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Compiled and designed by Mark Fullbright , Certified Identity Theft Risk Management Specialist™ (CITRMS) as a free service for consumers to protect themselves and reduce their exposure to identity theft.
Stay Safe, Stay Secure
*Company names mentioned herein are the property of, and may be trademarks of, their respective owners and are for educational purposes only.
Slideshow prepared for a lecture on Civil Liberties for PS 101 American Government at the University of Kentucky, Fall 2007. Dr. Christopher S. Rice, Lecturer.
Bill of Rights, First Amendment, Second Amendment, Third amendment, Four, Five Six Seven amendment, Eight, Ninth and Tenth Amendment in bill of Human Rights
24. Fourth Amendment: *Other Exceptions to the Exclusionary Rule - no warrant needed Automobiles Border searches Exigent circumstances Can be searched with probable cause Perceived emergency (screams), crime committed in plan view
25. Fourth Amendment: Other Exceptions to the Exclusionary Rule (continued) Plain view Stop and frisk If you’re acting suspiciously, it’s okay to frisk without a warrent Student searches Don’t need probable cause to search your locker or backpack/purse - if they think it will turn up evidence of crime
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Editor's Notes
The Framers of the Bill of Rights also drew heavily from English law, since many of the rights colonists had enjoyed as subjects of the Crown (and had defended in the Revolution) had been established centuries earlier. The Magna Carta (1215) resulted from a conflict between King John and 40 of his barons. For years, the king had violated their rights to property and justice and taxed them without their consent. The barons demanded that the king abide by common law and honor their ancient rights. At first he refused, but he eventually met their terms in order to gain funding and support for his wars in France. The Magna Carta defined the power of the monarchy regarding legal procedures and proclaimed that the law constrains even the will of the king. Based upon this precedent, the Framers incorporated into the Bill of Rights familiar provisions such as no taxation without the consent of the governed, no seizure of property without just compensation, trial by a jury of one’s peers, and no punishment without a trial. The rights enumerated in the Magna Carta underwent many revisions and repeals, but were eventually extended to the general population. During England’s Glorious Revolution of 1689, Parliament (now the major legislative body for British citizens) firmly established both fundamental rights for the people and limitations on the monarch’s power, including Parliament’s legislative supremacy over the king, the right of citizens to petition the government, freedom of speech within Parliament, and (in accordance with the Petition of Right) no quartering of troops in people’s homes or punishment of citizens without just cause.
The first five words of the First Amendment, “Congress shall make no law…,” firmly establish the intent of the Bill of Rights: to limit the government’s power and protect citizen’s rights. When the Bill of Rights was written, the term “Congress” meant the congress of the federal government. It was believed at the time that individuals’ rights were protected by state constitutions, but since the Constitution was the “supreme law of the land,” individuals’ rights needed to be protected from encroachment by the federal government. The First Amendment contains protections in five areas of expression: religion, speech, the press, assembly, and petitioning the government.
The First Amendment’s clause regarding religion is actually two clauses: the “establishment clause” and the “free-exercise clause.” The First Amendment’s protection of freedom of religion actually protects the institution of religion and an individual’s method of worship. By stating that “Congress shall make no law respecting an establishment of religion,” the government is prohibited from establishing an official religion in the nation to the exclusion of others. Congress is also prohibited from interfering with individuals’ rights to practice their beliefs. As we shall see, these rights are not unconditional and their meaning has evolved over the years.
As Europeans were settling the American colonies, Europe itself was undergoing a religious revolution known as the Reformation. During this time, a reform movement headed by Protestants in England, the Germanic kingdoms, France, and Spain (to a degree) was challenging the established order of the Catholic Church. Religious authorities had established Catholicism as the official religion in these countries, and to worship in any other way was a considered a crime against the state, resulting in a loss of liberties and often punishable by death. Indeed, many of the early settlers who came to America had been victims of this religious persecution. However, isolated in a new world and believing that their faith was the only thing that would keep them alive, early colonial leaders instituted governments with official religions and showed little tolerance for those who didn’t follow their faith. Many groups, such as the Puritans of Massachusetts, felt their religious duty included saving their world from the corruption of religion in Europe. The Puritans banished those who disagreed with their religious rule and, in some cases, put nonbelievers to death.
In 18 th -century colonial America, people had become more tolerant of religious differences, though Christianity was still the dominant religion. Through immigration and the freedom to settle anywhere, many different religious groups emerged, thus preventing any one from dominating the others. At the same time, America was experiencing a period of religious revival known as the “Great Awakening,” which drew many away from established religions and into smaller religious sects. New ideas about how to worship flourished. The novel concept of not having any official religion strongly influenced the Framers of the Bill of Rights. Denying Congress the power to establish a state religion allowed many different ones to exist, resulting in the open expression of views and sharing beliefs with people of different faiths in an environment of tolerance. The authors of the First Amendment viewed the establishment clause broadly. They sought to prevent the practice of an official national faith declared by a government that would favor certain religious organizations over others. This denial would also keep the government (as well as other religions) from interfering with an individual’s religious practices. In the Framers’ minds, this separation was complete, with no benefit given to any particular religion or to religion in general.
