3.3a- The Purpose and Intent of the Bill of Rights The Bill of Rights guarantees basic human and political rights to Americans. As an addendum to the United States Constitution, the document has evolved in scope through judicial interpretation.

Many states had a Bill of Rights in their own constitution and insisted that the protections be added to the federal document. Two states, North Carolina and Rhode Island, refused to ratify the Constitution until a Bill of Rights was included. Five other states, including New York and Virginia, voted for ratification with a strong recommendation that a Bill of Rights be added. Some states proposed specific amendments, using language from their own charters. These amendments included most of the individual rights that would later be incorporated into the federal Bill of Rights. James Madison, the main congressional sponsor of the Bill of Rights, initially opposed adding it to the Constitution. At the time when the states were considering ratification of the Constitution, the Federalists and the Anti-Federalists battled over the issue. The AntiFederalists were most concerned with civil liberties and lobbied for inclusion of a Bill of Rights. The Federalists supported the ratification of the Constitution as it was proposed. It was during this period that Madison, Alexander Hamilton, and John Jay wrote a series of essays supporting the Constitution that came to known as "The Federalist Papers."

Believing that sufficient limitations on government power were built into the Constitution, Madison saw no need for a Bill of Rights. However, he changed his mind after exchanging a series of letters with Benjamin Franklin. In writing the Bill of Rights, Madison's change of opinion led him to use even stronger language than that used in state charters. Most states' declarations of rights used the phrase "ought not be denied," while Madison used the expression "shall not be denied."

The Bill of Rights was originally intended to apply only to the national government. This was affirmed by the Supreme Court's ruling in Barron v. Baltimore in 1833. The Court ruled that the Bill of Rights restrained the national government, not the states. That interpretation of the founders' intent would stand for more than 90 years, until the Supreme Court's ruling in Gitlow v. New York. In the 1925 Gitlow v. New York ruling, the Court established the doctrine of selective incorporation of the Bill of Rights to state governments by invoking the Fourteenth Amendment's equal protection and due process clause. The Gitlow case involved the First Amendment rights of freedom of speech and the press, which are rights that the Court described as "fundamental." At first, only part of the First Amendment was incorporated to the states as a result of Gitlow. However, over time, the Court applied most of the protections included in the Bill of Rights to the states.

Although concerns about individual liberties spawned the push for a Bill of Rights, the Constitution itself does extend three basic rights to citizens in Article One, Section 9. These rights involve writs of habeas corpus, ex post facto laws, and bills of attainder. Habeas corpus literally means "to produce the body." This right guarantees that citizens who are arrested have basic criminal rights and cannot be held indefinitely without being charged or tried, except in cases of national emergency. Ex post facto means, "after the fact," and prohibits a person from being punished for an action that was committed before it became a crime. The declaration concerning bills of attainder prohibits the government from passing a law that convicts a person of a crime. Copyright © 2004 The Regents Of The University Of California

3.3b- The Bill of Rights

The original Bill of Rights consisted of the first ten amendments to the Constitution. Twelve amendments were proposed, but two were not ratified. The Bill of Rights took effect December 15, 1791, when Virginia became the eleventh state to ratify the amendments. Many people consider the First Amendment to be the most important amendment in the Bill of Rights. It has four provisions that protect freedom of religion, speech, and the press, and the right of citizens to assemble and petition the government. These rights are vital to a representative form of government. The religious freedom provision has two clauses: the establishment clause and the prohibition clause, which is also called the free exercise clause. The establishment clause forbids government from creating or endorsing an official church or formally supporting religious activities or showing preference for one religion over another. This clause results in what Thomas Jefferson referred to as the "separation of church and state." Most contemporary court cases involving the establishment clause concern religion and education. It has also been cited in cases involving religious displays on government property. The prohibition clause prohibits government from interfering with religious beliefs. In applying this clause, the Supreme Court has distinguished between religious belief and action. For example, the Court struck down polygamy as a protected religious practice in Reynolds v. U.S. in 1879. The Court ruled that the prohibition clause did not protect actions that were "violations of social duties or subversive of good order." The First Amendment's freedom of speech provision is closely related to the ones that follow it: freedom of the press, freedom of assembly, and the right to petition the government. The degree to which the Supreme Court has upheld the right to free speech has varied, depending upon the type of speech at issue. Pure speech, involving only spoken words, has received the greatest protection. However, speech combined with action, such as picketing, has received limited protection. While picketers have the right to speak freely, their actions on the picket line may be regulated by government. First Amendment protection of symbolic speech, such as burning draft cards or flag burning, has been mixed.

