The Words We Live By
by
Linda R. Monk

Part II: Amendments to the Constitution of the United States

Page Contents

Bill of Rights

First Amendment

Second Amendment

Fourth Amendment

Fifth Amendment

Sixth Amendment

Seventh Amendment

Eighth Amendment

Ninth & Tenth Amendments

Thirteenth Amendment

Fourteenth Amendment

Sixteenth Amendment

FUTURECASTS online magazine
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Vol. 7, No. 4, 4/1/05.

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  The Bill of Rights

Freedom "from" government:

 

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  The Bill of Rights was one of those accommodations required to gain ratification of the Constitution. The new government had to be given enough power to govern, and despite all the checks and balances included in the original Constitution, there were still many who believed that power would be abused. See, Monk, "The Words We Live By," Part I, "The 1789 Constitution of the United States."
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These first Amendments "protected the individual liberties that many Americans feared would be weakened under the new Constitution.

  Of course, they were right - as history has proven several times. All governments tend to abuse their powers. Every government branch and agency has at various times abused its powers.
 &
  The addition of the Bill of Rights has proven its value repeatedly. These first Amendments "protected the individual liberties that many Americans feared would be weakened under the new Constitution," Monk notes.
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We are kept free "from" government authority pursuant to Constitutional rights. So far, the Constitution contains no "positive" rights.

  The Constitution enshrines "negative" rights, Monk points out. We are Constitutionally free "from" government authority pursuant to these rights. So far, the Constitution contains no "positive" rights. Monk suggests such "positive" rights as the "right" to "meaningful employment" - to education - to health care - could be added to the Constitution. Indeed, there are many who advocate such Amendments.

  "Positive rights" are entitlements. They destroy the ability of Congress to control its budget. If such entitlements were established in the concrete of Constitutional Amendments, they would be the surest way to strip Congress of even the possibility of controlling its budget.
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  With the disastrous failure of socialism, the entitlement welfare state has become the fallback ideology of the utopian left. The evident stupidity of such proposals - especially as Constitutional "rights" - is a measure of the stupidity of the utopian left.

  Monk concludes that we are free to decide, "along with our fellow citizens, what words we will live by." The implication is that the establishment of "positive rights" is just a matter of including the appropriate words in the Constitution.

  This is colossal hubris. It intentionally ignores the limits of what government is capable of achieving. See, Government Futurecast, at Part II, "Government Management." It would be a modern equivalent of legislating against the incoming tide. It ignores the possibility - indeed the inevitability - that some of these vast entitlements could prove to be disastrous failures - just like the socialist systems that were similarly advocated for decades.
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  Entitlements established as Constitutional "rights" would be a fantastic welfare program for attorneys. Such "rights" would invite interminable litigation over issues of definition and adequacy. After all, what in the world is "meaningful" employment? What health care is "reasonable" in instances of chronic - or terminal - disease? Must these definitions be objective or subjective? The threat of litigation would make it impossible for Congress to adjust such a program in any way that might conflict with some private interests.
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  The Constitution, after all, is a pragmatic document created by people with profound skepticism about their own democratic ideals. That is one of the primary reasons for its great success. Nothing will destroy the Constitution faster than a triumph of idealism unbounded by skepticism and pragmatic considerations.
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  Government is, after all, a "practical" art. The emphasis is on the word "practical." Such utopian experiments are anything but benign. The 20th century utopian experiments with all kinds of socialism under a wide variety of governments blighted billions of lives for generations. Good intentions are not enough. There is no excuse for such massive failures.

"For a constitution to have staying power, it must be above ordinary law, and therefore above the reach of mere majorities. Yet a constitution also must be flexible enough to adapt to crises without becoming obsolete."

  There have been only 27 Amendments in over two centuries of experience under the Constitution. As Monk points out:

  "Considering its age, the U.S. Constitution has relatively few amendments -- which is probably part of its success. For a constitution to have staying power, it must be above ordinary law, and therefore above the reach of mere majorities. Yet a constitution also must be flexible enough to adapt to crises without becoming obsolete. It is a difficult balance to maintain, as the failure of other constitutions demonstrates."

  This is a very perceptive paragraph. So, why doesn't Monk realize that the Constitution is no place for the establishment of individual programs? That's what Congressional legislation is for.

The First Amendment - Freedom of Expression:

  The First Amendment became the first amendment because the first two of the twelve proposed amendments in the Bill of Rights were not ratified. These had to do with reapportionment - which was never ratified - and the timing of Congressional pay raises - which in 1992 became the Twenty Seventh - and currently the last - Amendment ratified.
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These freedoms "enable citizens to participate in the process of self-government." They assure that the nation will bring its differences right out in the open, and  are thus themselves often at the center of the most contentious debates.

  First Amendment freedoms provide freedom of expression.

  "Congress shall make no law"

  • "respecting an establishment of religion,"

  • "or prohibiting the free exercise thereof;"

  • "or abridging the freedom of speech,"

  • "or the press;"

  • "or the right of the people peaceably to assemble,"

  • "and to petition the Government for a redress of grievances."

  These freedoms "enable citizens to participate in the process of self-government." They assure that the nation will bring its differences right out in the open, and  are thus themselves often at the center of the most contentious debates. As Monk points out:

  "Without the freedoms of the First Amendment, it would be impossible for Americans to assert any other rights they have, thus making it the most important amendment in the Bill of Rights."

The First Amendment bars only "state action" - actions by government or its agents.

  By its terms, the First Amendment applies only to the federal government. It prohibits Congressional action. It does not apply to the states or to private parties. It bars only "state action" - actions by government or its agents. As an example, Monk points out that it "does not protect employees of private companies who criticize their supervisors."
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  The Supreme Court has ruled that almost all rights have limitations. Thus, despite its absolute terms - "Congress shall make no laws" -  government has the power to regulate actions that embody the ideas being expressed. Disputes exist over the degree and acceptable purposes of such regulation.
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  In 1897, the Supreme Court began to apply to the states certain provisions of the Bill of Rights. It began to determine the scope of the Due Process Clause and Equal Rights Clause of the Fourteenth Amendment, eventually determining that they "incorporated" - and thus applied to the states - most of the major provisions of the Bill of Rights - including the First Amendment rights. See, "The Fourteenth Amendment," below.

The need for express protections for religious liberty was widely felt by the first Congress convened in 1789.

 

The Establishment Clause does not require discrimination against religious groups.

 

Study of the bible and other religious material can be a part of the curricula if the instruction is conducted in a secular manner.

 

Outside the schools, prayers, and even paid chaplains at official events, have been accepted.