The broad interpretation of the establishment and free-exercise clauses holds that neither federal nor state governments (which include local governments and schools) can have any relationship with religion. Governments cannot use public money to support any religion, religious activity, or institution that is religiously based, nor give aid to any religion — even impartially. The only exception is when the government provides the religious organization with the same support given to all segments of society, such as police and fire protection. The government may also make it easier for people to exercise their religion, but must do so in equal measure. For example, school districts may excuse students from school during a religious holiday, but this policy must apply to students of all religions. A narrower interpretation holds that the establishment clause prohibits a government from giving one religious group preference over another. This view believes the First Amendment does not prohibit government from supporting religion as long as it does so impartially. Therefore, such practices as placing the motto “In God We Trust” on currency or stating “one nation, under God” in the Pledge of Allegiance are permissible.
Suggested answers: The establishment clause and the free-exercise clause. The establishment clause means that government cannot institute, declare, or endorse any religion or religious practice. It cannot use public money to support any religion or religious activity, or give aid to any religion. The free-exercise clause means that people are free to worship any religion they choose or to not worship at all. Many Puritans felt that strict adherence to their religion provided their only means of survival, both physically and spiritually. Therefore, they saw deviation from the established order as dangerous. Colonial America had no shortage of land on which to settle. If one group expressed religious intolerance toward another group or individual, the persecuted party could settle elsewhere. In addition, a movement known as the “Great Awakening” fostered many different expressions of religion, which prevented any one religion from dominating others. To clearly define a separation between the government and religion. The Framers felt that government should not have any influence on or promotion of religion.
In several instances, the government has sought to limit free speech. Within seven years of the passage of the Bill of Rights, a Federalist Congress, sensitive to the criticism by the rival Democratic-Republicans, enacted the Sedition Act (1798). This controversial measure effectively outlawed criticism of the government, subjecting offenders to fines and even harassment. One critic, Representative Matthew Lyon of Vermont, was convicted of sedition and sentenced to prison, yet still won reelection to his seat in Congress. With a federalist-dominated judiciary, the Democratic-Republicans never challenged the law in court, but instead let the law expire in 1801 after winning both the presidency and the Congress. During the Civil War, several who spoke out against President Lincoln’s administration of the war were jailed without trial. Though the Supreme Court later deemed these arrests unconstitutional in Ex parte Milligan , the damage had already been done. As America entered World War I, Congress passed the Espionage Act of 1917, which prevented anyone from calling for resistance to the U.S. war effort. Congress amended the law the following year with another Sedition Act, which made speaking out against the government a crime.
In 1919 the Supreme Court heard the case of Schenk v. United States, wherein the court ruled that the Espionage Act did not violate First Amendment free-speech protections. However, in a majority opinion, Justice Oliver Wendell Holmes wrote that in cases questioning the extent of First Amendment’s protection, law enforcement had to consider whether the words or actions involved created a “clear and present danger” of substantial harm to the government. As an illustration, Holmes stated that even the most rigorous protection of free speech “would not protect a man in falsely shouting fire in a theater and causing a panic.” After the war, many states passed laws that criminalized dissent. From 1917 to the 1950s, many people were prosecuted under these laws, resulting in several Supreme Court cases.
Over the years, the Supreme Court has clarified the definition of speech and the limitations on it. People may express their ideas in ways other than the spoken word, including through gestures, demonstrations, music, and clothing. Symbolic speech, in which a person’s actions constitute the message, has also been granted protection as a legitimate form of expression. The Supreme Court has considered as symbolic speech such acts as burning the American flag and wearing certain adornments as a declaration of protest. In 1969, at the height of the Vietnam War, the Supreme Court heard the case of Tinker v . Des Moines School District . Thirteen-year-old Mary Beth Tinker, her older brother John, and their friend Christopher Eckhardt were suspended from school for refusing to remove the black armbands they wore to protest the war. The court ruled that the First Amendment protects these kinds of actions as symbolic speech, and because the Tinkers protested silently and did not disrupt classroom activities, overturned their suspension.
In Texas v. Johnson (1989), the Supreme Court struck down a Texas law that prohibited desecration of the flag. The court held that the government may not prohibit the expression of an idea simply because it offends society. This was a hotly contested decision that met with public outcry and congressional action. In response to Texas v. Johnson, Congress passed the Flag Protection Act of 1989, which prohibited the desecration of the flag. The court later reaffirmed its Texas v. Johnson ruling in United States v. Eichman (1990), ruling that the Flag Protection Act violated the First Amendment because it outlawed disrespect for the flag, not the actual act of burning it (the proper way to dispose of an old or damaged flag, which the decision pointed out). The ruling reminded Congress that only a constitutional amendment—not the mere passage of a law—can reverse a Supreme Court decision.
