Short Annotation of Bill of Rights

A SHORT ANNOTATION OF THE BILL OF RIGHTS
"The Framers of the Bill of Rights did not purport to "create" rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be preexisting." (William J. Brennan)

It's customary to refer to the first ten amendments as the Bill of Rights, however only the first eight are truly substantive in terms of rights, although some regard the Ninth as the foundation for a right of privacy and the Tenth as a basis for states' rights. There's also the Fourteenth to consider. The Bill of Rights has its origin in the Convention of 1787 when several members of Congress clamored for ways to curtail the power of federal government from encroaching on individual rights and James Madison drew up a draft in 1789. For almost a hundred years, however, nobody considered the Bill of Rights as binding on states, only the federal government. It wasn't until the Fourteenth Amendment in 1868 that the movement to nationalize the Bill of Rights took hold. That movement continues today, and is known as INCORPORATION, the idea that the Fourteenth Amendment serves as a vehicle to nationalize the Bill of Rights. Some (e.g., Gutzman 2007) say "incorporation" was just a judicial suterfuge to get around the fact that the Bill of Rights was ratified to limit the powers of the federal government alone. Nonetheless, several rights have been incorporated over the years; other have not. Unincorporated rights include the whole Second, Third, and Seventh Amendments, and portions of the Fifth and Eighth. Technically, this means that the unincorporated rights are still debatable; that the Court hasn't yet sent a clear signal to the states to start honoring those rights, but many states still do so voluntarily.

Before we begin, it's important to understand what RIGHTS are. Rights are not what someone gives you; rights are what no one can take away from you. Rights are the closest thing we have to the notion of JUSTICE as normative ethics or morality. Rights are more than privileges; they are empowerments that have grown out of privileges or norms where responsible people have recognized both a FREEDOM and corresponding DUTY. For example, the right to property entails both a freedom to enjoy that property without interference from others as well as a corresponding duty not to interfere with other's enjoyment of their property. Think of rights as Golden Rules. Some scholars classify rights as natural, civil, or political:

Since rights are intricately linked to justice, and justice knows no boundaries, it makes perfect sense to incorporate those rights contained in the Bill of Rights. That job has not been easy, however. Scholarly opinion varies over exactly what rights are contained in the Bill of Rights. Courts have been divided in debates over what the founding fathers intended. In a series of opinions ranging from the Slaughterhouse Cases (1872) to Hurtado v. California (1884) to Twining v. New Jersey (1908) to Palko v. Connecticut (1937) to Duncan v. Louisiana (1968), the Supreme Court has gone from completely dismissing the idea of TOTAL INCORPORATION to a notion of FUNDAMENTAL RIGHTS to the PREFERRED FREEDOMS approach to the idea of SELECTIVE INCORPORATION to a CASE BY CASE FAIRNESS approach. In a moment, we'll take a look at the meaning of these keywords, but first some history over the essential basics is in order:

The Incorporation/Selective Incorporation Debate

     Since the Bill of Rights was originally written to only apply to the federal government, the debate is over whether all or part of the Bill of Rights is applied to the states through the due process clause of the Fourteenth Amendment. The principal framer of the Fourteenth Amendment, John Bingham, stated many times that the Fourteenth Amendment would enforce the Bill of Rights against state governments, but the Supreme Court, starting with the Slaughterhouse Cases (1872), found only a very limited number of privileges inherent in federal citizenship, and found those in the Privileges or Immunities Clause of the Fourteenth Amendment, not the Due Process clause. A couple of subsequent cases broke ground for using the Due Process clause, such as the Chicago, Burlington & Quincy Railway Co. v. Chicago (1897) case, where the state in question was already granting a federal right to its state citizens, and which is often considered the genesis of incorporation doctrine, and Gitlow v. NY (1925), a free speech case where the Court came down heavily on states. After those two cases, the debate picked up steam.
     During the 1940s and '50s, one school of thought, championed by Justice Hugo Black, was total incorporation. Black felt that the Fourteenth Amendment required the States to respect all of the enumerated rights set forth in the Bill of Rights, but did not wish to see the doctrine expanded to include other, unenumerated "fundamental rights." Black felt that his formulation eliminated any arbitrariness or caprice in deciding what the Fourteenth Amendment ought to protect, by sticking to words already to be found in the Constitution. Justice Felix Frankfurter, however, felt that the incorporation process ought to be incremental, and that the federal courts should only apply those sections of the Bill of Rights whose abridgement would "shock the conscience," as he put it in Rochin v. California (1952). Frankfurter's incrementalist approach carried the day, and Selective Incorporation became the path that the United States took, resulting in the following:
     (1) Amendments which have been ruled on as applicable to the states, but with exceptions made -- Fifth Amendment right to grand jury; Sixth Amendment right that a jury consist of twelve members and have unaminous verdicts; Seventh Amendment right to jury trial in civil lawsuits; and almost all the rights of criminal defendants granted to them under the Warren Court of the 1960s;
     (2) Amendments which have not yet been ruled on by the Supreme Court -- Second Amendment right to bear arms; Eighth Amendment prohibition against excessive bail and fines.