  • Freedom of religion - the Establishment Clause:

  The history and problems of established religions and religious intolerance in Colonial America and under the Articles of Confederation (hereinafter, the "Articles") are briefly reviewed by Monk. By 1787, it was clear that religion could tear the Union apart. One of the few civil rights included in the original Constitution was the Article VI prohibition of religious tests for federal offices. The need for express protections for religious liberty was widely felt by the first Congress convened in 1789.
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  The Establishment Clause does not require discrimination against religious groups. The Supreme Court has ruled that religious student and non-student groups must be permitted to use school and other public facilities on the same basis as secular groups. It upheld the 1984 federal Equal Access Act.
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  The Establishment Clause blocks state legislation that requires that religious doctrine be reflected in school curricula. State efforts to prohibit the teaching of evolution, or to require the teaching of religious alternatives on the subject, violate the Establishment Clause.
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  Official prayer is prohibited in the public schools, even when participation is not required. While voluntary prayer by individual students has not been prohibited, it must not in any way be according to official encouragement. However, study of the bible and other religious material can be a part of the curricula if the instruction is conducted in a secular manner.
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  The Supreme Court has been more accommodationist outside the school environment. Adults are less impressionable than school children. Prayers, and even paid chaplains at official events, have been accepted. Religious holiday displays on public property have been accepted as long as secular displays and those of all religious groups are similarly permitted. This has resulted in the display of a Ku Klux Klan cross in a public square.
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  Tax exemptions granted to religious groups on the same basis as to secular charitable and educational groups have been accepted by the Supreme Court - as have Sunday closing laws. These "blue laws" serve a secular purpose of establishing a uniform day of rest.

For civil law purposes, the Supreme Court has applied a "compelling interest" test for approval of limitations that impact religious practices.

  • Freedom of Religion - The Free Exercise Clause:

  The Free Exercise Clause does not shield religious activities from secular criminal laws or general regulations. Laws on polygamy - and illicit drugs - have been applied to religious activities.
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  For civil law purposes, the Supreme Court has applied a "compelling interest" test for approval of limitations that impact religious practices. Thus, Monk notes, people who quit jobs that require them to work on religious holidays may still claim unemployment benefits - the Amish need not comply with school attendance requirements past the eighth grade, but must pay social security taxes - Jewish soldiers can be refused permission to wear a yarmulke on duty - and religious schools can be denied tax exempt status for racial discrimination.

  • Freedom of Speech:

  The history of free speech rights is briefly reviewed by Monk. During the administration of Pres. John Adams, the 1798 Sedition Laws were passed to quell criticism of the federal government. They were permitted to expire in 1801 during the administration of Pres. Jefferson.
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  However, state and local governments limited free speech in various ways. Prior to the Civil War, southern states censored the mail to keep out abolitionist materials. Later, labor union activities were restricted by use of permitting requirements. In 1917, the federal government passed the Espionage Act, which included a sedition restriction on criticism of its WW-I actions. This  was upheld by the Supreme Court in Schenk v. U.S. in 1919.
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Public speeches and demonstrations that do not unduly hinder public activities are protected.

 

Regulation of "public forums" "cannot discriminate based on the nature of the message being expressed."

 

Limits cannot be placed on individual campaign expenditures.

 

Only incitement to illegal action that is both imminent and possible can be criminalized.

  Free speech questions have since been a regular source of employment for the courts.
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  1) The nature of free speech:
This question arises especially when actions are used as a method of expression. Public speeches and demonstrations that do not unduly hinder public activities are protected. Flag burning has been protected, but not draft card burning, since the latter is a part of a legitimate government program.
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  2) The time, place and manner of speech:
These can be regulated in a "content neutral" manner. Regulation of "public forums" "cannot discriminate based on the nature of the message being expressed." Monk cites approval of a prohibition of amplified speech in public parks after dark. However, it must be applicable generally, and not directed at antiabortion activists or other particular groups.
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  3) Speech cannot be required: People cannot be compelled to salute the flag. They can cover a state motto appearing on their license plates.
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  4) Money is speech: Limits cannot be placed on individual campaign expenditures. However, contributions to campaigns can be limited.

  This distinction between "expenditures" and "contributions" is widely viewed as artificial. In the event, the critics proved correct. In the 2004 election, money flowed in even greater abundance, but increasingly through private channels that were considerably less accountable for their actions than the political parties.
 &
  Campaign finance reform achieved nothing except a further weakening of the political parties. Suddenly, reformers are beginning to recognize and deplore how much is being lost in the decline of political party influence as the result of a couple of generations of reform efforts.

  5) The limits of free speech: Categories of speech that are not covered by the First Amendment or are covered in just a limited manner include obscenity, defamation, fighting words, and incitement to illegal action. However, only incitement to illegal action that is both imminent and possible can be criminalized. Free speech rights in schools are limited.
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  Monk provides some of the basics of these categories. Litigation has frequently dealt with the nature of "obscenity." "I know it when I see it," one Justice famously explained. To prevent lawsuits from being used to chill criticism, the thresholds for proving slander or libel against public officials has been set especially high. See, "Freedom of the Press," below.
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  Current efforts to impose restraints on "hate speech" in general, and codes of "political correctness" in universities and other bastions of political correctness, have created both controversy and litigation.

  There is a difference between standards of political correctness and standards of civility. The former imposes restraints in a discriminatory manner against views unpopular with the current politically correct viewpoint - and deserves to be strenuously opposed. The latter requires respectfulness in all reasoned discourse.
 &
  Universities would have no legal problem enforcing reasonable standards of civility. Of course, that would undermine efforts at indoctrinating students in the politically correct viewpoint, since the opposition would be entitled to a respectful hearing and opportunity to express its criticism.

Absent great exigencies, the government may not censor a work before it is published -- a practice known as prior restraint. However, the government can punish authors or editors after publication."

  • Freedom of the Press:

  Highlights of the long struggle over government attempts to control the content of published work is provided by Monk. These include the 1735 trial of John Peter Zenger for seditious libel - involving criticism of the royal governor. The author sets forth the current status of this freedom.

  "The bedrock principle of a free press is that, absent great exigencies, the government may not censor a work before it is published -- a practice known as prior restraint. However, the government can punish authors or editors after publication."

  "Great exigencies" include protection of information about troop movements during wartime. However, the publication of the "Pentagon Papers" - a secret analysis of the causes for the Vietnam War - did not endanger national security. Even the right to a fair trial is insufficient to block publication of sensational details of the crime and trial.
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To encourage "robust public debate," a libel of public officials or public figures must not only be a falsehood, it must also be published with "actual malice."

  The risk that libel lawsuits will be used to chill press coverage has led the Supreme Court to set a very high standard of proof in cases involving public officials and public figures. To encourage "robust public debate," a libel of public officials or public figures must not only be a falsehood, it must also be published with "actual malice." This requires proof of either "knowledge that it was false or - - - reckless disregard of whether it was false or not."
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  Broadcast media using the public airwaves can be subjected to regulation in ways that would be improper if applied to the press. Cable companies are less subject to regulation than the broadcast media, but more subject to regulation than the press. (The local monopoly franchises of cable companies have justified "must carry" regulation which reserves certain channels for network stations at no cost.)

Freedom of assembly can be subject to restrictions on time, place and manner, if such restriction is not a pretext for prevention.

  • Freedom of peaceable Assembly and Freedom of Petition:

  These freedoms run back to the Magna Carta (1215).
 &
  Assembly is protected if it is peaceful
and does not block the public streets. As with speech, it can be subject to restrictions on time, place and manner, if such restriction is not a pretext for prevention. Shopping malls are privately owned, and can prohibit public gatherings.

  • Freedom of Association:

  This freedom is protected by the First Amendment by implication. It is not expressly included.
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  Since 1958, the Supreme Court has used this reasoning to invalidate laws requiring civil rights organizations to turn over membership lists - and to invalidate loyalty oath laws that required teachers to swear they were not members of the Communist Party. It has also protected the right of private groups to restrict membership. Thus, gay groups can be barred from St Patrick's Day parades, and gay men can be barred from serving as Boy Scout scout masters.
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  First Amendment rights have also been cited as by implication supporting a Constitutional "Right To Privacy."
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The Second Amendment - The right to Bear Arms:

 

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  The dispute over the Second Amendment right to bear arms swirls about the question of whether the Amendment applies to individual self-defense as well as to national and state defense - to individual rights or just the collective rights of the states..

