Month: August 2019

Now that we’ve finished the Amendment Countdown, it’s worth spending a few moments on the Amendments that didn’t make it all the way through the process. As discussed seemingly an eon ago with the post on the 27th Amendment, it is purposefully difficult to change our Constitution. So the fact that we have even 27 of these changes is an impressive display of adaptability. That there aren’t more is not due to a lack of trying. The process has been initiated in excess of ten thousand times. But the vast, and I do mean vast, majority of those never made it very far. Obviously only 27 made it all the way. And only six made it through Congress before failing to achieve ratification with three-quarters of the states.

The original Bill of Rights actually contained twelve Amendments, but two of them – the first two, in fact – didn’t get ratified right away. The second of these (Congressional pay changes) eventually was ratified as the 27th Amendment. The first one, the Congressional Apportionment Amendment remains unratified to this day:

After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Now that is a run-on sentence. Technically, as was the case with the 27th Amendment, this one could still be ratified. But Congress is already well over twice as big as the limits therein, and the number of persons per representative is now closer to a million than to fifty thousand, so it wouldn’t achieve anything to pass the Amendment.

In 1810, echoing the paranoia that accompanied things like Alien and Sedition Acts a little over a decade earlier, the Titles of Nobility Amendment was passed by Congress:

If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them.

Eleven states initially ratified this Amendment, two short of the required total at the time. By the time a twelfth had ratified it, there were more states, and so it was still two short. To date, that is where it stands, now requiring 26 more states in order to be ratified. There is no time limit on it, but let’s just say the odds are long at this point. There is a faction out there that believes it actually was adopted into the Constitution, but that argument has been struck down by the Supreme Court. Interestingly, if it were to somehow become law, the titles of lawyers and judges everywhere would make them non-citizens, and we’d have something of a judicial crisis on our hands.

When Abraham Lincoln was elected President in 1860, a number of Southern states decided to secede from the Union, knowing that Lincoln wanted slavery to end. What Lincoln wanted even more urgently at the time was to keep the Union intact. So when his predecessor James Buchanan implored Congress to develop an Amendment that would protect slavery in states where it already existed, and when Ohio Congressman Thomas Corwin led the drafting of said Amendment, Lincoln did not object. Thus became the following:

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

The seven states that had already seceded did not vote on the Corwin Amendment in Congress, but just barely enough “yes” votes were obtained to pass it. It did not achieve its goal, however, as only a few Northern states ratified it (Ohio, Illinois, and Rhode Island). The Civil War followed soon after. And, of course, not only did the Corwin Amendment hit the ground with a thud, it was pummeled by the next two Amendments to be ratified; the 13th Amendment abolished slavery, and the 14th Amendment brought Constitutional restrictions to the states as well as the Federal Government.

In 1924, Congress passed the Child Labor Amendment:

The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age

The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress.

This was in response to some related court decisions on the subject, and it did get ratified by 28 states, but that was short of the required 36 at the time. The Fair Labor Standards Act of 1938 effectively achieved the same purpose as the Child Labor Amendment, so there’s been no significant activity on ratification of the Amendment since that time.

People my age will remember some of the debate in the 1970’s about the Equal Rights Amendment, intended to declare against gender discrimination at the Federal level.  It was passed in 1972, but the original proposal, written by Alice Paul and Crystal Eastman, was submitted to Congress in 1923. From there it languished until growing support emerged in the 1960’s, and after passage it was ratified by 35 of the required 38 states during the 1970’s. Then along came the depressingly effective fear tactics of Phyllis Schafly and others, and the momentum stalled. It had a deadline, which was extended, but no additional states ratified it during that time, and a few states even decided to rescind their previous ratifications, which by the way may or may not be allowed (the Court basically punted on the question once the deadline again passed on the Equal Rights Amendment).

In recent years, Nevada and Illinois both passed resolutions to ratify the Equal Rights Amendment, meaning it is one state shy of some serious Constitutional fireworks. What happens if a 38th state signs on? There’s a defensible sentiment that Congress would have the power to act in that case, because the Amendment itself doesn’t include its ratification deadline. Hopefully we will at least get a chance to see that play out. Beyond the immediate implications for women’s rights, it would have a significant effect on future Amendments as well. But for the moment, these words are not in our Constitution:

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

This amendment shall take effect two years after the date of ratification.

