BILL of RIGHTS
|AMENDMENT||EXPLANATION; from Linda Monk, The Words We Live By|
Some people say the rights protected by the
First Amendment are the most important in the entire Bill of Rights,
because they are listed before the other nine amendments. However, in
the original version of the Bill of Rights, what is now the First
Amendment came third—after proposed amendments on reapportionment and
congressional pay raises. The states failed to ratify these amendments,
moving the third amendment into first place.
|Congress shall make no law||This
first phrase in the First Amendment has several implications. By
specifically referring to Congress, the Bill of Rights limits only the
government or its agents, not private parties. This requirement that the
government be involved in any claim under the Constitution or the Bill
of Rights is known as state
action. For example, freedom of
speech does not protect employees of private companies who criticize
Although the First Amendment says that Congress shall make “no law” regarding the freedoms it contains, the Supreme Court has ruled that almost all rights have limitations. Justice Hugo Black, however, believed that First Amendment rights were absolute. Yet the Court has held that the only unlimited right is the freedom to believe in abstract ideas—such as the Holy Trinity or communism. However, the government may regulate certain actions that embody those ideas.
|respecting an establishment of religion, or prohibiting the free exercise thereof;||
This portion of the First Amendment
protects freedom of religion. It consists of two parts: the
Establishment Clause and the Free Exercise Clause. The Establishment
Clause prohibits the government from creating an official or established
church, preferring one religion over another, or benefiting believers
instead of nonbelievers. The Free Exercise Clause prohibits the
government from interfering with the expression of religious beliefs.
Sometimes these two clauses conflict, and it is difficult for the
government to avoid an establishment of religion while at the same time
protecting its free exercise....
|or abridging the freedom of speech,||
Democracy is very difficult without freedom
of speech. Unless there is a free exchange of opinions and ideas, the
people do not have the information they need for effective
self-government. Some legal scholars believe that the First Amendment
only protects the political speech necessary to democratic government.
Others argue that the right of self-expression—through art, literature,
advertising, and even bad taste—makes a society truly free. Another free
speech issue is whether the First Amendment safeguards spoken words
alone, or also includes symbolic speech such as flag burning. Freedom of
speech is not unlimited, and the Supreme Court has restricted expression
such as obscenity and defamation....
|or of the press;||
Originally, freedom of the press referred to the printed word alone,
such as books and newspapers. But today broadcast media are also
included, although they receive less protection under the First
Amendment than printed matter. Yet despite the changing nature of the
media, freedom of the press has involved a constant struggle between the
government and the people over access to information....
|or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.||
The freedoms of assembly and petition have
been linked both in history and in Supreme Court decisions. During the
first century after the Bill of Rights was ratified, the right to
petition overshadowed the right to assembly, but later on they reversed
roles. In fact, fewer court decisions deal with freedom of petition than
any other part of the First Amendment.
The American Revolution was fought by minutemen, ready with their guns at a moment’s notice. Early Americans believed that a militia, composed of citizen-soldiers, was a better safeguard of their liberties than a standing or permanent army. Today the militia consists of the National Guard, drilling in state units. Does the Second Amendment protect only the right of the states to have militias, or does it give individuals a right to bear arms for self-defense as well as national defense? That question is at the heart of the debate over the Second Amendment and gun control.
A well regulated Militia, being necessary to the security of a free State,
The Second Amendment is the only part of the Bill of Rights that has a introductory clause defining its purpose. Because a militia is “necessary to the security of a free state,” the amendment says, “the right of the people to keep and bear arms shall not be infringed.” Some legal scholars interpret the first clause of the Second Amendment as giving the people the right to bear arms only as part of a “well regulated militia.” To these scholars, such a militia would be today’s National Guard, which is the modern-day successor to the minutemen of the colonial period. Other scholars emphasize that a militia, at the time of the adoption of the Bill of Rights, consisted of “the body of the people,” as affirmed in several of the state resolutions proposing that a bill of rights be added to the Constitution.
|the right of the people to keep and bear Arms, shall not be infringed.||
This second part of the Second Amendment
says that the right to bear arms belongs to “the people.” Supporters of
an individual right to bear arms, rather than the collective right of a
state to have a militia, point out that the phrase “the people” also
appears in the First, Fourth, and Ninth Amendments. These rights apply
to individuals not states, they argue, and so does the Second Amendment.
Since law professor Sanford Levinson’s article in 1989, “The
Embarrassing Second Amendment,” more and more constitutional scholars
have been affirming some sort of an individual right to bear arms.