However, what if someone writes an article that accuses a public official of wrongdoing? What if someone publishes classified information that may threaten national security? In 1964, the New York Times published an advertisement by a civil rights group that accused the police of Montgomery, Alabama, of unjust treatment of civil rights protesters. The commissioner of police, L.B. Sullivan, sued the Times in state court for libel, charging that several of the statements in the ad were inaccurate. Sullivan won the case, and the Times appealed to the U.S. Supreme Court. The court overturned the judgment of the state court in NY Times v. Sullivan , stating that small errors of fact did not adequately justify a libel suit brought by a public official. The court went on to say that an official must prove that the publication printed the errors with malice—that is, printing false statements knowingly or without care as to their truthfulness. The commissioner could not prove malice, and the case was overturned. In 1971 the New York Times and the Washington Post published what became known as the “Pentagon Papers”—a secret government analysis of the causes of the Vietnam War. The U.S. government accused the papers of publishing illegally leaked documents. In New York Times v. United States (1971), the Supreme Court ruled that the government had not proven that publishing the documents would endanger American forces or compromise national security. In cases involving censorship of the press, the plaintiff must prove the publisher’s intent to defame, or that publication presents a clear and present danger to national security.
Suggested answers: Answers may vary. To help students address this question, go back to slide 18 and review the five reasons that freedom of speech forms an essential part of a democracy. Freedom of speech and of the press established the ideals of the Revolution years before actual fighting began: Enlightenment philosophers; the circulars and pamphlets distributed following the Stamp Act; Thomas Paine’s Common Sense ; and newspaper articles that kept people informed of events. Answers may vary. Examples of restricted expression include the Alien and Sedition Acts of 1798; banning all citizen petitions from Congress during the Civil War; the Espionage Act of 1917 and the Sedition Act of 1918. Answers may vary. Point out that “clear and present danger” means that the expression could directly lead to violence, civil disorder, or pose a threat to national security. Examples include publishing secrets proven to compromise national security, lying under oath, libel, or yelling fire in a crowded theater. Answers may vary.
Probably no other amendment has created as much controversy as the second. Though not an extensively worded amendment, its two clauses have spurred intense debate for over 100 years.
Why does the Second Amendment need defining? The Framers purposefully left many parts of the Constitution and Bill of Rights vague in order to make the document adaptable to changing times. The Second Amendment is perhaps one of the most vague and possibly most confusing amendments. To a gun-ownership advocate, the second part of the Second Amendment affirms that “the people” hold the right to bear arms, meaning individuals; in a similar fashion, in the First, Fourth, and Ninth Amendments “the people” refers to individuals, not the states. To a gun-control advocate, the first clause of the amendment defines the meaning of the second: citizens could keep arms in order to serve as part of a “well regulated militia.” The National Guard embodies our modern-day version of this, composed of citizen soldiers controlled by the individual states, ready to be called up when necessary. Guardsmen are trained in the use of their weapons (which are kept in armories) and do not take them home when training is complete.
Only a few Supreme Court cases have addressed the Second Amendment. However, none has defined whether the amendment applies to individuals or provides a collective right for the people to bear arms. In the case of United States v. Miller (1939), the Supreme Court made its most definitive ruling on the Second Amendment to date. Miller had been arrested for transporting a firearm (a sawed-off shotgun) across a state line. He claimed that the Federal Firearms Act of 1934, which required the registration of guns, was unconstitutional because it violated his right to bear arms. The court ruled that the Firearms Act was indeed constitutional in asking that certain firearms be registered. The court deemed a sawed-off shotgun was not part of a “well regulated militia,” and thus the government had a right to require its registration. Furthermore, registration didn’t deny a person the right to own a gun. The court has held that the Second Amendment does not apply to the states, so it does not bar local or state governments from instituting gun-control measures. In 1981, the town of Morton Grove, Illinois, voted to prohibit the possession of handguns in the home. The following year, the U.S. Court of Appeals for the Seventh Circuit ruled in Quilici v. Morton Grove that the Second Amendment does not apply to the states, that the right to bear arms is exclusively connected to the functioning of a militia, and that the Second Amendment does not guarantee the right to keep and bear arms. The U.S. Supreme Court declined to hear the case, allowing the lower court ruling to stand.
The Third Amendment to the Constitution has a long history of influence on the American psyche, but little history of litigation. In fact, the Supreme Court has yet to rule on any case involving the quartering of troops in people’s homes.
It’s important to point out that the Third Amendment does allow for the quartering of troops in privates houses without the owner’s consent during wartime. However, the clause “in a manner prescribed by law” requires that procedures be set in place to compensate the homeowners. This became a problem during the Civil War, when Union troops were quartered in private homes in violation of the Third Amendment. Since Congress itself never authorized such an action, no compensation was offered. The Supreme Court has never heard a case specifically concerning the Third Amendment regarding either a federal or state action. Yet the Third Amendment has been cited as further evidence of a citizen’s constitutional right to privacy. The Supreme Court has identified the principle that “a man’s home is his castle” when ruling on police investigations and state intrusions into people’s private lives.
The courts have interpreted the Fourth Amendment as safeguarding the right to privacy, although the text does not specifically mention the word “privacy.” Closely tied to the Third Amendment, it reflects the principle that “A man’s home is his castle.” The protection of one’s privacy from intrusion by government officials acts as an important corollary to freedoms of conscience, thought, religion, and expression, as well as to property rights. Such protection has become even more imperative today with the advent of advanced surveillance technology and with much of our personal information stored in relatively insecure computer databases.