The last of the Amendments to be passed but not ratified was the District of Columbia Voting Rights Amendment, passed by Congress in 1978:

For purposes of representation in the Congress, election of the President and Vice President, and article V of this Constitution, the District constituting the seat of government of the United States shall be treated as though it were a State.

The exercise of the rights and powers conferred under this article shall be by the people of the District constituting the seat of government, and as shall be provided by the Congress.

The twenty-third article of amendment to the Constitution of the United States is hereby repealed.

This article shall be inoperative, unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Back when we discussed the 23rd Amendment, we talked a little bit about the “special” treatment the District of Columbia receives: no real representation in Congress, and only minimal participation in the Electoral College. The District of Columbia Voting Rights Amendment would have given the District just about every important right that a state would have, without going all the way to making it a state. Despite passage in Congress, it only received ratification by 18 states, and it was written such that the ratification deadline could not be extended. There doesn’t appear to be any groundswell of support to revive the issue for now, nor should that be expected any time soon: getting 38 states to agree that they should effectively reduce their influence by giving more to the District is a tough sell.

Then again, as you can see, any Amendment is a tough sell.  But as frustrating as that can be at times, it is also vital to the protection of our Constitution. I hope you’ve enjoyed this nearly year-long tour of the Amendments – I certainly have, and I’ve learned at least as much as you have along the way. Next post will take a look at the original Constitution itself, and then we can finally start talking about some other stuff. Unless I amend that plan.

The 1st Amendment to our Constitution packs a lot of punch into relatively few words, doing its best to define what really makes America different from previous attempts at a free state:

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.

It is interesting to compare the 1st Amendment that was ratified (written above) with what James Madison originally drafted:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.

There is almost no recorded information about whatever debate led to the more concise version that was ratified, but a couple of key things were stricken during that process. First, “full and equal rights of conscience”. What did this mean? It was written in a way that suggests it tied to the clause on religion – perhaps it was broadening the idea to general morality? That would have made it at least a little easier to apply it to agnostics and atheists that nonetheless have a moral code behind their conscience.

The second interesting thing to note is that the freedom of assembly was originally not tied directly to the right to petition the Government for redress of grievances. The way Madison wrote it, those two items were separated by a semicolon, which generally is a stronger indicator of actual separation than, say, a measly comma. It sounds trivial, but the interpretation of our Constitutions hinges on these types of subtleties.

The entire Constitution leverages the many successes and lessons learned from human history, but the text about religion in the 1st Amendment probably reaches farther back than any other. Religion and power have been difficult to untwine for a very long time. For Europe in particular, the power wielded by the Vatican played a major role in who came to power elsewhere, and this among many other things led to the rise of Protestantism in its many flavors. For the British, that in turn led to the Church of England, which of course was imposed on the colonies. The colonies themselves had numerous different faiths, and some of these came to power in their own right on a regional basis. In all cases, religion was imposed by some level of government, including the payment of taxes to support whatever religion locally held sway, even if the citizens did not subscribe to that particular religion. This is why the 1st Amendment starts by preventing the Government from establishing a religion, and immediately levels the field with the counterpart statement about the right to practice the religion of one’s choice (assuming, of course, that religion doesn’t tell you to break laws or infringe on other people’s Constitutional rights).

We often hear about the “separation of church and state”; Thomas Jefferson used the words “a wall of separation between Church & State” – so “building a wall” meant something rather different in those days. Most court decisions around this concept have adhered to the “Lemon test”, which refers to the decision of Lemon v. Kurtzman in 1971. The Lemon test states that the Government is violating the 1st Amendment if:

1. the statute (or practice) lacked a secular purpose;
2. its principle or primary effect advanced or inhibited religion; or
3. it fostered an excessive government entanglement with religion.

I don’t know about you, but I’m not sure the Lemon test does anything more than add words. And even with those extra words, the Court indicated that absolute separation is simply not possible, so there is always room for interpretation depending on the situation. Which of course can be exploited in either direction.

