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The Bill of Rights
[Video file]. (2007). Retrieved April 4, 2017, from
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Please Read the Transcript below from a Bill of Rigts video
AFTER WINNING INDEPENDENCE
FROM ENGLAND,
THE 13 AMERICAN COLONIES
WERE SELF-GOVERNING STATES
LOOSELY UNITED BY A DOCUMENT
KNOWN AS THE ARTICLES OF
CONFEDERATION.
THE DESIRE FOR AN IMPROVED
FEDERAL GOVERNMENT RESULTED
IN THE CONSTITUTIONAL
CONVENTION HELD IN
PHILADELPHIA IN THE SUMMER
OF 1787.

THE MOST PRESSING ISSUE FOR
THE ATTENDEES WAS HOW TO
SHAPE A FEDERAL GOVERNMENT
POWERFUL ENOUGH TO FUNCTION
YET FLEXIBLE ENOUGH TO ALLOW
STATES TO CONTROL THEIR
INTERNAL AFFAIRS.
AS A RESULT, THE FIRST FOUR
ARTICLES OF THE CONSTITUTION
DEAL WITH THE BALANCE OF
POWER BETWEEN STATES AND
BETWEEN BRANCHES OF THE NEW
FEDERAL GOVERNMENT.
THE FRAMERS OF THE
CONSTITUTION ANTICIPATED THE
NEED TO MAKE CHANGES TO THE
CONSTITUTION AS THE WORLD
CHANGED.
THE FIFTH ARTICLE CONTAINS
RULES FOR AMENDING THE
DOCUMENT AND LISTS EACH

AMENDMENT AS IT IS ADDED.
THE FIRST TEN AMENDMENTS
WERE PASSED BY CONGRESS AND
RATIFIED BY THE STATES AS A
GROUP IN 1791.
BECAUSE THEY LIMIT THE
FEDERAL GOVERNMENT'S ABILITY
TO RESTRICT THE RIGHTS OF
INDIVIDUALS AND STATES,
THEY ARE KNOWN AS THE
BILL OF RIGHTS.
SINCE 1791, ONLY 17
ADDITIONAL AMENDMENTS HAVE
BEEN RATIFIED.
THESE 27 AMENDMENTS TELL
SOME OF THE MOST IMPORTANT
STORIES IN AMERICAN
POLITICAL, SOCIAL, AND
CULTURAL HISTORY AND
REINFORCE THE VISION OF OUR

COLONIAL ANCESTORS THAT THE
CONSTITUTION ENDURE AS A
DYNAMIC INSTRUMENT TO
BOTH GOVERN AND PROTECT
THE PEOPLE.
THE FIRST AMENDMENT,
PERHAPS THE MOST IMPORTANT
PROVISION IN THE ENTIRE
CONSTITUTION OF THE UNITED
STATES, HELPS TO PROTECT, AS
LAW, CERTAIN CIVIL LIBERTIES
THAT ARE FUNDAMENTALLY
AMERICAN.
THE FIRST AMENDMENT FORBIDS
THE CONGRESS FROM MAKING ANY
LAWS THAT LIMIT OR RESTRICT
PERSONAL FREEDOMS IN THE
AREAS OF RELIGION, SPEECH,
THE PRESS, THE RIGHT TO
ASSEMBLE PEACEABLY, AND THE

RIGHT TO PETITION THE
GOVERNMENT.
THE FIRST AMENDMENT
SPECIFICALLY PREVENTS THE
CONGRESS FROM RESTRICTING
THESE RIGHTS THROUGH
LEGISLATION OR LAW.
BEFORE 1920, IT WAS ASSUMED
THAT THE FIRST AMENDMENT
OFFERED PROTECTION FROM THE
FEDERAL GOVERNMENT ONLY,
NOT FROM THE STATES.
BUT LATER SUPREME COURT
RULINGS HAVE INTERPRETED AND
APPLIED THE RULES TO THE
INDIVIDUAL STATE GOVERNMENTS
AS WELL.
THE FIRST CLAUSE IN THE
FIRST AMENDMENT PREVENTS

CONGRESS FROM MAKING ANY LAW
RESPECTING AN ESTABLISHMENT
OF RELIGION, OR PROHIBITING
THE FREE EXERCISE THEREOF.
THE MOTIVATING FACTOR BEHIND
THIS WORDING WAS THE
FOUNDING FATHERS' DESIRE TO
AVOID AN OFFICIAL STATE
RELIGION.
WHEN THE GOVERNMENT OF THE
UNITED STATES WAS FIRST
ESTABLISHED, AMERICANS WHO
WERE NOT MEMBERS OF AN
ESTABLISHED CHURCH OBJECTED
TO HAVING THEIR TAXES USED
TO SUPPORT CHURCH
ACTIVITIES.
THEY SAW THE RELATIONSHIP
BETWEEN CHURCH AND
GOVERNMENT AS IMPROPER

BECAUSE IT GAVE ONE GROUP OF
PEOPLE AN ADVANTAGE OVER
ANOTHER.
IT ALSO ALLOWED PUBLIC
OFFICIALS TO INTERFERE IN
RELIGIOUS MATTERS AND THE
LEADERS OF THE OFFICIAL
CHURCHES TO MEDDLE IN THE
AFFAIRS OF THE GOVERNMENT.
FOR EARLY AMERICANS THIS WAS
A GRAVE PROBLEM.
A NUMBER OF THE ORIGINAL
COLONIES WERE FOUNDED BY MEN
AND WOMEN WHO WERE FLEEING
FROM RELIGIOUS PERSECUTION
OR PUNISHMENT FOR THEIR
BELIEFS.
THE FIRST AMENDMENT
PROHIBITS CONGRESS FROM
INTERFERING WITH RELIGIOUS
MATTERS.

OVER THE YEARS THE FREEDOM
OF RELIGION CLAUSE IN THE
FIRST AMENDMENT HAS BEEN
INTERPRETED IN TWO WAYS:
FIRST, AS FORBIDDING THE
CONGRESS FROM SETTING UP AN
OFFICIAL CHURCH OR FAVORING
ONE RELIGION OVER ANOTHER.
AND SECONDLY, AS REQUIRING A
COMPLETE AND TOTAL
SEPARATION OF CHURCH AND
STATE SO THAT NEITHER CAN
HOLD INFLUENCE OVER THE
OTHER.
THE LANGUAGE THAT'S OFTEN
USED TO EXPLAIN THIS IS
JEFFERSON'S LANGUAGE WHERE
HE TALKS ABOUT A WALL OF
SEPARATION BETWEEN THE

GOVERNMENT AND BETWEEN
RELIGION.
THAT'S NOT PART OF THE
CONSTITUTION.
THAT'S NOT PART OF THE FIRST
AMENDMENT.
IT'S ACTUALLY LANGUAGE THAT
JEFFERSON USED IN THE LETTER
WHEN HE WAS EXPLAINING WHAT
HE INTENDED WITH THAT
AMENDMENT.
BUT THIS WALL OF SEPARATION
IS MEANT TO BE THAT THERE
SHOULD NOT BE UNNECESSARY
ENTANGLEMENT BETWEEN
RELIGION AND BETWEEN
THE STATE.
TODAY, THE FEDERAL
GOVERNMENT HAS CONFINED ITS

INVOLVEMENT IN RELIGIOUS
ISSUES TO A FEW SELECT
CIRCUMSTANCES.
BECAUSE PUBLIC SCHOOLS ARE
SUCH A VISIBLE ARM OF THE
GOVERNMENT, THEY ARE ALSO
AMONG THE MOST SUSCEPTIBLE
TO FIRST AMENDMENT
CHALLENGES, ESPECIALLY
RELIGIOUS.
IN TWO SUCH CASES IN THE
1940'S THE SUPREME COURT
HEARD ARGUMENTS AGAINST
MANDATORY FLAG SALUTES IN
SCHOOLS.
THESE CASES WERE BOTH
PRESENTED BY FAMILIES OF
JEHOVAH'S WITNESSES WHO FELT
THAT THEIR CHILDREN SHOULD
NOT BE REQUIRED TO SALUTE

THE AMERICAN FLAG BECAUSE OF
THEIR RELIGIOUS BELIEFS.
ULTIMATELY, THE SUPREME
COURT DECIDED THAT SCHOOL
DISTRICTS OR STATES COULD
NOT REQUIRE THEIR STUDENTS
TO SALUTE THE AMERICAN FLAG.
IN A 1968 CASE INVOLVING
SCHOOLS AND RELIGION, THE
SUPREME COURT RULED AGAINST
ARKANSAS'S ATTEMPTS TO
PREVENT A BIOLOGY TEACHER
FROM TEACHING HIS PUPILS
ABOUT THE THEORY OF
EVOLUTION.
AND IN 1985, THE SUPREME
COURT RULED THAT IT WAS
UNCONSTITUTIONAL FOR ALABAMA
TO AUTHORIZE DAILY
ONE-MINUTE PERIODS OF SILENT

MEDITATION OR VOLUNTARY
PRAYER.
RELIGIOUS INTERESTS HAVE
ALSO BEEN HEARD IN CASES
REGARDING THE LEGALITY AND
NECESSITY OF COMPULSORY
MILITARY SERVICE.
DURING WORLD WAR I, CONGRESS
REQUIRED THAT CONSCIENTIOUS
OBJECTORS, PEOPLE WHO
REFUSED TO USE VIOLENCE, BE
ASSOCIATED WITH A
WELL-RECOGNIZED RELIGIOUS
SECT OR ORGANIZATION WHOSE
EXISTING CREED OR PRINCIPLES
FORBIDS ITS MEMBERS TO
PARTICIPATE IN WAR IN ANY
FORM.
THE LAW, PROVIDING FOR DRAFT
EXEMPTION DURING WORLD WAR
II, HOWEVER, DID NOT REQUIRE

