Bill of Rights

Explanation and Analysis of the Document

The Bill of Rights opens with a preamble that describes why the Congress is passing these amendments (“in order to prevent misconstruction or abuse of its powers”) and resolves that the amendments will become law when ratified by three fourths of the state legislatures.

Amendment I

The establishment and free-exercise clauses of the First Amendment derive from the phrasing, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Under the establishment clause, Congress is restricted from establishing a national religion or giving preference to one religion over another or to irreligion over religion. Under the free exercise clause, Congress is prohibited from infringing upon religious practice. Taken together, the establishment and free-exercise clauses are generally referred to as the religion clauses of the First Amendment.

In an 1802 letter to a group of Connecticut Baptists, Thomas Jefferson wrote that the establishment and free-exercise clauses of the First Amendment built “a wall of separation between church and State” (Jefferson to Danbury Baptists, January 1, 1802). During colonial expansion, many religious sects sought settlement in America in order to escape religious persecution. As such, the right to free religious practice was of high importance to many early Americans.

Some have claimed that the free-exercise clause can, at times, come into conflict with the establishment clause of the First Amendment. Those who make this claim understand that the government's noninterference with religion may necessitate the government's accommodation of religion. However, as the more pronounced accommodation of one religion over another may indicate preference for one religion, a conflict between the religion clauses may emerge.

The speech-press clauses cover the right to freedom of expression. At the time of the document's drafting, Madison originally proposed that the speech-press clauses of the First Amendment should claim that citizens must not be deprived of their sentiments to speak, to write, or to publish. However, in the final draft of the First Amendment, Madison's emphasis on the right to sentiment was altered to a right to expression through speech, writing, and publication. What constitutes protected speech or publication has been a source of debate up to modern times. Particularly controversial Supreme Court decisions have been those protecting war protest, flag burning, and restricted forms of obscenity and pornography.

The last phrase of the First Amendment establishes a “right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The right of assembly is the freedom to associate with and organize groups or clubs. The right to petition is the freedom to petition the government for correction of perceived injustices. The right to assemble may be said to be derivative of the right to petition, as the former is often considered to be for the purpose of the latter.

Amendment II

Under the Second Amendment, citizens have the right to bear arms. Originally, this right was instituted for the purpose of maintaining armed state militias. The amendment was drafted largely in reaction to the oppression waged by British soldiers in pre-Revolutionary America. Beyond this context, the Founding Fathers actually perceived no use for a standing army in the early period of the United States. Rather, they decided that an armed citizenry would provide the best protection of American liberty. During the drafting of the Second Amendment, the citizen-soldier was the norm. In modern times, however, the development of the U.S. armed forces has made the citizen-soldier obsolete. As a result, the Second Amendment had taken on a new context by the turn of the twenty-first century.

Some theorists claim that the Second Amendment is generally to be understood as conveying a protection of ownership and the right to personal possession. Others, however, claim that the primary aim of this amendment was to provide for a militia, and therefore in the absence of a need for one, the amendment should be considered invalid. In practice, the Second Amendment holds the distinction of being the least enforced amendment contained in the Bill of Rights. The U.S. Supreme Court has never struck down a piece of legislation on the ground that it violated the Second Amendment.

Amendment III

Like the Second Amendment, the Third Amendment derives from a pre-Revolutionary context. Prior to the American Revolution, colonial law required citizens to house British soldiers. This law, known as the Quartering Act, was a source of complaint among the American colonists and was even referenced in the Declaration of Independence as an indictment against King George III. Desiring not to allow this offense to be repeated, the Founders established the Third Amendment, which claims that no citizen shall be made to house soldiers. Although a common concern at the time of its drafting, with the advent of the modern military the Third Amendment has become mostly obsolete.

Amendment IV

The Fourth Amendment requires that all searches and seizures by the government must be “reasonable.” In those cases when a government official finds it necessary to issue a search or arrest warrant, the warrant must be supported by probable cause and be limited according to its purpose. Generally, through what is known as the exclusion rule, evidence obtained in violation of the Fourth Amendment may not be used in criminal trials. The exclusion rule is one way in which the government protects the Fourth Amendment.

The Fourth Amendment was written largely as a response to British writs of assistance, which were warrants issued by the British Crown that allowed British officials general search powers. The generality of the writs of assistance allowed for searches unconfined by specific location, person, or cause.

Amendment V

Under the grand jury clause, criminals are to be tried by grand juries for infamous crimes. A grand jury is a jury of peers that decides upon criminal court cases in closed sessions. An infamous crime is a crime punishable by incarceration or death. However, in many cases, in crimes punishable by incarceration but not death, criminals may waive their Fifth Amendment rights and proceed with a trial without the indictment of a grand jury.