  "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."

Even individual rights are never absolute. The question of the extent of permissible regulation thus remains.

  The Supreme Court has yet to rule on these questions. However, it has ruled that the Second Amendment is not incorporated into the Fourteenth Amendment, and so does not apply to the states. It thus does not prohibit state and local regulation of firearms.
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  Today's "militia" is the National Guard. As Monk points out, the Second Amendment is the only one in the Bill of Rights with an introductory clause explaining its purpose - and that purpose is the collective defense of the "free state." However, the right is clearly that "of the people." Everywhere else these words have been used, they establish individual rights. However, even individual rights are never absolute. The question of the extent of permissible regulation would thus remain.

  As the author notes, James Madison, in Federalist 46, emphasized "the advantages of being armed" enjoyed by Americans. Indeed, it is probable that only firearms made freedom possible. Without firearms, a small band of disciplined professional warriors can annihilate vast multitudes of ordinary people - thus making popular revolt against autocratic systems impossible in most circumstances.
 &
  With firearms and a few weeks training, as the Japanese warlords realized to their horror four centuries ago, any peasant can kill the most skilled samurai warrior. The Japanese warlords banned firearms for as long as they could - except for use by aristocrats when hunting.

The Third Amendment - The Quartering of Troops:

 

 

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  The quartering of troops in private homes was one of the most resented practices leading to the Revolution.

  "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 was one of the most widely desired of the Bill of Rights Amendments, Monk points out. However, it has come into play for this purpose on only a couple of occasions since passage. Nevertheless, it has had some significance as a makeweight support for modern "right to privacy" rulings.
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The Fourth Amendment - Unreasonable Searches and Seizures:

 

 

 

&

  "The right to be left alone" is the famous explanation of the Fourth Amendment offered by Justice Louis Brandeis. This Amendment responds to another much resented abuse of British colonial authorities. It also serves as one of the primary sources for an implied Constitutional "right to privacy."

  "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 exclusion of illegally obtained evidence from criminal trials is one of the most controversial Fourth Amendment issues. What constitutes an illegal search is another.
 &
  Clearly forbidden are "all purpose dragnets" designed to sweep for any crime that may be uncovered, Monk notes. Such searches were conducted by British colonial authorities under "general warrants." Especially resented were "writs of assistance" used by colonial customs officials to search for smuggled goods on which import taxes had not been paid.
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The Fourth Amendment "protects people, not places."

  Applicable specifically to "persons, houses, papers and effects," the Supreme Court originally  construed the Amendment narrowly within these stated boundaries. Wiretapping conducted outside the house was thus originally ruled as not covered.
 &
  In 1967, however, the Court ruled that the Amendment "protects people, not places," and overturned its earlier ruling. The Amendment applied whenever a person had "a reasonable expectation of privacy." This expectation could exist outside the home, and could be destroyed even inside the home for material "knowingly" exposed to the public.
 &
  Among the subsequent rulings, Monk notes, were that garbage bags placed outside for pickup were not covered - but heat waves escaping from a home from high intensity lamps used in indoor marijuana cultivation were covered.
 &

Most searches must be justified by "probable cause" - "that is, a reasonable belief that a particular person has committed a particular crime."

  Searches must be "reasonable" wherever a reasonable expectation of privacy exists. Most must be justified by "probable cause" - "that is, a reasonable belief that a particular person has committed a particular crime." This applies even for searches that do not require a judicial warrant.
 &
  In appropriate settings, warrantless "stop and frisk" searches for weapons or contraband have been approved. Airports and sobriety check points have been accepted as appropriate places for warrantless searches as means for promoting safety. However, roadblocks looking for illicit drugs have not because they did not have the specific purpose of promoting highway safety.
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  Issues covered by Monk include:

  • Consent searches:  Individuals can consent to a warrantless search. A landlord cannot consent to a search of a tenant's apartment, but a roommate can.
  • Drug testing:  Where public safety is involved, warrantless drug testing of employees is allowed. Law enforcement and other public safety personnel can be tested, as can bus drivers and pilots, but political candidates cannot be tested without a warrant.
  • Student searches:  School officials have broad authority to search students and conduct random drug tests, but police officers need probable cause to conduct searches on school premises.

"Probable cause is more than just the arbitrary whim of a law enforcement officer, although it is less proof than required to convict a person of a crime."

 

The warrant must specify where the the search will occur and what or whom is being seized."

  The Warrant Clause provides the "probable cause" standard for the issuance of court orders authorizing searches and seizures. The standard requires "a reasonable belief that a particular person has committed a particular crime." Monk explains:

  "Probable cause is more than just the arbitrary whim of a law enforcement officer, although it is less proof than required to convict a person of a crime. To demonstrate probable cause, a police officer must go before a neutral magistrate, who makes an independent determination of whether a warrant is justified. Furthermore, the warrant must specify where the the search will occur and what or whom is being seized."

  Warrants are not required by the Fourth Amendment, but they are clearly preferred. That means they must be obtained where that is not impractical.
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  Warrantless arrests can be made of those caught committing a crime, but a probable cause showing before a magistrate must still be made within 48 hours. Arrests made at a suspects home always require warrants.
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  Warrantless searches incident to a lawful arrest may be made for weapons and evidence that may be destroyed. Evidence in plain view may always be seized if the officers conduct is otherwise appropriate. Emergency situations can also justify warrantless actions, as can "hot pursuit" chases. Automobiles can be searched without warrants both because of their mobility and a decreased expectation of privacy.
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Evidence seized during an illegal search must be excluded from court.

  The exclusionary rule is a means adopted by the Supreme Court for enforcement of Fourth Amendment requirements. Evidence seized during an illegal search must be excluded from court. This rule has been applied to state courts since the 1961 decision in Mapp v. Ohio.
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  As Monk notes, there are some exceptions to the rule - for evidence that would have inevitably been found in any case, and for warrants believed valid but later found to have been invalid. This rule has been frequently thwarted by police who lie under oath in search and seizure proceedings.
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The Fifth Amendment - Due Process of Law:

 

 

 

 

 

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  There are five "due process" rights in this Amendment that limit the ability of government to take action against individuals.

  • "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 shall be deprived of life, liberty, or property, without due process of law;"
  • "nor shall private property be taken for public use, without just compensation."

Most states permit prosecutors to file a sworn statement - an "information" - attesting to the sufficiency of the evidence. A judge will then hold a preliminary hearing on the matter.

  • The grand jury indictment procedure determines whether there is sufficient evidence to warrant a prosecution. Monk provides some of the background and procedure. Grand jury secrecy protects the reputations of people not actually indicted, and permits the use of grand juries for purposes of investigation.

  This clause has never been applied to the states. Most states permit prosecutors to file a sworn statement - an "information" - attesting to the sufficiency of the evidence. A judge will then hold a preliminary hearing on the matter. Unlike grand jury proceedings, these are open to the public, and both sides can present evidence.
 &
  As a practical matter under either procedure, prosecutors get the authority to prosecute that they seek.

