The Bill of Rights – The Future of the Constitution, Part II.1

The United States Constitution has been updated eighteen times, for a total of twenty-seven amendments. No analysis of the Constitution’s future would be complete without a summary of its current amendments.

Part II of “The Future of the Constitution” series.

In celebration of Constitution Day on September 17, 2014, we are dedicating the week to a new series, “The Future of the Constitution“. Designed to examine the Constitution and its Amendments, “The Future of the Constitution“ will examine the amendment process, analyze existing, failed, and prospective amendment, take a look at the constitutional quandary found in campaign finance reform in the post-Citizens United era, and end with a review of retired Supreme Court Justice John Paul Steven’s newest book, “Six Amendments: How and Why We Should Change the Constitution”.

In Part I of the series, we discussed how the Constitution can be amended and gave a brief overview of the Constitution’s history and contents.

In the first section of Part II below, we will expand upon the Constitution’s amendments by giving a summary of each, analyze why the amendments were proposed and ratified, and what the amendments mean in the modern-day. In this section, we will discuss the first ten amendments, or the Bill of Rights. The second and third sections will outline amendments XI – XX and XXI – XXVII respectively.

The first ten amendments to the Constitution, which are informally but almost always called the Bill of Rights, were enacted following the ratification of the Constitution to allay the fears of those who thought the newly formed federal government would attempt to overwhelm and overpower the state governments. As such, these amendments illustrate restrictions on the federal government’s power (and eventually state governments’ due to the 14th Amendment) and explicit interpretations of unassailable individual rights. All of these amendments were ratified on December 15, 1791.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment is one of the mostly hotly debated and expansive amendments to the Constitution. In scope, the First Amendment touches upon free expression, free practice and establishment of religion, free assembly, press protection, campaign finance and other forms of political speech, commercial speech, obscenity, slander and libel, and so much more. To call the First Amendment critical to the mission and purpose of the Constitution and the United States government as a whole diminishes its true nature as one of the focal points of American doctrine.

A number of landmark Supreme Court cases were decided on First Amendment grounds, such as New York Times Co. v. Sullivan (1971) (which protected the press from exorbitant libel threats in the face of even small errors or areas of subjectivity), Citizens United v. Federal Election Commission (2010) (allowing corporations, unions, and not-for-profit organizations more latitude to donate to political campaigns), and Texas v. Johnson (1989) (upheld protections for symbolic speech, even in the face of inflammatory behavior such as burning the American flag in political protest). These few cases only touch upon the vast number of cases that have shaped our modern-day interpretation of the First Amendment.

As debate rages on about the future of issues such as campaign finance reform – especially in the wake of S.J. Res. 19’s death – expect that the First Amendment will be as prevalent as ever.

Amendment II

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Second Amendment went through one of the largest transformations in recent memories, one that was so comprehensive and fast that the modern-day interpretation has almost completely engulfed any previous understanding.

It is sometimes hard to believe that before District of Columbia v. Heller in 2008, there was no recognized right to individual ownership of guns. Supreme Court Justice Antoin Scalia’s opinion, which crafted an originalist vision that contends that there has always been a right to individual ownership drew my accolades and condemnations that it was inventing rights wholesale. This is not entirely unexpected; expansion of rights often draws praise and criticism. In the modern-day though, where the understanding of individual ownership is omnipresent even among gun control advocates, it is still interesting to think about the time not too long ago where such a right was not explicitly present.

Look for the Second Amendment to come into play in future cases involving Open Carry vs. Concealed Carry laws, laws regulating possession of weapons in traditionally gun-free spaces such as schools, bars, and governmental buildings, and with regulating the development of new gun technology, such as the 3-D printing of weapons. Considering Justice Scalia’s careful carving out of regulatable areas of gun control in his opinions, it will be interesting to examine just how expansive the Second Amendment is.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Straightforward and undisputed, the Third Amendment is one of the most unremarkable amendments to the Constitution. A limitation on the federal government’s power like much of the Bill of Rights, it has thankfully been rarely invoked. While it has been cited in a few cases as an example of how the Framers designed a federal government of limited powers, it has never been the primary basis of a Supreme Court decision.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment protects against unreasonable searches and seizures and requires appropriate warrants that follow strict guidelines to be presented at each search or seizure.

