What did those words mean, as people used them near the end of the eighteenth century? It is important to understand precisely, so far as possible, the meanings intended by the men chiefly James Madison and George Mason whose phrases are found in the Bill of Rights, because many important cases of constitutional law that affect millions of Americans are today decided on the presumed significance of certain phrases in the Bill of Rights.
As eminent judges during the early decades of the Republic, both Story and Kent were more familiar with the constitutional controversies of the first five presidential administrations than any judge or professor of law near the close of the twentieth century can hope to be. The comments on the Bill of Rights that follow are based on such sources of information, and also on the books, letters, and journals of political leaders and judges from to It should be noted, moreover, that the Northwest Ordinance of also sheds light on the ideas and ideals of the generation that drafted the Constitution and the Bill of Rights.
Passed by the Continental Congress on July 13, , while the Federal Convention was meeting in Philadelphia, the Northwest Ordinance was later affirmed by the first Congress under the new Constitution. Its purpose was to provide a frame of government for the western territories that later became the States of Ohio, Indiana, Illinois, Michigan, and Wisconsin.
The wording of the Thirteenth Amendment providing for the abolition of slavery in the United States was taken directly from the Northwest Ordinance. Actually, the phrase occurs in a letter from Thomas Jefferson, as a candidate for office, to an assembly of Baptists in Connecticut. It was also intended, however, to assure each State that its reserved powers included the power to decide for itself, under its own constitution or bill of rights, what kind of relationship it wanted with religious denominations in the State.
Representative Ames, from Massachusetts, was a Federalist.
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In his own State, and also in Connecticut, there still was an established church—the Congregational Church. Such a church was entitled to certain taxes, called tithes, that were collected from the public by the State. Now, if Congress had established a national church—and many countries, in the eighteenth century, had official national churches—probably it would have chosen to establish the Episcopal Church, related to the Church of England. For Episcopalians constituted the most numerous and influential Christian denomination in the United States.
Had the Episcopal Church been so established nationally, the Congregational Church would have been disestablished in Massachusetts and Connecticut.
Therefore, Fisher Ames and his Massachusetts constituents in were eager for a constitutional amendment that would not permit Congress to establish any national church or disestablish any State church. Madison believed that for the Federal government to establish one church—the Episcopal Church, say—would vex the numerous Congregationalist, Presbyterian, Baptist, Methodist, Quaker, and other religious denominations. After all, it seemed hard enough to hold the United States together in those first months of the Constitution without stirring up religious controversies.
So Madison, who was generally in favor of religious toleration, strongly advocated an Establishment Clause on the ground that it would avert disunity in the Republic. In short, the Establishment Clause of the First Amendment was not intended as a declaration of governmental hostility toward religion, or even of governmental neutrality in the debate between believers and non-believers. It was simply a device for keeping religious passions out of American politics. During the nineteenth century, at least, State governments would have been free to establish State churches, had they desired to do so.
The Establishment Clause restrained only Congress—not State legislatures. But the States were no more interested in establishing a particular church than was Congress, and the two New England States where Congregationalism was established eventually gave up their establishments—Connecticut in , Massachusetts in The remainder of the First Amendment is a guarantee of reasonable freedom of speech, publication, assembly, and petition. For what the Congress had in mind, in , was the civil freedom to which Americans already were accustomed, and which they had inherited from Britain.
The courts today give a much broader interpretation to the clause. Civil liberty as understood in the Constitution is ordered liberty, not license to indulge every impulse and certainly not license to overthrow the Constitution itself. For example, public assemblies can be forbidden or dispersed by local authorities when crowds threaten to turn into violent mobs.
And even public petitions to the legislative or the executive branch of government must be presented in accordance with certain rules, or else they may be lawfully rejected. The original, and in many ways the most important, purpose of freedom of speech and press is that it affords citizens an opportunity to criticize government—favorably and unfavorably—and to hold public officials accountable for their actions.
It thus serves to keep the public informed and encourages the free exchange of ideas. The phrasing of the Amendment was directly influenced by the American Revolutionary experience. During the initial phases of that conflict, Americans relied on the militia to confront the British regular army.
- The Bill of Rights in Modern America.