The Fourth Amendment specifically protects citizens from unreasonable searches of “their persons, houses, papers, and effects.” The Framers of the amendment didn’t intend to list everything that could conceivably need protection; instead, they only mentioned items commonly subject to searches and seizures. The word “effects” covers most people’s general understanding of possessions considered private and needing protection. Over time, the courts have more clearly defined what items are and are not protected from searches and seizures. The courts have further defined under what conditions warrants should or should not be issued. Originally, the Supreme Court took the view that the Fourth Amendment limited its protection to actual invasions of a specific location or a person’s body. Under this interpretation, in Olmstead v. United States (1928), the court ruled that wiretapping didn’t require a warrant if the listening devices were located outside the person’s private property. However, the Supreme Court overturned this decision in a similar case, Katz v. United States (1967), when it ruled that “the Fourth Amendment protects people, not places.” This decision established the “reasonable expectation of privacy” doctrine, stating that Mr. Katz had a reasonable expectation that his conversations on a telephone — even a public one — were private. Later court cases further clarified the reasonable expectation doctrine as well. In California v. Greenwood (1988), the court ruled that garbage bags placed on the curb outside of a home in full view of the public did not merit a reasonable expectation of privacy. Any contraband found in sealed garbage bags could be seized as evidence.
The Supreme Court has also defined what constitutes an unreasonable search or seizure in several cases over the past century. Various court rulings have cited the “exclusionary rule,” which states that evidence obtained via an illegal search is inadmissible in a court of law. In Weeks v. United States (1914), police detained and arrested Mr. Weeks at his place of business. Meanwhile, other officers searched his home without a warrant. The search turned up evidence that Mr. Weeks was sending lottery tickets through the mail, a violation of federal law. Based on this evidence, he was later tried and convicted. The Supreme Court overturned the lower court’s decision, ruling that the warrantless search had violated Weeks’s Fourth Amendment rights. This set legal precedent and established the exclusionary rule: evidence gathered illegally cannot be used in a court of law. The Supreme Court extended this provision even further in Silverstone Lumber Co . v. United States (1920), wherein it established the “fruit of the poisonous tree” doctrine. This states that not only is any evidence obtained through an illegal search inadmissable, but that any confessions stemming from illegally seized evidence are inadmissible as well. The Supreme Court extended the exclusionary rule derived from the Fourth Amendment to the states through the Fourteenth Amendment. In the case of Mapp v. Ohio (1961), the local police entered Mr. Mapp’s home to seize gambling paraphernalia and arrest him. The police, claiming they had a warrant (though none was produced), searched the premises and found pornography, with which Mapp was tried and convicted for possession of obscene materials. The judge knew the search was illegal yet still admitted the evidence, since the exclusionary rule didn’t yet apply to state authorities. Mapp appealed to the Supreme Court, which ruled that the due process clause of the Fourteenth Amendment requires that all illegally obtained evidence be excluded from state as well as federal court proceedings.
As the Supreme Court worked to further refine the parameters of the exclusionary rule, it began to find justifiable reasons to allow exceptions. One of these early exceptions was the “good faith” doctrine, which was established in U.S. v. Leon (1984). This doctrine allows for the admissability of illegally obtained evidence, provided that the police were truly unaware while obtaining it that they were violating a person’s Fourth Amendment rights. Another doctrine emerged from a decision delivered the same year, the “inevitable discovery” doctrine established in Nix v. Williams . Here, the court ruled that evidence not mentioned in a warrant but likely to have been discovered anyway (because it was in plain view or perhaps offered up) is admissable in a court of law. It is important to point out that the exclusionary rule is not designed to protect the constitutional rights of suspects, but to deter and penalize police misconduct when it occurs. When a court invokes the exclusionary rule, it does so not to exonerate a criminal act, but to throw out illegally obtained evidence and emphasize that police will have to find other evidence for trial. Controversy surrounds the exclusionary rule, as many suspected criminals have gone free due to illegally seized evidence. In recent years, the courts have further defined the exclusionary rule and have added several additional exceptions as to when evidence acquired without a search warrant may be used in court.
Other exceptions to the exclusionary rule include: Automobile searches: A vehicle may be searched if there is probable cause that a crime is or has been committed. Any part of the passenger section can be searched. A search of the trunk requires specific justification, such as noise, a smell, or some other indication. Border searches: The governments secure the borders through its transportation routes and international airports. A person and their possessions can be searched for contraband or dangerous materials. “Profiling” of suspicious individuals is also allowed. Exigent circumstances: Police may conduct warrantless searches under certain circumstances, such as a perceived emergency (shots fired or someone screaming for help, or a crime being committed in plain view). This also includes instances in which evidence must be quickly obtained because a delay would allow its destruction or removal (tissue samples, fingernail scrapings).