The Fourth Amendment has evolved and expanded in interesting ways, mainly on the grounds on what defines the terms of the amendments: searches, seizures, effects, and more. Katz v. United States (1967) for example, expanded searches and seizures to include not only physical locations, but an individual’s privacy as well. In more recent times, cases such as Flordia v. Jardines (2013) has expanded the definition of searches to include bringing drug-sniffing dogs outsides of homes suspected of having contraband substances. These expansions ensure that more actions will require warrants to be lawful, which will ensure protection for individual privacy.

The Fourth Amendment was also given teeth in Weeks v. United States, when the Supreme Court enacted the Exclusionary Rule. This rule dictated that evidence improperly obtained without a valid warrant was inadmissible in a court of law. This rule ensures that the Fourth Amendment is upheld and not circumvented in the pursuit of justice.

Expect to see the Fourth Amendment in the spotlight over the next few years as the constitutionality of digital information collection programs run by the National Surveillance Agency such as PRISM are questioned.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment is a highly technical chunk of constitutional text that contains within it a number of very valuable rights. These rights include:

1. Several trial protections, including protection against self-incrimination (which explicitly allows for people to refuse to answer questions that may implicate themselves of crimes, and implicitly protects them from being tortured or coerced into implicating themselves of illegality) and double-jeopardy (disallows trying a person for a criminal charge twice, or hearing a case a second time once it has been properly decided or acquitted).
2. Due process of law, which serves as a protection against the denial of life, liberty, or property except by way of a legal trial. This right, which is also found in the Fourteenth Amendment, has come to involve protections against vague laws, the safeguarding of fundamental rights, and (through the 14th Amendment) the incorporation of the Bill of Rights to the states.
3. Just compensation in the case of eminent domain. This means that if a state or federal government wants to claim a private property for public use, then they must compensate the previous owner of the property appropriately. This prevents property seizure by the government.

The Fifth Amendment made an appearance in United States v. Windsor (2013), where is was used to find §3 of the Defense of Marriage Act unconstitutional under the Due Process Clause.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Another highly technical amendment, the Sixth Amendment dives even deeper into trial procedure and rules than the Fifth Amendment. The Sixth Amendment guarantees the following rights:

1. A person accused of a crime (defendant) will enjoy a trial within a reasonable amount of time from the moment of conviction.
2. A defendant will enjoy a public trial. This prevents closed, secretive trials away from public oversight. This right is not absolute – trials can be closed at the behest of the government, but only if their reasoning meets a very strict standard of scrutiny (more on scrutiny at a later time…).
3. A defendant will be tried by an impartial jury. This protects the appropriate service of justice, and prevents personal determinations from implicating the judicial process.
4. A defendant will be informed of charges of illegal activity lodged against them.
5. A defendant can cross-examine and confront witnesses against them, call upon witnesses of their own, and demand the presences of witnesses in court.
6. A defendant has the right to be represented by counsel, unless they choose to self-represent.
7. If a defendant cannot obtain counsel for themselves, then counsel will be provided

Dominated by trial procedures and rights, the Sixth Amendment has generally expanded as shortcomings of the judicial process make themselves apparent. The most famous expansion of the Sixth Amendment is Gideon v, Wainwright (1963), which established the right to counsel as a fundamental right applied to the states via the Fourteenth Amendment, and required that criminal defendants be provided counsel, even if they cannot afford it.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Unlike some of its more expansive brethren, the Seventh Amendment is straightforward and provokes little debate. The small area of constitutional law that focuses on the Seventh Amendment mainly concerns itself with whether or not a jury is large enough to render appropriate verdicts.