ASSOCIATION WITH A SPECIFIC
CHURCH BUT EXEMPTED
INDIVIDUALS WHOSE OPPOSITION
WAS BASED ON RELIGIOUS
TRAINING AND BELIEF.
LATER VERSIONS OF THE DRAFT
LAW ADOPTED BY CONGRESS
ALLOWED EXEMPTION FOR
BELIEFS THAT INVOLVED A
RELATION TO A SUPREME BEING.
IN UNITED STATES VERSUS
SEEGER, 1965, DONALD SEEGER
ATTEMPTED TO JUSTIFY HIS
1957 CLAIM THAT HE WAS A
CONSCIENTIOUS OBJECTOR.
SEEGER REFUSED TO
ACKNOWLEDGE HIS BELIEF IN A
SUPREME BEING AND ARGUED
THAT RELIGIOUS CONVICTIONS
COULD EXIST WITHOUT

BELONGING TO AN ORTHODOX
SECT.
SEEGER WAS EVENTUALLY
CLASSIFIED AS A
CONSCIENTIOUS OBJECTOR AND
EXEMPTED FROM SERVICE.
THANKS TO THE TWO RELIGIOUS
LIBERTY CLAUSES IN THE FIRST
AMENDMENT, THE UNITED STATES
HAS THE MOST RELIGIOUSLY
DIVERSE AND PLURALISTIC
SOCIETY OF ANY COUNTRY IN
THE WORLD.
NO MATTER WHAT YOUR
RELIGIOUS BELIEFS ARE, OR
FOR THAT MATTER IF YOU HAVE
NO RELIGIOUS BELIEFS, THE
GOVERNMENT MAY NOT INTERFERE
WITH THEM.
CONVERSELY, GOVERNMENT MAY
NOT PROMOTE OR ADVANCE ANY

PARTICULAR RELIGION OR
RELIGION IN GENERAL.
THE RIGHT TO FREE SPEECH HAS
BEEN CONSIDERED ONE OF OUR
NATION'S MOST FUNDAMENTAL
LIBERTIES.
EARLY AMERICANS WHO
EXPRESSED IDEAS THAT WERE
NOT POPULAR GOT INTO TROUBLE
WITH COLONIAL OFFICIALS,
PARTICULARLY WHEN THE
GOVERNMENT ITSELF WAS
CRITICIZED.
A PERSON WHO SPOKE OUT
AGAINST AUTHORITY WAS LIKELY
TO BE FINED OR PLACED IN THE
STOCKS OR JAIL.
THE FOUNDING FATHERS WANTED
TO PROTECT FORMS OF SPEECH
THAT HAD PREVIOUSLY BEEN

RESTRICTED BY ENGLISH
GOVERNMENT.
OVER THE YEARS THE SUPREME
COURT HAS JUDGED CASES IN
WHICH IT WAS NECESSARY TO
DEFINE WHAT KINDS OF
EXPRESSION WERE PROTECTED BY
THE FREE SPEECH CLAUSE OF
THE FIRST AMENDMENT.
IN SOME CASES THE SPEECH IN
QUESTION WAS NOT VERBAL BUT
SYMBOLIC.
FOR INSTANCE, IN 1969,
PUBLIC SCHOOL STUDENTS IN
DES MOINES, IOWA PROTESTING
THE WAR IN VIETNAM WORE
SYMBOLIC BLACK ARM BANDS AS
AN EXPRESSION OF THEIR
PROTEST OF THAT WAR.
THE COURT RULED THAT THE ARM
BANDS FIT THE DEFINITION OF

SPEECH AND THE STUDENTS
DESERVED FIRST AMENDMENT
PROTECTION.
THE COURT HAS ALSO QUALIFIED
AND DEFINED THE PROTECTIONS
OF THE SPEECH CLAUSE ON MANY
OTHER SYMBOLIC FORMS OF
SPEECH SUCH AS THE FLAG,
WORKS OF ART, T-SHIRT
SLOGANS, POLITICAL BUTTONS,
MUSICAL LYRICS, AND
THEATRICAL PERFORMANCES.
WHILE THE FIRST AMENDMENT
PROHIBITS CONGRESS FROM
MAKING LAWS RESTRICTING
FREEDOM OF SPEECH, RULINGS
OF THE SUPREME COURT HAVE
MADE IT CLEAR THAT NOT ALL
SPEECH IS PROTECTED.
ONE FREE SPEECH DECISION
REFLECTIVE OF AN ERA WAS

SCHENCK VERSUS UNITED
STATES, 1919.
SCHENCK WAS A CASE WHICH
INVOLVED THE ACTIVITIES OF
THE SOCIALIST PARTY AND WAS
THE FIRST FREE SPEECH CASE
TO REACH THE SUPREME COURT,
ESTABLISHING AN IMPORTANT
TEST FOR FIRST AMENDMENT
SPEECH.
SCHENCK HAD LED AN EFFORT TO
PRODUCE AND MAIL 15,000
LEAFLETS SPECIFICALLY TO MEN
BEING DRAFTED FOR WAR IN
1917.
THE MAILINGS WERE RECEIVED
IN THE MIDST OF WORLD WAR I
AND URGED THEIR RECIPIENTS

TO RESIST THE DRAFT.
SCHENCK AND HIS COLLEAGUES
WERE ARRESTED FOR HAVING
VIOLATED THE ESPIONAGE ACT
OF 1917.
THE SUPREME COURT RULED THAT
SCHENCK'S CONVICTION WAS
CONSTITUTIONAL, AND IN THIS
CASE THE SPEECH WAS NOT
PROTECTED BY THE FIRST
AMENDMENT.
JUSTICE OLIVER WENDELL
HOLMES JUSTIFIED THE
DECISION IN THE FAMOUS
STATEMENT:
JUSTICE HOLMES, ALONG WITH
JUSTICE LOUIS D. BRANDEIS,
CONCLUDED THAT SCHENCK'S
LEAFLETS FAILED THE
"CLEAR AND PRESENT DANGER"
TEST.

FOR YEARS THERE WAS A
STANDARD WHICH WAS A CLEAR
AND PRESENT DANGER STANDARD
WHEN INTERPRETING IT.
SO IF THE WORDS CREATED A
CLEAR AND PRESENT DANGER,
THEY COULD BE CENSORED
BEFOREHAND.
MORE RECENTLY, THE COURT HAS
DEVELOPED A NEW STANDARD FOR
THE PROTECTION OF FREE
SPEECH BY A DECISION MADE IN
BRANDENBERG VERSUS OHIO
IN 1969.
WHILE STRIKING DOWN THE
CONVICTION OF A KU KLUX KLAN
MEMBER, THE COURT RULED THAT
SPEECH COULD ONLY BE
SUPPRESSED IF IT IS LIKELY
TO PRODUCE IMMINENT LAWLESS

ACTION.
THIS BRANDENBERG STANDARD
PREVAILS EVEN TODAY AND HAS
BEEN FUNDAMENTAL TO THE
CURRENT UNDERSTANDING THAT
EVEN THE MOST VIOLENT OF
SPEECH IS TO BE PROTECTED.
THE CURRENT POSITION OF THE
SUPREME COURT HAS ULTIMATELY
BEEN EFFECTIVE IN
MAINTAINING THE
PERMISSIBILITY OF NEARLY ALL
FORMS OF SPEECH.
VERY FEW FORMS OF SPEECH
HAVE BEEN JUDGED NOT TO
MERIT FIRST AMENDMENT
PROTECTION.
EVEN WHEN SPEECH IS
UNPOPULAR, VIOLENT OR
HATEFUL, IT IS AMONG THE
MOST SACRED AND BEST

PROTECTED OF AMERICAN
INSTITUTIONS.
OUR PRECIOUS FREE SPEECH
RIGHTS UNDER THE FIRST
AMENDMENT ARE PROBABLY THE
MOST IMPORTANT OF ALL OF OUR
RIGHTS AS THE SUPREME COURT
HAS OFTEN SAID BECAUSE
WITHOUT FREEDOM OF SPEECH
AND FREEDOM OF THOUGHT AND
FREEDOM OF CONSCIENCE, WE
CAN'T EXERCISE ANY OF OUR
OTHER RIGHTS.
WE CAN'T EFFECTIVELY
EXERCISE THE RIGHT TO VOTE,
FOR EXAMPLE, SO FREE SPEECH
IS THE MOST IMPORTANT
GUARANTOR OF OUR DEMOCRACY
AND OUR LIBERTY.

THE FIRST AMENDMENT FORBIDS
THE FEDERAL GOVERNMENT TO
RESTRICT THE FREEDOM OF THE
PRESS.
A FREE PRESS, INCLUDING ALL
NEWS MEDIA, IS AN AMERICAN
INSTITUTION AND ITS PLACE IN
THE FIRST AMENDMENT SEEMS TO
GUARANTEE ITS FUTURE
PRESENCE.
WITHOUT A FREE PRESS, A
DEMOCRATIC FORM OF
GOVERNMENT WOULD BE
UNLIKELY.
A FREE PRESS IS A WATCHDOG
THAT GUARDS ALL OF OUR
INDIVIDUAL FREEDOMS.
IN THE LAST DAYS OF THE
CONSTITUTIONAL CONVENTION,
VIRGINIA'S GEORGE MASON

ARGUED THAT THE CONSTITUTION
WOULD BE INCOMPLETE AS IT
INCLUDED:
FREEDOM OF THE PRESS
WAS AMONG THE FIRST
AMENDMENTS TO BE ADVOCATED
BY THE DELEGATES TO THE
CONSTITUTIONAL CONVENTION
WHO REQUESTED PASSAGE OF A
BILL OF RIGHTS CONTINGENT
UPON THEIR STATE'S
RATIFICATION.
THERE ARE ONLY A FEW FREE
PRESS ISSUES THAT HAVE BEEN
HEAVILY LITIGATED BEFORE THE
SUPREME COURT.
MOST NOTABLE AMONG THESE IS
THE DOCTRINE OF "PRIOR
RESTRAINT".