Other exceptions to the exclusionary rule (continued): Plain view: This refers to warrantless searches during which any of the five senses detect a crime being committed, as long as the police have lawful access to the object and discover it accidentally (for instance, finding a gun or drugs when a driver opens his glove box to produce his registration and proof of insurance). Stop and frisk: This exception was first established in Terry v. Ohio (1968), wherein the court ruled that a person acting suspiciously could be stopped and frisked for weapons, which then could be seized and introduced in court as evidence. Student searches: Although public school students have Fourth Amendment protections, their rights differ from those of adults in similar circumstances. School officials have an obligation to maintain an atmosphere of learning and safety. In New Jersey v. T.L.O (1985), the Supreme Court ruled that, under reasonable circumstances, school officials don’t need probable cause in order to search a student’s locker or purse. This permits school officials to conduct a search if they believe it will turn up evidence of a crime or a school violation, but not simply as a disciplinary measure.
Suggested answers: Students should identify the items stated in the amendment (persons, houses, papers, and effects), but also point out that “effects” can mean many things, including private phone conversations. The amendment limits the power of government by making sure that a search or seizure has been conducted with a court-approved warrant that specifies the place to be searched and the person or items to be seized. Remind students that the Bill of Rights originally pertained only to the federal government. Through a series of court cases, many of the limitations on government power have been extended to the states though the Fourteenth Amendment’s due-process clause. This was the case for the Fourth Amendment in Mapp v. Ohio . Answers may vary, but students should identify advantages such as keeping the police and other authorities honest and not above the law. For disadvantages, students could mention that the exclusionary rule may disallow evidence that could convict a criminal in court, that it doesn’t directly protect the victims of a crime, and that it breeds disrespect for the criminal justice system. Answers may vary.
The Fifth Amendment guarantees five very diverse rights. Perhaps the most widely known is the right against self-incrimination in criminal cases—that is, not being compelled to be a witness against oneself. Commonly referred to as “taking the Fifth,” witnesses invoke this provision by stating, “I refuse to answer on the grounds that my testimony might tend to incriminate me.” The amendment also provides other important protections: Having serious criminal charges evaluated by a grand jury Freedom from being tried twice for the same offense (double jeopardy) Benefiting from due process of law Receiving just compensation when private property is taken for public use
“ No person shall be held to answer for…[an] infamous crime unless on…[an] indictment of a Grand Jury.” By “infamous crime,” the amendment refers to a serious crime, one that would place the person in prison or subject to a severe fine if proven guilty. “ Double jeopardy” refers to trying a person twice for the same crime. This provision applies solely to criminal trials, not to civil trials which involve lawsuits. It does not prohibit trying a person for a different crime committed at the same time as the first. In trials portrayed on television or in the movies, witnesses often declare they are “taking the Fifth.” By invoking the Fifth Amendment, they are claiming their right against incriminating themselves for a crime they might or might not have committed. The concept of due process of law evolved centuries ago, though its meaning and extent are still being determined to some degree. There are two kinds of due process: substantive, which refers to the content of a law applied during legal proceedings; and procedural, which refers to the process by which the legal proceedings are conducted. When the government takes one’s private property for public use, that is called imposing eminent domain. The Fifth Amendment permits the government to do this, as long as the owner receives “just compensation,” which normally means the fair market value of the property.
Indictment by a grand jury: The case of Campbell v. Louisiana supported the right to a grand jury free of discrimination. Terry Campbell, a white man, moved to quash the indictment against him by citing a long history of racial discrimination in the selection of grand-jury forepersons in Evangeline Parish, Louisiana. No African American had served as a foreperson for the past 16 years, despite the fact that blacks made up 20 percent of the parish’s registered voters. In a unanimous opinion, the court held that a grand jury ought to be free of discrimination because racial bias in jury selection casts doubt on the integrity of the entire trial process. Right against self-incrimination: The Fifth Amendment right to counsel and protection against self-incrimination was protected in the case of Miranda v. Arizona (1966). The court held that statements made during an interrogation in which the suspect is unaware of his constitutional right against self-incrimination are inadmissible, and that police should inform the accused of their rights before interrogation begins. Right against double jeopardy: the defendant, Mr. Green, was tried on two counts of murder. The jury found him guilty of the lesser charge, but couldn’t decide on the more serious charge. His conviction was overturned on appeal, and he was retried for the more serious charge and found guilty. The Supreme Court ruled in Green v. United States that since Green was not found guilty of the more serious charge in the first trial he could be retried for that charge.
The Sixth Amendment attempts to balance the enormous power of the state and all its agents that may attempt to prove guilt—the police, the schools, the FBI, government security agencies, and the three branches of government—against the right of the individual to prove his or her innocence.
The Sixth Amendment guarantees six rights crucial to receiving procedural due process. If a person is arrested for an alleged crime, the government is obligated to honor these specific rights: The right to a public trial, conducted within a reasonable period of time The right to a jury trial in the state or district where the alleged crime was committed The police or authorities must inform the accused of the crimes they are believed to have committed The right to confront one’s accusers in a court of law The right to call witnesses and/or produce evidence to support one’s innocence The right to legal counsel for assistance with court proceedings
Witnesses accusing someone of a crime must testify in front of the accused. In most cases, they may not testify in secret or at another location. This is based on the idea that a witness is more likely to give testimony truthfully when brought face-to-face with the accused. It also enables the accused to challenge the witness’s truthfulness in open court through cross-examination. At times the nature of the crime may be such that a face-to-face confrontation would not compel the witness to tell the truth. Many states allow alleged victims of child abuse to testify without directly confronting the accused. In Maryland v. Craig (1990), the Supreme Court upheld state laws that permit testimony through the use of closed-circuit television, where witnesses testify in another room and their image appears on a courtroom television screen.
