The following article has been written by Ishani Samajpati, pursuing B.A. LL.B. (Hons) under the University of Calcutta. This article discusses the Bill of Rights in detail along with its historical significance and relevance in recent times.

It has been published by Rachit Garg.

Introduction

The United States Bill of Rights is considered to be one of the most principled governing documents the world has ever seen. The first ten Amendments to the Constitution of the United States (out of the total 27 amendments so far) are now collectively termed as the Bill of Rights. The Bill of Rights carries a rich historical significance and even today it holds paramount importance in the United States Constitution. 

The Bill of Rights was ratified or passed in all the states in the US more than 200 years ago after much chaos, turmoil and turbulence. But the passage of time has hardly faded the myriad importance of the Bill of Rights. Rather, over time, it has gained even more limelight through various new interpretations and is still the most debated and discussed section of the US Constitution.

What is the Bill of Rights?

The Bill of Rights, as it is known today (earlier known as amendments to the Constitution), is the first ten amendments to the Constitution of the United States. The Bill of Rights represents the American ideology of freedom, personal liberty, minimum interference on part of the Government and rule of law.

The Bill of Rights was adopted as a single unit in 1791. It precisely sets forth the relationship between an American citizen and the government in power. It also ensures one’s civil rights, individual freedom and personal liberty. In order to safeguard a citizen’s personal rights and privacy, the Bill of Rights also limits the power and arbitrariness of the Government in power.

The definition of the Bill of Rights had been concisely set out by Thomas Jefferson, one of the framers and a supporter and activist for the Bill of Rights, as:  “A Bill of Rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.”

Historical background of the Bill of Rights

The Bill of Rights not only commands a huge significance in modern times, but  also bears a legacy of historical richness. The Bill of Rights was ratified and finally included in the US Constitution after many heated debates and discussions and untiring and relentless efforts from the activists at a time when the United States was just a newly formed democracy by the British immigrants. The historical perspectives, origin, influences and the entire scenario are enumerated in short.

Origin

England and American colonies had a long tradition of listing out rights considered essential as a means of protecting them from government outreach. The sole purpose of the Bill of Rights was to protect the rights of individuals and limit the power of the government.

The United States Bill of Rights was ratified in 1791, just two years after George Washington became the first President and the new Congress with the House of Representatives and the Senate went into effect in the newly formed world’s largest democracy, the United States of America. The idea of the Bill of Rights was based on the ideology of natural rights propounded by Thomas Jefferson and was drafted by James Madison.

Federalists vs. Anti-Federalists

Federalists were the group of people who believed in a strong national government which would have power over the states. They were of the opinion that the federal government would be able to protect them against the British and European powers as well as against the arbitrariness and whimsicalities of the state government. Some of the best-known leaders such as George Washington, Alexander Hamilton and James Madison.

On the other hand, the Anti-Federalists included Thomas Jefferson, George Mason and Patrick Henry who believed in strong local government and that the states should have most of the power. Most Americans, who had lived through the Revolutionary War, were Anti-Federalists. The Bill of Rights is often considered the ‘product’ of the American Revolution.

Virginia Declaration of Rights

Immediately after the American independence from Britain, George Mason drafted the Virginia Declaration of Rights in May 1776. It was amended by Thomas Ludwell Lee and the Virginia Convention. The Virginia Declaration of Rights also influenced James Madison while drafting the Bill of Rights.                               

Constitutional Convention

After fighting the Revolutionary War, many of the American citizens were very much conscious of their rights and did not want another tyrannical government which would snatch away their rights.

Everyone wanted to protect their rights but holding 13 states together with a weak central government was becoming futile through the Article of Confederation. So, in May 1787, the framers of the US Constitution decided to meet in Philadelphia to reattempt to draft the US Constitution. This Convention came to be known as the ‘Constitutional Convention’ or ‘Philadelphia Convention’. 

None of them reached a permanent agreement or solution, after months of gruelling debates and discussions. James Mason, a famous Anti-Federalist, is known to have said to cut off his right finger rather than signing the Constitution. Though not an initial supporter of the Bill of Rights to a Constitution, he (also known as the father of the US Constitution) intervened. In the end, the Constitution without the Bill of Rights was signed and endorsed by several of the Federalists.

The Federalist Papers

Alexander Hamilton, James Madison and John Jay together laid down eloquent philosophical arguments regarding their views on the Bill of Rights and support for the Federal government in 85 essays which later came to be known as the Federalist Papers.