PRIOR RESTRAINT REFERS TO
THE PRACTICE OF CENSORING
THE PRESS BEFORE THE
PRINTING OF A PUBLICATION OR
DOCUMENT.
PRIOR RESTRAINT FIRST CAME
BEFORE THE SUPREME COURT IN
J. NEAR VERSUS MINNESOTA
IN 1931.
THE STATE OF MINNESOTA HAD
LEGISLATION IN PLACE THAT
CAME TO BE KNOWN AS THE
MINNESOTA GAG LAW.
THE GAG LAW ALLOWED THE
STATE TO SHUT DOWN ANY
PUBLICATION DEEMED TO BE A
PUBLIC NUISANCE.
A WEEKLY NEWSPAPER, THE
SATURDAY PRESS, BEGAN
PUBLISHING BLATANTLY RACIST

AND ANTI-SEMITIC ACCUSATIONS
AGAINST LOCAL ELECTED
OFFICIALS.
DETERMINING THE ACTIONS OF
EDITOR JAY M. NEAR TO BE
A PUBLIC NUISANCE,
THE LOCAL COUNTY ATTORNEY
TOOK ACTION TO STOP FURTHER
PUBLICATION OF THE
SATURDAY PRESS.
A LOWER COURT AND MINNESOTA
SUPREME COURT UPHELD A
RESTRAINING ORDER UNDER THE
GAG LAW.
THE GAG LAW, HOWEVER, WAS
STRUCK DOWN WHEN IT CAME
BEFORE THE U.S.
SUPREME COURT.
CHIEF JUSTICE CHARLES EVANS
HUGHES STATED THAT THE PAPER

COULD NOT BE STOPPED PRIOR
TO PUBLICATION OF AN ARTICLE
BUT THAT INDIVIDUALS LIBELED
BY THE PUBLICATION COULD
TAKE LEGAL ACTION AGAINST
THE SATURDAY PRESS.
THE PENTAGON PAPERS CASE OF
NEW YORK TIMES CO.
VERSUS THE UNITED STATES,
1971, INVOLVED THE
PUBLICATION OF INFORMATION
CLASSIFIED BY THE GOVERNMENT
BUT OBTAINED BY THE PRESS.
SECRETS REGARDING THE
ACTIVITIES OF HIGH-RANKING
FEDERAL GOVERNMENT OFFICIALS
WERE INCLUDED IN WHAT BECAME
KNOWN AS THE PENTAGON PAPERS
- DOCUMENTS PROVIDED BY
DEFENSE DEPARTMENT EMPLOYEE

DANIEL ELLSBERG.
THE SUPREME COURT RULED IN
FAVOR OF THE NEW YORK TIMES
AND OVERTURNED INJUNCTIONS
PLACED AGAINST THE
PUBLICATION OF THE DOCUMENTS
IN THE NEW YORK TIMES AND
THE WASHINGTON POST.
ALL OF THE SUPREME COURT
JUSTICES ISSUED OPINIONS ON
THE CASE.
JUSTICE HUGO L. BLACK WROTE:
THE FREEDOM OF THE PRESS
CASES THAT HAVE COME UP
HAVE COME UP BOTH IN CASES
WHERE WE WANT PRIOR
RESTRAINT, LIKE THEY DID
DURING THE TIME WHEN THE

NIXON ADMINISTRATION TRIED
TO LIMIT DANIEL ELLSBERG
FROM PUBLISHING THE PENTAGON
PAPERS, AND IN CASES WHERE
AFTER THE FACT PEOPLE SUE
NEWS MEDIUMS FOR WHAT
THEY REPORT.
WHAT IS INTERESTING IS THAT
GENERALLY THE MEDIA WINS
FIRST AMENDMENT CASES.
THE RIGHT OF PUBLICATION,
THE FREEDOM OF THE PRESS IS
A RIGHT WHICH SEEMS TO BE A
WINNER ALL ALONG THE WAY.
ALSO GUARANTEED IN THE FIRST
AMENDMENT IS THE RIGHT OF
CITIZENS TO PETITION THE
GOVERNMENT TO CHANGE THEIR
POLICY OR MAKE AMENDS FOR
PAST WRONGS.

THE FIRST LARGE-SCALE
AMERICAN USE OF THE RIGHT TO
PETITION CAME IN THE EARLY
1830'S WHEN CONGRESS WAS
FLOODED WITH PETITIONS
AGAINST SLAVERY IN THE
DISTRICT OF COLUMBIA.
THIS PRACTICE ESCALATED TO
SUCH A DEGREE THAT IN 1840
THE HOUSE OF REPRESENTATIVES
ADOPTED A STANDING RULE:
BECAUSE OF THE EFFORTS OF
JOHN QUINCY ADAMS, THIS RULE
WAS REPEALED FIVE YEARS
LATER.
EVEN SO, PETITIONS FOR THE
REPEAL OF THE ESPIONAGE AND
SEDITION LAWS AND AGAINST
MILITARY MEASURES FOR

RECRUITING IN WORLD WAR I
OFTEN RESULTED IN
IMPRISONMENT.
SINCE THE 1950'S, THE COURT
HAS FOLLOWED A BALANCING
APPROACH WHEREBY THE PRIVATE
AND PUBLIC INTERESTS ARE
WEIGHED IN EACH PETITION AND
ASSEMBLY CASE.
THESE HAVE INCLUDED THE
ILLEGALITY OF POLICE
STOPPING A PEACEFUL MARCH
PROTESTING RACIAL
DISCRIMINATION;
NUMEROUS COLD WAR ERA
DECISIONS REGARDING LOYALTY
OATHS;
AND THE RIGHT OF WOMEN TO
JOIN THE ALL-MALE ROTARY CLUB.
TODAY CASES TEND TO MERGE
THE RIGHTS OF ASSEMBLY AND

PETITION INTO THE SPEECH AND
PRESS CLAUSES AND, INDEED,
ALL OF THESE RIGHTS ARE
CONSIDERED AS ELEMENTS OF AN
INCLUSIVE RIGHT TO FREEDOM
OF EXPRESSION.
AS THE SUPREME COURT HAS
OFTEN SAID, OUR FIRST
AMENDMENT RIGHTS - OUR
FREEDOM OF SPEECH, FREEDOM
OF THOUGHT, FREEDOM OF
CONSCIENCE, FREEDOM OF
RELIGION - THESE ARE
PREFERRED RIGHTS IN THE
SENSE THAT THEY ARE
PREREQUISITES FOR THE
EXERCISE AND ENJOYMENT OF
ALL OF OUR OTHER RIGHTS.
IF WE DON'T HAVE FREEDOM OF
SPEECH, FOR EXAMPLE, WE

CAN'T ORGANIZE, WE CAN'T
PROTEST, WE CAN'T
DEMONSTRATE TO ADVOCATE FOR
OTHER RIGHTS SUCH AS CIVIL
RIGHTS AND
NONDISCRIMINATION.
THE RIGHTS GUARANTEED IN THE
FIRST AMENDMENT ARE VITAL TO
DEMOCRACY, BUT IN ORDER FOR
FREEDOM TO FLOURISH PEOPLE
MUST USE THAT FREEDOM
RESPONSIBLY.
THERE WILL ALWAYS BE SOME
PEOPLE WHO ABUSE THE
PRIVILEGES OF FREEDOM.
DO WE TOLERATE THE ABUSES OF
THE FEW TO PRESERVE FREEDOM
FOR THE MANY?
OR DO WE RESTRICT EVERYONE'S
FREEDOM IN ORDER TO PUNISH

THE IRRESPONSIBILITY OF
A FEW?
ISSUES CONCERNING FREEDOM
VERSUS RESPONSIBILITY ARE
ALWAYS DIFFICULT TO RESOLVE.
EACH GENERATION MUST TACKLE
THESE QUESTIONS TO DETERMINE
THE MEANING AND LIMITS
OF FREEDOM IN THE
UNITED STATES.
IN 1789 WHEN THE BILL OF
RIGHTS WAS FIRST PROPOSED,
NATIONAL SENTIMENT WAS
AGAINST KEEPING STANDING
ARMIES BECAUSE OF THE FEAR
OF OPPRESSION BY A
GOVERNMENT CONTROLLING SUCH
AN ARMY.
INSTEAD, STATES HAD FORMED

MILITIAS, ARMED CITIZENS WHO
COULD MOBILIZE FOR COMMON
DEFENSE.
MILITIA TROOPS MADE UP A
LARGE PART OF THE FORCES
DURING THE AMERICAN
REVOLUTION.
AFTER WINNING THEIR
INDEPENDENCE, THE STATES
FEARED THAT THE NEW
GOVERNMENT MIGHT TRY TO TAKE
OVER THEIR MILITIAS.
THE SECOND AMENDMENT WAS
RATIFIED SO THAT THE FEDERAL
GOVERNMENT WOULDN'T DO THAT.
SOME STATE MILITIAS SERVED
IN THE WAR OF 1812, BUT BY
1916 THE MILITIAS HAD
EVOLVED INTO THE NATIONAL
RESERVE.

BY 1933, THEY WERE ALMOST
COMPLETELY FEDERALLY FUNDED
AND BECAME PART OF THE U.S.
MILITARY.
TODAY WITH OVER 200 MILLION
PRIVATELY OWNED GUNS
IN THE U.S.
AND VIOLENT CRIME COMMON,
THE RIGHT TO BEAR ARMS HAS
BECOME A HOTLY CONTESTED
NATIONAL DEBATE.
WHILE SOME ARGUE THAT THE
ORIGINAL INTENT OF THE
AMENDMENT WAS TO PROTECT THE
RIGHTS OF EACH STATE TO
MAINTAIN A MILITIA, OTHERS
ARGUE THAT THE SECOND
AMENDMENT REALLY CONCERNS
INDIVIDUAL CITIZENS.
THEY INTERPRET THE PHRASE

"THE RIGHT OF THE PEOPLE" TO
MEAN THE RIGHT OF
INDIVIDUALS.
FOR THEM, THE NEXT PORTION
OF THE AMENDMENT, "TO KEEP
AND BEAR ARMS" IS READ
LITERALLY AND INTERPRETED
BROADLY.
THIS VIEW IS ENDORSED BY
ORGANIZATIONS SUCH AS THE
NATIONAL RIFLE ASSOCIATION,
OR NRA.
CONVERSELY, GUN CONTROL
PROPONENTS SEE THE SECOND
AMENDMENT AS SOMETHING THAT
APPLIES TO THE PEOPLE OF THE
NATION AS A WHOLE RATHER
THAN INDIVIDUAL CITIZENS.
TO THEM, THE PHRASE "A WELL
REGULATED MILITIA BEING