Freedom of speech, one of our most cherished rights, was trampled less than a decade after it was etched into the Constitution. The most infamous example is the collection of Alien and Sedition Acts pushed forward by John Adams and the Federalists, which essentially criminalized criticism of the Government. The pretense was that the criticisms were false, but of course it would be the Government who determined that. This all came from a paranoia that the French Revolution would lead to a new American Revolution and throw the nation into anarchy. When Jefferson became President, he wasted little time before overturning these Acts, but paranoia has pushed the envelope more than once since then. The Espionage Act of 1917 led to the conviction of a man who published leaflets urging resistance to the draft, and the Court upheld that conviction. And I’m sure you can see some similarities between what led to those older Acts and the sentiment brewing in Washington today. It bears repeating: eternal vigilance.

Freedom of speech has had one significantly negative consequence in American politics: the ability to speak with dollars. The 1st Amendment has been invoked multiple times to prevent limitations on the amount of money an entity can contribute to a political campaign. And since money determines how many ads you run, how big your operation for recruiting volunteers can be, how broad and effective your social media campaign is, and frankly your perceived importance which impacts your ability to get on talk shows, well,… this particular freedom is restricted to a fairly small fraction of our populace.

Freedom of the press is a natural extension of freedom of speech, with the underlying notion that the press has the freedom to speak to us about what is true, regardless of what any particular politician or political party might say. But the framers of the Constitution may have missed something here – perhaps it would have been good to say that not only should we not have a national religion; we should also not have a national press. This blog entry is already too long, so I’ll leave it at that.

I already mentioned the right to peaceably assemble in the last post on the 2nd Amendment – this one may be under the most assault right now, literally and figuratively, with the ever-increasing rash of mass shootings in the United States. Of course, the 1st Amendment only says that the Government can’t infringe on our right to assemble. But when half the Government is beholden to an organization that won’t let us do anything meaningful about the problem, isn’t the Government complicit?

I think the Founding Fathers would have had a vigorous debate about that.

Anyone’s life can either change or end in a matter of seconds. This has always been true, of course. But events of the past couple of decades in America have amplified our awareness of just how random that can be. Choices that should never be so fateful are now forcefully so: going to church, visiting a shopping mall, taking in a concert, or even showing up as a child to school. All of these choices and places now share a tragic thread: mass murder by gunfire. And every time, without fail, and before the smoke has even cleared, the 2nd Amendment is invoked as a barrier to potential solutions. There is no question that guns are only a part of the problem here. There is also no question that the Constitution guarantees the right to bear arms. What I am going to argue here is that this problem can be addressed head on, including how our society deals with guns, without altering or impinging on the 2nd Amendment.

I really want to make this clear: I have no desire to repeal the 2nd Amendment or even change it. There are good reasons it exists in the first place, and I think it would be best to start with that.

As mentioned in an earlier post, many of the Amendments in the Bill of Rights trace back to the English Bill of Rights of 1689, and the 2nd Amendment is no exception. Catholic kings leading up to that time had disarmed Protestants as a means of maintaining power, and also wanted to maintain standing armies. Parliament generally held the opposite view, leading to the English Bill of Rights of 1689, which was accepted by the Protestants William III Mary II. In fact the English document actually explicitly says that “Protestants may have Arms for their Defence suitable to their Conditions and as allowed by law”.

Fast forward to the years leading up to the American Revolution, and once again we see an increasing degree of oppression from the British over the colonists, which included the building of standing armies and the disarmament of colonial subjects by King George III. The rebellious colonists, in turn, created their own militias and stockpiled weapons, all of which eventually enabled them to fight the Revolutionary War. Once the war was won, there were many state versions of what would later become the 2nd Amendment, which synthesized the distrust of standing armies with what many feel is an innate right of any citizen of any free country to bear arms. The final version of the 2nd Amendment was ratified in December of 1991 along with the rest of the Bill of Rights:

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.

Most of our history in interpreting the 2nd Amendment has been in the context of the militia, and not an individual’s right to bear arms. That debate only gained steam in the latter stages of the 20th century. Many Justices, including the conservative Warren E. Burger, argued against the notion that the 2nd Amendment guarantees the right to bear arms to individuals (in fact he was not a fan of the 2nd Amendment in general). But ultimately, a few Supreme Court cases in the 2000’s determined in favor of the individual, most notably District of Columbia v. Heller (2008).