Defendants can appeal for a new trial after conviction, but further prosecution is barred after an acquittal.

 

Both federal and state governments may prosecute for the same offense. Criminal acquittal does not bar a subsequent civil suit for damages.

  • "Double Jeopardy Clause" protection runs back to Greek and Roman law. A defendant can be tried only once for crimes arising from a particular offense.

  Double jeopardy does not apply to mistrials or jury deadlocks. Defendants can appeal for a new trial after conviction, but further prosecution is barred after an acquittal. However, a prosecutor can appeal for a harsher sentence of a convicted defendant - except when requesting the death sentence.
 &
  The most important exception arises from the nation's federal system. Both federal and state governments may prosecute for the same offense. Also, criminal acquittal does not bar a subsequent civil suit for damages.

  The burden of proof for civil suits - usually merely proof "more likely than not" - is far less than the "beyond any reasonable doubt" level of proof required for criminal convictions. Acquittal in a criminal procedure thus does not imply a lack of sufficient evidence to support a finding of civil liability.

"Torture produces inherently unreliable confessions, because defendants will say anything to make the pain stop."

 

The famous "Miranda warning" followed existing Federal Bureau of Investigation practice. All questioning must stop as soon as a defendant invokes his rights. Violations taint not only the confession itself, but all evidence found as a result of such confession unless discovery was "inevitable."

  • The right against self incrimination forces the government to prove its case through evidence rather than relying on inquisition - a process subject to notorious abuse. Monk explains:

  "The defendant is presumed to be innocent until proven guilty, and the state may not demand that the accused testify against himself. Coerced confessions are also a violation of the Fifth Amendment right against self-incrimination, even though they can make a police officer's job easier. Moreover, torture produces inherently unreliable confessions, because defendants will say anything to make the pain stop."

  Because of common use of coercive interrogation methods, the Supreme Court in its 1966 Miranda v. Arizona ruling, decided that all defendants must be warned of their rights before questioning. The famous "Miranda warning" followed existing Federal Bureau of Investigation practice. All questioning must stop as soon as a defendant invokes his rights. Violations taint not only the confession itself, but all evidence found as a result of such confession unless discovery was "inevitable."
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  Miranda warnings protect suspects against coercion - not against deception. Sting operations are thus permitted. There is also a "public safety" exception.
 &
  The government can overcome self incrimination rights by granting immunity to a witness. This may either be total immunity from prosecution or civil liability, or it can be "use immunity" that extends only to evidence in the testimony. This procedure permits investigations to go forward.
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  Self incrimination rights do not extend to physical evidence such as blood samples, finger prints, handwriting samples, or police lineup procedures. However, lie detector procedures are viewed as testimonial evidence and are covered by self incrimination rights.

Procedural due process requires that government follow fair procedures in both criminal and civil cases and administrative proceedings affecting individual private interests.

  • The Due Process Clause prohibits arbitrary or capricious behavior by government. Its roots run back to the 1215 Magna Carta, but it has never been precisely defined. It requires conformance with established rules and practices - a constantly evolving standard. Monk explains:

  "Due process has two categories: substantive and procedural. Under substantive due process, the content of a law must itself be fair; under procedural due process, the rules by which a law is implemented must be fair."

  The substantive due process requirement is a modern concept that has had much more use under the Fourteenth Amendment which applies to the states, so the author offers little content at this point.
 &
  Procedural due process requires that government follow fair procedures in both criminal and civil cases. In criminal cases, this includes the presumption of innocence and the "beyond any reasonable doubt" burden of proof imposed on prosecutors. In civil cases, fair procedure includes notice and a hearing whenever government actions conflict with private interests. Contests over government benefits (and other administrative agency decisions that impact private interests) must meet basic due process requirements.

"Just compensation" is fair market value. Incidental expenses of replacement or moving are not included.

  • The Just Compensation Clause covers eminent domain takings. It "limits the ability of the government to take private property for public use," Monk explains. This right runs back to the 1215 Magna Carta.

  When does regulation amount to a taking that requires compensation? This is the most common question today under this clause. Zoning laws and historic preservation statutes have been upheld as long as they don't destroy the value of the property.
 &
  The nature of "public use" is viewed broadly by the courts. They have deferred to legislative judgment on this issue, even when title is transferred from one private owner to another. (A current case before the Supreme Court involves the taking of private homes to sell to developers for major commercial development of the area.)
 &
  "Just compensation" is fair market value. Incidental expenses of replacement or moving are not included.
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The Sixth Amendment - The Right to a Fair Trial in Criminal Cases:

 

 

 

 

 

 

 

&

  A defendant may waive any or all of these trial rights. This Amendment does not apply to minor offenses - such as traffic violations or other offenses that cannot result in imprisonment for 6 months or more.

  "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 by the witnesses against him;"
  • "to have compulsory process for obtaining witnesses in his favor,"
  • "and to have the Assistance of Counsel for his defense."
  This Amendment has been applied to the states by incorporation in the Fourteenth Amendment. However, the standards are not as rigorous for the states in two respects.
 &
  Conviction in federal courts requires unanimous verdicts by 12 member juries. States can have as few as 6 members on a jury except for death penalty cases. If there are more than 6 people on a state court jury, a verdict need not be unanimous - except in death penalty cases.

As of the year 2000, only 4.3% of federal criminal charges culminated in jury verdicts.

  • Jury trial rights are provided in three places in the Constitution. They are provided in Article III, Section 2, in the Sixth Amendment for criminal trials, and in the Seventh Amendment for civil trials.

  However, this right, too, can be waived - and in practice is waived in the vast majority of cases. Monk reports that as of the year 2000, only 4.3% of federal criminal charges culminated in jury verdicts. Most cases are resolved through plea bargains. (Indeed, the system would probably collapse without plea bargain procedures.)

  • The many reasons why "justice delayed is justice denied" are reviewed by Monk. Defendants cannot be left to languish in jail. Currently, the 1974 Speedy Trial Act sets a 100 day time limit - but this limits only the prosecution, not the defendant who may request much more time as needed to prepare his case.
  • The public trial requirement is in reaction to the notorious secret "Star Chamber" proceedings used in 17th century England as an instrument of persecution. This right, too, is for the benefit of the defendant, not the public or the media.

  For high profile cases, the court may take steps to reduce publicity if such steps are needed to assure a fair trial. Typical measures that may be taken at the request of the defendant include a change in venue and sequestration of the jury. However, there is a general right to public attendance at a trial in reasonable numbers. The media has a right to attend and cover a trial. Defendants who request a change of venue waive their right to a local jury.

The jury pool must include a "representative cross-section of the community," but this need not be true of the final jury.

  • Jury impartiality rights are protected by permitting the attorneys to question prospective jurors for bias, and to challenge those where a risk of bias is demonstrated. There are also a limited number of "peremptory challenges" permitted for each party.

  The jury pool must include a "representative cross-section of the community," but this need not be true of the final jury. In death penalty cases, anyone who would refuse to impose the death penalty may be excused, but not those with moral reservations about it.

  • Pretrial proceedings - whether grand jury indictments or arraignments before a judge - assure that a defendant is fully informed of the charges he faces. This is also a requirement for due process, which as such is applied to the states.
  • The Confrontation Clause prevents the use of secret testimony. Unless a defendant is unruly, he has the right to be in the courtroom, and to challenge witnesses through cross examination.