Difference of views between Federalists and Anti-Federalists

While the Federalists were vocal for a strong centralised government, others felt that the Constitution was overreaching and that the more centralised authority would make them return to the same state of tyranny they just escaped.

The Anti-Federalists were especially worried by the apparent lack of protection of individual liberties. As for the Federalists, while their opponents accused them of despotism, they, especially Madison, felt that people’s rights were already guaranteed through the democratic process and adding extra provisions would make the Constitution prone to misinterpretation.

Ratifications and Opposition

After the first few states, namely Delaware, Connecticut, Georgia, Pennsylvania and New Jersey ratified the Constitution quickly, the debate grew more intense. Massachusetts and several other states decided to ratify only with their proposed amendments. Leading Federalists realised the need to compromise and promised to give them due regard.

Once the ratification by nine states (Massachusetts, Delaware, New Hampshire, Connecticut, Georgia, Maryland, Pennsylvania, New Jersey and South Carolina) got the Constitution legal recognition, the framers decided to deliver what they promised.

The Bill of Rights became a campaign promise

James Madison and his supporters ran a tough campaign against James Monroe to win a seat in the House of Representatives. He could only win Virginia’s support with a promise of ratification of the Bill of Rights. Thus, it turned into a campaign promise.

Proposed Constitutional Amendments and ratification of Bill of Rights

Though initially not in favour of the Bill of Rights, still after winning and during the meeting of the first United States Congress, Representative James Madison stood on the House floor to propose the very amendments he previously thought unnecessary. He proposed 19 amendments protecting individual rights without affecting the Constitutional structure or weakening the national government. Out of this, only 12 amendments were passed by Congress. By December 1791, three-fourths of the states across the US ratified 10 of these amendments which are now known as the Bill of Rights.

The inspiration behind the Bill of Rights

James Madison mostly drew his inspiration while drafting the Bill of Rights from the Magna Carta, the English Bill of Rights, and the Virginia- Declaration of Rights, mostly drafted  by George Mason.

Purpose of the United States Bill of Rights

The purpose behind the Bill of Rights was twofold. The first one was to protect and guarantee individual rights and another was to limit the powers of the government. However, in 1791, i.e. immediately after the ratification of the Bill of Rights, it applied only to the federal governments and not to the state governments as affirmed by the Supreme Court in Barron v. Baltimore (1833). The Bill of Rights did not apply to the state and local government for decades. 

Barron v. Baltimore (1833)

Barron, with one other petitioner, filed a suit for damages against the Mayor and the City Council of Baltimore when they faced a huge loss in their business due to the diversion of the flows of several streams to construct streets. They were co-owner of a wharf in Baltimore Harbour. The accumulation of sand and dirt in water made it too shallow for seafaring vessels. They appealed to the Supreme Court for compensation.

In a unanimous decision, the Supreme Court held that they have no claim to the states under the Fifth Amendment because the Bill of Rights only applies to the federal government. This precedent was followed until the passage of the Fourteenth Amendment when the Bill of Rights was slowly applied to the state governments as well. Over time, it also limited the ability of the state government to infringe on individual rights.

Why was the Bill of Rights not included in the original US Constitution?

The Bill of Rights was not something the framers of the US Constitution always wanted. Hence, they were not a part of the US Constitution originally drafted. To ratify the Bill of Rights and make the US Constitution foolproof, James Madison and the framers were in the midst of one of the toughest political turbulence ever in US history. The framers got into huge arguments regarding individual rights and the powers and control of the Government. The United States Bill of Rights was the ultimate result of a hard-fought compromise and negotiation from a bitter political battle.

Shortly after the original and the final copy of the Bill of Rights containing 12 Amendments were signed, 13 original copies of the Bill of Rights were commissioned for the states by the Federal government with George Washington as the President. It was then sent to the 11 existing states and to Rhode Island and North Carolina—which had not yet adopted the Constitution. Eight states namely Connecticut, Massachusetts, New Hampshire, New Jersey, Rhode Island, North Carolina, South Carolina, and Virginia still have the original copies of the Bill of Rights. North Carolina’s copy was stolen during the Civil War but in an FBI raid in 2005, it was recovered and was returned to the state.

A brief overview of the United States Bill of Rights

The first ten amendments to the US Constitution or Bill of Rights, as it is known today, guarantee individual liberty to make sure that citizens had the demarcation of government controls and limits. Many of these rights were influenced to protect the legacy of the Revolutionary War and the kinds of government abuses that the citizens in the former British colonies in America had faced.