Contemporary Americans pay little heed to the Third Amendment, yet it was near and dear to the hearts of their ancestors. Colonial Americans had chafed at being forced to provide room and board for British soldiers, and they made sure the new Constitution protected them from such a practice. In fact, more states included this provision in proposed amendments to the Constitution than freedom of speech. But the Supreme Court has never specifically ruled on the meaning of the Third Amendment, although the Court has cited it as support for a constitutional right of privacy
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner,
When the colonies separated from England two years later, they specifically included in the Declaration of Independence as one of their grievances that the king had agreed to laws “for quartering large bodies of armed troops among us.” After the Revolutionary War, several states prohibited peacetime quartering of troops as part of their constitutions. And during the ratification debates on the U.S. Constitution, Patrick Henry objected to its lack of a ban on peacetime quartering of troops. His arguments carried great weight, and the Third Amendment was ratified as part of the Bill of Rights in 1791.
|nor in time of war, but in a manner to be prescribed by law.||
The Third Amendment does allow troops to be
quartered in houses without the owners’ consent during wartime. However,
adequate procedures for reimbursing the owners must be enacted. Some
legal scholars argue that during the Civil War, the quartering of Union
troops in privates homes violated the Third Amendment, because Congress
never authorized such action.
Colonial Americans were intimately familiar with the invasive power of government. British officials ransacked their homes and arrested them without warrants. The purpose of the Fourth Amendment is to prevent such arbitrary actions and protect Americans’ privacy against the government. In the words of Justice Louis Brandeis, the Fourth Amendment secures “the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” Therefore, the Fourth Amendment requires that searches and seizures must be reasonable, and that warrants for searches and arrests must be specific. One of the most controversial Fourth Amendment questions is whether evidence from an illegal search should be excluded at a criminal trial. The Supreme Court is constantly trying to find the right balance under the Fourth Amendment between catching criminals and protecting privacy.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
Once it has decided that a reasonable expectation of privacy exists for a certain area, the Supreme Court must then determine if the search in question is “reasonable” under the Fourth Amendment. To meet this test, most searches and seizures require probable cause—that is, a reasonable belief that a particular person has committed a particular crime—even if they do not require a warrant. Probable cause is discussed in greater detail in the section on warrants that follows. However, the Court has recognized certain exceptions in which a warrantless search or seizure does not need probable cause in order to be reasonable. Some of these exceptions include: Stop and Frisk, Airport Searches, Sobriety Checkpoints, Consent Searches, Drug Testing, and Student Searches.
|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.||
Known as the Warrant Clause, the second
half of the Fourth Amendment requires that all warrants, or
court orders, for searches and seizures must be based on
probable cause, a
reasonable belief that a particular person has committed a particular
crime. Probable cause is more than just the arbitrary whim of a law
enforcement officer, although it is less proof than required to convict
a person of a crime. To demonstrate probable cause, a police officer
must go before a neutral magistrate, who makes an independent
determination of whether a warrant is justified. Furthermore, the
warrant must specify where the search will occur and what or whom is
The Fifth Amendment guarantees five rights of a very diverse nature. The most popularly known right in the Fifth Amendment, the right against self-incrimination in criminal cases, is commonly referred to as “taking the Fifth.” Other rights in the Fifth Amendment include the right to have serious criminal charges screened by a grand jury; to avoid being tried twice for the same offense; to have due process of law; and to receive just compensation when private property is taken for public use. The longest amendment in the Bill of Rights, the Fifth Amendment is a hodgepodge of provisions affecting both criminal law and civil law. But all of them limit the power of the government to take action against the individual.
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;
This provision in the Fifth Amendment gives
civilians who are accused of serious crimes the right to a grand
jury, which determines if enough
evidence exists to prosecute. A grand jury (from the French for “large”)
normally consists of twenty-three persons, whereas a petit
jury (from the French for “small”)
has six to twelve members. Petit juries determine the actual guilt of a
defendant at trial. If the grand jury believes the prosecutor has
sufficient evidence, it will issue an
charging the accused with a crime, known as a “true bill.” If not, the
grand jury will return a “no true bill.” The grand jury also has the
power to return a presentment, in
which it charges a person with a crime independently of the prosecutor.
|nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;||
Once the defendant has been acquitted, the
Fifth Amendment forbids him from being tried again. Otherwise, the
government could use its enormous resources to keep charging the
defendant until it got a conviction, whether he was innocent or not. The
Double Jeopardy Clause specifically addresses endangering “life or
limb,” which refers to an early American practice of punishing crimes by
cutting off ears or damaging other limbs. However, the Supreme Court has
broadened this language to include prison sentences.
|nor shall be compelled in any criminal case to be a witness against himself,||
This provision in the Fifth Amendment is
known as the right against self-incrimination. A
defendant cannot be forced to testify against himself or herself. In
popular culture, this right is commonly referred to as “taking the
|nor be deprived of life, liberty, or property, without due process of law;||
The underlying concept is that government
may not behave arbitrarily and capriciously, but must act fairly
according to established rules. Due process has two categories:
substantive and procedural. Under substantive due process, the content
of a law must itself be fair; under procedural due process, the rules by
which a law is implemented must be fair.