  The right of cross examination and confrontation bars hearsay evidence - testimony about a statement of a third party. However, there are numerous exceptions to this rule. Except for child abuse cases, this requirement is for face-to-face confrontation.

Assistance of counsel must be "effective," but need not be error-free unless specific errors deprived the defendant of adequate representation.

  • The defendant has the same subpoena power to compel attendance of witnesses and production of relevant materials as the state. In U.S. v Nixon (1974), the Supreme Court ruled that even the President must comply with a subpoena in a criminal case unless military or diplomatic secrets are demanded.
  • The right to counsel includes the right to a court appointed counsel if a defendant cannot pay for his own. The author provides some detail about the Supreme Court precedents supporting this right in capital and non-capital cases in federal and state courts.

  Assistance of counsel must be "effective," but need not be error-free unless specific errors deprived the defendant of adequate representation. This right extends to having counsel present at police interrogation sessions.
 &

The Seventh Amendment - Trial by Jury in Civil Cases:

 

 

&

  The viability of trial by jury in modern civil cases is a subject of considerable current controversy. Monk reviews the historic background and development of this right.

"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."

Findings of fact are final as long as they are supported by evidence that is "substantial."

  Juries are the finders of fact. These findings of fact are final as long as they are supported by evidence that is at least "substantial." The law applied to those facts is determined by the judge, whose decisions can be reviewed by other judges on appeal. Monk explains:

  "The judge's job is to advise the jury of what verdict, under the law, is required if the jury finds certain facts to be true. The judge gives these legal instructions to the jury before it deliberates. However, the distinction between the law and the facts in a case is not always clear."

    Trial by jury was first developed in England for resolving civil disputes. However, it was abolished in England in the 19th century to increase the efficiency of the courts.

  Juries indeed may not always be competent - but judges are not always trustworthy. There will always be cases in which at least one of the litigants prefers to take his chances with a jury. However, today, the $20 threshold seems minuscule - just one more of the negative impacts of the persistent devaluation of the paper dollar.

  The litigants may waive their jury trial rights. Civil juries can be composed of as few as six jurors. Verdicts must be unanimous unless the litigants stipulate otherwise. Seventh Amendment jury trial rights have so far not been applied to the states through the Fourteenth Amendment.
  &

The Eighth Amendment - Cruel and Unusual Punishment:

 

 &

  The definition of cruel and unusual punishment is based on the constantly evolving standard of decency. Whippings and the cutting off of ears were acceptable punishments at the end of the 18th century, but are not acceptable today.

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

Between 1973 and 2002, Monk reports, more than 100 inmates of death row have been released upon proof of innocence. Nevertheless, proponents point out that this is proof that the system works. They also point out that capital punishment is specifically recognized as appropriate in the Fifth Amendment.

  The death penalty is today the primary controversy under this Amendment. Monk provides extensive coverage of this controversy.
 &
  The process that is due is now much higher for death penalty cases than for other criminal cases.

  Indeed, some courts so elaborated the process that is due that death penalty cases became all process and no substance. The voters in California booted out three state supreme court justices who were responsible for this form of judicial activism. The U.S. Supreme Court, too, has retreated from this form of judicial activism. However, it continues to look for opportunities to narrow the scope of death penalty prosecutions.

 Monk summarizes current procedures, including the division of the trial into a guilt determination phase and a penalty determination phase - the weighing of aggravating and mitigating factors in the penalty phase - the rights of appeal of state cases through state appellate courts and, by writ of habeas corpus, through federal courts as well - the limitation of the death penalty to murder cases and to the major participants under the felony murder rule - and the limitations based on the youth and mental competence of the defendant. (The age limit is now 18.)
 &
  Between 1973 and 2002, the author reports, more than 100 inmates of death row have been released upon proof of innocence. Nevertheless, proponents point out that this is proof that the system works. They also point out that capital punishment is specifically recognized as appropriate in the Fifth Amendment.
 &

  For other types of crimes, punishment must generally be proportional to the crime. However, the Supreme Court has almost always deferred to the judgment of legislators for this determination.
 &
  Conditions in prisons can also violate the Eighth Amendment, but must be "deplorable," not just uncomfortable. Prison officials must not disregard the physical safety of inmates. Currently, there is controversy over whether the incidence of rape and AIDS in the prisons create such "deplorable" conditions.
 &

The purpose of bail is to assure the appearance of the defendant in court when his case comes up, and its amount should be limited by what is clearly for that purpose.

  The right to bail is not unconditional, Monk points out. However, when allowed as determined by federal or state law, it must not be excessive. The purpose of bail is to assure the appearance of the defendant in court when his case comes up, and its amount should be limited by what is clearly for that purpose. The author explains:

  "Bail allows the defendant to remain free pending trial, because a person is presumed innocent until proven guilty."

  Bail is generally denied in capital cases. The Supreme Court has also accepted that bail can be denied for defendants believed to pose a danger to the community. This is called "preventive detention."
 &
  The excessive fines provision applies only to the government, not to punitive damages in private lawsuits. The Bail and Fines Clause has not been applied to the states.
 &

The Ninth Amendment - Unenumerated Rights Retained by the People:

 

&

  The Supreme Court has so far refused to be influenced by the Ninth Amendment. As the federal government persistently expands its powers primarily under its taxing, spending, and interstate commerce authority, the Supreme Court persistently rejects opposition based on the Ninth Amendment.

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

  Unenumerated rights recognized by the Supreme Court include the right to travel, the right to vote, and the right of privacy. However, the Ninth Amendment has been invoked just as a makeweight argument in these cases. The primary protection of such rights has been found in the "liberty" provision of the Due Process Clauses of the Fifth and Fourteenth Amendments. 
 &
  Monk summarizes the continuing controversy over the applicability - or lack thereof - of this inherently ambiguous Amendment.
 &

The Tenth Amendment - State's Rights:

&

  This Amendment protects the states - not individuals. It protects state "powers," not "rights."

  "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."

  The proper balance in the federal system between the powers of the national government and the powers of the states determines the nature of the federal system. This dispute would ultimately lead to the Civil War and the Civil War Amendments that would fundamentally alter this balance. This balance would even further be fundamentally altered during the crisis of the Great Depression and the advent of the New Deal command economy experiments of Franklin D. Roosevelt.

  Ironically, those federal government New Deal command economy experiments not only failed to end the Great Depression, but undoubtedly extended the crisis and made it worse. The Supreme Court ultimately permitted the federal government to greatly expand its powers of economic regulation at the expense of state government and private prerogatives only to have the federal government provide a disastrous example of why command economic systems must fail. See, Great Depression, Collapse of Governments. The crisis of the Great Depression that was created by massive failures of government policy was successfully used to justify even greater authority for government intervention in the economy. See, Great Depression, Depression Mythology. 

  In McCullogh v. Maryland (1819), the Supreme Court construed the Tenth Amendment narrowly and the implied powers of the national government broadly. After all, the lack of implied powers was one of the gravest of the weaknesses of the Articles that the Constitution was meant to fix. The establishment of a national bank - free of state taxation or regulation - was thus within the Necessary and Proper powers of the federal government.
 &
  However, after the death of Chief Justice John Marshall in 1835, the Court generally followed a "dual sovereignty" doctrine. State and federal law were recognized as supreme within their spheres of action. Federal social legislation under the Commerce Clause - such as a child labor law - was struck down under this doctrine.
 &

Today, the federalism balance between federal and state powers is still determined primarily in the political arena - of the federal government.