The first four Amendments guarantee individual liberties. These are – 

• Freedom of religion, speech, press, assembly, redress of grievance
• The right to bear and assemble militias. The state and local militias had made the Revolutionary War a success for the United States.
• A ban on the quartering of soldiers at home is called the Quartering Act. The British government made the citizens of the Colonies mandatory to put up soldiers in their homes, which acted as a major driver of the revolution.
• A ban on unreasonable search and seizure.

The next four amendments in the Bill of Rights deal with protections for people accused of crimes. Here too, the legacy of the Revolutionary War has been followed up. The idea that the Crown used to hold too much power and could prosecute an individual arbitrarily gave rise to the right to due process to make sure that all steps of following a legal procedure are taken into consideration, a ban on being tried twice for the same crime, rights to a speedy and public trial, a jury consisting of peers and the right to have a jury even in cases which is not concerned with violent crimes but civil disputes. It also provides a ban on excessive cruel and unusual punishments to ensure that the government will respect the rights of individuals.

• Right of the accused to a grand jury indictment and due process, ban on double jeopardy, self-incrimination and government seizure of an individual’s property without providing compensation.
• Right of the accused to speedy and public trial, jury consisting of peers and the right to have a lawyer.
• Right of the accused to trial by jury through the common law
• Ban on cruel and unusual punishments

One of the most prominent arguments against the inclusion of Bill of Rights in the US Constitution was that specifying a particular list of rights would indicate that they were the only rights. Subsequently, specifying that list of rights in particular might be a forfeiture of the liberties in some way or the other. 

So the Ninth and Tenth Amendments were framed to address that. In the Ninth Amendment, it is stated that any rights which are not specified are still to be retained by the citizens indicating that this is not an exhaustive list of rights to be retained by the people. The Tenth Amendment differs slightly and states that if the Constitution has not delegated a right directly to the federal government, the right is reserved to the states or to its citizens. The federal government  has the right to perform only the actions listed by the Constitution meaning that the powers of the government are limited by the Constitution. On the other hand, the rights of the people are unlimited.

• The rights not enumerated in the Bill of Rights are retained by the people.
• Rights not delegated to the federal government are reserved for the citizens of the state.

The 32nd president of the United States, Franklin D. Roosevelt declared Bill of Rights Day on December 15, 1941 to commemorate the 150th anniversary of the ratification of the United States Bill of Rights. He also issued a proclamation dedicating  December 15th as Bill of Rights Day. It is celebrated as a patriotic holiday in the US. 

Contents of the United States Bill of Rights

As mentioned beforehand, the first ten Amendments to the US Constitution are collectively known as the Bill of Rights. The Ten Amendments composing the Bill of Rights are discussed one by one in detail.

The First Amendment

Most Americans think that the First Amendment is one of the most important among the Bill of Rights. It is one of the most revered amendments, too. The First Amendment provides the freedom of speech, press, religion, assembly and petition. It also protects the rights of the American citizens to express their opinion fearlessly, follow the religion according to their choice, assemble together peacefully and the right to petition the government if required. The First Amendment protects the right to five big freedoms, i.e. freedom of speech, press, religion, peaceful assembly and petition.

Freedom of Speech and Expression

Amidst all the rights to freedom offered, one of these incredible freedoms that is offered is the strong and long tradition of free speech. Being able to say whatever one wants even if it is unpopular is the foundation of a democratic society. Unlike many nations across the world where the government restricts the right of free speech and expression of its citizens, the right to free speech and expression is ingrained in the American legacy.

Limitations

No matter how much the Bill of Rights respects the freedom of speech and expression, it sets a limit on self-constraint. The limitations are:

• Slander: Slander refers to speaking up lies about an individual to hurt their reputation
• Libel: Libel is the printed version of lies about an individual hurting reputation and one has the power to sue against this in Court of Law.
• Sharing confidential government information, giving threats and shouting words causing panic do not also amount to freedom of speech.

Some of the historic rulings on the freedom of speech and expression under the First Amendment are:

Tinker v. Des Moines (1969)

In Tinker v. Des Moines, Mary Beth Tinker, a 13 year old student along with a group of school students decided to wear black armbands as a protest to the war in Vietnam. The school imposed a preemptive ban and suspended the students. The students were further informed that they could join the school only after removing the armbands. The students returned to school without armbands and filed a lawsuit under the First Amendment.

The Supreme Court ruled that free speech is more than just mere words and this right includes the freedom to express oneself in their own way without worrying about the government controls.