It should be apparent to the reader at this point that the Bill of Rights is as subject to interpretation as the Constitution proper. Firm protection exists, of course, for those rights which are already incorporated into the Fourteenth Amendment. Fundamental and preferred freedoms are probably incorporated by implication, even if no specific case law exists to support it. No cases have yet come up for opinion on incorporation with the Second, Third, and Seventh Amendments. The criminal justice system remains fairly intact and signal sensitive, despite no incorporation of the right to Grand Jury indictment and freedom from excessive bail and fines. What follows is an annotation of the complete Bill of Rights, including the Fourteenth Amendment.

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.

Amendment I: the ESTABLISHMENT CLAUSE - Madison's original proposal offered protection for any matter of conscience, but many thought this was too broad and the amendment eventually read that Congress shall make no law establishing a religion or compelling people to worship God in any manner contrary to their conscience before the "conscience" part was dropped completely. The phrase respecting an establishment of religion is out of deference to Christianity which many regarded as most compatible with right of conscience, and for awhile, it was assumed that respecting an establishment meant government should not prefer one religion over another. This was seen a form of religious tolerance rather than religious freedom, thus establishing normative Christianity. Over time, the establishment clause came to mean that government cannot show preference for any religion, even Christianity. In 1802, President Jefferson declared the First Amendment meant separation of church and state. In 1971, the Lemon case combined and restated several related entanglement tests which made this separation a matter of degree. The government is forbidden from becoming involved in religious disputes, which mostly arise during denominational schisms or between a religious school and its church, resulting in legal battles over property. Courts cannot look to religious doctrine in settling such disputes; they must follow business rules. It is improper to review ecclesiastical disputes where the Court cannot filter out doctrinal issues. The test is called secular primary effect, or the effects test, which allows the government to render subsidies and ideologically neutral assistance to schools, for instance, if the religious mission is not substantially aided.

Amendment I: the FREE EXERCISE CLAUSE - This prohibits government interference into religious conduct rather than belief. Many religions require certain rituals or practices that are protected free exercise conduct, and governments must accomodate or exempt such behaviors, although it is unclear to what extent that conduct is a function of belief. Too much accommodation of free exercise runs the risk of showing preference, so the two clauses may theoretically be in conflict. This clause mostly promotes a religious marketplace where entrepreneurs can operate.

Amendment I: the SPEECH-PRESS CLAUSES - Madison's original proposal read that people shall not be deprived of their sentiments, to speak, to write, and to publish. Later, it read these rights should not be infringed or abridged, and the language used was expression, not sentiments. It was common law at the time for these fundamental freedoms not to include freedom from censure, the censorial power to be in the hands of the people, not government. The Supreme Court has never developed any comprehensive theory on the umbrella guarantee of expression, only a series of prior restraint tests and clear and present danger standards involving legal distinctions between press and speech based on the comma separating the two in the wording of the Amendment. The Court has developed certain other standards exclusive to this area of First Amendment litigation.

Amendment I: the RIGHT OF ASSOCIATION - The right to peaceably assemble is considered inseparable from the rights of beliefs and ideas; in other words, this right is derivative from the right of speech, assembly, and petition. Government must have a compelling reason for asking about personal membership history. The right to associate must not be unreasonably burdened. Social contacts that fall short of organization or association may be unprotected, as are chance encounters. Clubs must be private or near-public in order to be protected assemblies. Innocent membership in a subversive group is no defense to charges of violating the national security.