|nor shall private property be taken for public use, without just compensation.||
The Just Compensation Clause limits the
power of the government to take private property for public use, known
The Sixth Amendment was added to the U.S. Constitution to ensure that criminal defendants received a fair trial—although it does not use those exact words. The amendment repeats Article III’s guarantee of a trial by jury in criminal cases, but it adds other important rights as well—such as the right to subpoena witnesses and to have a lawyer. The Sixth Amendment attempts to balance the enormous power of the state, which pays for both police and prosecutors to prove guilt, against the power of the individual to prove innocence.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
Although the Sixth Amendment refers to “all
criminal prosecutions,” its protections do not always apply to every
minor offense, such as jaywalking or speeding. Under the Sixth
Amendment, the defendants must receive speedy and public trials,
although defendants may waive those rights if they choose.
|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,||
To secure an impartial jury, it must be
chosen from a “representative cross-section of the community.” Thus, the
Supreme Court has ruled that particular groups—such as African Americans
or women—must not be systematically excluded from the pool of potential
jurors. In capital trials the state may exclude jurors who categorically
refuse to impose the death penalty under any circumstances, although not
those with moral reservations about capital punishment. Only the jury
pool, not the final jury, has to be representative of the community in
order to meet Sixth Amendment standards.
|and to be informed of the nature and cause of the accusation;||
The Sixth Amendment gives defendants the
right to know the charges against them. This information is necessary to
prepare a proper defense. Normally, the judge informs the defendant of
the charges against him at the arraignment, a
court hearing where the defendant enters a plea of guilty or not guilty.
A grand jury usually must return an indictment before the defendant is
arraigned for a felony, a
serious crime with a sentence of more than a year in prison. But nothing
more than the arraignment is required for a misdemeanor, a
minor offense with a sentence of a brief jail term or a small fine.
|to be confronted with the witnesses against him;||
This provision, known as the Confrontation
Clause, prevents a witness from testifying in secret against the
accused. It enables a defendant to challenge a witness’s truthfulness in
open court. Through the process of cross-examination, the
defendant can ask questions to dispute the witness’s testimony. Unless
the defendant is unruly, he has the right to be in the courtroom at all
times. But the judge may remove a disruptive defendant from the
|to have compulsory process for obtaining witnesses in his favor,||
The state can compel witnesses to testify in criminal cases, and the Sixth Amendment gives the defendant the same power. Using a subpoena, a court order forcing a witness to testify or produce relevant materials, the defendant can gather the evidence necessary to present a valid defense.
|and to have the Assistance of Counsel for his defence.||
The right to counsel is the most important in the Sixth Amendment, because without it the defendant is unable to assert any other rights he has. It is almost impossible for a layperson to navigate the complicated legal system alone. The Sixth Amendment originally protected only the right to have a lawyer present, but now it also includes the right to a court-appointed lawyer in most criminal cases if the defendant cannot pay for one.
The Constitution includes trial by jury for the third time in the Seventh Amendment. It protects the right to a jury trial in civil cases, those deciding disputes between private parties over noncriminal matters, such as personal injuries or contracts. Criminal cases are those in which the government punishes individuals for committing crimes. The Seventh Amendment also limits a judge’s power to overturn factual decisions by a jury, which could otherwise render a jury’s power meaningless. Some Americans believe that, in an age of increasingly complex litigation, a civil jury is an incompetent artifact that actually endangers due process of law. Others argue that trial by jury, in both civil and criminal cases, ensures that the American people participate directly in self-government.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,
Some legal scholars have proposed that, like English courts, Americans abolish trial by jury in civil cases. Particularly in complex civil litigation, they believe, juries are not the most efficient and competent dispensers of justice. They maintain that juries in some complicated trials—which can involve hundreds of plaintiffs and last more than a year—produce such erratic verdicts that they violate due process of law. But other legal experts maintain that trial by jury, both in civil and criminal cases, is essential to democratic self-government. Only in juries, they point out, do the people directly participate in decision making. In both the executive and legislative branches, the people elect representatives who exercise power on their behalf. Furthermore, these scholars say, judges can be ignorant and incompetent, too.
|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 framers included a provision in the Seventh Amendment prohibiting a judge from disregarding a jury’s determination of the facts, except under circumstances determined by law.... the Supreme Court upheld the general principle that a jury decides the facts of a case, and the judge determines what law is relevant to those facts. The judge’s job is to advise the jury of what verdict, under the law, is required if the jury finds certain facts to be true. The judge gives these legal instructions to the jury before it deliberates. However, the distinction between the law and the facts in a case is not always clear.