The Second Amendment in the Bill of Rights has been the subject of much controversy. It reads: "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 amendment's ambiguous wording has resulted in continual debate about the intent of the Founding Fathers. Some people believe that the phrase "well-regulated militia" implies that only members of an official militia have the right to bear arms. Many supporters of this argument contend that the Second Amendment protects only the rights of states to arm National Guard troops, the modern-day version of the organized militia. Others argue that the amendment gives private citizens the right to own firearms, pointing to the historical definition of militia, which included everyone in the community. Proponents of this view also cite the amendment's phrase "right of the people" as evidence that the founders meant to extend the protection to individuals. The debate over the Second Amendment is often the result of community efforts to implement or expand gun control or regulation. The issue moved into the national arena in 1997, when the Supreme Court struck down the Brady Handgun Violence Prevention Act, also known as the "Brady Bill," in Printz v. United States. The Brady Bill required local police to conduct background checks before a citizen could purchase a handgun. The Court ruled that the law was unconstitutional, but not on Second Amendment grounds. The Court struck it down because the law required state officials to implement a federal program, which violated federalism. Despite the ambiguity inherent in the amendment, no federal court has ever struck down gun control legislation on Second Amendment grounds. The courts have held that the Second Amendment applies only to the national government, not the states. Consequently, some local governments have implemented gun control legislation by banning handguns in their communities. The Third Amendment concerns the traditional militia during a time when the government could force citizens to house and feed its troops. Patterned after the English Bill of Rights, the Third Amendment prohibits such actions by government during peacetime. It also states that if the government has to quarter its troops during war, it must follow legal procedures. The Third Amendment has never been the focus of a Supreme Court case, but it has been cited by the Court in cases involving privacy rights. Privacy rights are also central to the Fourth Amendment, which protects citizens from unreasonable searches and seizures and requires search warrants to be based on probable cause. At first, the Supreme Court held that the Fourth Amendment applied only to searches of a protected area, such as a home, office, or a physical body. But in Katz v. United States (1967), the Court ruled that the Fourth Amendment applied whenever a person had a "reasonable expectation of privacy." The case involved a man who was convicted using evidence gained from police wiretaps of a public telephone booth. The Court overturned the conviction, making the expectation of privacy a critical test for determining Fourth Amendment protection.

The second part of the Fourth Amendment is called the warrant clause. It mandates that all warrants—court orders for searches and seizures—must be based on probable cause. Probable cause is said to exist when a person of reasonable caution would believe that a crime has been, or is about to be, committed. The warrant clause also requires warrants to describe in detail the place that will be searched and the evidence that will be seized. This provision is called the particularity requirement. The Fifth Amendment is also concerned with protecting citizens' rights in crime-related matters. It gives criminal defendants the right to a grand jury indictment and prohibits a defendant from being tried twice for the same crime, a situation known as double jeopardy. The Fifth Amendment also says a defendant does not have to testify against himself. Exercising this protection against self-incrimination is commonly known as "pleading the fifth." The Supreme Court has ruled that a confession can be used as evidence against a defendant only if it is voluntary and not coerced. In the case of Miranda v. Arizona in 1966, the Court expanded the Fifth Amendment's protections, ruling that a suspect must be advised of his rights before questioning. This landmark case instituted the famous Miranda warnings that police are required to recite to suspects before any interrogation begins. Any statements made by the suspect before the warning is given cannot be used as evidence at trial. If the suspect invokes the right to remain silent, or requests an attorney, police must suspend any attempts to get the suspect to talk. In addition to protecting the rights of criminal defendants and suspects, the Fifth Amendment ensures due process of law in civil and criminal cases. Due process means that the government will be fair in its actions. The Fifth Amendment also requires the government to provide fair payment when it takes private property for public use which is called eminent domain. The Sixth Amendment concerns a defendant's rights at trial. It guarantees the right to a speedy, public trial by an impartial, local jury. It gives the defendant the right to be informed of the charges against him, to confront his accusers, to subpoena witnesses to testify on his behalf, and to have the assistance of an attorney and other resources in preparing a defense. The Seventh Amendment provides the right of trial by jury in civil cases, in which private parties argue non-criminal disputes. The amendment also prohibits jury verdicts from being overruled, except in certain circumstances provided for by law. The Eighth Amendment allows defendants to be released on bail pending trial and requires that bail will not be excessive, but it does not guarantee the right to bail. Federal and state laws determine the conditions under which bail may be granted. For example, bail may be denied in cases involving the death penalty or those in which the accused has threatened potential witnesses. The purpose of bail is to ensure a defendant's appearance at trial and is based on the principle that a person is innocent until proven guilty. If the defendant is convicted, the Eighth Amendment prohibits excessive fines as punishment. It also forbids "cruel and unusual punishment," a phrase that has been used frequently by people to argue against the death penalty. The Ninth Amendment states that the rights listed in the Bill of Rights are not the only rights that citizens have. It says that the people retain other rights not specifically listed in the