NECESSARY TO THE SECURITY OF
A FREE STATE" SUPPORTS THE
ARGUMENT THAT THE RIGHT TO
BEAR ARMS IS NOT AN
INDIVIDUAL RIGHT BUT A RIGHT
THAT STATES HAVE TO
DETERMINE WHAT IS NECESSARY
TO MAINTAIN THEIR OWN
SECURITY.
SUPREME COURT RULINGS HAVE
UPHELD BOTH THE INDIVIDUAL'S
RIGHT TO POSSESS CERTAIN
FIREARMS AND THE
GOVERNMENT'S RIGHT TO
REGULATE GUN OWNERSHIP.
IN PRESSER VERSUS ILLINOIS,
1886, THE SUPREME COURT HELD
THAT ALL CITIZENS CAPABLE OF
BEARING ARMS CONSTITUTE THE

RESERVE MILITIA OF THE
UNITED STATES.
HOWEVER, IN UNITED STATES
VERSUS MILLER, A 1939
SUPREME COURT CASE DECIDED
THAT THE AMENDMENT DID NOT
ALLOW FOR ANYONE TO BEAR ANY
TYPE OF FIREARM THAT WOULD
NOT BE USED BY A WELL
REGULATED MILITIA.
THE SPECIFICS IN THIS CASE
CENTERED AROUND SAWED-OFF
SHOTGUNS WHICH HAD BECOME
POPULAR AMONG GANGSTERS OF
THE PERIOD BECAUSE THEY
COULD BE EASILY CONCEALED.
JUSTICE J. MCREYNOLDS
WROTE THE SUPREME COURT'S
LEAD OPINION IN THE CASE:
IN 1993, CONGRESS PASSED

THE HANDGUN VIOLENCE
PROTECTION ACT COMMONLY
KNOWN AS THE BRADY BILL.
UNDER THIS ACT, THOSE
WISHING TO PURCHASE A
HANDGUN FROM A FEDERALLY
LICENSED FIREARMS DEALER
MUST WAIT FIVE DAYS AND
SUBMIT TO A BACKGROUND
CHECK.
THE DEBATE OVER THE RIGHT
TO BEAR ARMS HAS BECOME ONE
BETWEEN GROUPS LIKE THE
NATIONAL RIFLE ASSOCIATION
AND GROUPS THAT SUPPORT THE
BRADY BILL AND WHAT HAS
HAPPENED IS EACH LOOKS TO
THE SECOND AMENDMENT TO
PROVE ITS ARGUMENT.
MY PREDICTION IS THAT THE

SUPREME COURT IS GOING TO
CONTINUE TO INTERPRET THE
SECOND AMENDMENT AS THE
SUPREME COURT ALWAYS HAS AS
NOT HAVING ANYTHING TO DO
WITH THE INDIVIDUAL RIGHT TO
BEAR ARMS.
HOWEVER, HAVING SAID THAT,
THE SENTIMENT IN THIS
COUNTRY IS SO STRONG IN
FAVOR OF THE INDIVIDUAL
RIGHT OF GUN OWNERSHIP, I
THINK AS A POLITICAL MATTER
AND AS A SYMBOLIC MATTER THE
SECOND AMENDMENT IS GOING TO
BE HELD UP AS A WAY TO
DEFEAT ANY GUN CONTROL LAWS
IN CONGRESS OR STATE
LEGISLATURES.
I THINK IN MANY WAYS THE

REFLECTION BACK ON THE
SECOND AMENDMENT MISSES THE
DEBATE THAT WE REALLY SHOULD
BE HAVING TODAY, WHICH IS A
DEBATE ABOUT VIOLENCE AND
ABOUT THE DEGREE OF VIOLENCE
IN OUR SOCIETY.
INTERPRETATIONS OF THE
MEANING AND INTENT OF THE
SECOND AMENDMENT REMAINS
CENTRAL TO THE ONGOING
DEBATE OVER THE RIGHT TO
KEEP AND BEAR ARMS.
WHEN JAMES MADISON
SUBMITTED HIS FIRST DRAFT OF
THE BILL OF RIGHTS THERE WAS
LITTLE DEBATE AS TO THE
NECESSITY OF THE THIRD
AMENDMENT.

PRIOR TO THE AMERICAN
REVOLUTION A SERIES OF
TAXATION AND OTHER ACTS
REGULATING BRITAIN'S
COLONIES IN THE AMERICAS HAD
BECOME KNOWN COLLECTIVELY AS
THE "INTOLERABLE ACTS" BY
THOSE COLONISTS WHO
OPPOSED THEM.
THESE ACTS INCLUDED THE
QUARTERING ACT OF 1774.
THE QUARTERING ACT SPECIFIED
THAT WHERE BRITISH BARRACKS
WERE FULLY OCCUPIED,
SOLDIERS WERE TO BE
QUARTERED IN LIVERY STABLES,
INNS AND ALE HOUSES.
IT CALLED, IN FACT, FOR THE
HOUSING OF BRITISH TROOPS

WHEREVER NECESSARY,
INCLUDING PRIVATE HOMES.
QUARTERING OF THE BRITISH
TROOPS NATURALLY ENRAGED
THE COLONISTS.
IT WAS VIEWED AS AN INVASION
OF PRIVACY AND AN ECONOMIC
BURDEN.
IN DEBATES HELD AT THE
VIRGINIA RATIFYING
CONVENTION IN 1788,
PATRICK HENRY STATED:
BECAUSE THE THIRD AMENDMENT
OFFERS PROTECTION FROM
SUCH A SPECIFIC OCCURRENCE,
THE NATION'S COURTS HAVE
FACED ONLY A HANDFUL OF
CASES RELYING UPON
INTERPRETATION OF THE
THIRD AMENDMENT SINCE

THE AMERICAN REVOLUTION.
IN ONE CASE AN ARMY
RESERVIST COMPLAINED THAT
ORDERS TO PARTICIPATE IN A
VETERANS PARADE VIOLATED HIS
THIRD AMENDMENT RIGHTS.
NEEDLESS TO SAY THIS STRETCH
OF THE LAW WAS QUICKLY
DISMISSED.
MOST CONSTITUTIONAL SCHOLARS
CONSIDER ONE INCIDENT TO BE
HISTORY'S ONLY RELEVANT
OPPORTUNITY FOR THE
AMENDMENT'S INTERPRETATION.
IN APRIL 1979, MOST OF THE
CORRECTIONS OFFICERS AT THE
MID-ORANGE CORRECTIONAL
FACILITY IN WARWICK, NEW
YORK JOINED A STATEWIDE
STRIKE AND WALKED OFF

THE JOB.
MANY OF THE OFFICERS AT THE
MID-ORANGE FACILITY LIVED IN
DORMITORY STYLE HOUSING
UNITS ON THE GROUNDS OF
THE INSTITUTION.
THESE UNITS WERE OWNED BY
THE STATE AND OFFICERS HAD A
HOUSING FEE DEDUCTED FROM
THEIR PAYCHECKS EACH MONTH.
WHEN THE WALK-OUT OCCURRED,
STRIKING RESIDENT OFFICERS
WERE LOCKED OUT OF THE
FACILITY, INCLUDING THE
LIVING SPACE.
IN APRIL 1979, NEW YORK
GOVERNOR HUGH CAREY
MOBILIZED THE NATIONAL GUARD
TO TEMPORARILY PROVIDE

SECURITY IN THE STATE
PRISONS.
THROUGHOUT THE THREE-WEEK
STRIKE, GUARDSMEN WERE
HOUSED IN THE ROOMS OF
STRIKING OFFICERS WITHOUT
CONSENT.
SEEING THE CASE AS A
VIOLATION OF THEIR
CONSTITUTIONALLY PROVIDED
RIGHTS, MARIANNE E. ENGBLOM
AND CHARLES E. PALMER SUED
GOVERNOR CAREY FOR DAMAGES
UNDER THE THIRD AMENDMENT.
A NEW YORK FEDERAL DISTRICT
COURT RULED THAT THE
GUARDSMEN, BEING THE
CONSTITUTIONALLY STIPULATED
SUCCESSORS TO A MILITIA,
WERE INDEED SOLDIERS AS

REQUIRED BY THE TEXT OF THE
AMENDMENT.
BUT IT WAS JUDGED THAT THE
LIVING QUARTERS WOULD ONLY
REMAIN HOMES AS LONG AS THE
OFFICERS KEPT THEIR JOBS.
THE COURT RULED THAT THIS
CASE DID NOT CONCERN A HOUSE
AS SPECIFIED IN THE TEXT OF
THE AMENDMENT.
NO CASE INTERPRETING THE
THIRD AMENDMENT HAS EVER
BEEN TESTED IN THE
SUPREME COURT.
THE THIRD AMENDMENT HAS NO
DIRECT IMPACT IN THE SENSE
THAT WE DON'T ANY LONGER
HAVE A PROBLEM WITH FORCED
QUARTERING OF TROOPS IN
PRIVATE HOMES.