So accepting that interpretation, let’s dive back into our current problem with mass shootings, and the notion that the 2nd Amendment leaves us no choice but to continue to accept such incidents as the price for living in a free state. This notion is flawed from the outset, because every single Amendment to our Constitution has been subject to debate and interpretation by the courts, all the way up the highest court in the land. Including, as just noted, the 2nd Amendment, in a process by which the right of the individual was confirmed.

On a related note, every single Amendment has also been shown to have its limits. Consider, for example, the right to free speech in the 1st Amendment. If a person tells lies that damage another person’s reputation, they can be held accountable in a court of law. If a person threatens the life of the President, they can be arrested. There are limits on free speech where it impinges on the rights or laws that must exist in a free and stable society. The 2nd Amendment should not be considered any more immune to such limits. Yes, the 2nd Amendment is sacred, but like the entire Constitution, it is both sacred and subject to evolving interpretation. To restate in the form of my favorite Thomas Jefferson quote, etched in his Memorial:

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.”

And allow me to also quote someone else:

“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose:  For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Obviously a liberal, right? No, that was ultra-conservative Justice Antonin Scalia, summarizing the Court’s majority opinion on the District of Columbia v. Heller case, barely more than a decade ago.

Going back to Jefferson’s quote, what circumstances have changed? The most obvious answer is technology, and this should have more impact on the argument over the 2nd Amendment than is generally seen. Clearly, guns themselves are far removed from what they were in 1791. Automatic and semi-automatic weapons make it possible to unleash a fury of bullets in seconds, and armor has similarly advanced to where one person can kill many with relative ease before succumbing to return fire.

But this is not the only way technology has altered the environment surrounding the 2nd Amendment. The revered intent of protecting ourselves from an oppressive regime has effectively been neutered by the technology at our Government’s disposal. I could go on and on about that without ever having to discuss something as extreme as nuclear weapons. For one thing, our Government has tanks, and we generally don’t. Most adults can also remember the pinpoint precision with which our forces destroyed targets in Desert Storm, and that was nearly three decades ago. Modern missiles can target not just a building, but a specific part of that building. Modern satellites can pinpoint the location of individual people for targeting by a variety of weapons. And the advances continue – high energy lasers can set fire to targets without firing a single bullet. Suffice it to say, the Government has a distinct advantage over any militia. The combined odds that our Government would attempt to militarily subdue its citizens and that we would be able to thwart it are overwhelmingly low – far lower than the current odds of a mass shooting occurring on any given day. Which brings us to a tried-and-true business practice: risk management. Given the relative odds, which problem should we be trying to solve here?

All of that said, if resistance to solving the epidemic of mass shootings continues on the basis of the Constitution, I would argue there is also a Constitutional reason to tighten our regulation of guns. We’ll talk about the 1st Amendment in the next post. But among many things it declares “the right of the people peaceably to assemble.” I would strongly assert that right is being infringed today. Many of us are growing increasingly anxious about going out in public, for fear of being one of the next victims of a mass shooting. Some are even staying home when they would have otherwise gone out. As much as the Founding Fathers did not want us to be oppressed by our Government, I cannot imagine they would have wanted us to be oppressed by fear, directly induced by the ease with which psychopaths can legally amass as many powerful weapons as they choose.

Our Founding Fathers and renowned conservative Justices agree: our laws must be able to change as our environment changes over time, and it is completely Constitutional to impose restrictions on who can get what kinds of guns. We must stop using the Constitution as an excuse not to act – it is literally quite the opposite, an enabler that is screaming out to us to make a change. We don’t need to change our Constitution. We have changed our world. Now we must change the way we choose to live in it.

There are so many catch-phrases about the importance of home:

“There’s no place like home.”

“Not in my house!”

“E.T. phone home.”

The 3rd and 4th Amendments to the Constitution speak to the sanctity of the home for each American citizen, in quite different ways. The 4th Amendment actually covers quite a bit more than a person’s home, and completes the pentad of civil/criminal law Amendments along with the 5th through the 8th:

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.

