The past three posts have covered the text of the Constitution for the United States of America as originally signed. The Constitution lays out a framework for how the various branches of the Federal government work and how the Federal and State governments interact. As with any new organization, various issues came up as the framework was implemented. You may remember that Article V of the Constitution anticipated the need for Amendments and laid out the process whereby Amendments could be proposed and enacted into law. To read or review the Constitution and related commentary, see Article I, Article II, and Article III through VII.
Few members of the First Congress wanted to make amending the new Constitution a priority. But James Madison, once the most vocal opponent of the Bill of Rights, introduced a list of amendments to the Constitution on June 8, 1789, and hounded his colleagues relentlessly to secure its passage. Madison had come to appreciate the importance voters attached to these protections, the role that enshrining them in the Constitution could have in educating people about their rights, and the chance that adding them might prevent its opponents from making more drastic changes to it.
The House passed a joint resolution containing 17 amendments based on Madison’s proposal. The Senate changed the joint resolution to consist of 12 amendments. A joint House and Senate Conference Committee settled remaining disagreements in September. On October 2, 1789, President Washington sent copies of the 12 amendments adopted by Congress to the states. By December 15, 1791, three-fourths of the states had ratified 10 of these, now known as the “Bill of Rights.”
The Bill of Rights spells out Americans’ rights in relation to their government. It guarantees civil rights and liberties to the individual citizens. It sets rules for due process of law and reserves all powers not delegated to the Federal Government to the people or the States. And it specifies that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
It is important to remember that no other country in all of human history has had this Constitution and has formally enshrined these natural rights.
They should never be taken for granted and should be
taught, protected, and enforced vigorously.
COMMENTARY AND TEXT:
The First Amendment describes several protections to citizens: to express ideas through speech and the press, to assemble peaceably or gather with a group to protest or for other reasons, and to ask the government to fix problems. It also protects the right to religious beliefs and practices. It prevents the government from creating or favoring a religion. Abridging means to reduce or lessen in duration, extent, or range, authority, etc; to diminish. Free speech is not to be abridged even if you hate it or don’t believe it or don’t want others to have access to it, even if someone defines it as “hate speech”, and whether it is actual vocalized sounds, social media posts, banners, books, etc. This Amendment documents rights that are being sorely tested in our times.
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 Second Amendment protects the right to keep and bear arms. Members of militia were common citizens, not members of the military. They could be called up at any time to defend their State and country. Note the phrase ”being necessary to the security of a free State”: this demonstrates that the representatives of We the People wanted to be certain that no individual citizen should ever be without the right and the means to defend life, liberty, and property and that no State should ever be unable to defend itself against attack. It was generally accepted during the writing of this amendment that free individuals could and should have arms for hunting and for self-defense, and even – in times of tyranny where no other recourse was available – for declaring freedom from an oppressive government. In many State Constitutions, the right to bear arms was specifically not coupled with actual or potential service in a militia.
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 Third Amendment prevents government from forcing homeowners to allow soldiers to use their homes unless during war time and under the provision of a specific law. Before the Revolutionary War, laws gave British soldiers the right to take over private homes. The Third and Fourth Amendments form the basis of what we know as the “right to privacy”.
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 Fourth Amendment bars the government from unreasonable search and seizure of an individual or their private property. Notice the requirement for a sworn warrant with details outlining the “probable cause” for the warrant and the manner and goal of the search/seizure. Unlike many other rights that had been recognized for a century or more in English law and were familiar to the framers, this Amendment was a stark break from British practices even in the colonies. It was – and remains – a revolutionary breakthrough in the recognition of individual liberty, property, and 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, 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 speedy passage by the States of the Bill of Rights indicated a preoccupation with the subject of criminal justice. The framers has in mind much history that has been largely forgotten today by many citizens of America: without fair and standardized protections for those accused of crimes, individual liberty is impossible. By the century, British law had recognized that the Magna Carta and the Law of Nature stood firmly on the side of the individual’s right to self-defense in every form, even including the right not to incriminate oneself. It was less a protector of the guilty or innocent than it was a protector of political and religious freedom – see how the Amendments in the Bill of Rights all support each other!
