United States Government/The Bill of Rights

Contents

Colonial America - Articles of Confederation - The Constitutional Convention - Ratification - The Three Branches - The Federal System - General Provisions - The Bill of Rights - The Later Amendments - Legislative Branch - Executive Branch - Judicial Branch

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First Amendment

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

The First Amendment is the best-known amendment to most Americans. It provides for and guarantees certain fundamental and basic human rights, such as:

1. Freedom of religion. The amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This means that Congress cannot make one religion official, or require people to worship in a certain way. It also forbids Congress, Federal and State courts, and State legislatures from prohibiting any one religion from being practiced.

2. Freedom of speech and of the press. The amendment also guarantees that Americans have freedom of speech, and forbids both the Federal Government and State Governments from punishing a person for expressing their views. It also calls for the freedom of the press and bars the Government from interfering with/censoring the press. Therefor the government cannot control the press (i.e. controlling what the press publishes or punishing the same for publishing a particular article or airing on television or radio a particular segment/video.)

3. Freedom of assembly and petition. The amendment guarantees that the people have the right to assemble in a peaceful manner and to consult for their common good. This has also be interpreted by the courts to also guarantee freedom of association. It also states that Americans may petition the Federal Government for a redress of grievances.

Second Amendment

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

The second amendment guarantees that individual Americans have the right to keep and bear firearms. The amendment is subject to many controversies about whether it applies to only people in the armed forces or everyday citizens. The Supreme Court has ruled however in District of Columbia vs Heller (2008) that the amendment applies to everyday citizens. A majority of gun laws and regulation in the USA are at State level.

Third Amendment

"No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law."

Soldiers, according to the Third, may not during peacetime be quartered or housed in a residence without the consent of the owner. Furthermore, even in wartime, a law is required to force people to quarter soldiers.

The Supreme Court and others have also attributed a right to personal privacy within this amendment.

Fourth Amendment

The fourth amendment of the United States Constitution reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The fourth amendment can be broken into two distinct parts. The first part provides protection against unreasonable searches and seizures, although unreasonable has been defined in a myriad of different ways. However, the framers did not qualify how a violation of this amendment was to be punished. Case law has afforded the exclusionary rule to ensure that evidence improperly collected is excluded from trial. (See Wolf v. Colorado, Mapp v. Ohio, and United States v. Leon for more information on the progression of the exclusionary rule.) This gives law enforcement officers the incentive to respect the amendment.

The second part of the amendment provides for the proper issue of warrants. However, it is important to note that it does not require that warrants be obtained prior to a search or seizure, only that searches and seizures are reasonable. When warrants are issued, their must be probable cause. Probable cause is tested using the "totality of circumstances" test as defined in Illinois v. Gates. (See Spinelli v. United States and Illinois v. Gates for the progression on probable cause tests. Also see Maryland v. Garison and Richards v. Wisconsin for more on search warrants.)

Interesting Search and Seizure Cases

• http://www.wdnweb.com/2011/02/17/city-beefs-up-code/
• Katz v. United States: use of electronic eavesdropping by law enforcement
• California v. Greenwood: examination of curbside garbage
• Florida v. Riley: use of aerial surveillance by law enforcement
• United States v. Karo: use of electronic tracking by law enforcement
• Kyllo v. United States: use of thermal imaging by law enforcement

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 offense 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."

While the Fourth protects one against the police, the Fifth guarantees one's rights relating to actual charges of criminal activity. Firstly, the Fifth requires that a Grand Jury (a special body of lay-people) indict, or accuse, a person of a serious crime before he may be tried for it. The sole exception relates to the military, where Grand Juries are not used.

2: the Amendment prohibits "double jeopardy." Once a person has been tried and acquitted (found not guilty), the prosecutor cannot retry him, even if new evidence is discovered. However, the prohibition against double jeopardy does not extend to mistrials. If a jury cannot reach a verdict and the judge declares a mistrial, then the case may be retried.

3: the Amendment provides that a person cannot be compelled to testify against themselves. A person may "plead the Fifth" to avoid self-incrimination. However, the government may grant immunity, or formal protection from prosecution, to a person. Then, the person cannot be punished for what crimes he might have committed, and can be forced to give evidence.

4: the Fifth requires due process to be used. While due process is not defined in the Constitution, one may conclude that it involves fair trials with impartial juries and judges.

5: the Fifth prohibits government from taking away a person's property unless it provides fair compensation.

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The sixth amendment, like the fifth amendment, also guarantees and lays out a person's rights when that person had been accused of committing a crime. Firstly, a person is entitled to a "speedy and public trial by an impartial jury." This means a person cannot be arrested/detained for an unreasonable amount of time before that person goes to trial, and the trial cannot be private, unless the person accused waivers this right and ask that the trial be private. The Supreme Court has also ruled that a trial can be held in private, if by having excess publicity would serve to undermine the accused person's right to due process. Also an accused person has the right to trial by jury, and the trial must held in the State or district in which the crime was alleged to be committed.

Secondly, an accused person has the right to be informed of the "nature and cause of the accusation" against him. Therefore, an indictment must allege all the ingredients of the crime to such a degree of precision that it would allow the accused person to assert double jeopardy if the same charges are brought up in subsequent prosecution.

Thirdly, an accused person has the right to confront/cross-examine the wittiness against him, this also includes the right to cross-examine physical evidence that the prosecution will use against the accused person during the trial. An accused person also has the right to call witness to testify in his favor. If the witness refuses to testify, the court may, at the accused's request, order the witness to do so. However, in some cases the court may refuse to permit a defense witness to testify. For example, if a defense lawyer fails to notify the prosecution of the identity of a witness to gain a tactical advantage, that witness may be precluded from testifying

Fifthly, an accused person has the right to be represented by counsel (i.e. a lawyer) and if the accused person does not have a lawyer, and cannot afford one, the court must, upon the accused's request, appoint a lawyer to represent him. If the accused person is non compos mentis and incapable adequately of making his own defense, the court must, with or without the accused's request, appoint a lawyer to represent him.

Seventh Amendment

"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 reexamined in any court of the United States, than according to the rules of the common law.

The seventh amendment guarantees the right to trial by jury in common law (i.e. civil) suits.

Eighth Amendment

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

The eighth amendment prohibits excessive bail from being required. This means that bail must appropriately match the crime in which the arrested/detained person is accused of committing. Therefor a person arrested for littering cannot be put on bail for 50,000 dollars, as that would be excessive for that respective offense. However bail may be denied if a person is arrested on murder charges. It also prohibits excessive fines from being imposed as punishment for crime and again must appropriately match the respective crime. Lastly, it forbids cruel and unusual punishments.

Ninth Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The ninth amendment states that Americans have more rights than what are listed in the Bill of Rights and that all because a right is not listed in the same, does not mean Americans do not posses that right.

Tenth Amendment

"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.

The Tenth Amendment prevents the Union government from regulating a matter it is not constitutionally entitled to regulate. The Union government, therefore, cannot infringe upon a state's reserved powers.