document. The Ninth Amendment has created controversy when used by the Supreme Court to expand individual rights, as it did in Roe v. Wade, which established abortion rights. In that case, the Court ruled that although not specifically mentioned in the Constitution, the right to privacy was implied by invoking the Ninth Amendment. In 1989, the Court issued a ruling that compromised the protections under Roe v. Wade by upholding a Missouri law that imposed restrictions on abortion. The Court's ruling permitted states to make laws in an area that had been previously forbidden under Roe v. Wade. The Tenth Amendment, also called the "states rights amendment," is the final amendment in the Bill of Rights. Its purpose is to limit the powers of the national government, thereby protecting individual rights. The amendment attempts to balance the power of the federal government with the power of the states. It gives to the states all powers not reserved for the federal government or prohibited by the Constitution. Copyright © 2004 The Regents Of The University Of California

3.3c- Amendments After the Bill of Rights The 17 Constitutional Amendments ratified after the Bill of Rights were brought about by unique circumstances and deal with a variety of issues. The Eleventh Amendment prohibits citizens from one state, or any foreign state, from suing another state in federal court. The Twelfth Amendment made changes in Electoral College procedures. It resulted from the failure of the Electoral College to select a winner in the 1800 presidential election. Thomas Jefferson became the nation's third president after a long, heated battle in the House of Representatives.

The Thirteenth, Fourteenth, and Fifteenth Amendments are known as the "Civil War," "Reconstruction," or "Civil Rights" amendments. The Thirteenth Amendment, which was ratified in 1865, abolished slavery. The Fourteenth Amendment gave former slaves the rights of citizenship, due process, and equal protection. Using the due process clause of the Fourteenth Amendment, the Supreme Court has incorporated the Bill of Rights to the states. The equal protection clause became the center of the fight to end institutional and de facto segregation in the 1950s and 1960s starting with Brown v. BOE of Topeka. The Fifteenth Amendment prohibited states from denying voting rights to former male slaves. The Sixteenth, Seventeenth, and Eighteenth Amendments are called the "Progressive Era" amendments. These amendments were part of the Populism and later Progressivism that swept the nation in the 1880s through 1917. Ratified in 1913, the Sixteenth Amendment gave Congress the power to tax income, and the Seventeenth Amendment established popular election of the Senate. The Eighteenth Amendment, which was later repealed by the Twenty-First Amendment, instituted the prohibition of alcohol. The Nineteenth Amendment extended voting rights to women.

The remaining constitutional amendments concerned election or representation issues. The Twentieth Amendment changed the starting dates of presidential and congressional terms. The Twenty-Second Amendment invoked a two-term limit on the presidency. It was proposed in 1947, soon after Republicans gained control of Congress for the first time in 16 years. The Twenty-Third Amendment gave the District of Columbia a vote in the presidential election. The Twenty-Fourth Amendment, which was ratified in 1964, prohibited the use of poll taxes to qualify voters. The Twenty-Fifth Amendment established rules for presidential succession, vice presidential vacancy, and presidential disability. The Twenty-Sixth Amendment, which was ratified in 1971, lowered the voting age from 21 to 18. The Twenty-Seventh Amendment is the final amendment, and it forbids Congress members from raising their own pay. A pay increase must take effect following the next election and installation of new Congressmen. It was first proposed in 1789, as part of the original Bill of Rights, and ratified more than 200 years later in 1992. Copyright © 2004 The Regents Of The University Of California