Amendment I: the RIGHTS OF ASSEMBLY AND PETITION - Historically, these rights go back to the Magna Carta, and the right to petition is primary while the right to assemble is subordinate, the reasoning being that people assemble in order to petition the government. They are also cognate (common origin) rights to free speech and press and equally fundamental, the four making up the freedom of expression. The holding of meetings for peaceable political action cannot be interfered with; people cannot be branded criminals on this score alone. The phrase redress of grievances has always been given an expansive interpretation to mean any demand for the government to do something. Access to the courts is but one form of the right to petition. These are regarded as political rights, a part of citizenship, and are incorporated into the Fourteenth Amendment via the privileges and immunities clause as well as the due process clause.

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.

Amendment II: the RIGHT TO BEAR ARMS - There is no definitive opinion or holding on exactly what this amendment protects. Instead, there are academic theories: an individual rights thesis, protecting ownership, possession, and transportation; and a states' rights thesis which allows state-level armed militias (civilians primarily, soldiers on occasion). There are also numerous pieces of legislation, some components of which have come before the Court for review, but the context of these cases have had less a direct bearing on this amendment than on law enforcement issues generally.

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.

Amendment III: QUARTERING SOLDIERS - There is no definitive opinion or holding on exactly what this amendment protects. In fact, there has not been one single judicial ruling that is even closely related. Many constitutional scholars believe that it is expressing one more guarantee of civilian control of the military.

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.

Amendment IV: the RIGHT TO BE SECURE - This right has its origins in the English common law that every home is a castle and the vigorous efforts of Samuel Adams to expand the right during America's colonial era. The phrase persons, houses, papers, and effects has both broad and specific meanings. The broad interpretation goes beyond the items listed and considers protected anything having to do with the comforts of society, or solace (a term meaning the place a person goes to derive comfort, relief, or cheer from the humdrum tedium of everyday life). The strict interpretation defines persons as only those who have formed a sufficient connection with society (aliens and hermits are presumably excluded) and looks at the details of what constitutes the threshold of a home and reasonable expectation of privacy (e.g., locked boxes). The right to secure property is considered a sacred good and end of society; infringement on that right, ever so minute, is considered evil, and a trespass. The Court has held, however, that electronic intrusion (wiretapping) is not part of this good/evil juxtaposition, and that balancing tests are necessary to weigh government and individual interests.

Amendment IV: the REASONABLENESS CLAUSE - This generally applies to the context of warrantless arrest and warrantless search and seizure. The reasonableness standard pervades a wide range of criminal justice activities, but it primarily governs the complete area of suspicion and is a prerequisite for the stricter standard of probable cause. The founding fathers were mostly concerned with the character of warrants, but they never disputed the need for warrantless action, particular when arrest and search are combined on the spot. Reasonableness, at minimum, requires articulable facts, as in stop and frisk and profiling situations. Questions and disputes have arisen, however, over whether to read this clause as independent or connected with the warrant clause. If read independently, then there may be some searches reasonable under the first clause which need not comply with the second clause. If read together, then there may be some seizures even under warrants which could be unreasonable. There's also the debate over whether reasonableness applies to when it is practical or reasonable for police to get a warrant or whether it refers to the reasonableness of searches generally. The Court has reversed precedent on this and other areas of this amendment. Overall, the Court has adopted a view that the two clauses are related in a warrant with narrow exceptions approach. The issue of scope in the warrantless context is regarded as critical. Some groups (e.g., prisoners, students) have been declared to have diminished expectations of privacy, and the Court seems willing to multiply exceptions in areas that are exclusively criminal in nature or forums in which relaxed standards are more appropriate.

