A1. The Bill of Rights

 

  Summary of contents in textbook  

The Bill of Rights refers to the first ten amendments of the Constitution. Since the Constitution mainly blueprints how to run the country, as a supplement to the Constitution, these amendments specify many civil rights that are not stated clear in the Constitution.
Behind the Bill were disputes between federalists and anti-federalists that occurred when Constitution was being drafted. The former insisted that the Constitution should detail civil rights and power reserved by the states, while the latter claimed that, given that it had been made clear in the Constitution that all power belongs to people, it was unnecessary to add clauses on specific civil rights. Nevertheless, after the Constitution was sent to states for ratification, so many states supported federalists’ opinion that, if civil rights and state power were left unmentioned, the Constitution might fail to obtain the states’ approval. In the end compromise was reached, and these contents were added as the first ten amendments, known as the Bill of Rights.

Click here to watch an interesting video about the Bill of Rights

 


Amendment I – Freedom of Religion, Press, Expression, Assembly and Petition

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 1st Amendment guarantees freedom of speech and press, right of religion, right of assembly and right of petition.

The freedom of speech is the freedom to express one’s opinions as long as such opinions have no “clear and present danger”. Contrary to some people’s cognition, behaviors protected by this amendment are not necessarily limited to speech and writing. It is also constitutional to conduct an activity, even as radical as to burn the national flag of the USA, in order to show one’s stance towards certain issues without causing such danger.

The right of religion means a) that citizens have the right to observe their religious exercises and b) that any attempt to establish a national religion, even by means of legislation, is unconstitutional. This amendment separates religions and civil power and thus prevents the USA from becoming a nation where political issues are interwoven with religions.

The right of assembly allows people to get together peacefully, including demonstrations.

The right of petition refers to the right to make a formal request, usually in the written form and signed by many people, to the government so that it can be taken care of by the government.


Amendment II – Right to Bear Arms

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.

Out of the consideration for the necessity for keeping an armed militia against British invasion, the amendment was drafted to guarantee citizens’ right to bear arms. But it ended up opening a Pandora’s Box. Since the independence of the colonies was obtained, privately owned rifles have post a threat to public safety.

In extensive debates over the amendment, people’s opinions divide. Some deem the main concern of the amendment as the security of the country and therefore, as privately owned rifles have become a social problem, to restrict the purchase and possess of these rifles is constitutional. The others, however, think that the purpose of the amendment lays in protecting individuals and their property, so guns should be legalized.


Amendment III – Quartering of Soldiers

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.

The amendment prescribes that the government cannot force a person to shelter soldiers in his or her home without obtain his or her approval, no matter the country is in war time or peace. It is perhaps the least cited amendment, as few explications can be found in the courts.


Amendment IV – Search and Seizure

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 amendment prevents search and seizure from being abused. According to this amendment, to conduct a search or seizure to a person, a warrant, issued upon probable causes and given by the court, is needed unless it is emergency. It has a profound impact on the process of investigation that, if the police collect evidences by means of an illegal search or seizure, such evidences will not be recognized by the court and cannot be used against the defendant (referred to as the Exclusionary Rule). “A guilty person escapes when a Constable blunders,” as a revered judge explained.


Amendment V – Trial and Punishment, Compensation for Takings

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.

According to this amendment, when accused, one has the following rights:

  1. One shall not be sentenced death or infamous crime without the presence and indictment of a Grand Jury, unless the case is related to the Militia or military service;
  2. One cannot be tried for the same accusation twice (known as “double jeopardy”);
  3. One doesn’t have to say that he or she is guilty (known as “self-incrimination”);
  4. One shall not be sentenced or punished by means of depriving of life, liberty, or property without due process of law;
  5. One shall be fairly compensated when his or her property is taken for public use.

Important as it is, the term “due process” in the amendment is vague and controversial because the states have their own interpretations. Luckily, decisions made in court help to clarify what due process is and in what circumstances it is violated.

From the amendment also comes a phrase “to plead the Fifth”. If someone pleads the Fifth, he or she refuses to testify himself or herself.