The Seventh Amendment is the third mention in the Constitution and Bill of Rights of trial by jury, a testament to the Framers’ belief in the importance of the jury system. It grants the right to a jury trial to parties in civil cases, or cases where no crime has been committed but one party seeks compensation for a perceived wrong. Examples of cases that fall under this category include breaches of contract, discrimination disputes, and compensation sought for damages incurred in car accidents. Compensation may range from an apology, a cessation of action, a monetary award, or a reinstatement to a previous or preferred position. The most common experience people have with the justice system is in civil court, where disputes between individuals are heard. For most of us, the right to have our side of the story heard objectively by people free of bias is the true essence of democracy. In the jury box, citizens meet face to face in order to work out the differences among themselves and come to some level of agreement. They examine the facts, cross-check the statements, and weigh the evidence to the best of their ability to attain fairness and justice.
The Eighth Amendment is one of the most controversial in the Bill of Rights and contains language that has evolved with the times. How a society implements the amendment’s requirements reflects its character and its belief in fairness and justice. Written in language designed to address abuses by previous governments, the amendment establishes guidelines for bail, fines, and punishments. As with other amendments, the Eighth Amendment’s meaning has changed over time to reflect society’s “evolving standards of decency.”
What constitutes “cruel and unusual punishment” is not always clear. The Framers of the Eighth Amendment had a different standard in mind than we do today. Punishment considered acceptable then would most likely be deemed cruel and unusual by today’s standards. The possibility exists that standards today may be considered cruel or unusual to future societies. The most controversial issue surrounding the Eighth Amendment concerns the application of capital punishment. In several places, the Constitution’s language appears to accept the legitimacy of the death penalty: the Fifth and Fourteenth Amendments state that no one will be deprived of life or liberty without due process of law. The death penalty has been in use in the United States since colonial times. In many states, anyone convicted of murder or other serious crimes automatically received the death penalty. Therefore, the laws of those states did not allow judges or juries to take into account any other factors when sentencing, such as the person’s age or state of mind. During the 19th century, a number of states gradually began to consider circumstances other than the nature of the crime and examine whether every so-called capital crime warranted capital punishment. This allowed sentencing to more appropriately reflect the crime, but it also resulted in inconsistencies in how juries treated cases of similar circumstances. One pattern that emerged illustrated a racial bias in sentencing: since juries were mostly composed of white people, African Americans received death sentences far more than whites did for the same crimes.
During the 1960s, the use of capital punishment came under question for several reasons: Sociological studies could not confirm that capital punishment deterred crime. Studies showed further inconsistencies in how juries dealt out sentences of capital punishment, and that often race and not the nature of the crime proved to be the most important factor when sentencing someone to death. Many people argued that the cost of executing a criminal, when factoring in all the appeals allowed a death-penalty conviction, added up to more than the cost of life imprisonment. Using technology developed in recent years, DNA evidence has proven that many individuals on death row never committed the crime for which they had been sentenced to death.
As the controversy continued, the Supreme Court eventually heard cases that narrowed the meaning of the Eighth Amendment: In Trop v. Dulles (1958), the Supreme Court ruled that the standard for cruel and unusual punishment “must draw its meaning from evolving standards of decency” that reflect the progress of a society. Therefore, punishments considered acceptable at an earlier time might not be now. This also means that different areas of the country might consider some punishments acceptable and others not. In Furman v. Georgia (1972), the Supreme Court didn’t outlaw capital punishment, but stated that it violated the Eighth Amendment as it was presently being administered. The court ruled that judges and juries needed more guidance from states when deliberating death penalty cases. As a result of this ruling, all states suspended all pending executions. States began the process of revising the death-sentencing rules, while some states went back to the practice of automatic death penalties for serious crimes. In 1976 the Supreme Court heard the arguments of five cases concerning the new state laws, combined under the title Gregg v. Georgia (1976). At question was whether imposing the death penalty violated the Eight and Fourteenth Amendments. The court held that punishment by death did not violate the Eighth and Fourteenth Amendments under all circumstances. In cases in which the jury convicted the defendant of deliberately killing another individual, and in which the criminal court had limited jury discretion by dividing the trial into a conviction phase and a sentencing phase, then the death penalty may still apply. However, the court ruled in a related case that mandatory death-penalty sentencing violated the Eighth Amendment.
In general, the Supreme Court has held that the death penalty should only be imposed for murder convictions. In Coker v. Georgia , the court struck down laws that allowed capital punishment in rape convictions. Rulings have also limited death sentences related to the felony-murder rule (in which accomplices to a felony during which a murder is committed could also be convicted of murder and eligible for the death sentence). In Enmund v. Florida (1982), the court held that minor accomplices could not be sentenced to death, but in Tison v. Arizona (1987), the court upheld the death penalty for major participants in a felony-murder. In the 1989 case Stanford v. Kentucky , the court narrowly upheld the constitutionality of executing sixteen-year-old offenders in a five-to-four decision. Noting that no national consensus existed on imposing capital punishment on offenders under 18 years old, the court asserted that the states must make the decision of whether to execute 16- or 17-year-olds, and therefore did not pronounce this practice cruel and unusual punishment. However, the dissenting justices expressed very strong concerns about the use of capital punishment on individuals under 18 years old.
