegal drug use.
Justice Clarence Thomas (in a rare instance of actually doing anything) wrote the opinion for the Supreme Court. In reversing the decision of the Appeals Court, he held that "a probable cause finding is unnecessary in the public school context because it would unduly interfere with maintenance of the swift and informal disciplinary procedures that are needed." He ruled that there need not be suspicion of an individual or individuals for a search of students to be deemed reasonable. He noted the the "special needs" of public schools are beyond the needs of law enforcement. Relying on Vernonia School District v. Acton (1995), Thomas, concluded that the students affected by the drug testing had a limited expectation of privacy because they voluntarily participated in extracurricular activities. Additionally, the results of the urinalysis were not used to penalize students academically or shared with law enforcement. For these reasons, the drug testing policy was not a significant intrusion on the student's privacy expectations and therefore, was not a violation of the Fourth Amendment.
The District Court hearing the suit granted the school District a Summary Judgement (a ruling without a full trial). On appeal, the Tenth Circuit Court of Appeals reversed the decision, holding that the testing of the students was a violation of the Fourth Amendment. They ruled that because the School District had failed to show that there was a drug abuse problem among a sufficient number of students who were to be tested and that the test was suspicionless, the testing program would not have an effect in reducing a problem with illegal drug use.
Justice Clarence Thomas (in a rare instance of actually doing anything) wrote the opinion for the Supreme Court. In reversing the decision of the Appeals Court, he held that "a probable cause finding is unnecessary in the public school context because it would unduly interfere with maintenance of the swift and informal disciplinary procedures that are needed." He ruled that there need not be suspicion of an individual or individuals for a search of students to be deemed reasonable. He noted the the "special needs" of public schools are beyond the needs of law enforcement. Relying on Vernonia School District v. Acton (1995), Thomas, concluded that the students affected by the drug testing had a limited expectation of privacy because they voluntarily participated in extracurricular activities. Additionally, the results of the urinalysis were not used to penalize students academically or shared with law enforcement. For these reasons, the drug testing policy was not a significant intrusion on the student's privacy expectations and therefore, was not a violation of the Fourth Amendment.
Here is the 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.
This Amendment attempts to cover as much ground as the First and has come in for almost as many varied interpretations. The first portion requires that if you are charged with a serious offense, usually a felony, you are entitled to have a Grand Jury convened to determine if there is enough evidence to warrant bringing you to trial, the goal being to prevent government prosecutors from harassing people they do not like. Sounds good, except that prosecutors have found thousands of ways around the protection, including forbidding the presence of the accused's attorney during the proceedings, as well as charging with contempt anyone who refuses to cooperate with such a proceeding, to the extent that the requirement against forced self-incrimination is waived in most of these events.
The prohibition against double jeopardy is a good one in the sense that it keeps evil prosecutors from bringing the same charges against a defendant until he or she is finally found guilty.
The proscription against self-incrimination is a bit more murky. One of the most fascinating aspects of this is whether it is permissible for police to coerce an incriminating statement from a suspect which advances their case against him even if the prosecutor chooses to not use that coerced statement in the trial itself. In 2010 the Supreme Court Jesters refused to hear a case that addressed itself specifically to this issue. The case involved a 13-year-old boy who said his right against self-incrimination was violated when a police officer coerced an incriminating statement from him – even though the statement was never used in a trial. At issue in the case, Jensen v. Stoot, was whether the prohibition applies only to statements admitted as evidence during an actual trial, or whether it also applies whenever a coerced statement is used to advance a criminal case toward a trial. The case centered on Paul Stoot II, a boy accused of sexually abusing a three-year-old girl in Everett, Washington. Police Detective Jon Jensen interrogated Paul Stoot in the principal’s office at his middle school. The detective informed Paul of his Miranda rights but did not inform him that, as a juvenile, he had a right to have his parents present during the interrogation.