  The Tenth Amendment was reduced to a mere "truism" and was totally disregarded by the liberal Courts of the three middle decades of the 20th century. Thus, the states were left merely with whatever powers the federal government chose not to exercise.
 &
  However, the Court turned increasingly conservative during the final three decades of the 20th century, and ultimately breathed a little life back into the Tenth Amendment. Monk reports that only one Congressional statute was struck down between 1937 and 1995 as exceeding Commerce Clause powers. Between 1995 and 2002, 25 Congressional laws were struck down.
 &
  A summary of the civil rights disputes of the 1950s and 1960s -
and the final assertion of federal government supremacy over state claims to "nullification" powers over federal law - concludes this segment. Today, the federalism balance between federal and state powers is still determined primarily in the political arena - of the federal government.

Pre-Civil War Amendments

The Eleventh Amendment - Lawsuits against the States:

 

To be subject to suit, states must waive sovereign immunity - and in modern times, they frequently do.

  The traditional doctrine of "sovereign immunity" under which a government cannot be sued without its consent is reasserted on behalf of the states by this Amendment. Ratified in 1795, it reverses a U.S. Supreme Court ruling that limited sovereign immunity to the federal government. To be subject to suit, states must waive sovereign immunity - and in modern times, they frequently do.

  "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."

  Suits against a state by the federal government or by other states are not barred by this Amendment, however. Critics of the narrowness of this exception argue that this leaves the states free to discriminate, since the federal government doesn't have the resources to bring suits on behalf of individuals.
 &

The Twelfth Amendment - Choosing the President:

  Separate ballots for the President and Vice President were provided for by the Twelfth Amendment in 1804 as a result of the advent of political parties, and a tie in the electoral college in 1800. This change to Article II, Section 1, made it very unlikely that the two would be political adversaries, as occurred in 1796 and 1800.
 &

  In the event that no candidate wins a majority in the electoral college, this Amendment provides that the House of Representatives chooses among the top three candidates "by states, the representation from each state having one vote." This is yet another compromise in favor of the smaller states. Thomas Jefferson was chosen by the House in 1800 under the original Article II, Section 1 provisions. John Quincy Adams,  elected in 1824, has been the only President chosen under the Twelfth Amendment provisions.
 &
  The Senate similarly chooses among the top two candidates for Vice President if no one has a majority in the electoral college. Vote is by individual Senator, but each state has two Senators regardless of the size of the state, so this, too, favors the smaller states.
 &
  March 4th was established as inauguration day. This was changed to January 20th by the Twentieth Amendment.

The Civil War Amendments

The Thirteenth Amendment - Slavery Abolished:

 

 

&

  The evolving controversy over slavery that culminated in the Civil War and the Civil War Amendments is summarized by Monk. The Thirteenth Amendment was ratified in 1865.

  "Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

  Slavery was legal in all 13 colonies, and was still legal in all 13 states in 1776. The struggles to limit and abolish slavery began right after the Revolution.

  It is today politically correct for guilt-ridden intellectuals to view these events as a source of great shame for modern Western culture in general and the United States in particular. In reality, they are a source of great pride.
 &
  Slavery in many guises had been a pervasive reality for millennia, as Monk notes. It was ONLY modern Western philosophy that developed an effective challenge to the practices of slavery - whether racial, ethnic or feudal. It was ONLY in Western nations that an effective struggle to limit slavery was mounted. It was ONLY the United States that had to fight an immensely bloody war first to maintain those limits and then to end slavery. ONLY the British Navy - with minor but useful assistance from the U.S. Navy - brought the worldwide commerce in slaves to an end.
 &
  The end of slavery and the ideal of equal treatment of minority ethnic and racial groups is a triumph of modern Western culture. If it had been left up to the dominant cultures of Asia and the Middle East, slavery would have continued for another century - and might even still be with us in those regions. Most other regionally dominant cultures have been - or are still being - often reluctantly dragged by Western influence towards acceptance of  the ideal of equal treatment under law. Many nations still have a long way to go. See, Chua, "World on Fire."

  Indeed, in some nations in black Africa, slavery is still a widespread practice.
 &
  Enlightenment does not come quickly, nor does it immediately spread universally. In the West - as elsewhere around the globe - many grieved over their loss of privileged status and sought to hold on to those privileges as long as possible. Many still do. We can see this today in the Sunni insurgency in Iraq, and the intransigence of Israeli West Bank and Gaza Strip settlers in the Holy Land. Communist and socialist despotisms extended the feudal suppression of peoples through the 20th century. This continues today in North Korea.
 &
  What is indisputable is that -while it lasted - the Western enslavement of Black Africans and European  feudal repression during the era of Western imperialism was an industrial strength version of slavery - both in the vastness of the numbers involved and the harshness of the conditions frequently imposed. This was the darkness before the dawn - and it did not really end until the collapse of the Soviet Union - the last of the great Western Empires.

The ban on "involuntary servitude" has been invoked against peonage laws that force laborers to work to pay off debts.

  Congress is expressly provided with enforcement powers in Section 2 of the Thirteenth Amendment. This is the first time such a provision was included in an Amendment. In 1968, the Supreme Court ruled that this included power to prevent discrimination in private real estate transactions.
 &
  The ban on "involuntary servitude" has been invoked against peonage laws that force laborers to work to pay off debts. Monk concludes with a summary of the dispute over reparations claims on behalf of black Americans.
 &

The Fourteenth Amendment - Equal Protection of the Laws:

 

 

 

 

 

&

  Sections 1 and 5 of the Fourteenth Amendment are the provisions that are of current importance. Indeed, they are of vast importance. The Fourteenth Amendment was ratified in 1868.

"Section 1."

  • "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of 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."

  Section 5 provides express power for Congressional enforcement legislation, like the similar provision in the Thirteenth Amendment. The Supreme Court has viewed this power narrowly - limiting it to legislation protecting rights - like the 1965 Voting Rights Act. It does not authorize an expansion of rights. The Court has rejected efforts under this Section to prohibit private discrimination, enlarge affirmative action programs, and protect religious practices from generally applied state law.
 &

  Sections 2 through 4 enforce the results of the Civil War.

  • Section 2 eliminates the Article I, Section 2 "three fifths" provision for slaves in apportioning representatives, but permits disenfranchised rebels "or other criminals" to count in apportioning representatives. Voting is not an automatic right of citizenship under the Fourteenth Amendment.
  • Under Section 3, those antebellum officials who joined the South and thus violated their oath to support the Constitution are rendered unqualified for official federal or state office unless the disability is removed by supermajority vote of two-thirds of each chamber of Congress. Congress acted to remove this restriction in 1898.
  • Section 4 renders the public debts of the Confederacy "illegal and void," as well as any slaveholder claims of loss arising from the emancipation of slaves.

  The Citizenship Clause defined citizenship in the Constitution for the first time. It overturned the 1957 Dred Scott decision that ruled that African Americans - free or slave - could never be citizens.
 &
  The Privileges and Immunities Clause has been interpreted narrowly since the 1873 Slaughterhouse Cases decision to protect only rights of national citizenships, like access to the courts and the right to travel.
 &

Under the Due Process Clause, the Court began the process of nationalizing, one by one, most of the major provisions of the Bill of Rights.