The Eighth Amendment protects the rights of prisoners before they are tried and after they are convicted. It prohibits excessive bail, money or property posted as security to obtain release from jail pending trial. The amendment also bars excessive fines and “cruel and unusual” punishments if the accused is found guilty.... According to the Supreme Court, cruel and unusual punishment is defined by “evolving standards of decency.” But Americans continue to debate whether such standards should include the death penalty.
Excessive bail shall not be required, nor excessive fines imposed,
This provision in the Eighth Amendment does
not give an unconditional right to bail. Instead, it specifies that
bail, when allowed, shall not be “excessive.” Federal and state laws
establish the conditions whereby bail is granted. For example, bail may
be denied in capital cases or if the defendant has threatened witnesses.
Bail allows the defendant to remain free pending trial, because a person
is assumed to be innocent until proven guilty.
|nor cruel and unusual punishments inflicted.||
Although this provision bans punishments
that are “cruel and unusual,” it does not specify what they are....
Supreme Court ruled that the prohibition on cruel and unusual
punishments “must draw its meaning from evolving standards of decency
that mark the progress of a maturing society.”
One of the arguments against adding a bill of rights to the Constitution was that such a list might imply those were the only rights the people had. Therefore, when James Madison introduced the Bill of Rights in Congress, he included a provision protecting rights “retained by the people,” but not written down in the Constitution. These unenumerated rights referred to in the Ninth Amendment have proven to be very controversial. Libertarians believe that the Ninth Amendment includes certain fundamental rights, such as privacy, that are so important they must be protected by judges, whether or not they are specifically listed in the Constitution. Advocates of judicial restraint argue that such interpretations of the Ninth Amendment give judges too much discretion, and that it is the job of state legislatures and the people themselves to protect unenumerated rights.
The enumeration in the Constitution, of certain rights,
The rights that are specifically listed in the Constitution receive the highest form of judicial protection. These rights—such as freedom of religion, freedom of speech, and the right to a trial by jury—are considered to be among the most important that Americans have, and judges clearly have the power to compel government officials to enforce them. The Supreme Court has also recognized certain unenumerated rights not listed in the Constitution. Included among these unenumerated rights are the right to travel, the right to vote, and the right to privacy.
|shall not be construed to deny or disparage others retained by the people.||
Perhaps the biggest debate over the Ninth
Amendment is who should protect the rights it includes. Do rights that
are “retained by the people” receive protection by the courts, or by
state legislatures, or by the people themselves? Some legal scholars
believe that the Ninth Amendment’s vague language could give unelected
judges an unlimited license to create constitutional rights and overturn
the decisions of democratic majorities.
The other nine amendments in the Bill of Rights all refer, in some way, to the rights of individuals. But the Tenth Amendment protects powers, not rights—and of the states, not individuals. Although the states had to give up many powers in order to create the new Constitution, they insisted an amendment be added that affirmed their ongoing role in the governmental design. In fact, the Tenth Amendment was the only part of the Bill of Rights that was recommended by all the state conventions that submitted proposed amendments. From the beginning of the nation, the proper balance between the powers of the federal government and the powers of the states caused major dissension, culminating in the Civil War. And in the words of Chief Justice John Marshall, this issue “will probably continue to arise, as long as our system shall exist.”
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States,
The Articles of Confederation had limited the national government to the powers expressly listed—and some members of Congress wanted James Madison’s version of the Tenth Amendment to say so as well. But Madison resisted, arguing that implied powers were necessary to the proper functioning of the national government. This debate over federalism, the system of shared power between national and state governments, continued throughout American history. Some argued in favor of states’ rights, saying that the states had sovereign powers equal to the federal government. Others defended nationalism, the supremacy of the federal government over the states.
|are reserved to the States respectively, or to the people.||
The debate over the proper meaning of the Tenth Amendment has not taken place only in the courts. Battles over federalism fueled American politics for centuries and led to the greatest threat to the U.S. Constitution—the Civil War. Sectional strife characterized the American nation from the beginning, and was pushed to the breaking point by disputes over slavery. The modern-day civil rights movement also resurrected struggles between the federal government and the states.
"National Constitution Center:
Interactive Constitution."National Constitution Center - Near Independence Hall
in Historic Philadelphia. N.p., n.d. Web. 2 Dec. 2012. <http://ratify.constitutioncenter.org/constitution/index_no_flash.php>
Based on: The Words We Live By: Your Annotated Guide to the Constitution by Linda R. Monk (Hyperion/A Stonesong Press Book). Copyright © 2003 Linda R. Monk and The Stonesong Press, Inc.