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Since the Amendment limits only Congress, the States are free to regulate the possession and carrying of weapons in accordance with their own constitutions and bills of rights. The right is not absolute, of course, and the Federal courts have upheld Federal laws that limit the sale, possession, and transportation of certain kinds of weapons, such as machine guns and sawed-off shotguns.
To what extent Congress can restrict the right is a matter of considerable uncertainty because the Federal courts have not attempted to define its limits.
United States Bill of Rights - Wikipedia
It is an indication of a desire, in , to protect civilians from military bullying. This is the least-invoked provision of the Bill of Rights, and the Supreme Court has never had occasion to interpret or apply it. This is a requirement for search warrants when the public authority decides to search individuals or their houses, or to seize their property in connection with some legal action or investigation.
In general, any search without a warrant is unreasonable. Under certain conditions, however, no warrant is necessary—as when the search is incidental to a lawful arrest. Before engaging in a search, the police must appear before a magistrate and, under oath, prove that they have good cause to believe that a search should be made. The warrant must specify the place to be searched and the property to be seized.
American Constitutional Law: Liberty, Community, and the Bill of Rights
Here we have a complex of old rights at law that were intended to protect people from arbitrary treatment by the possessors of power, especially in actions at law. The common law assumes that a person is innocent until he is proven guilty. This amendment reasserts the ancient requirement that if a person is to be tried for a major crime, he must first be indicted by a grand jury.
In addition, no person may be tried twice for the same offense. This right, like others in the Bill of Rights, is not absolute. If offered immunity from prosecution in return for giving testimony, either he must comply or else expect to be jailed, and kept in jail, for contempt of court. As a general rule, Federal courts have not since extended the same degree of protection to property rights as they have to other civil rights. Here again the Bill of Rights reaffirms venerable protections for persons accused of crimes. These are customs and privileges at law derived from long usage in Britain and America.
The recent enlargement of these rights by Federal courts has caused much controversy. The right of assistance of counsel, for example, has been extended backward from the time of trial to the time the defendant is first questioned as a suspect, and forward to the appeals stage of the process. Only if a suspect waives his rights may any statement or confession obtained be used against him in a trial. It applies only to Federal cases, of course, and it may be waived. The primary purpose of the Amendment was to preserve the historic line separating the jury, which decides the facts, from the judge, who applies the law.
In recent years, increasingly large monetary awards to plaintiffs by juries in civil cases have brought the jury system somewhat into disrepute. The monetary sums for bail have changed greatly over two centuries, and criminal punishments have grown less severe. Courts have applied the terms of this amendment differently over the years.
Courts are not required to release an accused person merely because he can supply bail bonds. The court may keep him imprisoned, for example, if the court fears that the accused person would become a danger to the community if released, or would flee the jurisdiction of the court. In such matters, much depends on the nature of the offense, the reputation of the alleged offender, and his ability to pay.
The Bill of Rights in Modern America
Bail of a larger amount than is usually set for a particular crime must be justified by evidence. As for cruel and unusual punishments, public whipping was not regarded as cruel and unusual in , but it is probably so regarded today. In recent years, the Supreme Court has found that capital punishment is not forbidden by the Eighth Amendment, although the enforcement of capital punishment must be carried out so as not to permit jury discretion or to discriminate against any class of persons.
Punishment may be declared cruel and unusual if it is out of all proportion to the offense. Are all the rights to be enjoyed by citizens of the United States enumerated in the first eight amendments and in the Articles of the original Constitution? If so, might not the Federal government, at some future time, ignore a multitude of customs, privileges, and old usages cherished by American men and women, on the ground that these venerable ways were not rights at all?
Does a civil right have to be written expressly into the Constitution in order to exist? Click for free lesson on Benjamin Franklin. Click for free lesson on James Wilson. We have a right to it, derived from our Maker. But if we had not, our fathers have earned and bought it for us, at the expense of their ease, their estates, their pleasure, and their blood. Without law, liberty also loses its nature and its name, and becomes licentiousness. America has set the example … of charters of power granted by liberty. This revolution in the practice of the world, may, with an honest praise, be pronounced the most triumphant epoch of its history, and the most consoling presage of its happiness.
Those which are to remain in the State governments are numerous and indefinite.