THAT WAS A VERY REAL PROBLEM
FOR OUR COLONIAL ANCESTORS.
IT DOESN'T MEAN THAT YOU
CAN'T HAVE TROOPS EVER GO
INTO YOUR HOME BUT IT CAN
ONLY BE DONE AT A TIME OF
DECLARED WAR AND IT CAN ONLY
BE DONE AT A TIME AND UNDER
PROCEDURES THAT THEY HAVE
TO FOLLOW.
SO IT ISN'T TO SAY THAT YOU
COULD NEVER EVER HAVE THE
MARINES SHOWING UP AT YOUR
DOOR AND ASKING TO STAY
OVER, BUT IF THEY DO THAT
YOU'RE GOING TO HAVE TO BE
COMPENSATED FOR IT.
HOWEVER, INDIRECTLY THE
THIRD AMENDMENT CONTINUES TO

BE EXTREMELY SIGNIFICANT
BECAUSE THE SUPREME COURT IN
MODERN TIMES HAS CITED IT AS
AN EXAMPLE OF THE FRAMERS'
CONCERN FOR INDIVIDUAL
PRIVACY.
THE PRINCIPLE UNDERLYING THE
THIRD AMENDMENT REMAINS
SIGNIFICANT IN THAT IT
IMPLIES THE RIGHTS OF
CITIZENS TO PRIVACY IN
THEIR HOMES.
AND WHILE THE THIRD
AMENDMENT HAS NEVER BEEN
WIDELY APPLIED, IT
NEVERTHELESS PROVIDES AN
EXPLICIT DESCRIPTION OF A
GUARANTEED CIVIL RIGHT,
PERHAPS MOST NOTABLE IN
PLACING IMPORTANCE IN THE

CITIZENRY BEFORE THE
MILITARY.
LIKE OTHER AMENDMENTS IN
THE BILL OF RIGHTS, THE
FOURTH AMENDMENT'S GUARANTEE
AGAINST UNREASONABLE
SEARCHES AND SEIZURES STEM
FROM THE DESIRE FOR
PROTECTED PERSONAL
LIBERTIES.
THE FOURTH AMENDMENT GREW
FROM THE COLONISTS' STRONG
OBJECTION TO THE RIGHTS
GIVEN TO COLONIAL OFFICIALS
OF THE BRITISH GOVERNMENT TO
ENTER ANY HOME TO SEARCH AND
SEIZE BELONGINGS WITHOUT A
VALID SUSPICION OF
WRONGDOING OR PROBABLE

CAUSE.
PRIOR TO THE CONSTITUTION,
WRITS OF ASSISTANCE OR
GENERAL WARRANTS AUTHORIZED
THE BEARER TO ENTER ANY
HOUSE TO SEARCH FOR AND
SEIZE PROHIBITED AND
UN-CUSTOMED GOODS.
WITH THESE VAGUE DOCUMENTS,
AGENTS OF THE CROWN WERE
ABLE TO CONDUCT POORLY
DEFINED BROAD SEARCHES OF
PEOPLE AND PROPERTY.
THE FOURTH AMENDMENT IS
ONE OF OUR MOST IMPORTANT
RIGHTS.
IT SAYS THAT BEFORE ANY
GOVERNMENT OFFICIAL, SUCH AS
A POLICE OFFICER, MAY

INTRUDE IN YOUR PRIVACY,
YOUR FREEDOM OF MOVEMENT, HE
OR SHE HAS TO HAVE PROBABLE
CAUSE, A PARTICULAR REASON,
TO SUSPECT THAT YOU HAVE
VIOLATED THE LAW OR ARE
ABOUT TO.
THEREFORE, UNLIKE IN OTHER
COUNTRIES, POLICE OFFICERS
CAN'T RANDOMLY STOP PEOPLE
ON THE STREET AND START
INTERROGATING THEM.
TODAY THE FOURTH AMENDMENT
MANDATES THAT A SEARCH
WARRANT BE ISSUED, USUALLY
BY A JUDGE, UPON AN
OFFICER'S EVIDENCE OF
REASONABLE SUSPICION, OR
PROBABLE CAUSE THAT THE
TARGET OF THE WARRANT HAS

COMMITTED A CRIME.
THE WARRANT DESCRIBES THE
PROPERTY TO BE SEARCHED
AND/OR SEIZED IN SUCH
PARTICULAR TERMS THAT THE
OFFICER CHARGED WITH ITS
EXECUTION IS LEFT WITH NO
DISCRETION AS TO HIS DUTY.
ONE OF THE CHALLENGES IN
INTERPRETING THE FOURTH
AMENDMENT IS FINDING THE
BALANCE BETWEEN PROTECTING
SOCIETY FROM CRIMINAL
BEHAVIOR AND UPHOLDING THE
RIGHT TO PRIVACY AND THE
RIGHT FROM UNREASONABLE
SEARCHES.
THE EXCLUSIONARY RULE WAS
FORMULATED BY THE SUPREME
COURT IN 1914 IN WEEKS

VERSUS UNITED STATES.
WEEKS HAD BEEN CONVICTED ON
THE BASIS OF EVIDENCE SEIZED
FROM HIS HOME IN THE COURSE
OF TWO WARRANTLESS SEARCHES.
UNANIMOUSLY THE COURT HELD
THAT THE EVIDENCE SHOULD
HAVE BEEN EXCLUDED BY THE
TRIAL COURT.
IN THE OPINION OF THE COURT,
JUSTICE WILLIAM RUFUS DAY SAID:
THIS PROTECTS BECAUSE
THE POLICE HAVE TO FOLLOW
THE RULES BECAUSE THEY WANT
TO CATCH THE BAD GUYS.
THEY DON'T WANT TO BREAK THE
RULES AND LOSE THE EVIDENCE
SO THAT MEANS THAT THEY

WON'T GO INTO YOUR HOUSE AND
BREAK THE RULES AGAINST YOU,
AN INNOCENT PERSON.
BUT ACTUALLY DEFINING WHAT
EVIDENCE HAS OR HAS NOT BEEN
PROPERLY SEIZED IS A PROCESS
COMPLICATED BY THE FOURTH
AMENDMENT ITSELF.
ALTHOUGH THE LANGUAGE OF ITS
TEXT IS STRAIGHTFORWARD,
INTERPRETATION OF WHAT
CONSTITUTES UNREASONABLE
SEARCHES AND PROBABLE CAUSES
WIDELY VARIES AND IS
THEREFORE CONTROVERSIAL.
INTERPRETATIONS OF THE
FOURTH AMENDMENT HAVE
REVOLVED AROUND TWO BASIC
APPROACHES:
CERTAIN WARRANTLESS SEARCHES

HAVE BEEN ACCEPTED BY THE
SUPREME COURT WHILE OTHERS
HAVE NOT.
THE COURTS HAVE FOLLOWED THE
COMMON LAW IN UPHOLDING THE
RIGHT OF POLICE OFFICERS TO
TAKE A PERSON INTO CUSTODY
WITHOUT A WARRANT IF THEY
HAVE PROBABLE CAUSE TO
BELIEVE THAT THE PERSON TO
BE ARRESTED HAS COMMITTED A
FELONY OR HAS COMMITTED A
MISDEMEANOR IN THEIR
PRESENCE.
THE LEGALITY OF WARRANTLESS
SEARCHES OF VEHICLES HAS
ALSO BEEN ASSOCIATED WITH
THESE CONCEPTS.
BECAUSE VEHICLES CAN BE USED
TO MOVE EVIDENCE IN A SPEEDY
MANNER, OFTEN BEFORE A

WARRANT MAY BE OBTAINED,
SOME WARRANTLESS SEARCHES OF
CARS, PLANES, AND OTHER
VEHICLES HAVE BEEN RULED
LEGAL PROVIDED THAT A
REASONABLE SUSPICION EXISTS.
SOME OF THE MOST RECENT
CASES BEFORE THE SUPREME
COURT INVOLVE RANDOM DRUG
TESTING OF STUDENT ATHLETES.
IN VERNONIA SCHOOL DISTRICT
VS ACTON, 1995, A SEVENTH
GRADER AND HIS FAMILY
REFUSED TO SIGN A DRUG TEST
PERMISSION SLIP REQUIRED FOR
PARTICIPATION IN THE
SCHOOL'S FOOTBALL TEAM
BECAUSE THEY FELT THERE WAS
NO PROBABLE CAUSE.

THE COURT RULED THE DRUG
TEST TO BE LEGAL.
WHILE SOME VIEW MANDATORY
DRUG TESTING IN SCHOOLS AND
IN THE WORKPLACE AS
NECESSARY SAFETY MEASURES,
OTHERS VIEW IT AS AN
INVASION OF PRIVACY.
TIME AND TECHNOLOGY HAVE
FORCED DRASTIC CHANGES IN
THE APPLICATION OF JUSTICE
AS IT IS PROSCRIBED IN THE
FOURTH AMENDMENT.
WE HAVE TECHNOLOGY TODAY
WHICH I CAN TAKE A DROP OF
YOUR BLOOD AND THROUGH DNA
ANALYSIS FIND ALL KINDS OF
THINGS OUT ABOUT YOU.
I CAN TAKE A STRAND OF YOUR
HAIR WHICH YOU CAN LEAVE

BEHIND AS YOU GO ALONG AND
FIND OUT ALL KINDS OF THINGS
ABOUT YOU.
THE TECHNOLOGY TODAY CREATES
A VERY DIFFERENT KIND OF
SEARCH AND SEIZURE QUESTION.
FORTUNATELY, IN RECENT
TIMES THE SUPREME COURT HAS
RECOGNIZED THAT SEARCHES AND
SEIZURES CAN BE CONDUCTED
THROUGH SOPHISTICATED
ELECTRONIC EQUIPMENT THAT
THE FRAMERS NEVER
ANTICIPATED, BUT THE SAME
PRINCIPLES APPLY.
GOVERNMENT MAY NOT SNOOP
UPON YOU, INVADE YOUR
PRIVACY THROUGH ANY MEANS,
UNLESS THEY HAVE

PARTICULARIZED BASIS FOR
SUSPECTING THAT YOU ARE A
LAW VIOLATOR.
ALTHOUGH THE RIGHT TO
PRIVACY IS NEVER
SPECIFICALLY MENTIONED IN
THE CONSTITUTION, ITS SPIRIT
IS EVOKED IN THE FIRST,
THIRD, FOURTH, FIFTH, NINTH
AND 14TH AMENDMENTS.
THIS UNNAMED RIGHT WILL
CONTINUE TO INFLUENCE
INTERPRETATION OF THE FOURTH
AMENDMENT FOR MANY YEARS TO
COME.
AMENDMENTS 5, 6, 7 AND 8
TOGETHER CONSTITUTE A
BILL OF RIGHTS FOR PEOPLE
ACCUSED OF A CRIME OR

SEEKING JUSTICE IN THE CIVIL
COURTS.
THE FIRST CLAUSE IN THE
FIFTH AMENDMENT STATES THAT
BEFORE ANYONE CAN BE TRIED
IN A FEDERAL COURT FOR A
SERIOUS CRIME, A GRAND JURY
MUST FORMALLY ACCUSE THAT
PERSON IN AN INDICTMENT,
A FORMAL CHARGE.
THE GRAND JURY DOES NOT
DECIDE THE CASE.
IT EXAMINES EVIDENCE VERY
CAREFULLY TO DECIDE IF THERE
IS ENOUGH INFORMATION TO
HOLD A TRIAL.
A CIVILIAN WHO IS CHARGED
WITH ARMED ROBBERY, MURDER,
OR OTHER SERIOUS OFFENSE
CANNOT BE BROUGHT TO TRIAL