So, not only are citizens afforded some protection against searches of their homes, but also their personal and financial records, their belongings (including vehicles), and even themselves. Or at least in theory – more on that in a moment.

The 4th Amendment (as is the case with the entire Bill of Rights) traces back to early America’s strong English roots. In the centuries leading up to the American Revolution, searches and seizures were a means of oppressing opposing views, and even though warrants were required in name, it was easy enough to concoct one without true probable cause. The origin of “a man’s house is his castle” traces back to this time when Sir Edward Coke said “The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.” It just takes too long to say that when you’re sitting next to someone in a dive bar, so we tend to go with the shorter version these days.

While at least some effort was expended toward protecting the rights of citizens in England, there was virtually no protection for the colonists across the Atlantic. General warrants and “writs of assistance” were used to enforce oppressive tax laws even when little or no probable cause existed. In 1761, James Otis led a group of merchants into court on the issue, and although they lost, John Adams later stated this was “the spark in which originated the American Revolution”. Otis was elected to the Massachusetts colonial legislature for his efforts and continued to fight the battle from there. James Mason worked the prohibition of general warrants into the Virginia Declaration of Rights in 1776 at the onset of the Revolutionary War, and James Madison followed suit in the Bill of Rights a few years after its end.

The 4th Amendment is among the Amendments that have been most susceptible to the development of technology since its inception. Not much happened during the 18th and 19th centuries, but in the 20th century, particularly as we have developed and refined the means to communicate over great distances with electricity and light, the protections introduced by the 4th Amendment have become somewhat blurred. Meanwhile, as hostilities and tensions have heightened between races, nations, and creeds, the willingness to wait for things like “due process” and “probable cause” has taken a severe hit at all levels of Government. 9/11 took that to a whole new level on the surveillance front, and the ever-growing anxiousness of police officers and “citizen cops” reflects the trend in our streets.

The 3rd Amendment, by comparison, has seen very little activity, and in fact is the least litigated Amendment to the Constitution. The road to its adoption, however, does shed light on the earliest thinking around the 2nd Amendment, thinking that is still propagated today with zero tolerance for discussion: distrust of the armies of the state.

This distrust extends back to England, where citizens were confronted with two options in wartime (and let’s face it, England was often at war): housing soldiers in barracks or scattering them amongst homes, inns, and ale houses. Though not happy with either option, the English ultimately opted for the latter, as they did not like having a standing army in one place with the potential to bring down some form of Government-sponsored oppression.

As you might expect, the British exploited this with increasing frequency in the colonies, as more and more troops were deployed to keep them in line. In 1765 they began employing Quartering Acts, and the situation hit a head in 1770 with the Boston Massacre. You know a lot of the rest, but now you can see why the 3rd Amendment was a big priority in the framing of the Bill of Rights:

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.

Now back to that distrust of Government armies… more specifically this traces back to English distrust of “standing armies in peacetime”. I noted in an earlier blog post that the Virginia Bill of Rights of 1776 was a key predecessor to our Constitutional Bill of Rights, and the Virginia document (as was the case with other early state constitutions) spoke directly to fear of standing armies: “a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free State”. That of course later evolved into the 2nd Amendment, which will be the sole focus of my *next* blog post. Which I hope you are able to read within the comfortable confines of your castle.

The 4th through 8th Amendments to our Constitution all touch on some aspect of civil or criminal law and the rights of those accused or convicted. I’ll leave the 4th Amendment for the next post, however, in combination with the 3rd, as they both speak to the sanctity of one’s home.

The 8th Amendment is extremely short – in fact it is the shortest in the Constitution:

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

Replace “shall” (James Madison’s contribution) with “ought”, and you basically have the same wording as was written into the English Bill of Rights of 1689. The definition of “cruel and unusual punishment” has been a subject of debate ever since that time. The English law was to some extent in response to the case of Titus Oates. Oates was tried and convicted of perjury for having wrongly accused a number of people that ended up being executed. His punishment, in addition to imprisonment, included three days per year of pillory and whipping. While there is no doubt Oates deserved severe punishment for contributing to many deaths, Parliament determined the court had gone too far.