Suggested answers: Differences: A civil trial is for settling disputes among individuals or groups, while a criminal trial is to determine innocence or guilt. Similarities: both may involve juries, be held in courtrooms, and involve lawyers, and parties may call witnesses and present evidence. Answers may vary, but the general benefit is that jury trials are prime examples of democracy. They encourage people’s concerns to be heard by others like them, allowing an appeal beyond the bare facts to the circumstances of the situation in dispute. Drawbacks: Jury trials can be long and expensive, and juries aren’t always well informed about the issues surrounding the disputes. Releasing defendants on bail gives them time and freedom to prepare for trial and suspends punishment until guilt or innocence has been determined. For the prosecution, it provides time to prepare their case while helping to insure that the defendant will appear for trial (to reclaim their bail bond). It means that the determination of what constitutes excessive bail or fines or cruel and unusual punishment must be judged against the public’s sense of values and that this standard changes over time. Standards defining cruel and unusual punishment have moved from harsher punishment to more humane punishment. Answers may vary as to why, but generally the reason involves how society has evolved to become more aware of and sensitive to the circumstances surrounding crime. Studies haven’t conclusively proven that that capital punishment deters crime. Inconsistencies among juries as to who should receive capital punishment appeared to exhibit a racial bias. Also, recent advances in DNA analysis have proven many people on death row innocent.
The Declaration of Independence states: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” This document builds a foundation for declaring the rights of citizens and government’s role in protecting those rights. The Ninth Amendment assures that the powers that the Constitution grants to the government do not take away other rights possessed by the people. However, since the inception of the nation, we have been trying to clarify who—the legislative branch, the judicial branch, or the even the people themselves—is best suited to define the extent of these rights and protect them.
There are two opposing views on the interpretation of the Ninth Amendment: Some believe that the Ninth Amendment’s statement that “other rights retained by the people” (outside of the rights enumerated in the Constitution) include several fundamental rights such as the right to privacy, the right to travel, and the right to vote. They believe that the courts should protect these rights because the other two branches of government possess the power to take them away. Those who disagree, and who advocate that the courts exercise “judicial restraint,” say that the legislative branch holds responsibility for protecting the people’s rights. Some take the argument even further, saying that this responsibility lies not with the federal legislature, but primarily with state legislatures because they better reflect the will of the people.
During the Constitutional Convention of 1787, delegates discouraged mentioning the people’s rights in the Constitution for different reasons. The most compelling reason involved practical concerns: Delegates felt that there were too many rights to list and furthermore believed that most rights violations would occur at the state level, where most state constitutions already contained provisions for protecting citizen’s rights. As resistance to the proposed Constitution grew in the state ratification conventions, the new government moved to address the issue. To avoid the problem of listing every right, the Framers of the Ninth Amendment crafted a catch-all phrase that simply left to the people the rights not enumerated in the Constitution. While its addition seemed to satisfy the concerns of the Anti-Federalists who feared the power that the proposed Constitution granted the federal government, the phrase itself didn’t help explain these rights for future generations, nor which branch of government was supposed to protect them.
Enumerated rights (those explicitly stated in the Constitution or Bill of Rights) naturally receive the greatest protection. Therefore, several court cases have addressed the rights to religion, speech, assembly, gun possession, protection from unreasonable searches and seizures, due process, and excessive bail, fines, and punishment. The courts have recognized that the Ninth Amendment implies and protects certain unenumerated rights, such as the right to travel and to vote. However, the courts have always been careful to state that these directly relate to other provisions in the Bill of Rights—usually the Third, Fourth, and Fifth Amendments, and the due-process clause of the Fourteenth Amendment. Some courts have taken the lead in identifying and protecting the unenumerated rights of the Ninth Amendment. The Supreme Court ruled in 1972 that a woman’s right to an abortion stemmed from the individual’s right to privacy. Nowhere does the Constitution or Bill of Rights enumerate this right; however, it is understood to exist through the Fourth Amendment and is implied in the Ninth Amendment. Those opposed to this ruling have stated that the Ninth Amendment doesn’t create enforceable rights where they don’t exist, and that privacy, in the matter of abortion, doesn’t follow from the Fourth Amendment.
The Bill of Rights does not enumerate the rights to travel, privacy, and voting, but court decisions have inferred their existence from a number of amendments and guaranteed them through the Ninth Amendment. The Supreme Court reviewed the right to travel in Kent v. Dulles (1958). The plaintiff in this case, Mr. Kent, had applied for and was refused a passport for a trip to England due to his communist affiliations. The Supreme Court, in a close 5-4 vote, upheld travel as an inherent right of liberty that could not be denied to American citizens. In Griswold v. Connecticut (1965), the Supreme Court struck down a Connecticut law that prohibited the use of contraceptives by married couples. The decision stated that amendments in the Bill of Rights protected marital privacy. In subsequent cases, the Supreme Court has ruled that the right to sexual privacy applies outside of marriage as well. A resident of Virginia, Annie Harper, claimed that the state’s poll tax denied poor people the right to vote and was therefore unconstitutional. The Supreme Court struck down the law in Harper v. Virginia Board of Elections (1966), stating that the law made wealth a standard for voting and violated the equal protection clause of the Fourteenth Amendment.