Amendment IV: the WARRANT CLAUSE - This generally applies to the context of warrantful arrest and warrantful search and seizure. It requires the use of an independent magistrate who acts as a buffer between police and privacy, and more importantly, establishes the standard of probable cause, which serves as the basis for arrest, the sufficiency for further processing, and grounds for challenging the validity of warrants as well as evidence in suppression hearings. Probable cause applies to the scene as well as the review by a magistrate, but it's clear that the concept is more a judicial construct than a law enforcement principle. Probable cause established by an informant's tip has drawn much of the Court's attention, resulting in totality of circumstances tests which essentially require corroboration of circumstantial evidence. The purpose of the warrant clause is to keep police out of constitutionally protected areas unless they have reason to believe a crime has been or is being committed.

Amendment IV: the PARTICULARITY CLAUSE - This requires that warrants describe the things to be seized and prevents the seizure of anything not mentioned in the warrant. Things include contraband, the fruits, and instrumentalities of crime. The clause limits the scope of searches to places where described objects could be expected to be found. In wiretapping cases, specific communications, conversations, or discussions must be described. The concept of scope is inextricably tied to the circumstances which make the intrusion lawful, so any lawful intrusion may carry with it plain view exceptions even if such evidence is not described in the warrant. Additional rules apply to large-scale seizures, obscenity cases, and emergency situations. The Court seems willing to consider the special needs of government in such cases, and although it punishes police who overstep their discretion by going on fishing expeditions via the exclusionary rule, it also places an onus of responsibility on courts to provide workable forms for police to use via the good faith exception.

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.

Amendment V: the GRAND JURY CLAUSE - The theory of grand jury, taken from English common law, is to provide for a body of people unhampered by rigid procedural or evidential rules, able to act independently as an instrument of justice. It has not gone without criticism throughout history, but the founding fathers overlooked this and thought of it as a shield against prosecutorial abuse, insuring that serious criminal charges be brought before one as a check on prosecutorial power. Grand juries exist throughout the federal system, and a few states use them regularly, but their most common usage is with their special investigative function. In a series of rulings from Hurtado (1884), Palko (1937), and Alexander v. Louisiana (1972), the Court has clearly indicated this clause applies only to nonmilitary federal courts. It remains unincorporated by the Fourteenth Amendment or any other Constitutional provision.

Amendment V: the DOUBLE JEOPARDY CLAUSE - The theory of double jeopardy is that the state, with all its power, should not be allowed more than one chance to convict an individual. Otherwise, such uncertainty would undermine the feeling of innocence captured in a not guilty verdict. The practice has deep historical roots, and the Court has used this clause as a rubric for a number of quite unrelated cases, viewing the double jeopardy restriction as fundamental to our constitutional heritage. Consequently, federal law forbids a federal prosecution following a state prosecution unless the case falls under the dual sovereignty doctrine. The restriction is also binding on the states, and mostly applies to mistrials where the cause is due to circumstances within control of the judge and prosecutor. No new trial may follow an acquittal, but some limited exceptions exist, especially for dangerous special offenders. States are also allowed within certain rules to split single transactions into separate crimes so as to give the prosecution of choice of charges that may be tried in one proceeding.

Amendment V: the SELF-INCRIMINATION CLAUSE - This reflects the founding father's preference for adversarial rather than inquisitorial systems of justice. It preserves the adversarial system where a lawyer speaks for the defendant, and it also insures a certain amount of privacy. The privilege is a personal one and doesn't apply to real evidence such as books, appearance and so forth. The clause has found its most application in the area of police interrogation where both environment and conversation can be coercive. Impermissible coercion generally involves forced choice situations where the defendant is robbed of their free will. Immunity privileges coexist with self-incrimination privileges, meaning that the two are not incompatible, even though immunity has the effect of compelling testimony. Compelled testimony usually means a confession, and the notion of a competent confession is also covered by this clause, involving rules on voluntariness, delay, length, and due process, the most prominent feature of the latter being the infamous Miranda rule, which requires reading a suspect their rights and views almost all police questioning as inherently coercive. Subsequent rulings have eroded Miranda somewhat, and created numerous exceptions to it and the exclusionary rule.

