Bill of Rights Commentary
The delegates to the Constitutional Convention seemed to have been correct in their assessment that including a Declaration of Rights into the Constitution was superfluous. For 175 years, no one paid much attention to the Bill of Rights. Few people complained against a coercive government, at least not strongly enough to raise the issue to the federal courts. However, this changed following the end of World War II in 1945.
In the 1950's the Bill of Rights rose to prominence when many citizens were accused of being communists or communist sympathizers. They wanted protection against Senate investigative committees. Also, blacks began to demand rights equal to those enjoyed by whites. Since then, many laws were passed based on Bill of Rights principles. Now, the Bill of Rights is equal with the Declaration of Independence and the Constitution as a fundamental governing document. Below are highlights of each amendment.
This amendment is about civil liberties, or the "five freedoms": religion, speech, press, assembly, and petititon. Civil liberties have been expanded continuously in the last 40 years. Blacks have obtained more civil rights and women have obtained more equality at work and in the home. Although the amendment says only that the government may not establish a religion, the courts have interpreted that to mean there must be a wall between church and state, that the government cannot discriminate among religions, and it cannot prevent people from worshipping, or not worshipping, as they wish. The people and the press can criticize the government more openly than in the past. Sedition by the press is no longer feared, but it must be careful of libel against individuals. The right to assemble now means the right to organize into political interest groups. These freedoms are not absolute because they sometime conflict with each other, the constitution, and other amendments. Also, the rights of any one person is limited by the rights of other people. (Top)
This amendment gives the right to bear arms. It has become very controversial because of many tragic uses of firearms. A strict interpretation restricts arms to militias for defense against a tyrannical central government or foreign invasion. A liberal interpretation allows everyone to bear arms to hunt and to protect oneself. Few people question the right of state and local governments to regulate arms in some way and many have done so to prevent their misuse. (Top)
This amendment limits the quartering soldiers in private residences. This was germain to colonists chafing under British military occupation, but has not been applicable since the Revolutionary War. It has been used rarely to support privacy in general. (Top)
This amendment protects citizens against unreasonable searches and seizures. Government officials must give good reasons ("probable cause") for searching people and property and must have a warrant to do so. It does not apply to a police official who has "good reason" to believe a crime is in the process of being committed. Current controversies concern electronic and digital surveillance. (Top)
This amendment protects indicted persons against frivolous accusations of committing a crime. A grand jury must find sufficient proof of accusation for serious federal crimes, and a person cannot be charged and tried twice for the same crime (double jeopardy), although people can be tried on different charges for the same crime. Also, no one can be forced to testify against him/herself (self-incrimination). The "due process" part of this amendment has always been controversial and was used by federal courts to restrict excessive government use of laws. An expanded interpretation of this amendment is that accused persons must be informed of their rights to (1) refuse to answer questions while being interrogated and (2) any answers to questions may be used against them in court. Evidence seized illegally without a search warrant may not be used in court. (Top)
This amendment guarantees a speedy public jury trial for the accused. The accused must be informed of the charges and witnesses must testify in open court. The accused is allowed witnesses to testify for him/her. At one time, the accused had to provide his/her own lawyer, but now the court is obliged to appoint a defense lawyer, if the accused wants one, but cannot afford it. (Top)
This amendment guarantees a trial by jury in civil cases involving more than $20 in value. The Constitution guarantees jury trials for criminal cases only. This amendment also guarantees jury trials throughout the appeal process, so that only juries will determine facts - not judges. Judges are restricted to interpreting the law. (Top)
This amendment limits fines, bail, and punishments. Today, it is in the news often with regard to capital punishment. Most people today would consider burning alive, disembowlement, and drawing and quartering very cruel, but at one time they were acceptable forms of societal retribution. Today, the debate is whether any form of execution is "cruel and unusual punishment". Maybe tomorrow the punishment of life imprisonment will be considered too cruel. Of course, the pendulum could swing the other way. (Top)
This amendment says that the rights enumerated in the Constitution are not the only rights of the people. It makes clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, but it does not guarantee any specific rights. However, the amendment has been construed to be an affirmation of the existence of rights which are not enumerated. Courts have not used this amendment because of its open-endedness, but some people would like to use it to protect private rights, such as women's rights to abortions. (Top)
This "reserved powers" amendment limits the national government to those powers given in the Constitution. Its intent was to limit the "necessary and proper" clause of Article I, section 8, the so-called "elastic clause". It was frequently invoked to curtail the power of the federal government. However, the expansion of the powers of the federal government over the years has vitiated the original intent of this amendment. However, there are many advocacy groups that want to turn back the clock. (Top)
Readers are advised to study the Bill of Rights and watch carefully how the three branches of the U.S. government interpret these rights in passing and administering laws. Ink was spread and blood was shed in their formulation, interpretation, and execution. They should not be taken for granted. (Top)