Yates v. US (1957)

In the case of Yates v. United States (1957), 14 leaders of the Communist party were prosecuted under the Smith Act for conspiring to overthrow the government. They filed a lawsuit under the free speech offered by the First Amendment. In a historic ruling, the Supreme Court declared that even reactionary and radical speech is also protected under the First Amendment if it does not present “clear and present danger.”

Freedom of Religion

The First Amendment further states that Congress is not entitled to make any law which prefers any particular religion or prohibits the practice of ‘free exercise’ of any particular religion. The government should make sure that one can exercise the right to free practice of one’s religious faith. The former part is known as the “establishment clause” and the latter part is termed the “free exercise clause”. The government should not quote or establish a religion as the official one.

Separation of church and the state

In simple terms, this indicates that the American government should not favour one church over another. It reinforces one’s freedom of practising their own faith, even in public. The Supreme Court enforced this in several cases.

Engel v. Vitale (1962)

This landmark case is also known as the famous case resulting from a particular recitation in school prayers. In this 1962 case, the Supreme Court held that a school sponsoring any prayer in public schools is unconstitutional. In public schools of New York, the students were required to recite a prayer written by the New York State Board of Regents. A group of parents along with Steven Engel, a parent filed a suit against Vitale, the school board president.

The Supreme Court declared that the composition of an official prayer and the encouragement to recite it by the state officials violates the “establishment clause” of freedom of religion under the First Amendment.

Wisconsin v. Yoder (1972)

A law in Wisconsin, a state in the US, required the children to attend schools mandatorily.  The Supreme Court ruled that the compulsory education past 8th grade, beyond the age of 16, violates the right to free practice of religion by the Amish community. The ruling outweighed the right to compulsory education to the right to free practice of religion.

Freedom of Press

‘Press’ refers to the news organisations on televisions, newspapers and the internet. They play the role of ‘Watchdog’ of any wrongdoings by the government. If the government controls what they say, the press cannot tell if the government is doing any wrong. Though there are limitations of the press such as libel, the freedom of press allows the citizens to get news without any government interference. In the words of Thomas Jefferson, “Where the press is free and every man is able to read, all is safe.”

New York Times v. Sullivan (1964)

It is a landmark decision by the Supreme Court which upheld the freedom of press under the First Amendment. It offered protection to the press which was sued by the government officials for libel. The New York Times was sued for making errors in a civil rights editorial for fundraising on March 29, 1960 titled ‘Heed Their Rising Voices.’ 

The advertisement contained certain errors for which it was sued. It was related to a libel but the Supreme Court examined the possibility of actual malice. The Supreme Court declared that the First Amendment protects all kinds of publications about the conduct of public officials except when the statements are made knowing that they are false. 

Right to petition

Petition means signing the document showing support for any particular issue. People have the right to petition the government asking for change. This right specifically says to petition the government for the redressal of grievances. The right to petition implies the right to send written complaints to the government.

Brown v. Glines (1980) – An exception to the right to petition

The military personnel required prior approval before the circulation of petitions according to Air Force regulations. The case of Brown v. Glines (1980) included a substantial question of whether it was consistent with the First Amendment. It was held that such regulations do not violate the First Amendment considering the national security and the duty and discipline for the effectiveness of the military, it is ‘reasonably necessary’.

Freedom of Assembly

To assemble means to gather in a group. The First Amendment specifically provides that the citizens have the right to gather in an assembly provided that the assembly should be peaceful. The right to peaceful assembly sends a strong message to the government to watch its every step and arbitrary actions. The right to a peaceful assembly is protected constitutionally.

Cox v. Louisiana (1964)

A Louisiana statute prohibiting picketing was violated by Cox. In an assembly to protest racial discrimination, the police personnel asked them to confine themselves to a specific area and then ordered them to disperse. When they refused, the officials used force to disperse and arrested several of the protesters present there.

The issue was to decide whether it violated the right to peaceful assembly under the First Amendment. The Supreme Court held that the First Amendment protects peaceful assembly even when the demonstrations may incite violence.

The Second Amendment

The Second Amendment is the right to bear arms. The original influence of the Second Amendment was to protect the colonists themselves from the invading British soldiers. Now it guarantees that a citizen has the right to own a gun to defend oneself and  one’s property. 

The Second Amendment is the one that has been specially controversial with the rise of large scale mass shootings in the US. The Second Amendment roots back to the Revolutionary War when the citizen militias fought against the British army. It perfectly explains the wordings of these rights where it states ‘well-regulated Militia’.