  It is the Due Process Clause that has served to apply most of the rights in the Bill of Rights to the states. Monk explains:

  "[After] the Fourteenth Amendment was ratified, the Court held that certain fundamental rights in the Bill of Rights were "incorporated," or included, in the amendment's due process clause. Thus, the Court began the process of nationalizing, one by one, most of the major provisions of the Bill of Rights."

  The concept that "due process" has substantive as well as procedural aspects is covered by Monk. The concept of substantive due process has been used to protect both property and liberty interests. However, the protection of property interests under the Due Process Clause is currently out of fashion. Examples of liberty interests protected include the right to teach a foreign language, to run private schools, to travel, to refuse medical treatment, and the right of privacy.
 &
  Substantive due process is supposed to apply only to rights that are so "fundamental" that no state can infringe upon them. Critics point to the inherent contradiction in the phrase "substantive - - - process," and thus question the propriety of giving due process a substantive application.

  "Substantive - - - process" is an oxymoron. It is an open invitation for judges to make Constitutional law according to their own subjective criteria. 

  Individual rights in the Bill of Rights that have not been incorporated in the Fourteenth Amendment are:

  1. The Second Amendment right to keep and bear arms,
  2. the Third Amendment restriction on quartering troops,
  3. the Fifth Amendment right to a grand jury indictment,
  4. the Seventh Amendment right to a jury trial in civil cases, and
  5. the Eighth Amendment ban on excessive bail and fines.

  The author provides light coverage of the abortion and assisted suicide controversies.
 &

"Many constitutional scholars believe that, through its wide scope and promise of equality, the Fourteenth Amendment created a new Constitution."

 

Only discrimination by government is restricted - not discrimination by private groups or individuals. It prohibits "unreasonable" discrimination by government.

  The Equal Protection Clause of Section 1 by its terms covers everyone. It thus does far more than just resolve the legal status of former slaves. Monk explains:

  "Because the Fourteenth Amendment specifically addressed the states, it drastically expanded the reach of the U.S. Constitution. The Supreme Court used the amendment to apply most of the provisions of the Bill of Rights to state governments. As a result, the Fourteenth Amendment is cited more often in modern litigation than any other. In fact, many constitutional scholars believe that, through its wide scope and promise of equality, the Fourteenth Amendment created a new Constitution."

  The Equal Protection Clause contains the first use in the Constitution of the word "equal" regarding the rights of individuals. Only discrimination by government is restricted - not discrimination by private groups or individuals. It prohibits "unreasonable" discrimination by government. Monk explains:

  "Usually, the courts will defer to the legislature if it can show a "rational basis" for the law, a very easy test. But the Supreme Court has ruled that the government must meet a much higher test, and prove a "compelling interest" in the law, if it involves a 'fundamental' right, such as free speech or voting, or a 'suspect' class such as race."

  Monk covers the development of racial discrimination law under the Fourteenth Amendment, including the "separate but equal doctrine" - the WW-II internment of Japanese Americans - the ultimate rejection in Brown v. Board of Education (1954) of the possibility of separate being equal - the enforcement of Court desegregation orders that sometimes required the deployment of troops - and ultimately the disputes over affirmative action.
 &
  The development of gender discrimination law
is also covered by the author. Gender discrimination was frequently based on protective purposes or stereotype. Reed v. Reed (1971) was the first Supreme Court ruling to invoke the Equal Protection Clause to strike down discrimination against women. Under the Fifth Amendment Due Process Clause, it ruled, the federal government restriction of military family benefits to families of male soldiers is unreasonable discrimination. The problems since then have been in determining when gender discrimination is "reasonable." Monk explains:

  "In general, the Supreme Court has ruled that gender discrimination is more permissible under the Equal Protection Clause than racial discrimination. Sex is not a suspect class, as is race; therefore, the Court uses a less demanding test than 'compelling interest' for classifications based on gender. However, in 1971 the Supreme Court began increasingly to strike down state laws that discriminated against women, even though it used a lesser constitutional standard to do so."

Unlike the federal Senate, state senates as well as state legislatures must be apportioned on a one person, one vote basis. Race can be a factor in the reapportionment of voting districts, but not the primary factor.

  Other types of discrimination to which the Equal Protection Clause applies include discrimination against aliens and homosexuals. Like gender discrimination, these cases do not involve a "suspect class" such as race or minority ethnic groups. So the test for the "reasonableness" of discriminatory legislation is lower than the "compelling interest" test.
 &
  Voting rights also receive some protection
under the Equal Protection Clause. The fairness of the Florida recount procedures became an issue in Bush v. Gore (2000).
 &
  State reapportionment reflecting population shifts was required under this Clause by Baker v. Carr (1962). Unlike the federal Senate, state senates as well as state legislatures must be apportioned on a one person, one vote basis. Race can be a factor in the reapportionment of voting districts, but not the primary factor. However, the Court has not otherwise invoked the Equal Protection Clause to curb the abuses of gerrymandering.
 &

The Fifteenth Amendment - Voting Rights for Emancipated Men:

 

 

 

&

  Only men were granted voting rights under the Fifteenth Amendment, Monk points out. Moreover, "for almost one hundred years after its ratification [in 1870], the Fifteenth Amendment offered very little protection to African American men, either."

  "Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."

  Here, too, Congress is given express enforcement powers. This was one of the bases of the 1965 Voting Rights Act.
 &

  The Southern states responded with laws that did not mention race, but nevertheless restricted suffrage in ways that had the effect of discriminating against African Americans. A prominent example provided by Monk was literacy tests that were accompanied by grandfather provisions. White suffrage was protected by excluding from the literacy test requirement those who were permitted to vote before ratification of the Fifteenth Amendment.
 &
  The Supreme Court began to strike down these subterfuges in 1915. The last case referred to by Monk is Rice v. Cayetano (2000), striking down a law of the State of Hawaii that limited voters for a state office to those whose ancestors lived in Hawaii before 1778. However, it took the 1965 Voting Rights Act to systematically deal with the problem.

Progressive Era Amendments

The Sixteenth Amendment - Income Taxes:

 

 

&

  This Amendment was required to overcome the limitation in Article I, Section 9, that direct taxes be in proportion to population in each state. It was ratified in 1913 as part of the Progressive Era reforms.

  "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."

  This resulted as intended in a vast increase in the spending power of the federal government.

  However, it has also provided the federal government with a powerful tool with which to influence the policies of the states and the conduct of the American people. These income taxation powers have made possible many of the often controversial social engineering experiments conducted by the federal government since ratification of the Amendment. They have also resulted in a Tax Code that has become an abomination of complexity, economic distortions, special interest benefits, and perverse incentives.

