Bill of Rights and Analysis

The first 10 amendments to the Constitution, known as the Bill of Rights, guarantee essential rights and civil liberties, such as the right to free speech, the right to bear arms, and the right to a fair trial, as well as protecting the role of the states in American government.

Passed by Congress September 25, 1789. Ratified December 15, 1791.

The Preamble to The Bill of Rights

Congress of the United States begun and held at the City of New York, on Wednesday March 4, 1789.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

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.

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.

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.

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.

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.

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 defense.

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.

Amendment VIII

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

Amendment IX

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

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.

Amendment XIV

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.

ANALYSIS

The central thesis of the Bill of Rights of the Constitution is the doctrine of individual rights. Spelled out in considerable detail by the English philosopher John Locke, this doctrine holds that each person is a sovereign being, not to be ruled by or rule over others, but rather to take charge of his property—his own person and estate. Our nation’s founders thus rejected the most pervasive doctrine on the globe at the time—that some people were justified by God, nature, force, or convenience to be the masters of their fellowmen.

The framers, unfortunately, did not fully accept the doctrine of individual rights when they permitted slavery, so the Constitution remained, for nearly a century, a contradictory legal document. It took a civil war to change this. Indeed, without the philosophical basis stated in the Declaration of Independence, it is doubtful that a solid political argument against slavery could have been found in our country’s heritage.

The First Amendment maintains that no law may be made concerning the crucial human activities of speech, press, assembly, or the petitioning of the government for a redress of grievances. Morality involves, at the most basic level, that (1) each person is free to make choices as to what he or she will do and (2) there are identifiable standards by which to determine which of our choices are better or worse. Any decent society must aim, ultimately, for justice. And justice amounts to respecting the basic nature of human community life. Such a task will, therefore, involve respecting the basic tenets of morality, since the moral nature of human life is perhaps its most distinctive feature.

The First Amendment pays direct attention to the moral nature of our lives by placing protection around each person’s right to think and speak as he judges best.

The Second Amendment shows equally firm respect for the value of every person’s life and liberty in a social context by making it clear that no one is to be deprived of his capacity to defend against aggressors. The right to bear arms is the right of self-defense, which flows from the basic right to our lives and from the basic value that life possesses for each of us.

The Third Amendment begins to affirm the right to private property by prohibiting government’s use of private homes in time of peace.

It is clear from this that the right to private property was a vital aspect of the politics of the framers. The right to private property translates into as concrete an indicator as possible the practical requirements for respecting the rights to life and liberty. It makes clear that those rights require a sphere of personal jurisdiction secured by property law.

The Fourth Amendment, which protects us against unreasonable searches and seizures, extends the idea of private property rights to cases in which there can be understandable temptation to violate them. Even when an emergency or state of siege exists, there may be only reasonable search and seizure, meaning that the government may disregard the privacy of its citizens only with good reason.

This makes moral sense, once again, because when victimization has occurred, citizens of a free society are obliged to support efforts to rectify matters. Without reasonable search and seizure powers, such rectification is impossible—how else would the government’s detectives conduct a process of discovery and arrest a suspect? But standards of reasonableness—which, of course, cannot be laid out forever but must remain contextual and unspecified, although they are always required—need to guide the process.

The Fifth Amendment also illustrates the moral awareness of our framers. Except for military legal procedures—where the task is necessarily guided by emergency conditions—to restrain someone it is necessary to lay out a detailed indictment citing reasonable grounds for suspicion. Once such a process has begun, it makes sense that in a free society bent on maintaining justice, cooperation with the legal machinery of government should be mandated. Self-incrimination, in turn, may not be coerced, since that would be to treat an accused person as if he had already been convicted. Moreover, no right may be disregarded without due process of law, because “due process” is the detailed expression of just treatment. It involves the presentation of evidence justifying reasonable suspicion, probable cause, clear and present danger, and so on. Barring these, no action may be taken that disregards the rights of citizens.

Finally, the Fifth Amendment assumes that private property may occasionally be needed for public purposes. Only when these proper public uses are at issue may government engage in takings, and only if the market price is paid for what is taken.

The Sixth Amendment speaks of a “right to a speedy and public trial,” thus specifying further certain procedural implications for a legal system concerned with justice in a genuine free society, one in which citizens are recognized as sovereign.

The Seventh Amendment extends the right to a jury trial in Federal civil cases.

The Eighth Amendment bars excessive bail and fines and cruel and unusual punishment.

The Ninth Amendment affirms that citizens have innumerable implicit rights, depending on their various circumstances, based on the rights affirmed both in the Declaration of Independence and in the amendments cited earlier. Since the Constitution is a brief and concise document, it cannot be expected to enter the details of all the rights guiding it.

The Ninth Amendment is the way the framers indicated that they have not forgotten the broader framework guiding their political/legal deliberations. It also imposes an obligation on legislators and courts to discover the further rights of the people.

In the Tenth Amendment we see that the federal government exceed Its general powers, and that the states (and the people) hold the remaining power. The law should be implemented locally, applying to the facts of life of the citizenry. Some of these facts will apply generally enough so they may be treated at the federal level. Others, in turn, are regional. Thus, we have different governmental bodies—from the federal down to the municipal. None of their laws may violate the individual rights of the citizens.

The Fourteenth Amendment contains a number of important concepts, most famously state action, privileges & immunities, citizenship, due process, and equal protection—all of which are contained in Section One. However, the Fourteenth Amendment contains four other sections. Section Two deals with the apportionment of representatives to Congress. Section Three forbids anyone who participates in “insurrection or rebellion” against the United States from holding federal office. Section Four addresses federal debt and repudiates debts accrued by the Confederacy. Section Five expressly authorizes Congress to enforce the Fourteenth Amendment “by appropriate legislation.” The states ratified the Fourteenth Amendment in 1868 in the immediate aftermath of the American Civil War, along with the other Reconstruction Amendments—the Thirteenth and Fifteenth.