An interesting bit of constitutional trivia is that the Seventh Amendment is one of the few amendments not to be incorporated to the states by the Fourteenth Amendment. Despite not being bound by constitutional law in this instance, most states offer to right to a civil jury trial voluntarily, and are required to do so when the trial involves an issue of federal law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The final amendment concerned with trial law, the Eighth Amendment is short but carries with it some contextual areas that the Supreme Court has filled in over time.

For example, in Stack v. Boyle (1951), the Supreme Court found “that a defendant’s bail cannot be set higher than an amount that is reasonably likely to ensure the defendant’s presence at the trial”. Likewise, the Supreme Court stepped in to define excessive fines in Waters-Pierce Oil Co. v. Texas (1909) and United States v. Bajakajian (1998). Taken together, these two cases define excessive fines as being grossly excessive to the point of being equitable to property forfeiture and/or grossly disproportionate to the gravity of an offense.

In defining cruel and unusual punishment, the Supreme Court has identified some punishments as always unconstitutional and some punishments which are unfit for certain crimes. The Supreme Court has found that drawing and quartering, public dissection, burning alive, and disembowelment are always unconstitutional punishments. This category has expanded to include the death penalty if the convicted defendant was under 18 when the crime occurred and the execution of the mentally handicapped.

The Eighth Amendment may soon find itself in the spotlight, as its flexible nature proves to be potentially fertile grounds for those who want to classify the death penalty as cruel and unusual punishment. While previous attempts to ban the death penalty were met with fierce public backlash, recent controversies – including using expired drugs for executions and executions lasting for hours before the death row inmate dies in pain – may alter the dialogue on this issue. At the very least, supporters of finding the death penalty an unconstitutional violation of the Eighth Amendment have found themselves a powerful ally in retired Supreme Court Justice John Paul Stevens, as he details in his newest book “Six Amendments: How and Why We Should Change the Constitution”.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Ninth Amendment to the Constitution is a tactic reminder that while the Constitution cannot possibly list all rights that a person possesses, those rights are still valuable and cannot be infringed. The Ninth Amendment reveals the presence of unenumerated rights retained by the people, without giving direction to what those rights might be.

For those who wish to expand the areas protected by the Constitution, the Ninth Amendment provides a font of inspiration. Often, the unenumerated rights guaranteed by the Ninth Amendment are derived by combining multiple amendments, examining fundamental parts of the political and civic process, and estimating what areas the enumerated amendments can reasonably be expected to extend to.

Some of the rights found thanks to the Ninth Amendment’s guidance include but are not limited to the right to vote, the right to free travel, the right to privacy, and the right to marriage.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

One of the most debated amendments to the Constitution, the Tenth Amendment establishes the core American principle of federalism, which details the evolving relationship between the federal government and the state governments. The power-sharing relationship between the two levels of government has always been adversarial, with the passion of the debate ebbing and flowing over time. This debate encompasses the scope of the federal government over the states, determines whether or not states must adhere to or implement federal law and programs, whether or not states can enter into spheres of activity for laws that occur on the federal level, and so much more.

The concepts of federalism are too vast and well-debated to discuss in a short blurb. Needless to say, the Tenth Amendment has found itself at the heart of an intensely fought debate that has been waged since before the Constitution’s ratification.

Next Time in “The Future of the Constitution“

Parts II.2 and II.3 will continue to examine the existing amendments of the Constitution.

Part III will delve into prospective amendments that failed to achieve ratification. There have been six amendments that have overcome the Congressional hurdles towards ratification, but failed to achieve approval of three-quarters of the states. Their potential effects on the United States, as well as the reason for their failed ratifications, will be discussed.

Part IV will examine proposed amendments that did not leave Congress, but which evince significant trends in American thought, and have the potential to go further into the ratification process. Considering that it took almost 203 years for Amendment XXVII to go from proposal to ratification, nothing is off-limits for these potential amendments.

Finally, in Part V, we will examine the future of the Constitution, and what amendment might endure the long journey to become Amendment XXVIII.

~ John Isidore