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Lift your lamp beside the golden door, Break not the golden rule, avoid well the golden calf, know; not all that glitters is gold, and laissez faire et laissez passer [let do and let pass] but as a shining sentinel, hesitate not to ring the bell, defend the gates, and man the wall

Monday, June 27, 2011

The Bill of Rights

The US Constitutional Amendments 1-10


First Amendment
Freedom of Religion, Speech, Press, Assembly, and Petition

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Time Space and Manner


The Free Speech Clause of the First Amendment is not absolute. It has never been interpreted to guarantee all forms of speech without any restraint whatsoever... State and federal governments may place reasonable restrictions on the time, place, and manner of individual expression... (TPM) restrictions accommodate public convenience and promote order by regulating traffic flow, preserving property interests, conserving the environment, and protecting the administration of justice. 

Louis Dembitz Brandeis
"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of free speech to free men from bondage of irrational fears. . . Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. . .

Oliver Wendell Holmes Jr.
In a series of opinions during and after the First World War, he held that the freedom of expression guaranteed by federal and state constitutions simply declared a common-law privilege to do harm, except in cases where the expression, in the circumstances in which it was uttered, posed a "clear and present danger" of causing some harm that the legislature had properly forbidden. In Schenck v. United States, Holmes announced this doctrine for a unanimous Court, famously declaring that the First Amendment would not protect a person "falsely shouting fire in a theatre and causing a panic."

Voltaire aka Fran├žois-Marie Arouet 
"I may not agree with what you say but i will defend to the death your right to say it!"

Second Amendment 
Right to Bear Arms
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.

Samuel Adams (February 6, 1788), reported in Charles Hale, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts (1856), p. 86. 
And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms. 
This language was proposed in the Massachusetts convention for ratification of the U.S. Constitution to be added to Article I of that document.

(40 Reasons To Own Firearms)

Third Amendment
Quartering of Soldiers
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. 

Fourth Amendment
Search and Seizure
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.

Fifth Amendment
 Trial, Double Jeopardy, and Immanent Domain
No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment
Right to Speedy Trial, Confrontation of Witnesses
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 where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. Gideon v. Wainwright, 372 U.S. 335 (1963), is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own attorneys.


Gideon v. Wainwright: 372 U.S. 335 (1963), is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own attorneys.

Seventh Amendment
Trial by Jury in Civil Cases
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.

Eighth Amendment
Cruel and Unusual Punishment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Ninth Amendment
Enumerated Powers Infinite Freedoms
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The final text of the Ninth Amendment, like Madison's draft, speaks of other rights than those enumerated in the Constitution. The character of those other rights was indicated by Madison in his speech introducing the Bill of Rights (emphasis added):
It has been said, by way of objection to a bill of rights....that in the Federal Government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the constitution are retained; that the constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government. I admit that these arguments are not entirely without foundation, but they are not as conclusive to the extent it has been proposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse.[5]

Tenth Amendment
A Limited Federal Government
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.


Seth Lipsky's Guide
"In 1995, the Supreme Court, in a 5 to 4 decision in U.S. Term Limits v. Thornton, struck down the Arkansas restrictions, ruling that no qualification can be imposed beyond those enumerated in the Constitution. In a dissent, Justice Thomas wrote: 'Where the Constitution is silent about the exercise of a particular power—that is, where the Constitution does not speak either expressly or by necessary implication—the Federal Government lacks that power and the states enjoy it.'"


James Madison in The Federalist Papers' No. 45 wrote
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
 The 10th Amendment Center

The Bill Of Rights In General

The Bill of Rights' Incorporation Extended to States  
[Wikipedia] 

Originally, the Bill of Rights restrictions applied only to the federal government and not to the several state governments. Parts of the amendments initially proposed by Madison that would have limited state governments ("No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.") were not approved by Congress, and therefore the Bill of Rights did not apply to the powers of state governments.

States had established state churches up until the 1820s, and Southern states, beginning in the 1830s, could ban abolitionist literature. In the 1833 case Barron v. Baltimore, the Supreme Court specifically ruled that the Bill of Rights provided  
"security against the apprehended encroachments of the general government—not against those of local governments." 
In the Gitlow v. New York, 268 U.S. 652, (1925) case, the Supreme Court ruled that the Fourteenth Amendment, which had been adopted in 1868, could make certain applications of the Bill of Rights applicable to the states. However, the Gitlow case stated (p. 666): 
"For present purposes we may and do presume that freedom of speech and of the press - which are protected by the First Amendment from abridgment by Congress - are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." 
However at p. 668, the Court held: 
"It does not protect publications prompting the overthrow of government by force", 
which Gitlow and associates advocated in their publications. The Supreme Court has cited Gitlow v. New York as precedent for a series of decisions that made most, but not all, of the provisions of the Bill of Rights restrictions applicable to the states under the doctrine of selective incorporation.

