Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence

by Richard Beeman

  The precise extent of the guarantees of the First Amendment continues to be a subject of contention. Oliver Wendell Holmes, in a Supreme Court opinion in Schenck v. United States (1919), made the commonsense argument that the guarantees of free speech do not extend to the right to shout “fire in a theatre and causing a panic” when no such danger actually exists. Governments have often asserted the right to regulate public assemblies and protests in order to ensure public safety.

  Similarly, the “wall of separation” between church and state is not impenetrable. The United States Congress continues to employ a chaplain, and the word of God is frequently invoked at many official government gatherings. The federal courts are frequently presented with cases in which litigants claim that public displays of religious belief (e.g., the displaying of a Nativity scene in a public square at Christmastime) violate the principle of separation of church and state. Thus far there is no clear resolution of where the boundary between a religious and a civic display lies.

  AMENDMENT II (1791)

  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 contains two parts: a preface, which states that a “well regulated Militia” (meaning a citizens’ army authorized by the state) is a necessary and desirable thing, and the operative section of the amendment, which asserts the right of the people to keep and bear arms. Constitutional scholars have argued vociferously about whether the comma separating those two parts signifies that the right to keep and bear arms without state interference is confined to the use of such arms in conjunction with one’s duties as part of a government-sanctioned militia or army, or whether there is an individual right to keep and bear arms under any circumstances. The most recent ruling of the Supreme Court (District of Columbia v. Heller, 2008) suggests that the Second Amendment does guarantee an individual, as well as a collective, right to bear arms, but the Court has also conceded that there are some instances (e.g., regulating the sale of assault weapons) in which local, state, and federal governments do have the right to regulate the sale and use of arms. Like many aspects of the Constitution, the meaning of the Second Amendment is subject to varying interpretations.

  AMENDMENT III (1791)

  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.

  This amendment, which has lost much of its immediacy over the course of time, was considered of pressing importance by the members of the First Congress, who drafted it because attempts to force Americans to provide lodgings for British troops (whom they considered to be hostile occupiers of their land) during the years leading to the Revolution were an important cause of that revolution. The amendment does, “in a manner to be prescribed by law,” allow the government to use private homes to provide lodging for its own soldiers in time of war. More generally, the Third Amendment has—along with the Fourth, Fifth, and Ninth Amendments—been interpreted to imply another right not explicitly mentioned in the Constitution: the right of privacy.

  AMENDMENT IV (1791)

  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 guarantees against “unreasonable searches and seizures” of persons, houses, and property, and the insistence that any such searches be based on “probable cause” and accompanied by search warrants, were another product of Americans’ experience during the Revolution, when British customs officers and soldiers carried out blanket searches and seizures without proper warrants. In recent years, through use of the incorporation doctrine, the Fourth Amendment has been interpreted to mean that police officers at all levels of government must demonstrate probable cause before stopping and searching anyone whom they might suspect of a crime. The precise definition of “probable cause” has been much debated, and in many cases police officers are forced to make difficult judgments about whether they should detain an individual and search his or her possessions.

  In an age in which advances in technology have offered the government new ways to gather evidence of a possible crime—e.g., wiretapping and other means of sophisticated electronic surveillance—the federal courts have been presented with new dilemmas about how to interpret the provisions of the Fourth Amendment. Enactment of the Patriot Act in the aftermath of the 9/11 attacks in 2001 has significantly expanded the government’s ability to carry out such surveillance.

  AMENDMENT V (1791)

  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.

  Reflecting long-standing traditions of English common law, as well as the American perception that the British had violated those traditions in the years leading up to the American Revolution, the Fifth Amendment requires that people charged with capital crimes (i.e., a serious crime that falls under the jurisdiction of the federal courts) be first presented before a grand jury—a group of ordinary citizens drawn from the general population. Those serving in the military are not afforded that protection; they are to be tried in military courts, which set their own rules of judicial procedure.

  Although indictment by a grand jury is standard practice in important civil and criminal proceedings at the federal level, many states have not used this mechanism for securing indictments of accused criminals, believing that grand juries are unnecessarily costly and time-consuming. Although many of the provisions of the Bill of Rights have been applied to the actions of state governments through the incorporation doctrine of the Fourteenth Amendment, the Supreme Court has not asserted that states are bound to conform to this particular provision of the Fifth Amendment.

  The provision of the Fifth Amendment preventing double jeopardy stipulates that individuals cannot be tried for the same crime more than once. If a defendant is acquitted of a crime, the government does not have the right to prosecute that individual again, and if a defendant is convicted, the government may not impose multiple punishments for the same crime.

  The phrase “taking the Fifth” refers to the provision of the Fifth Amendment ensuring the right against self-incrimination: the right to refuse to answer questions in court that might lead either to indictment or punishment for an alleged crime. Finally, the Fifth Amendment contains a very open-ended guarantee, echoing the words of the preamble of the Declaration of Independence, that no person can be deprived of the fundamental rights of life, liberty, or property without due process of law.

  The concern for protection of property is further emphasized in the prohibition of the taking of private property for public use “without just compensation.” In fact, federal and state governments have often taken control of private property (for example, for the purposes of building a highway or some other necessary public work) by using the doctrine of “eminent domain.” In those cases, the owners are compensated for the value of their property, although in many cases not without significant litigation.