Amendment V: the DUE PROCESS CLAUSE - It's generally believed that Fifth Amendment due process is more substantive than Fourteenth Amendment due process because of its closeness to the notion of just compensation in the eminent domain clause. However, any broadening of Fourteenth due process also broadens Fifth due process. By itself, the phrase due process refers solely to procedural matters, to process in court, but that is not the interpretation here. This clause is taken to mean that states cannot restrict substantive due process by enacting new criminal laws that impinge on life, liberty, or property. Due process is more than a procedural safeguard. Even the fairest of procedures could unfairly impinge on life, liberty, or property. Liberty is perhaps the most difficult to define, referring to the full range of conduct which an individual is free to pursue. A complex series of cases and rulings have involved this clause, which is used mainly to strike down grossly unfair and unjust legislation and rule on discrimination cases even though the Fifth Amendment has no equal protection component.

Amendment V: the EMINENT DOMAIN CLAUSE - The power of government to take private property for public use, following just compensation, is called eminent domain. The theory behind it to promote the general welfare, safety, health, or morals. It is most commonly seen in cases where energy, transportation, or flood control need to be provided to a community, and the government takes the land, forcing a compulsory sale or auction of the owner's property. The owner's rights give way to considerations of the common welfare, and just compensation usually means fair market value. Governments can also condemn property which requires putting up much less money in the form of security or bond which the owner might not think is fair. Governments can also delegate their power of eminent domain to private corporations.

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 defense.

Amendment VI: the SPEEDY AND PUBLIC TRIAL CLAUSE - This right, derived from the Magna Carta, prevents undue and oppressive incarceration prior to trial since delay inhibits both deterrent and rehabilitative effects of criminal law. It applies mainly to the post-indictment phase and certain features of the pre-indictment phase. The right is fundamental, relative, and personal which means both circumstances and harm need to be considered in a balancing test, and waivers must be made intelligently. The purpose of public trial is to ensure fairness, accuracy, and truthfulness. All criminal trials in the United States must be open to the public, and this guarantee is almost perfectly implemented. The banning of publicity and television cameras in the courtroom does not violate this right.

Amendment VI: the IMPARTIAL JURY CLAUSE - The purpose of jury trial is to prevent government oppression by giving a defendant the right to be tried by a jury of his peers as a safeguard against overzealous prosecutors and eccentric judges. Any waiver of this right must be with the consent of the prosecution and court. Juries should consist of twelve people and verdicts should be unanimous, but the Court has indicated it will consider less as long as the size is large enough to permit group deliberation free from intimidation and representing a cross-section of the community. No jury right exists with contempt cases nor with juvenile proceedings. Impartiality requires a fair cross-section attempt, and to sustain a charge of underrepresentation for any minority group, systematic exclusion must be shown. When the jury is exposed to prejudicial material or disorderly conduct, the judge must order a special hearing to determine if impartiality has been breeched. Locality also affects impartiality, so defendants have a right to change of venue. Voir dire, or challenging potential jurors for biased viewpoints, also ensures impartiality.

Amendment VI: the NOTICE OF ACCUSATION CLAUSE - This requires that a defendant is entitled to a full and complete enumeration of the ingredients that constitute the offense they are charged with. In practice, the statutory language of the offense usually suffices as does a reasonableness test for whether a person can understand the charge against them.

Amendment VI: the CONFRONTATION CLAUSE - This requires that a defendant has the right to be present during their own trial and to cross-examine witnesses, who must appear in court, and be direct witnesses, not hearsay witnesses. Trials in absentia are only allowed if the defendant misbehaves in court, and controversy surrounds whether the right exists for the defendant to face their accuser in rape or child abuse cases. This clause does not fully reflect that right, only that the accused has the opportunity of testing the recollection of the witness, not engage in a full-blown face-to-face confrontation. The purpose of this clause is for the witness to face or confront the jury, who by judging the demeanor of the witness in response to questioning, can tell if the witness is telling the truth. The Court treats this clause as nearly equivalent to the rules on hearsay (second-hand) testimony.

Amendment VI: the COMPULSORY PROCESS CLAUSE - This requires that the defendant be allowed to compel witnesses to appear and testify in their defense. It plainly means that the defendant has the right to offer a defense, to present an alternative version of the facts. A long-standing legal tradition, called discovery, allows each side to have access to each other's cases, to know in advance what evidence the other side has. The right to call defense witnesses is limited when discovery rules are violated and the defense is clearly trying to obtain a tactical advantage. Also, the prosecution is only obligated to disclose to the other side anything relevant which might establish a reasonable doubt (the Brady doctrine).