The Seventeenth Amendment - Direct Election of Senators:

 

 

 

&

  This Amendment changes Article I, Section 3, that provided that federal Senators would be chosen by State legislatures. Ratified in 1913 as part of the Progressive Era Amendments, it provides that federal Senators are to be chosen by popular vote, according to the voter qualifications established by the states for their own "most numerous" legislative branch. As Monk notes, this also permitted women to vote for federal Senators from those states that permitted women's suffrage for state elections.
 &
  Governors are authorized to fill Senate vacancies and the state legislatures are authorized to provide for special elections in the event of such vacancies.
 &

The Eighteenth Amendment - Prohibition:

 

&

  A great failed social experiment, prohibition was doubly damaging because it was set in the concrete of a Constitutional Amendment. Congress and the States were provided concurrent enforcement power - to no avail.
 &
  A seven year time limit for ratification
was included in this Amendment - the first time that had been done. It was ratified in 1919. Monk provides some of the background and results.
 &

The Nineteenth Amendment - Women's Suffrage:

 

 

 

&

  Thirty states had already extended some form of suffrage to women by 1919. The women's suffrage Amendment was ratified in 1920 - the last of the Progressive Era Amendments.

  "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."

   Congress is given appropriate enforcement powers by the Amendment. However, there was no time limit included for ratification. The author provides some of the background of the women's suffrage campaign.

Later Twentieth Century Amendments

The Twentieth Amendment - Presidential and Congressional Terms:

 

 

 

 

 

 

&

  The post election "lame duck" period of Presidential and Congressional terms is shortened by this Amendment, which was ratified in 1933.

  "Section 1. The terms of the President and the Vice President shall end at noon on the 20th day of January,  and the terms of Senators and Representatives at noon on the 3rd day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
 &
  "Section 2.  The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3rd day of January, unless they shall by law appoint a different day."

  Congressional terms begin earlier than those of the executive branch so Congress can resolve inconclusive Presidential and Vice Presidential elections.
 &

The order of succession after the President is - the Vice President - the Speaker of the House - the president pro tempore of the Senate - the Secretary of State - and then the remaining cabinet members according to the date their departments were created.

  Section 3 and Section 4 of the Twentieth Amendment provide for Vice Presidential succession to the Presidency in case of death or lack of qualification of a President, and authorization for Congress by statute to deal with further succession problems affecting either the Presidency or the Vice Presidency both after and before the counting of electoral votes. The Amendment ends with a seven year time limit for ratification.
 &
  The 1974 Presidential Succession Act was enacted pursuant to this authority. The order of succession after the President is - the Vice President - the Speaker of the House - the president pro tempore of the Senate - the Secretary of State - and then the remaining cabinet members according to the date their departments were created.
 &

The Twenty First Amendment - Prohibition Repealed:

 

 

 

&

  The Eighteenth Amendment was repealed in 1933. However, the states were left with authority to prohibit or otherwise regulate alcoholic beverages, and violations of such laws and regulations are a federal as well as a state offense.
 &
  This amendment provided for ratifying conventions - thus bypassing state legislatures, many of which were still controlled by rural interests that favored prohibition. This is the only Amendment ratified by ratifying conventions instead of state legislatures. Monk reports that 73% of the citizens voting in convention delegate elections supported the repeal Amendment. A seven year time limit for ratification was included in this Amendment.
 &

The Twenty Second Amendment - Presidential Term Limits:

 

 

 

&

  In reaction to the four term presidency of Franklin D. Roosevelt, this Amendment, ratified in 1951, enshrined in the Constitution the tradition begun with George Washington of limiting individual Presidents to two terms. It contains a seven year time limit for ratification.
 &
  This Amendment forbids the election of any person as President more than twice. Any person that serves more than two years of another President's term is barred from running for election to the Presidency more than once. Critics assert that this makes a second term President a lame duck for the entire second term.
 &

The Twenty Third Amendment - Electoral Votes for the District of Columbia:

 

The total electoral votes are now 538.

  The capitol district, the District of Columbia, received 3 electoral votes for the election of the President and Vice President when this Amendment was ratified in 1961. Congress was given full authority to enforce this Amendment. There was no time limit imposed on ratification.
 &
  Congress has since passed a suffrage Amendment for District of Columbia representation in the House and Senate, but it has not been ratified by the states. The total electoral votes are now 538. A candidate must receive 270 of them to become President or Vice President.
 &

The Twenty Fourth Amendment - Prohibition of Poll Taxes:

 

 

 

&

  Denial of suffrage for "failure to pay any poll tax or other taxes" is prohibited by this Amendment, which was ratified in 1964. This Amendment applies to all elections for federal office and for pertinent primary elections of political parties. Congress is given enforcement authority.
 &
  Poll taxes had been used to deter the political participation of racial minorities and poor whites. In Harper v. Virginia State Board of Elections (1966), the Supreme Court extended this ban to state and local elections. It ruled that poll taxes violated the Equal Protection Clause of the Fourteenth Amendment.
 &

The Twenty Fifth Amendment - Presidential Succession and Disability:

  A mechanism for dealing with succession problems in the event of Presidential removal, resignation or disability was provided by ratification of this Amendment in 1967. There was no time limit set for the ratification of this Amendment.
 &

The Vice President then immediately assumes the powers and duties of the Presidency as Acting President.

  A President may declare himself incapacitated or be declared incapacitated by the Vice President and a majority of the "principal officers of the executive departments or of such other body as the Congress may by law provide." This declaration must be transmitted to the President pro tempore of the Senate and the Speaker of the House. The Vice President then immediately assumes the powers and duties of the Presidency as Acting President.
 &
  The President may resume his duties upon declaration in writing - transmitted to both chambers of Congress through the Speaker and the President pro tempore - that he is able to resume them. The Vice President and principal officers have four days to contest the President's declaration. If the President's declaration is contested, Congress has 21 days to act to prevent the President's resumption of duties. It can do this by supermajority vote of two-thirds in both chambers. If it doesn't act, the President resumes "the powers and duties of his office."
 &
  The assassination of Pres. Kennedy in 1963 provided the incentive for this Amendment. During the Cold War, such questions could not be left hanging. Monk reports that eight Vice Presidents have assumed the Presidency upon the death of a President.
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  Vice Presidential vacancies are filled upon nomination by the President and majority vote of both chambers of Congress. This procedure was implemented for the replacement of Vice Pres. Spiro Agnew upon his resignation from office under fire in 1973. Gerald Ford was nominated by Pres. Richard Nixon and became President in 1974 upon the resignation under fire of Nixon. Ford then nominated Nelson Rockefeller for Vice President.

  "For the first time in American history, neither the president nor the vice president had been selected by the voters."

  When Pres. Ronald Reagan was shot and wounded in 1981, he did not formally relinquish his duties. However, when he underwent surgery in 1985, he formally informed Congress that Vice Pres. Bush (I) would assume Presidential duties while he was under anesthesia.
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  There have been several times when Presidents have been disabled for prolonged periods. Both Garfield and McKinley were disabled for months before dying from gunshot wounds. Woodrow Wilson was disabled by a stroke for the last 18 months of his second term. Dwight Eisenhower suffered a heart attack and a stroke while in office.

The Twenty Sixth Amendment - Minimum Voting Age set at 18 Years:

  In response to the Vietnam War, this Amendment was ratified in 1971. There was no time limit provided for the ratification of this Amendment, but it was ratified in 107 days - the fastest ever.
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The Twenty Seventh Amendment - Date of Effectiveness of Congressional Pay Increases:

 

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 This original part of the Bill of Rights was ratified in 1992 - more than two centuries after it had been proposed.

  "No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened."

  It provides voters a chance to express their reaction to Congressional pay raises prior to the time when the raises take effect.

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Copyright 2005 Dan Blatt