The double jeopardy clause protects defendants from being tried twice for a particular offence. Although the double jeopardy clause refers to “jeopardy of life or limb,” the meaning of this clause has been interpreted to provide protection against double punishment by any means.

Under the self-incrimination clause, the Fifth Amendment protects witnesses of crimes from incriminating themselves. This protects against coercion by authorities, which could lead to false and involuntary confessions. From this clause comes the saying, often heard in television crime shows, “I plead the Fifth.” To “plead the Fifth” means to refuse to testify under one's Fifth Amendment right against self-incrimination.

The due process clause restricts the government from extending punishment without “due process of law.” Due process is generally interpreted as litigation that fully observes the legal rights of the accused in any case where the accused is punishable by the limitation of his or her rights to life, liberty, or property.

“Eminent domain” refers to the power of government to take private property for public use, following just compensation. Eminent domain has been commonly exercised in cases where private lands are needed in order to provide for transportation or other needs of the community. Under the eminent domain clause, individuals must be fairly compensated for the acquisition of their property by the government. In territory cases, this means that a fair market value must be offered to the property holder for the sale of his or her lands.

Amendment VI

The speedy and public trial clause prevents undue and oppressive incarceration for those awaiting trial. This clause maintains what is called a “presumption of innocence,” or the presumption that one is innocent until proved guilty.

The right to an impartial jury protects against the unjust persecution of defendants on the part of biased prosecutors and judges. Assuring the impartiality of jurors requires a rigorous screening process in many cases. The goal of assembling a jury is to arrive at a fair and representative cross section of the community.

The notice of accusation clause entitles defendants to the details of the offense with which they are being charged. Indictments must provide a full enumeration of all criminal charges pertinent to each arrest.

The confrontation clause gives defendants the right to be present at their own trials. Trials in absentia are rare and mostly occur only if a defendant fails to behave in court or if a compelling reason exists for keeping a defendant from facing accusers or other necessary parties. Furthermore, under this clause, a defendant may cross-examine witnesses and be a direct witness in his or her own case.

The compulsory process clause allows defendants to compel witnesses to appear and testify in their defense. Under the compulsory processes clause, the defendant also has the right to present his or her own defense.

Under the assistance of counsel clause, a defendant has the right to counsel from the first moment of police interrogation. In 1963, the Supreme Court case Gideon v. Wainwright expanded the assistance of counsel clause, making the assistance of counsel a fundamental right even for those without the financial means to hire a lawyer. In the modern American legal system, a court-appointed lawyer will assist indigent defendants who opt to be so represented, whenever there is a chance of incarceration.

Amendment VII

The Seventh Amendment was established in order to ensure that every civil case be tried by a jury. The establishment of the Seventh Amendment was largely a reaction to the diversity of trial proceedings in early America. Prior to the Seventh Amendment, each state had it own codes for the conduct of court trials. The phrase in the Seventh Amendment prohibiting reexamination in federal court indicates that civil cases can be appealed only up to the level of the Supreme Court.

Amendment VIII

Bail allows those involved in criminal trials access to their right to freedom. Under the Eighth Amendment, bail shall not be so excessively costly as to limit one's right to freedom. This being said, those involved in criminal cases do not always have a right to bail. Bail is commonly denied when there is evidence of the need for preventive detention.

The excessive fines clause protects those who cannot pay fines from being sent to jail simply on this ground. The excessive fines clause applies only to those fines to be accrued by the government; it does not apply to court fees and other litigation costs.

Foremost, the cruel and unusual punishment clause contains the order that a punishment be proportional to the crime in question. What constitutes “cruel and unusual punishments” has been a source of contention in criminal trials throughout the history of the United States. Perhaps most hotly debated has been the clause's application to capital punishment. Whereas some view the death penalty as cruel and disproportionate to any crime, others hold that the penalty of death can indeed be appropriate, given the nature of some crimes.

Amendment IX

Like the Tenth Amendment, the Ninth Amendment is not truly substantive in terms of rights. Although some regard the Ninth Amendment as the foundation for a right to privacy, as written the Ninth Amendment simply states that the enumerated rights contained in the Bill of Rights are not an exhaustive list of all of the rights of U.S. citizens.

Amendment X

The Tenth Amendment is best understood in its Antifederalist context. Antifederalists were those weary of the dangers of concentrated political power in the hands of a federal government. In opposition to those championing federal power, Antifederalists wished state governments to be the primary sources of political power.

The Tenth Amendment provided assurance to Antifederalists that the federal government would not infringe upon the powers of the states. However, in the modern era, the situation has changed. When the Tenth Amendment was originally proposed, the Bill of Rights did not apply to states; it only applied to federal law. However, the Bill of Rights is now understood to apply equally to the states and to the federal branch. Thus, while still relevant, the Tenth Amendment holds much less power than it originally did.