Amendment VI: the ASSISTANCE OF COUNSEL CLAUSE - This is an important and absolute right that the defendant have the assistance of counsel of their choice from the first moment of police interrogation, the role of defense attorney being to ensure that all other rights of due process are observed; in other words, to be represented in the fullest measure. Gideon v. Wainwright (1963) made assistance of counsel a fundamental right, even for those too poor to hire a lawyer. A Gideon-appointed lawyer must be provided to indigent (poor) defendants whenever there is a chance of incarceration as a sentence, and in all juvenile proceedings also. The purpose of this clause is to primarily make the complexities and complications of law relatively uncomplicated for all; secondarily, to reduce the gap between rich and poor. Judges are under an obligation to ensure that adequate and effective counsel is provided or the defendant makes a knowing and intelligent waiver. If a defendant wants to be their own attorney, standby counsel should be appointed.

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.

Amendment VII: CIVIL TRIAL BY JURY - In the early days of American history, there was great diversity in how civil trials were conducted from state to state. This amendment was designed to bring about uniformity in civil trials, giving juries the power of fact-finding. The phrase preserving the common law permits juries as small as six and nonunanimous verdicts, as long as jury trials are the norm. It also permits novel rules of evidence and new methods of factfinding as long as the procedure of jury trial is carried out. The phrase prohibiting reexamination in federal court means that civil cases can only be appealed up to a state Supreme Court level, unless the jury, of course, tramples on constitutional rights.

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

Amendment VIII: the EXCESSIVE BAIL CLAUSE - This protects the right to freedom before conviction and prevents the infliction of punishment prior to conviction. It plainly means the presumption of innocence. As with English common law, that right has never meant a right to bail, only that bail shall not be excessive. The Court has never actually held that this clause applies to the states. In fact, it has upheld the practice of preventive detention under a clear and convincing evidence standard.

Amendment VIII: the EXCESSIVE FINES CLAUSE - This right is limited to only those fines directly imposed, and payable, to the government as punishment. It doesn't apply to court costs, mailing fees, and so forth. It's uncertain if it implies a cap on civil suit awards. It hasn't been specifically incorporated into the Fourteenth Amendment, but the principle of equal protection provides that someone cannot be sent to jail simply because they are too poor to pay a fine.

Amendment VIII: the CRUEL AND UNUSUAL PUNISHMENTS CLAUSE - The meaning of this clause has baffled generations of judges, but at a minimum, it's a constitutional command that the punishment fit the crime, and it is indeed binding on the states. A long series of cases have debated the death penalty, with Furman v. Georgia (1972) finding it wantonly and freakishly applied, and Gregg v. Georgia (1976) allowing its reimposition as long as the method of sentencing was not arbitrary or capricious. It's unclear what, if anything, the word unusual adds to the concept of cruelty. Severe mandatory penalties may be cruel, but they are not unusual. It's also uncertain if this clause contains a proportionality provision based on the seriousness of noncapital cases. There's no historical support for that, but it's fair to say that three-strikes-you're-out life imprisonment statutes are in no immediate constitutional danger. Purposeless, needless, and grossly disproportionate punishments are, however, unconstitutional, although statistical disparities alone are not sufficient to establish this. There is also no consensus on whether the death penalty is prohibited for juveniles, and indeed, the Court has moved away from a death is different philosophy, allowing delay, toward streamlining the practice so states can carry out their backlog of executions. There's also the issue of prison conditions, and whole state prison systems have been declared unconstitutional under this clause as the Court has moved away from a hands-off philosophy towards corrections.

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

Amendment IX: RIGHTS RETAINED BY THE PEOPLE - This amendment seems to imply that the founding fathers had additional rights in mind that should never be infringed upon by government. However, it might also represent political closure given to debates at the time over whether it was possible to list all rights or if those unlisted would signal that government was unrestrained in those areas. The historical record is unclear, as are the Federalist papers and other writings. Judicial interpretation is also unclear, with at least one Justice (Douglas) finding penumbra (shaded regions around an eclipse) rights, such as privacy, emanating from other specifically guaranteed rights. Other interpretations take a more fundamentalist view, asserting rights that are deep-seeded in our society or essential to civil liberties. One Justice (Black) viewed the Ninth as grounds for the Court finding legislation offensive without it necessarily being void or vague under constitutional provisions. This amendment is rarely addressed by the Court.