The text of the English Bill of Rights on this topic made its way into George Mason’s Virginia Declaration of Rights in 1776, and Mason, Patrick Henry, and Abraham Holmes strongly argued for its inclusion in the Constitution, as a means of limiting the power of the Government and preventing punishments to be used for oppression of the people. The 14th Amendment later clarified that this applied to all levels of Government. That said, there is again still considerable debate about what constitutes “cruel and unusual punishment”. Much of that debate centers around the death penalty and the various means of applying it. But solitary confinement is another topic of debate, and then there is the whole question of torture applied to citizens of other nations. The bottom line is that we can’t seem to keep ourselves from pushing the envelope of cruelty in the name of justice or defense.

The 7th Amendment gets more into the domain of civil law:

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 reexamined in any court of the United States, than according to the rules of the common law.

This one also dates back to the early nation’s English roots, but Europe and most of the rest of the world have moved away from jury trials for civil cases. In the days leading up to the American Revolution, however, jury trials were a significant component of the “resistance”. As the British imposed increasingly oppressive laws and taxes, the colonials implemented juries to declare them illegal, so this system was considered somewhat sacred going into the writing of the Constitution and Bill of Rights.

The 7th Amendment is unique in two ways: no part of it has never been interpreted by the Supreme Court to apply to the states via the 14th Amendment (unlike most of the other Amendments, especially in the Bill of Rights), and meanwhile the states have all voluntarily applied it anyway. There are some exceptions, but in most cases, anyone who brings a civil suit has the right to trial by jury, much to the delight of Judges Wapner and Judy.

The 6th Amendment has a lot more facets to it than the 7th or the 8th:

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.

It’s a mouthful, but it is also probably the most concise way to summarize what constitutes a “fair trial”. Without any one clause in this Amendment, defendants’ rights would be greatly diminished: trials could take years or be hidden from public view; juries could be loaded to ensure a conviction; trials could be moved to locations more likely to generate a conviction; witnesses could have no accountability to the accused; witnesses could ignore calls to come to the defense of the accused; or the defendant could be forced to conduct their own defense with little or no knowledge of law.

The Constitution Center has a great description of how trials were conducted during the early days of our nation:

“At the time of the Founding, there were local sheriffs but no professionalized police forces; instead, ordinary men took turns serving as constables or night watchmen. Criminal cases were almost always brought by victims, not public prosecutors. At trial, neither side typically had a lawyer, so both victims and defendants represented themselves. Trials were like shouting matches, in which victims and defendants argued and brought other live witnesses to tell their stories. They lasted minutes or hours, not days. Juries of twelve ordinary men were central players in this system. They were local citizens who often knew the victim, defendant, and other people and places involved. They also knew which charges subjected defendants to the death penalty (as many felonies did), and which did not. Jurors looked witnesses in the eye and debated both whether a defendant was factually guilty and whether he deserved mercy. They checked the government’s power to punish and applied the conscience of the community in the public eye, assuring everyone that justice had been done swiftly, impartially, and fairly.”

Much has changed since those days, of course, but the fundamental citizens’ rights under the 6th Amendment have remained the same.

The 5th Amendment is the most well-known of these four, and has even become a colloquialism in matters that have nothing to do with law: “I plead the 5th”. That phrase is really only speaking to one part of the 5th Amendment:

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.

As with the 6th Amendment, there are a lot of moving parts in the 5th: it requires a grand jury in order to charge someone for a federal crime; it prevents re-prosecution for the same crime by the same authority once a person is acquitted; it allows a person to avoid self-incrimination (which is where the colloquialism comes from); it guarantees “due process”; and it constrains the Government from confiscating property without providing compensation. Of all these items, the one that opens itself up to the most debate is the definition of “due process”. This element of the 5th Amendment dates all the way back to the Magna Carta in 1215: “no free man shall be arrested or imprisoned . . . except by lawful judgment of his peers or by the law of the land”.

Taken together, the 5th through 8th Amendments (and the 4th, which we’ll tackle in the next post) do a thorough job of framing the rights of those accused of a crime or other transgression. They also form the basis for the plot of virtually any book, movie, or TV show about criminal justice. So who says Constitutional law can’t be entertaining?