Law and Order

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?

Generally not a room anyone wants to be in.

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