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.

Amendment X: RIGHTS RESERVED BY THE STATES - The usual interpretation of this amendment is that it a declaratory statement or truism (all in retained which has not been surrendered) and not an expression of any implied or inherent rights. Its purpose was political, to allay fears that the new federal government might exercise powers not granted and that the states might not be able to exercise their powers. Madison and Hamilton both agreed that there was enough elasticity elsewhere in the Constitution on federal powers that this statement of reserved state police powers could be added. Other than with a few tax cases, there has been little judicial holding on this amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Amendment XIV: the PRIVILEGES AND IMMUNITIES CLAUSE - Privileges and immunities are social rights belonging to all citizens of free governments such as the right to pursue employment, to travel freely, to choose one's associates, and to exercise free will or choice over one's calling. It equates the life, liberty, and the pursuit of happiness with life, liberty, and property. Corporations are empowered as persons (a legal fiction) under this clause. It also asserts that U.S. citizenship is superior to state citizenship, a dramatic change from the pre-Civil War idea that national citizenship was dependent upon state citizenship. Former slaves (freed under the Thirteenth Amendment) as well as all persons within U.S. or a state jurisdiction, including noncitizens, are hereby entitled to civil rights, cannot be discriminated against, and are entitled to be treated equitably. The theory of equity is that similarly situated people should be treated equally. All callings and avocations must be open without restriction. Whatever regulations or qualifications a state seeks to impose on its citizens, the same measure, neither more nor less, shall establish the rights of all citizens within the jurisdiction.

Amendment XIV: the DUE PROCESS CLAUSE - This is the main clause by which the Bill of Rights is incorporated into the Fourteenth amendment. Fourteenth amendment due process protects fundamental principles of liberty and justice, that is, both substantive and procedural rights. It extends to all people the complete protection of the Bill of Rights, and entails a gradual process of ascertaining immutable principles of justice, giving due recognition and tolerance to state experimentation and disparity. In short, due process is evolution toward ideal justice, and procedural due process, which leads the way, deals in degrees of protection. Procedures are expected to be more extensive when more is at stake, fairness is expected at a minimum, and in many ways, it's more important how government goes about things than what they can and cannot do, police powers notwithstanding. Policy shall not be established by any government (federal, state, or local) which is irregular, arbitrary, or unreasonable. Policy requires notice and reasons before government acts. How much regularity and fairness is necessary depends upon a balancing of factors, such as the cost of procedures, the risk of erroneous decision, and the importance of affected interests. This clause is the most common vehicle today for social rights protected under the privileges and immunities clause, so it is intimately involved in controversies such as sodomy, abortion, and the right to die. It also establishes procedural due process, generally, for the criminal justice system on controversial behaviors such as entrapment and prosecutorial misconduct.

Amendment XIV: the EQUAL PROTECTION CLAUSE - Equal protection is the principle of equity that no class of persons shall be denied the same protection of law enjoyed by other classes of persons. States are bound under this clause while the federal government is bound under the due process clause of the Fifth amendment. Equal protection overlaps with due process in that the former is not a guarantee of regularity in operations or legislation, but a safeguard against intentional (real) or invidious (seeming) discrimination. Governments are prohibited from adopting laws or procedures which establish categories of people receiving unequal treatment. A state or municipality can, however, recognize different different situations and discriminate accordingly as long as a rational basis exists for the distinction. Examples include welfare classifications, veterans preference, affirmative action, and gender-neutral laws. Equal protection is only involved when there is significant state action, an if a classification involves a fundamental right, also called suspect classification, then the Court uses a strict scrutiny test which requires looking at whether there is a compelling state interest.

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Last updated: Dec 04, 2008
Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal Justice
O'Connor, T. (Date of Last Update at bottom of page). In Part of web cited (Windows name for file at top of browser), MegaLinks in Criminal Justice. Retrieved from http://www.apsu.edu/oconnort/rest of URL accessed on today's date.