WITHOUT THE ORDER OF A
GRAND JURY.
THIS IS A GROUP MADE UP OF
NO LESS THAN 16 NOR MORE
THAN 23 CITIZENS WHO ARE
CHOSEN FROM AMONG THE
TAXPAYERS OF THE DISTRICT IN
WHICH THE JUDGE IS
CONDUCTING COURT.
AFTER CONSIDERING THE FACTS
IN THE CASE THE GRAND JURY
DECIDES WHETHER OR NOT TO
ISSUE AN INDICTMENT FOR THE
ACCUSED TO STAND TRIAL.
THIS PROCESS PROTECTS THE
INDIVIDUAL FROM HASTY,
IMPROPER ACTION ON THE PART
OF THE GOVERNMENT.
IF A PERSON IS INDICTED BY A

GRAND JURY, HE OR SHE WILL
THEN BE TRIED BY A PETIT, OR
SMALL, JURY.
THE PETIT JURY DECIDES
WHETHER THE PERSON ACCUSED
IS GUILTY OR NOT GUILTY AND
IS USUALLY SIMPLY REFERRED
TO AS "THE JURY".
THIS JURY IS MADE UP OF 12
CITIZENS, AGAIN CHOSEN FROM
AMONG THE TAXPAYERS OF A
COURT DISTRICT.
ONCE A PERSON IS FOUND NOT
GUILTY OF COMMITTING A
PARTICULAR CRIME, THAT
PERSON CANNOT BE TRIED AGAIN
FOR THAT CRIME BY THE
GOVERNMENT.
NOR MAY THE FEDERAL
GOVERNMENT PUNISH A PERSON

MORE THAN ONCE FOR THE
SAME CRIME.
TO BE TRIED TWICE FOR THE
SAME CRIME IS CALLED
"DOUBLE JEOPARDY".
AND THIS HAS HAPPENED IN
POPULAR CASES SUCH AS THE
O.J. SIMPSON TRIAL WHERE HE
WAS TRIED FOR MURDER
BY THE STATE,
HE WAS FOUND NOT GUILTY
OF MURDER.
A SECOND TRIAL BY THE
INDIVIDUALS AGAINST HIM
CIVILLY CHARGED HIM WITH
WRONGFUL DEATH USING THE
SAME FACTS, THE SAME
CIRCUMSTANCES, AND YET THAT
WAS NOT VIEWED TO BE DOUBLE
JEOPARDY BECAUSE ALL HE

COULD LOSE THERE, AND HE DID
LOSE THERE, WAS MONEY.
AND THE SENSE IS, IF ALL
YOU'RE GOING TO LOSE IS
MONEY, THAT ISN'T WHAT THE
DOUBLE JEOPARDY PROTECTION
PROTECTS YOU AGAINST.
WE WERE ALWAYS MORE
CONCERNED, IN THE FOUNDING
OF OUR COUNTRY, WITH FREEDOM
THAN WE WERE WITH FINANCES.
YOU CAN ALWAYS MAKE
MORE MONEY.
YOU CAN'T WIN BACK
YOUR FREEDOM.
WHILE THE FIRST AMENDMENT
PROTECTS AN INDIVIDUAL'S
RIGHT TO SPEAK FREELY, THE

FIFTH AMENDMENT PROTECTS AN
INDIVIDUAL'S RIGHT TO REMAIN
SILENT.
NO ONE CAN BE FORCED TO SAY
ANYTHING THAT WOULD HELP
CONVICT HIM OR HERSELF
OF A CRIME.
THE FIFTH AMENDMENT
PROVIDES A NUMBER OF
PROCEDURAL PROTECTIONS TO BE
SURE THAT THE GOVERNMENT
DOES NOT ENGAGE IN ABUSES
OF POWER WHEN IT PROSECUTES
PEOPLE WHO ARE ACCUSED
OF CRIME.
PROBABLY THE BEST-KNOWN
PROTECTION IS THE PRIVILEGE
AGAINST SELF-INCRIMINATION.
THAT WAS TO MAKE SURE THAT
GOVERNMENT DID NOT USE
TORTURE TECHNIQUES, EITHER

PSYCHOLOGICAL OR PHYSICAL
TORTURE, IN ORDER TO COERCE
A CONFESSION OUT OF SOMEBODY
ACCUSED OF A CRIME.
THE ACCUSED PERSON'S RIGHT
TO SILENCE IS ALSO A
REMINDER OF ANOTHER
IMPORTANT RULE OF
AMERICAN LAW.
AN INDIVIDUAL CHARGED WITH A
CRIME IS NOT REQUIRED TO
PROVE HIS OR HER INNOCENCE.
INSTEAD, IT IS THE
GOVERNMENT'S RESPONSIBILITY
TO PROVE THAT THE ACCUSED
PERSON IS GUILTY BEYOND A
REASONABLE DOUBT.
THIS CLAUSE FORBIDS THE
FEDERAL GOVERNMENT TO

EXECUTE, IMPRISON, OR TAKE
THE PROPERTY OF A PERSON
WITHOUT DUE PROCESS OF LAW.
DUE PROCESS GENERALLY MEANS
THAT PUNISHMENT MAY BE GIVEN
ONLY AFTER THE ACCUSED
PERSON HAS HAD A FAIR TRIAL.
IN U.S. VERSUS URSERY, 1996,
THE SUPREME COURT HELD THAT
BOTH CRIMINALLY PROSECUTING
A DEFENDANT AND CIVILLY
CONFISCATING HIS PROPERTY
FOR THE SAME CRIME DO NOT
VIOLATE DOUBLE JEOPARDY.
THE DEFENDANT'S HOUSE HAD
BEEN SEIZED BECAUSE IT WAS
USED FOR ILLEGAL DRUG
ACTIVITY.
THE GOVERNMENT'S RIGHT TO
TAKE A PERSON'S PROPERTY SO

THAT IT MAY BE USED FOR A
COURTHOUSE, HIGHWAY, SCHOOL,
OR OTHER PUBLIC PURPOSE HAS
BEEN RECOGNIZED FOR
CENTURIES.
THIS POWER IS CALLED
"EMINENT DOMAIN".
IN NON-CRIMINAL PROCEEDINGS,
THE FIFTH AMENDMENT PERMITS
THE FEDERAL GOVERNMENT TO
TAKE PRIVATE PROPERTY WHEN
TWO CONDITIONS ARE MET.
THE PROPERTY MUST BE FOR THE
USE OF THE PUBLIC AND THE
OWNER MUST BE PAID A FAIR
PRICE FOR IT.
WHERE THE FIFTH AMENDMENT
OUTLINES THE BROAD
PROTECTIONS OF PEOPLE
ACCUSED OF A CRIME AND
BALANCES THE RIGHTS OF THE

INDIVIDUAL AGAINST THE
POWERS OF THE GOVERNMENT,
THE SIXTH AMENDMENT SPELLS
OUT THE SPECIFIC RIGHTS OF
THE ACCUSED IN CRIMINAL
TRIALS AND THE PROCEDURES
THAT MUST BE FOLLOWED.
THESE RIGHTS OF THE ACCUSED
CAN BE SUMMARIZED
AS FOLLOWS:
A PERSON ACCUSED OF
COMMITTING A CRIME MUST
BE GIVEN A PROMPT TRIAL
IN PUBLIC.
A JURY, CHOSEN FROM THE
STATE AND DISTRICT WHERE THE
CRIME WAS COMMITTED MUST
DECIDE GUILT OR INNOCENCE.
THE ACCUSED MUST BE TOLD
WHAT HE OR SHE IS BEING

TRIED FOR.
THE ACCUSED MUST BE PRESENT
WHEN WITNESSES SPEAK IN
COURT AND THE ACCUSED HAS
THE POWER TO MAKE WITNESSES
COME AND SPEAK IN COURT IN
HIS OR HER FAVOR.
AND THE ACCUSED ALSO HAS THE
RIGHT TO A LAWYER TO MAKE
A DEFENSE.
WE'VE ALWAYS SAID IN THIS
COUNTRY THAT YOU ARE
PRESUMED INNOCENT UNTIL OR
UNLESS THE GOVERNMENT CAN
PROVE THAT YOU ARE GUILTY
BEYOND A REASONABLE DOUBT.
AND IN ORDER TO EFFECTIVELY
HAVE THE OPPORTUNITY TO
DEFEND YOURSELF YOU REALLY
DO NEED TO HAVE A LAWYER AND

IF YOU'RE TOO POOR TO AFFORD
YOUR OWN LAWYER IT'S UNFAIR
THAT THAT SHOULD MAKE IT
MORE LIKELY THAT YOU WILL BE
CONVICTED AND IMPRISONED.
AND THAT IS A HUGE ISSUE
THAT WE'RE LOOKING AT NOW
BECAUSE YOU HAVE A RIGHT TO
COUNSEL BUT HOW ADEQUATE
DOES THAT COUNSEL HAVE
TO BE?
I'M A POOR PERSON ACCUSED OF
MURDER, DO I HAVE TO BE ABLE
TO GET THE BEST CRIMINAL
DEFENSE LAWYER IN THE WORLD
TO DEFEND ME, AND DOES THE
STATE HAVE TO PAY FOR THAT?
OR JUST AS LONG AS I GET

SOMEBODY WHO'S BEEN THROUGH
AN ACCREDITED LAW SCHOOL,
HAS PASSED THE BAR, AND CAN
TALK REASONABLY WELL IN
FRONT OF THE COURT AND KNOWS
THE RULES, IS THAT SUFFICIENT?
WHILE THE SIXTH AMENDMENT
PROVIDES FOR A FAIR AND
SPEEDY TRIAL BY JURY IN
CRIMINAL CASES, THE SEVENTH
AMENDMENT PROVIDES FOR TRIAL
BY JURY IN CERTAIN KINDS OF
CIVIL CASES SUCH AS THOSE
THAT HAVE TO DO WITH AUTO
ACCIDENTS OR UNPAID BILLS.
IN DISPUTES THAT INVOLVE
MORE THAN $20, EITHER SIDE
IN THE DISPUTE CAN INSIST ON
HAVING A JURY TRIAL OR BOTH