1833-1963

The Incorporation (of the Bill of Rights) is the American legal doctrine by which portions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment, although some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis. Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, in 1833 the Supreme Court held in Barron v. Baltimore that the Bill of Rights applied only to the Federal, but not any State, government. Even years after the ratification of the Fourteenth Amendment the Supreme Court in United States v. Cruikshank, still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1890s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United States Constitution. It states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

Amendment I

Guarantee against establishment of religion
Guarantee of freedom of speech
Guarantee of freedom of the press
Guarantee of freedom of assembly
Right to petition for redress of grievances
  • It appears that no one case incorporates this right individually. However, dicta in Edwards v. South Carolina, 372 U.S. 229 (1963) suggests that this right is incorporated along with all the other First Amendment guarantees.
  • This right, though not in the words of the first amendment, was first mentioned in in the case NAACP v. Alabama, and was at that time applied to the states.

A Patriot's History of the United States 
pg126 God's Bill of Rights against Government
Religious, and especially Christian, influences in the Constitution and the Bill of Rights were so predominant that as late as the mid-twentieth century, the chairman of the Sesquicentennial Commission on the Constitution answered negatively when asked if an atheist could become president: “I maintain that the spirit of the Constitution forbids it. The Constitution prescribes and oath of affirmation…[that] in its essence is a covenant with the people which the President pledges himself to keep with the help of Almighty God.”90 Modern interpretations of the Constitution that prohibit displays of crosses in the name of religious freedom would rightly have been shouted down by the Founders, who intended no such separation.
The Second Amendment addressed Whig fears of a professional standing army by guaranteeing the right of citizens to arm themselves and join militias. Over the years, the militia preface has become thoroughly (and often, deliberately) misinterpreted to imply that the framers intended citizens to be armed only in the context of an army under the authority of the state. In fact, militias were the exact opposite of a state-controlled army: the state militias taken together were expected to serve as a counterweight to the federal army, and the further implication was that citizens were to be as well armed as the government itself!91 The Third Amendment buttressed the right of civilians against the government military by forbidding the quartering (housing) of professional troops in private homes.
 A Patriot's History of the United States
pg126 God's Bill of Rights against Government
Amendments Four through Eight promised due process via reasonable bail, speedy trials (by a jury of peers if requested), and habeas corpus petitions. They forbade self-incrimination and arbitrary search and seizure, and proclaimed, once again, the fundamental nature of property rights. The Ninth Amendment, which has lain dormant for two hundred years, states that there might be other rights not listed in the amendments that are, nevertheless, guaranteed by the Constitution. But the most controversial amendment, the Tenth, echoes the second article of the Articles of Confederation in declaring that the states and people retain all rights and powers not expressly
granted to the national government by the Constitution. It, too, has been relatively ignored. 
These ten clear statements were intended by the framers as absolute limitations on the power of government, not on the rights of individuals. In retrospect, they more accurately should be known as the Bill of Limitations on government to avoid the perception that the rights were granted by government in the first place.

Jerome Huyler, "Locke in America : the moral philosophy of the founding era", University Press of Kansas, (1995)
To some degree, the Bill of Rights (and the American Revolution) incorporated the ideas of John Locke, [The Declaration was said to be Copied from it] who argued in his 1689 work Two Treatises of Government that civil society was created for the protection of property (Latin: 'proprius', or 'that which is one's own', meaning "life, liberty, and estate").
Locke also advanced the notion that each individual is free and equal in the state of nature. Locke expounded on the idea of natural rights that are inherent to all individuals, a concept Madison mentioned in his speech presenting the Bill of Rights to the 1st Congress. Locke's argument for protecting economic rights against government may have been most salient to the framers of the Amendments; quartering and cruel punishments were not the current abuses of 1791.
 Chapter 8, pp.218–250; also pp. 275–9. For 'many scholars' discussion of economic rights and the Amendments, see p. 277

Madison's preemptive proposal

Prior to listing his proposals for a number of constitutional amendments, Madison acknowledged a major reason for some of the discontent with the Constitution as written:
"I believe that the great mass of the people who opposed [the Constitution], disliked it because it did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought we to consider them safe, while a great number of our fellow citizens think these securities necessary."
http://www.constitution.org/jm/17890608_removal.htm
 
On June 8, 1789, Madison submitted his proposal to Congress. In his speech to Congress on that day, Madison said:
"For while we feel all these inducements to go into a revisal of the constitution, we must feel for the constitution itself, and make that revisal a moderate one. I should be unwilling to see a door opened for a re-consideration of the whole structure of the government, for a re-consideration of the principles and the substance of the powers given; because I doubt, if such a door was opened, if we should be very likely to stop at that point which would be safe to the government itself: But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents." 
"[Madison introduced] amendments culled mainly from state constitutions and state ratifying convention proposals, especially Virginia's." -Leonard W. Levy "Origins of the Bill of Rights" 'New Haven: Yale University Press' (1999) ISBN 0-300-08901-5, p.35
Article 13 of the Virginia Declaration of Rights [asd-blog]

Color Coding

The Constitution Itself
Notes on the Constitutional Convention and Federalist Papers
My Writings
The Writing of Another
The Writing or Ideas of Another written or reference by that first other 
Seth Lipsky's Guide
The Writings of others in Lipsky's Guide

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