Amendment VI – Right to Speedy Trial and Confrontation with Witnesses

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.

The Sixth Amendment guarantees the rights of criminal defendants, including the right to a public trial without unnecessary delay, the right to make legal consultation and have legal assistance, the right to an impartial jury, and the right to know who your accusers are and the nature of the charges and evidence against you.

The right to confront with witnesses also means that, if someone provides an evidence or makes testimony, he or she shall attend the trial and answer questions, if any, by the defendant or the defendant’s lawyer, or otherwise the provided evidence or testimony will face rejection of the court.

However, this has been challenged in cases in which the personal information of the witnesses shall be strictly confidential. In trials involving terrorism, for instance, if the witnesses must be present in the trial and confront the defendant, it may expose the witnesses to the revenge of terrorists. In cases of sexual offences, it’s also disadvantageous for the victims to stand out in the court.

As for the access to legal aids, nowadays, if the defendant is unable to hire a lawyer, the court will appoint one for him or her.


Amendment VII – Trial by Jury in Civil Cases

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.

The Seventh Amendment can be seen as a continuation of a practice from English common law, that is, to distinguish civil claims that must be tried before a jury (absent waiver by the parties) from those that may be heard by a judge alone. In the amendment, if the money involved in a civil case exceeds twenty dollars, an impartial jury shall take part in the trial.

Generally, the amendment only governs federal courts. It is not applicable to state courts, which only hear disputes on state laws.


Amendment VIII – Cruel and Unusual Punishment

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

The Eighth Amendment accord a right against excessive bail or fine, or cruel and unusual punishments.

This amendment is cited at a high frequency in discussions on death penalty, because those in favor of abolishing death penalty argue that it is a “cruel and unusual punishment” and therefore unconstitutional.

The “excessive fines” clause surfaces (among other places) in cases of civil and criminal forfeiture when, for example, property is seized during a drug raid.


Amendment IX – Other Rights Preserved By the People

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

The Ninth Amendment clarifies that rights that are not named in the Constitution or its amendments are retained by the people. It was James Madison’s attempt to ensure that the Bill of Rights was not seen as granting to the people of the United States only the specific rights it addressed. In recent years, some have interpreted the amendment as affirmation of the existence of such “unenumerated” rights outside those expressly protected by the Bill of Rights.


Amendment X – Powers of the States and People

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.

The Tenth Amendment states that powers that are neither delegated to the states nor prohibited by the Constitution are reserved to the states.

It helps to define the concept of federalism, the relationship between Federal and state governments. As federal activity has increased, so has the problem of reconciling state and national interests on issues such as taxation, disclosure of personal information in recordkeeping systems and strip-mining.

  Pictures  

 the original page of the Bill of Rights

 

  Supplementary readings  

01 Amendments 1-10 and the Bill of Rights in the Constitution

A glance at the Bill of Rights and its history. The content is reader-friendly.

02 美国宪法及其修正案(中文)

A Chinese version of the Constitution and the amendments is provided on this website. It is recommended to read the translation as a way to better understand the original documents. Note that this is not the official translation.

03 The Bill of Rights: A Transcription

A quick reference of the Constitution and the amendments. It is convenient because it is easy to find specific articles without going through the whole page.

04 陶龙生. 弱者的抗争 : 美国宪法的故事[M]. 北京:中国政法大学出版社, 2014.

A collection of stories about famous cases and influential court decisions. It is written in a storytelling tone, and, by storytelling, the author looks into the life of the people who got entangled with these cases and shows in a vivid way how the Constitution and the amendments are applied and how the judicial system of the USA functions.

05 Constitution Annotated

Constitution Annotated is also known as The Constitution of the United States of America: Analysis and Interpretation. Detailed legal interpretation of the items, along with their history and some famous cases, are provided, although it is challenging to read them through, for legal terms are involved. In addition, on the website a list of items in the Constitution and the amendments can be seen, but the content of each items must be downloaded before being viewed.

 

  Useful websites  

https://www.senate.gov/civics/constitution_item/constitution.htm

http://sau57.org/billofrights