CAN AGREE NOT TO HAVE
A JURY.
THE SEVENTH AMENDMENT ALSO
LIMITS THE POWER OF THE
JUDGES TO INTERFERE WITH THE
JURY'S DECISION.
ONE OF THE PURPOSES OF THIS
AMENDMENT WAS TO PRESERVE
THE TRADITIONAL DISTINCTION
BETWEEN THE JUDGE, WHO WAS
TO RESOLVE ISSUES OF LAW,
AND THE JURY, WHICH IS TO
RESOLVE ISSUES OF FACT.
THE SEVENTH AMENDMENT
GUARANTEES A RIGHT TO A JURY
TRIAL IN CIVIL CASES.
THIS IS A VERY IMPORTANT
INSTITUTION IN AMERICAN
SOCIETY WHICH DISTINGUISHES
US FROM MOST OTHER COUNTRIES

IN THE WORLD - THAT YOU HAVE
THE RIGHT TO A TRIAL IN
FRONT OF A JURY OF YOUR
PEERS AND IT'S A VERY
DEMOCRATIZING INSTITUTION
ALLOWING EVERY CITIZEN TO
PARTICIPATE IN THE RULE OF
LAW AND THE SYSTEM OF
JUSTICE.
WHEN A PERSON CHARGED WITH
A CRIME AWAITS TRIAL, A JUDGE
MAY RELEASE THE ACCUSED
ON BAIL.
THAT IS, THE JUDGE MAY AGREE
TO LET THE PARTY CHARGED
WITH THE CRIME REMAIN FREE
UNTIL THE DAY THE TRIAL
BEGINS.
BUT TO MAKE SURE THAT THE

ACCUSED PERSON SHOWS UP, THE
JUDGE USUALLY REQUIRES THE
POSTING OF A BOND OR MONEY
GUARANTEE.
THIS MEANS THAT WHOEVER
PROVIDES THE BAIL BOND MUST
AGREE TO FORFEIT OR GIVE UP
THE AMOUNT OF MONEY THAT THE
JUDGE SETS IN CASE THE
ACCUSED PERSON FAILS TO
APPEAR IN COURT FOR
THE TRIAL.
THE AMOUNT OF MONEY THAT THE
JUDGE REQUIRES AS BAIL
DEPENDS IN LARGE MEASURE
UPON THE SERIOUSNESS OF THE
CRIME THAT THE PERSON IS
ACCUSED OF COMMITTING.
HOWEVER, THE EIGHTH
AMENDMENT FORBIDS A FEDERAL

JUDGE TO REQUIRE AN
EXCESSIVE OR UNNECESSARILY
LARGE AMOUNT OF BAIL.
AT THE TIME THE BILL OF
RIGHTS WAS ADDED TO THE
CONSTITUTION, THERE WERE
MANY AMERICANS WHO EITHER
HAD SEEN OR HAD HEARD ABOUT
THE CRUEL KINDS OF
PUNISHMENT IMPOSED BY
A JUDGE.
HAVING A HAND CUT OFF OR AN
EYE PUT OUT WAS PUNISHMENT
SUFFERED BY SOME CONVICTED
CRIMINALS.
WHIPPING AND BRANDING WERE
MORE COMMON TYPES OF
PENALTIES.
THE EIGHTH AMENDMENT FORBIDS
COURTS TO PUNISH CONVICTS IN

CRUEL OR UNUSUAL WAYS.
THE EIGHTH AMENDMENT'S
GENERAL LANGUAGE PROHIBITING
CRUEL AND UNUSUAL
PUNISHMENTS HAS BEEN
INTERPRETED, THE SUPREME
COURT SAID, TO REFLECT THE
EVOLVING NORMS OF A DECENT
SOCIETY SO THAT SOME
PUNISHMENTS THAT USED TO BE
CONSIDERED PERFECTLY
ACCEPTABLE SUCH AS DRAWING
AND QUARTERING ARE NO LONGER
ACCEPTABLE UNDER THE EIGHTH
AMENDMENT.
THE RAGING DEBATE TODAY, OF
COURSE, IS OVER WHETHER
CAPITAL PUNISHMENT SHOULD BE
DEEMED TO BE INHERENTLY
CRUEL AND UNUSUAL IN
VIOLATION OF THE EIGHTH

AMENDMENT.
THE UNITED STATES SUPREME
COURT CASE FURMAN VERSUS
GEORGIA, 1972, WAS A TURNING
POINT IN THE CAPITAL
PUNISHMENT SYSTEM.
THE COURT DECIDED THAT THE
DEATH PENALTY WAS CRUEL AND
UNUSUAL PUNISHMENT FORBIDDEN
BY THE CONSTITUTION AND
STOPPED ALL EXECUTIONS IN
THE U.S.
BUT THE CASE LEFT OPEN THE
QUESTION OF WHETHER THE
DEATH PENALTY COULD EVER BE
IMPOSED, AND IN 1976 GREGG
VERSUS GEORGIA OVERTURNED
FURMAN.
JUSTICE STEWART STATED:

IN HIS DISSENTING OPINION
JUSTICE BRENNAN WROTE:
THIS WEIGHING OF THE VALUE
OF THE INDIVIDUAL AND HIS OR
HER RIGHT TO FAIR TREATMENT
WITH THE PUBLIC'S DEMAND FOR
JUSTICE AND RETRIBUTION WILL
FOREVER REMAIN IN DELICATE
BALANCE THROUGH THE JUSTICE
AMENDMENTS.
THE NINTH AMENDMENT MAKES
IT CLEAR THAT INDIVIDUAL
RIGHTS ARE NOT LIMITED TO
THOSE SPECIFICALLY LISTED IN
THE BILL OF RIGHTS.
AS IMPORTANT AS THE BILL OF
RIGHTS IS, IT'S DIFFICULT TO
BELIEVE THAT SOME OF THE
ORIGINAL FRAMERS OF THE
CONSTITUTION DID NOT WANT IT

ADDED TO THE DOCUMENT
AT ALL.
IN 1789, THE NEWLY CREATED
STATES WERE QUITE TORN ABOUT
RATIFYING OR APPROVING THE
NEW CONSTITUTION.
MANY FEARED THAT A CENTRAL
GOVERNMENT WOULD BE TOO
POWERFUL AND SOME STATES
REFUSED TO RATIFY THE
CONSTITUTION WITHOUT A
SPECIFIC LISTING OF
GUARANTEED RIGHTS.
IRONICALLY, IT WAS THE
FEDERALISTS, THE
CONSTITUTION'S STRONGEST
ADVOCATES, WHO MOST
RESISTED THE IDEA OF A
BILL OF RIGHTS.
THEY ARGUED THAT SINCE IT
WOULD BE IMPOSSIBLE TO LIST

ALL HUMAN RIGHTS, IT COULD
BE DANGEROUS TO LIST ANY.
JAMES MADISON WAS AMONG
THEM, BUT WAS EVENTUALLY
CONVINCED OTHERWISE BY
THOMAS JEFFERSON WHO WROTE:
MADISON WAS AFRAID THAT
ONCE YOU START LISTING RIGHTS,
FUTURE GENERATIONS ARE GOING
TO SAY "HA, THEY DIDN'T PUT
IT HERE, SO WE DON'T HAVE
THAT RIGHT".
AND THE NINTH AMENDMENT IS
REALLY A DEVICE TO PROTECT
THOSE RIGHTS SO THE PEOPLE
RETAIN THEIR RIGHTS AND THAT
IS PROBABLY AS RADICAL A
CONCEPT AS WE HAVE

THROUGHOUT THE ENTIRE
CONSTITUTION.
MADISON DRAFTED THE NINTH
AMENDMENT TO PROTECT ALL THE
BASIC HUMAN RIGHTS THAT ARE
NOT SPECIFICALLY COVERED BY
OTHER PROVISIONS OF THE
CONSTITUTION.
SINCE MADISON'S TIME,
THE NINTH AMENDMENT WAS
MENTIONED INFREQUENTLY IN
DECISIONS OF THE SUPREME
COURT UNTIL THE CASE OF
GRISWALD VERSUS CONNECTICUT
IN 1965.
IN THIS CASE, THE GRISWALDS,
A MARRIED COUPLE WITH A
MEDICAL PRACTICE, PROVIDED
OTHER MARRIED COUPLES WITH
CONTRACEPTIVES AND COUNSELED

THEM ON THEIR USE.
THEY WERE PROSECUTED AS
ACCESSORIES IN VIOLATION OF
THE STATE'S CRIMINAL CODE
WHICH BANNED THE USE OF
CONTRACEPTIVE DEVICES.
THE GRISWALDS APPEALED THEIR
CASE ON THE GROUNDS THAT THE
COUPLES THEY COUNSELED WERE
BEING PROSECUTED
UNCONSTITUTIONALLY AND THAT
THEY THEREFORE SHOULD NOT BE
CHARGED AS ACCESSORIES TO
WHAT SHOULD BE VIEWED AS
LEGAL ACTIVITY.
THE SUPREME COURT AGREED.
JUSTICE DOUGLAS, WRITING THE
OPINION OF THE COURT,
ASSERTED THAT:
ONE OF THESE IMPLIED RIGHTS,

REFLECTED IN THE CONSTITUTION,
WAS THE RIGHT TO PRIVACY.
IT'S INTERESTING, THE WORD
"PRIVACY" DIDN'T EXIST AS A
WORD THAT WAS IN USE AT THE
TIME THE BILL OF RIGHTS
WERE RATIFIED.
AT THE TIME THEY WERE
WRITTEN IT'S A WORD WHICH
WAS A FRENCH WORD WHICH ONLY
CAME INTO COMMON USAGE A FEW
GENERATIONS LATER.
BUT BECAUSE OF THE NINTH
AMENDMENT WE CAN ARGUE, AND
IT WAS SUCCESSFULLY ARGUED,
THAT THAT'S A RIGHT RESERVED
TO THE PEOPLE.
IN THE SAME CASE, JUSTICE
GOLDBERG DEVOTED SEVERAL

PAGES OF HIS OPINION TO THE
NINTH AMENDMENT,
A COURT RARITY.
THE NINTH AMENDMENT WAS ALSO
USED BY THE SUPREME COURT TO
REVERSE STATE STATUTES
RESTRICTING INTERRACIAL
MARRIAGE, DECLARING THAT THE
RIGHT TO MARRY IS
A NATURAL RIGHT.
IN A SERIES OF EXTREMELY
CONTROVERSIAL CASES
INCLUDING ROE VERSUS WADE
AND DOE VERSUS BOLTON, THE
SUPREME COURT ADDRESSED THE
IMPLIED RIGHT TO PRIVACY
AGAIN WHEN IT CONSIDERED THE
RIGHT OF A WOMAN TO HAVE
AN ABORTION.