The first nine amendments to the Bill of Rights protect people’s rights. The tenth protects the power of the states. During the state ratification conventions, delegates recognized the extensive powers granted to the federal government by the Constitution, and as a result saw their own powers reduced. Delegates insisted that an amendment be written to preserve the states’ active place in the government. The uniqueness of the Constitutional experiment comes from the overlapping powers of separate sovereignties: the federal and state governments. Inherent to this experiment is a struggle for power and jurisdiction. When this relationship works, it’s called federalism (the sharing of powers and responsibility between the federal and state governments). When the relationship falters, the courts are called upon to settle the dispute. When the relationship is dysfunctional, civil war results.
The experience of World War II affected Americans’ ideas of individual liberty and government power. The United States became the standard bearer for the defense of liberty worldwide and at home. Since Plessy v. Ferguson (1896), segregation had not only been the custom in the United States, but also the law, and nowhere had the tradition become more entrenched than in public schools. Sixty years later, in Brown v. Board of Education (1954), the Supreme Court relied on the equal-protection clause of the Fourteenth Amendment and on the power of the federal court to issue the final word on public school desegregation. The court ruled that, despite the attempts of states and school districts to “equalize” tangible factors in schools, intangible issues still fostered and maintained inequality. Racial segregation had a detrimental effect on minority children because it labeled them inferior not only to the majority population, but also to themselves. During the 1970s and 1980s, the Supreme Court wavered on striking a clear balance between state and federal power. During William Rehnquist’s tenure as chief justice, the court issued a wide range of decisions that reaffirmed the role of the states and limited the powers of Congress. Beginning with United States v. Lopez (1995), in which the court struck down the Gun-Free School Zones Act of 1990, the Rehnquist Court struck down over 25 laws enacted by Congress.
Suggested answers: The Ninth Amendment explains that powers or rights enumerated in the Constitution shall not deny other rights to the people. Answers may vary, but during the constitutional ratification conventions many people expressed concern over the massive power of the federal government and wanted to ensure people the rights not expressly mentioned in the Constitution or forthcoming Bill of Rights. One view holds that the the courts would best protect the Constitution’s unenumerated rights because the other two branches possess powers that could take them away. The other view holds that the legislative branch, speaking for the citizens as their representatives, carries the responsibility of protecting unenumerated rights. Some members of the latter camp feel that state legislatures can best define and protect the rights of the people. Enumerated rights are those explicitly stated in the Constitution and Bill of Rights. Examples: religion, speech, assembly, gun possession, due process, no unreasonable searches and seizures, and no excessive bail, fines, or punishment. Unenumerated rights are those that are implied in the Constitution and Bill of Rights, such as privacy, travel, and voting. The controversy surrounds court decisions that protect rights not explicitly stated in the Constitution or Bill of Rights. The first nine amendments to the Bill of Rights protect the rights of people. The tenth protects the power of the states.
The Tenth Amendment says that powers neither granted to the federal government nor prohibited to the states are reserved for the states or the people. The Constitution sets up a system of government that gives overlapping powers to two separate and sovereign governing bodies. Tension arises when both of these bodies claim the same power. The doctrine of nullification asserted that a state could nullify any federal action it found to be unconstitutional. In the Nullification Crisis of 1832, South Carolina believed the tariff passed by Congress to be unconstitutional and threatened to secede if Congress didn’t repeal it. Answers may vary. Marshall Court: supported the national government; Taney Court: supported states’ rights; 1918 to 1936: supported states’ rights; 1941 to 1995: supported national government; Rehnquist Court: supported states’ rights.
Even though the first Congress did add a bill of rights to the new Constitution, these mere words didn’t guarantee protection against governmental abuse of power. Nor were they designed to protect every right, for everyone, in all circumstances. Over the next 200 years, debates about what these rights meant, and to whom and to what extent they should apply have continued the dialogue begun at the Federal Convention. When the Bill of Rights was enacted, its provisions only pertained to the federal government, because most believed sufficient protections existed in the states’ bills of rights. In an ironic twist of history, many of the precedent-setting Supreme Court cases originated from violations by state governments. But it was not until the enactment of the 14th amendment, after the Civil War, that the federal Constitution protected individuals against violations of their rights committed by the states. The 14th amendment reads, “No State shall… deprive any person of life, liberty, or property without due process of law.” The Greeks believed that what was most important was the role citizens played in government. Many Americans have answered this noble calling by using the court system to challenge government attacks on their freedoms and liberties. Some of these cases demonstrate why the Constitution’s framers chose to write the Bill of Rights, and why we still need them today. Others highlight the difference between the Framers’ era and our own. Still others raise difficult questions for the future. The interpretation of the these rights will continue to evolve and change with the times, sometimes reflecting society’s beliefs and sometimes setting a new path for society to follow.
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