Controversy and limitations

With the rise of mass shootings, some people are of the opinion that the Second Amendment is no longer required. Moreover, the free state no longer requires a ‘well-regulated Militia’ consisting of ordinary citizens when the state already possesses a well-trained military called the army.

District of Columbia v. Heller (2008)

It is a significant case of the right to bear an arm to protect one under the Second Amendment. District of Columbia law banned the possession of handguns and prohibited unregistered and unlicensed arms. It also enforced the regulation to issue a licence of one year and directed the citizens to carry unloaded firearms or locked by trigger locks. 

Heller, a police officer by profession, applied for a handgun at home, but was refused by the District. He sued the District on the ground of the right to bear arms under the Second Amendment. It was declared, by the US Supreme Court, that the Second Amendment protects an individual, which is not related to service in any militia, right to possess firearms for self-defence purposes and to save one’s property. 

The Third Amendment

The Third Amendment is called the “Quartering” Amendment. It was also influenced by the British occupation which required the colonists to provide housing or ‘quarter’ during the American Revolution. Because of this Amendment, the government can never force the citizens to provide accommodation to soldiers in their homes.

The Third Amendment is another one that dates back to the Revolutionary War era. Though this is not really an issue concerning the citizens, still it is there to keep the original Bill of Rights intact. However, because of the Third Amendment, the citizens are never required to open their houses for soldiers. There have hardly been any legal cases solely based on the Third Amendment and it is one of the least referred Amendments. But one of the very first cases under the Third Amendment was Engblom v. Carey (1982)

Engblom v. Carey (1982)

Engblom and Palmer were two corrections officers at Mid-Orange Correctional Facility, a male prison in New York. They lived in a building where the tenancy was regulated by the Department of Corrections. In 1979, many officers of the New York State Department of Corrections started a strike to raise their pay.

During the strike, the Governor of New York, Hugh Carey directed the National Guard to maintain the prisons. The Guards arrived at Mid-Orange and were provided housing in the school and administrative buildings. At one point, the striking officer-tenants, including Engblom and Palmer were evicted and Guards were quartered in those rooms.  They subsequently filed suit against the state of New York and its governor, Carey. They cited the violation of the Third Amendment along with the Due Process Clause of the Fourteenth Amendment.

The Fourth Amendment

The Fourth Amendment basically deals with the protection of unwarranted searches and seizures. The police cannot come into one’s home without any search warrant and take out personal property. The Fourth Amendment states the rights of the people to be secure in their personal places and protect their belongings. This, in a broader sense, offers protection from searching by the police or any agencies of the government such as the FBI unless they have proper evidence or a proper possible cause to suspect that of any illegality or any wrongdoings.

Many technology-related contemporary concerns have arisen relating to the Fourth Amendment. For example, does the government possess the right to track the location from smartphones? Or can social media postings such as on Facebook or Twitter be used as evidence or against one without a warrant?

Relevance

The Fourth Amendment has been increasingly relevant today since it consists of almost identical elements of the right to privacy. The Fourth Amendment states that the right of the people 

Warrant

The Fourth Amendment requires the police personnel or government officials to search one’s house, belongings or personal property with the help of a warrant.

A warrant is a document signed by a judge or any competent government authority to search an individual’s home, private property or the premises. In order to get a warrant signed, the police will have to state before the judge the ‘probable cause’ or proper evidence that is reasonable enough to believe the committing of any crime.

Wolf v. Colorado (1949)

In the landmark case relating to the Fourth Amendment, Wolf was convicted of conspiracy to perform criminal abortions. The Supreme Court of Colorado affirmed the convictions on appeal. It was further appealed to the US Supreme Court.

The Supreme Court held that the Fourth Amendment provides security against arbitrary police intrusion. However, that decision was only applicable to the federal court and did not extend to any state courts. Later, in the case of Mapp v. Ohio (1964), the Supreme Court held that the rule also applies to the state.

Mapp v. Ohio (1964)

In the landmark case regarding the right to privacy, in 1957 police in Cleveland forcibly broke into the house of a lady named Dollree Mapp. The police officials conducted a search without warrant for a suspect. The police did not find any suspect but discovered some books and pictures prohibited by the state law of Ohio. On appeal, the US Supreme Court declared that using illegally warrantless seized evidence against a convict violates the rights under the Fourth Amendment.

Right to privacy under the Fourth Amendment

Because of the expressions used in this particular Amendment, the legal scholars have interpreted it as that the people are entitled to the right to privacy even though this Amendment does not use this exact word ‘privacy’. But the fact is that the Fourth Amendment is the closest Amendment to having the right to privacy in the Constitution. Several Courts in the United States, including the Supreme Court, have ruled in several cases that the Fourth Amendment, in fact, provides the right to privacy.