A PREGNANT SINGLE WOMAN,
ROE, BROUGHT A CLASS ACTION
SUIT CHALLENGING THE
CONSTITUTIONALITY OF THE
TEXAS CRIMINAL ABORTION LAWS
WHICH DENIED AN ABORTION
EXCEPT ON MEDICAL ADVICE FOR
THE PURPOSE OF SAVING THE
MOTHER'S LIFE.
AT THE SAME TIME, A
CHILDLESS MARRIED COUPLE,
THE DOES, SEPARATELY
ATTACKED THE LAWS BASING
ALLEGED INJURY ON THE FUTURE
POSSIBILITIES OF
CONTRACEPTIVE FAILURE,
PREGNANCY, UNPREPAREDNESS
FOR PARENTHOOD, AND
IMPAIRMENT OF THE WIFE'S
HEALTH.

WHILE THE COURT DID NOT VOTE
IN FAVOR OF THE DOES, IT DID
RULE IN ROE THAT STATE LAWS
RESTRICTING A WOMAN'S RIGHT
TO HAVE AN ABORTION WERE A
VIOLATION OF HER RIGHT
TO PRIVACY.
STATUTES REQUIRING CONSENT
FOR AN ABORTION FROM A
WOMAN'S HUSBAND OR A MINOR'S
PARENTS WERE ALSO
STRUCK DOWN.
I THINK THE NINTH AMENDMENT
IS ONE OF THE MOST IMPORTANT
PROVISIONS IN THE
CONSTITUTION BECAUSE IT MADE
CLEAR THE PHILOSOPHY OF OUR
FRAMERS, THAT BY VIRTUE OF
BEING HUMAN BEINGS WE ALL

HAVE INHERENT NATURAL RIGHTS
AND THE RIGHTS THAT ARE
EXPRESSLY SET OUT IN THE
CONSTITUTION ARE ONLY A
SUBSET OF THE RIGHTS
THAT WE HAVE.
WE HAVE UNENUMERATED RIGHTS
AND THROUGHOUT HISTORY THE
COURT HAS PROTECTED SOME
OF THESE.
THE MOST RECENT AND
CONTROVERSIAL ARE THE
IMPLIED RIGHT OF A WOMAN TO
CHOOSE AN ABORTION,
FOR EXAMPLE.
EVEN MORE RECENTLY THERE'S
BEEN A LOT OF DEBATE ABOUT
WHETHER WE HAVE AN IMPLIED
RIGHT TO DIE -

PHYSICIAN-ASSISTED SUICIDE.
THE NINTH AMENDMENT WOULD BE
A GUARANTEE FOR ALL
OF THESE.
WHILE IT IS IMPOSSIBLE TO
PREDICT WHAT NEW RIGHTS
INDIVIDUALS WILL SEEK TO
PROTECT IN THE FUTURE, IT IS
CLEAR THAT THE NINTH
AMENDMENT WILL BE EVOKED
AGAIN AND AGAIN TO PROTECT
AND UPHOLD THOSE RIGHTS.
THE LAST OF THE
10 AMENDMENTS THAT MAKE
UP THE BILL OF RIGHTS
WAS INTENDED TO CONFIRM
THE UNDERSTANDING OF THE
AMERICAN PEOPLE,
AT THE TIME THE CONSTITUTION
WAS ADOPTED, THAT THE PEOPLE

AND THE STATES RETAINED ALL
POWERS NOT SPECIFICALLY
GUARANTEED TO THE FEDERAL
GOVERNMENT IN THE
CONSTITUTION.
THE MAIN PURPOSE OF THE 10TH
AMENDMENT WAS TO COUNTER
FEARS THAT THE NEW NATIONAL
GOVERNMENT WOULD TRESPASS ON
THE AUTHORITY OF THE STATES.
THE FOUNDING FATHERS HAD
JUST PUT FORTH A NEW
CONSTITUTION THAT GAVE THE
CENTRAL GOVERNMENT GREAT
POWERS COMPARED TO WHAT IT
HAD PREVIOUSLY UNDER THE
ARTICLES OF CONFEDERATION.
THE FEAR WAS THAT A CENTRAL
GOVERNMENT WOULD BECOME SO
POWERFUL THAT EACH OF THE

STATES WOULD LOSE THEIR
POWER.
THE WRITERS OF THE BILL OF
RIGHTS WANTED TO REASSURE
THE STATES THAT THIS WOULD
NOT HAPPEN.
THE 10TH AMENDMENT IS YET
ANOTHER REMINDER THAT THE
CONSTITUTIONAL CONVENTION OF
1787 SET UP A FEDERAL
GOVERNMENT OF LIMITED
AUTHORITY.
THE FEDERAL GOVERNMENT WAS
TO HAVE ONLY THOSE POWERS
DESCRIBED IN THE
CONSTITUTION SUCH AS THE
RIGHT TO COIN MONEY, TO
REGULATE COMMERCE BETWEEN
THE STATES, AND TO WAGE WAR

AGAINST OTHER NATIONS.
THE 10TH AMENDMENT MAKES IT
CLEAR THAT EVEN THOUGH THE
STATES AGREED TO THE UNION,
THEY STILL RETAINED MANY
POWERS.
AT THE TIME, THESE INCLUDED
MAINTAINING PUBLIC SCHOOLS,
REGULATING COMMERCE, AND
PROVIDING FOR PUBLIC HEALTH
AND SAFETY.
THE 10TH AMENDMENT IS VERY
IMPORTANT AS A REFLECTION OF
WHAT IS CALLED FEDERALISM -
THAT IS, THE DIVISION OF
GOVERNMENTAL POWER BETWEEN
STATE AND NATIONAL LEVELS OF
GOVERNMENT IN OUR COUNTRY.
AND AS THE SUPREME COURT HAS
RECENTLY SAID, A MAJOR
PURPOSE, PERHAPS THE MAJOR
PURPOSE OF DIVIDING POWER,

AS THE 10TH AMENDMENT DOES,
IS TO CURB THE ABILITY OF
ANY LEVEL OF GOVERNMENT TO
RESTRAIN INDIVIDUAL LIBERTY.
SO AGAIN, ALONG WITH THE
NINTH AMENDMENT, IT IS A
RESERVOIR OF PROTECTION FOR
INDIVIDUAL FREEDOM.
THE GREATEST TEST IN THE
UNITED STATES REGARDING
STATES RIGHTS OCCURRED
DURING THE AMERICAN CIVIL
WAR, A CONFLICT THAT LASTED
FOUR YEARS BETWEEN THE
FEDERAL GOVERNMENT OF THE
UNITED STATES AND 11
SOUTHERN STATES THAT
ASSERTED THEIR RIGHT TO
LEAVE THE UNION.

THESE STATES BELIEVED THAT
THE GOVERNMENT HAD
COMPROMISED STATES' RIGHTS
BY ATTEMPTING TO LEGISLATE
AGAINST THE USE OF SLAVE
LABOR.
NEARLY A MILLION PEOPLE DIED
OR WERE WOUNDED IN THE CIVIL
WAR WHICH RESULTED IN THE
PRESERVATION OF THE UNION
AND THE EVENTUAL ABOLITION
OF SLAVERY.
TODAY, ALTHOUGH THE 10TH
AMENDMENT DOES NOT LIST THE
RESERVED POWERS OF THE
STATES, THEY'RE GENERALLY
UNDERSTOOD TO INCLUDE
MATTERS OF LOCAL GOVERNMENT
AND EDUCATION, THE

REGULATION OF COMMERCE,
LABOR, BUSINESS WITHIN THE
STATE, AND FAMILY RELATED
CONCERNS SUCH AS MARRIAGE,
DIVORCE AND INHERITANCE.
THE STATES ALSO SHARE
CERTAIN POWERS WITH THE
FEDERAL GOVERNMENT, SUCH AS
ESTABLISHING COURTS,
CHARTERING BANKS, IMPOSING
TAXES, AND PROTECTING THE
PUBLIC HEALTH.
THE 10TH AMENDMENT RECENTLY
HAS HAD NEW LIFE BREATHED
INTO IT AS WE HAVE A NUMBER
OF JUSTICES ON THE SUPREME
COURT CURRENTLY WHO THINK
THAT STATES' RIGHTS, AS THEY
CALL IT, HAVE UNDULY BEEN
ERODED BY THE FEDERAL

GOVERNMENT.
IN 1997 THE U.S.
SUPREME COURT STRUCK DOWN A
FEDERAL GUN CONTROL LAW AS
UNDULY INTRUDING INTO
STATES' POWER.
I THINK THIS IS A TREND THAT
WILL CONTINUE.
THE FOUNDERS COULD NOT HAVE
ENVISIONED A SOCIETY LIKE WE
HAVE TODAY, WITH SUCH A
HUGE, POWERFUL CENTRAL
GOVERNMENT.
AND THEY WOULD NOT HAVE EVER
ENVISIONED STATES BEING
RELATIVELY WEAK NEXT TO THAT
POWERFUL CENTRAL GOVERNMENT.
BUT WHEN YOU LOOK AT EACH OF
THE INDIVIDUAL STATES,
CERTAIN STATES, CALIFORNIA
HAS A LARGER BUDGET THAN

MANY NATIONS AROUND THE
WORLD.
AND EVEN OUR SMALLEST STATES
IN TERMS OF POPULATION HAVE
POWERS THAT MANY SOVEREIGN
NATIONS HOLD.
SO THE 10TH AMENDMENT IS A
WAY TO PROTECT THE WHOLE
SYSTEM OF FEDERALISM WHERE
WE HAVE A CENTRAL GOVERNMENT
BUT WE ALSO HAVE STATES.
AND THE STATES AND THE
PEOPLE - THAT'S KEY LANGUAGE
TO REMEMBER - RETAIN THOSE
POWERS, THOSE RIGHTS.

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