Mr. Jensen questioned Paul for roughly two hours, repeatedly rejecting the child's denials of wrongdoing. The detective used targeted interrogation techniques. Eventually, Paul said he did moleste the girl, and wrote out a statement. He was charged with child molestation in the first degree.
A juvenile court judge determined that Paul did not understand that he had a right to remain silent and a right to have a lawyer and his parents present for the entire interrogation. The judge ruled that police coerced Paul’s confession. In addition, the judge ruled that the accusing girl’s statement was not credible. Both statements were thrown out and all charges against Paul were dropped. The boy and his parents responded by filing a civil lawsuit against Jensen, claiming the police officer violated Paul’s Fifth Amendment right against self incrimination.
Mr. Jensen questioned Paul for roughly two hours, repeatedly rejecting the child's denials of wrongdoing. The detective used targeted interrogation techniques. Eventually, Paul said he did moleste the girl, and wrote out a statement. He was charged with child molestation in the first degree.
A juvenile court judge determined that Paul did not understand that he had a right to remain silent and a right to have a lawyer and his parents present for the entire interrogation. The judge ruled that police coerced Paul’s confession. In addition, the judge ruled that the accusing girl’s statement was not credible. Both statements were thrown out and all charges against Paul were dropped. The boy and his parents responded by filing a civil lawsuit against Jensen, claiming the police officer violated Paul’s Fifth Amendment right against self incrimination.
Finally, what is meant by the phrase "due process"? In 1950, in the case of Solesbee v Balkcom, the Supreme Court ruled that "It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due Process is that which comports with the deepest notions of what is fair and right and just." [Emphasis added.]
That is one of the few references to justice in any Supreme Court ruling of note. Unfortunately, the Court counter-balanced this ideal with a grave error when it went on to say "All persons within the territory of the United States are entitled to its protection, including corporations, aliens, and presumptively citizens seeking readmission to the United States, but States as such are not so entitled."
Amendment the Sixth looks like this and stands as one of the least ambiguous sets of words coined by the Framers. 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 defence.
The Seventh Amendment, which is typically forgotten, reads thus: 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. One might expect the twenty dollar figure to have been increased over the years.
The Eighth Amendment is tremendous. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. In practice, bail is often used as punishment. As to cruel and unusual punishments, the "unusual" word is a curious one, suggesting as it does the arbitrary rather than proscribed implementation of a certain punishment. In other words, regardless of one's view on capital punishment, the word unusual addresses itself to the punishment's swift and immediate use in some cases and its simultaneously drawn out and random use in others.
The Framers obsequiously addressed themselves to fairness and justice with the Ninth Amendment. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. This is another way of saying, "Imperfect as we are, we may have neglected certain rights that you should possess. Not being prognosticators, the world may change in ways which we cannot foresee. So apply the tenets thus enumerated to new circumstances as decency requires."
The Tenth and Final Amendment contained within the Bill of Rights reads The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. There is nothing in the history of the adoption of the Bill of Rights, or this amendment to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.
In any event, those are the Big and Heavy Ten, the ones people die for, the ones most people do not recognize. According to a recent survey conducted by the Colonial Williamsburg Foundation:
- More Americans could identify Michael Jackson as the composer of "Beat It" and "Billie Jean" than could identify the Bill of Rights as a body of amendments to the Constitution.
• More than a third did not know the century in which the American Revolution took place, and half of respondents believed that either the Civil War, the Emancipation Proclamation or the War of 1812 occurred before the American Revolution.
• With a political movement now claiming the mantle of the Revolutionary-era Tea Party, more than half of respondents misidentified the outcome of the 18th-century agitation as a repeal of taxes, rather than as a key mobilization of popular resistance to British colonial rule.
• A third mistakenly believed that the Bill of Rights does not guarantee a right to a trial by jury, while 40 percent mistakenly thought that it did secure the right to vote.
• More than half misidentified the system of government established in the Constitution as a direct democracy, rather than a republic--a question that must be answered correctly by immigrants qualifying for U.S. citizenship.
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