The Fifth Amendment provides several protections for people accused of crimes from government abuse of legal proceedings. This Amendment states that serious criminal charges must be started by a grand jury. A person cannot be tried twice for the same offense (double jeopardy) or have property taken away without just compensation. Individuals have a right against self-incrimination and cannot be imprisoned without due process of law (fair procedures and trials.) When an individual is accused of a crime while in serving in the military or formal militia or in times of war or declared emergency, other processes may come into play (courts martial, for example).
Supreme Court Justice Abe Fortas once wrote: “A man may be punished, even put to death, by the state; but…he should not be made to prostrate himself before its majesty. Mea culpa belongs to a man and his God. It is a plea that cannot be extracted from free men by human authority. To require it is to insist that the state is the superior of the individuals who compose it, instead of their instrument.”
No person shall be held to answer for a capital [punishable by death], or otherwise infamous crime [leading to severe punishment], 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.
The Sixth Amendment provides additional protections to people accused of crimes, such as the right to a speedy and public trial, trial by an impartial jury in criminal cases, and to be informed of criminal charges. Witnesses must face the accused, and the accused is allowed his or her own witnesses and to be represented by a lawyer. There are several rights named here, so take the time to focus on and appreciate each one.
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.
In 1788, Thomas Jefferson wrote: “I consider trial by jury as the only anchor ever yet imagined by man, by which government can be held to the principles of its constitution”; and in 1789, James Madison wrote: “In suits at common law, trial by jury in civil cases is an essential to secure the liberty of the people as any one of the pre-existent rights of nature”. If you have ever attended or been party to a jury trial – or have been a juror – you know the difference even in atmosphere between a jury trial and a trial by judge only. Trial by a jury composed of 12 locals began in England in the 12th century but had not been allowed for American colonists – one of the many grievances listed in the Declaration of Independence. The Seventh Amendment extends the right to a jury trial in Federal civil cases.
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 Eighth Amendment bars excessive bail and fines and cruel and unusual punishment. The goal of the framers was that the punishment should fit the crime, including elimination of bails and fines that denied any hope of being paid and banning of inhumane treatment and torture. An unusual punishment (death, for example) is allowed as long as it is the result of a proper trial and conviction and is carried out in a way that is not cruel.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The Ninth Amendment states that listing specific rights in the Constitution does not mean that people do not have other rights that have not been spelled out. I love this Amendment. Together with the Tenth Amendment, it really does affirm the fact that We the People – as individual, sovereign human beings – have natural rights limited only by what we choose to grant to the government that we have created. The framers understood our individual “property” to be not only our material possessions but also life, liberty, beliefs, free choice regarding travel and relationships, fair treatment, and more. The government derives its power from us and not the other way around. Never forget that!
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Tenth Amendment says that the Federal Government has only those powers delegated to it by the Constitution. If a power is not listed, it belongs to the States or to the People. This Amendment was written to assure citizens of the new nation that they would not be trading one tyrannical government for another. Our task to to ensure that the limits on and responsibilities given to the federal government are restored and remain in place.
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 marvel of all history is the patience with which men and women submit to burdens unnecessarily laid upon them by their governments.”
– George Washington
“I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them [the people] not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.”
– Thomas Jefferson
“The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government – lest it [the government] come to dominate our lives and interests.”
– Patrick Henry
Wellness Made Simple helps you to simplify the way that YOU do well…for life!
“The Know Your Bill of Rights Book”, Sean Patrick, Oculus Publishers, Inc., 2012
https://catalog.archives.gov/id/3535588 (featured image: Senate changes to the Amendments proposed by the House, 1789, now located in the National Archives)