  AMENDMENT VI (1791)

  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 is appropriately considered the center-piece of the American criminal justice system. In addition to guaranteeing all criminal defendants a trial by jury, it provides an outline of the basic procedures to be followed in such trials. The trial shall be a speedy one, which is to say that accused criminals cannot be imprisoned for lengthy periods of time before receiving a trial. The trial must be public. The framers of the Sixth Amendment specifically rejected the format of English Star Chamber proceedings; that is, proceedings held in private, away from scrutiny by the public. The juries in criminal trials should, in normal instances, be drawn from ordinary citizens who are resident in the state and region where the crime was committed (although in unusual cases, if the crime is of such a sensational nature that it might prove impossible to impanel an impartial jury, the trial might be held in a jurisdiction other than the one in which the crime was committed).

  The Sixth Amendment also guarantees to the accused the right to be confronted with the nature of the charges brought against him; the right to confront, either directly or through an attorney, the witnesses against him; and the right to present witnesses in his defense. Finally, criminal defendants are entitled to “Assistance of Counsel”; that is, a competent attorney to assist them in their defense. These basic guarantees have been elaborated in countless court cases in the more than two hundred years since the amendment was ratified and, through the incorporation doctrine, have become the standard procedure for criminal trials in states and other localities as well as in federal courts.

  AMENDMENT VII (1791)

  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 provides guarantees similar to those of the Sixth with respect to civil suits, although it does limit the right of trial by jury to suits in which there are substantial sums of money involved. The terms and extent of the application of this amendment have been worked out through myriad court cases involving plain-tiffs (the person bringing the suit) and defendants (the person being sued). For example, while the standard for conviction in a criminal trial is a jury’s unanimous verdict that the accused criminal is guilty “beyond a reasonable doubt,” a jury in a civil case may award damages to a plaintiff if a majority of jurors find a “preponderance of evidence” on his or her behalf. The incorporation doctrine has not been applied to this amendment and, for the present, civil suits tried in state and local courts may follow different procedures from those outlined in the Seventh Amendment.

  AMENDMENT VIII (1791)

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

  The prohibition against excessive bail (a sum of money put up to gain release from prison while awaiting a trial and returned if and when the accused appears for trial) is a reflection of the belief that an accused criminal is “presumed innocent until found guilty.” The definition of “excessive bail” is a subjective one, but the intent of the amendment is to demand a sum of money sufficient to guarantee that the accused does show up for the trial, but not so high as to make it impossible for the accused to gain release.

  The prohibition of “excessive fines” is intended to assure that “the punishment fits the crime.” It is closely connected in its rationale with the final section of the amendment, the guarantee against “cruel and unusual punishments.” Again drawing on English common law traditions, Americans were seeking to move away from ancient practices of gruesome punishments for relatively minor offenses. The definition of “cruel and unusual punishments” has often proven a point of contention. Currently, opponents of the death penalty argue that that punishment qualifies as cruel and unusual. Except for a period during the 1970s, the Supreme Court has not agreed, and both state governments and the federal government are free to permit executions if they desire (at present, thirty-five of the fifty states have laws permitting death penalties in some cases—usually, but not exclusively, murder cases).

  AMENDMENT IX (1791)

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

  One of the reasons given for the framers’ omission of a Bill of Rights from the original Constitution was their fear that if they unintentionally failed to mention some fundamental rights in such a listing, those rights might go unprotected. That concern caused many of the delegates to fear that any debate over a bill of rights might drag on for weeks or months, as they sought to cover every conceivable right. The Ninth Amendment makes it clear that the list of rights mentioned in the Constitution and its amendments do not constitute all the possible rights to which the people are entitled. Over the years, the courts have defined “unenumerated” rights, such as the right to vote; the right to move about freely; and, perhaps most controversially, the right to privacy, including the right of a woman to have some control over her health and reproductive decisions.

  AMENDMENT X (1791)

  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.

  When the Constitution was presented for ratification to the people of the thirteen independent states, many were surprised—and alarmed—by the extent to which powers previously exercised by the states (for example, taxation and control over commerce) were now to be exercised by the federal government. In the words of Virginia statesman Patrick Henry, the new government was not really “federal” in character but rather a “consolidated government,” one which would render the identity and powers of the states meaningless. The Tenth Amendment reserves all powers not specifically given to the federal government by the Constitution (most of which are contained in Article I, Section 8, in the enumeration of the powers of Congress) to the state governments; it was intended to allay fears about the federal government possessing excessive power.

  In one sense, the Tenth Amendment is one of the most important features of the Constitution, for it articulates the principle that the federal government is one of specifically delegated powers, and that it should only exercise those powers explicitly enumerated in the Constitution. But in fact, the Tenth Amendment, because of its generality, has not proven to be much of an impediment to the steady expansion of federal power since the time the Constitution was adopted, although opponents of “big government” have in recent years invoked the Tenth Amendment in their arguments with greater frequency.

  AMENDMENT XI (1795)

  The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

  In 1793 the Supreme Court ruled that it had a right to hear a suit brought by two citizens of South Carolina against the state of Georgia. Many members of Congress and of the state legislatures vigorously criticized the court’s ruling, claiming that the federal courts had no business interfering with the “sovereign immunity” of state courts. The Eleventh Amendment reserved to the individual states the right to hear cases brought against them either by citizens of another state or another country. As is the case with many of the amendments to the Constitution, the Supreme Court has ruled that there are exceptions to this general rule. For example, since 1824 the Supreme Court has held that state government officials are not immune from being sued in a federal court if they act in violation of a right guaranteed by the U.S. Constitution.

  AMENDMENT XII (1804)

  The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least,
shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.

  The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.

  The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.