This Amendment is especially important in the modern era, i.e. the Internet age when there is hardly any transparency relating to privacy and how the data is being used. The Fourth Amendment plays a crucial role in supervising the sense of privacy in a world connected by the internet, especially from unreasonable observations.

Griswold v. Connecticut (1965)

In the landmark case of Griswold v. Connecticut (1965), the legal position of right to privacy under the Fourth Amendment was interpreted for the very first time. A statute of Connecticut prohibited the usage of contraceptives for married couples. The US Supreme Court held that the statute violates the right to marital privacy and the Connecticut statute was infringing the right to privacy by restricting the use of contraceptives in married couples.

Rights of the accused under the Bill of Rights

The Fifth, Sixth, Seventh, and Eighth Amendments provide the rights of the accused. This, again, carries the colonial legacy where the Crown was thought to have excessive powers and could prosecute an accused arbitrarily. They include a wide range of rights discussed here under. 

The Fifth Amendment

The Fifth Amendment safeguards the five rights of the accused. It is one of the better known Amendments and the suspects often refer to this. The Fifth Amendment is all about due process, the right to remain silent, the right to a grand jury, no double jeopardy and proper compensation if the government takes up the property.

The main objective of the Fifth Amendment is to protect an individual officially accused of a crime. While the Fourth Amendment protects suspects, the Fifth Amendment protects those who have been officially charged with any offence or crime. 

Right to Grand Jury

In the US, Jury refers to a group of peers who carry the responsibility to pronounce a verdict in a court case rather than the government official. 

Unlike the traditional idea of jury, a grand jury is not empowered to decide guilt or innocence but they decide whether there is enough evidence for a trial. This saves an accused going through the entire tedious process of trial if enough evidence is not present. On the other hand, if there is enough evidence, the grand jury offers an indictment, meaning they formally charge the accused with a serious crime. Hence , serious crimes need a grand jury to indict.

No double jeopardy

Double jeopardy refers to the procedure where an accused is tried for the same crime twice. The double jeopardy clause in the Fifth Amendment saves the accused from being tried for the same crime. 

No Self-incrimination

The Fifth Amendment also makes sure that an individual cannot be a witness to one’s crime. This is known as self-incrimination. This indicates that an individual cannot be forced to testify against oneself. 

Right to remain silent

The self-incrimination clause in the Fifth Amendment provides the accused the right to remain silent. An individual has the right to remain silent when accused of crime and in such a situation, the state has the responsibility to prove an individual’s guilt. Unless proven guilty, under the doctrine of presumption of innocence, the individual charged with the crime is to be considered innocent unless proven guilty.

“I plead the Fifth”

A common phrase associated with the Fifth Amendment is that I plead the Fifth which is often heard in the movies, too. It implies that the accused is interested to exercise their right to remain silent as provided under the Fifth Amendment. 

Miranda v. Arizona (1966)

The 1966 case of Ernesto Miranda v. The State of Arizona strengthened the right to remain silent as provided under the Fifth Amendment. Ernesto Miranda, an American worker was accused of horrific crimes of kidnapping and rape. The police detained him and he opted not to have a lawyer. He was interrogated for several hours when he ultimately admitted to committing several of the crimes he was charged with. He was found guilty by the local Court and was sentenced to imprisonment. He further appealed to the Supreme Court stating that he was unaware of the right to remain silent and also had not been told. Hence his confession cannot be used as evidence.

Apart from reversing his conviction the Supreme Court framed a new set of rules and regulations regarding the procedure of obtaining confessions by the police, famously known as Miranda rights and  Miranda Warning.

Establishment of Eminent Domain

The last part of the Fifth Amendment provides the concept of ‘Establishment of Eminent Domain’. It provides that the private property of an individual cannot be taken over by the government without paying proper compensation.

One’s home is the  ‘domain’, while the ‘eminent’ is power. Therefore, the term ‘eminent domain’ refers to the power to take one’s home. At the time of developing a highway, rail station, airport or any other construction, the government usually offers a ‘fair market value’ i.e. the price of the property at an open market without any coercion or external influences, and asks them to sell the property and move out to develop for public usage. This phenomenon is termed as ‘eminent domain.’

Kohl v. United States (1876)

The very first federal use of ‘eminent domain’ goes back to the 1876 case of Kohl v. United States. This was a proceeding instituted by the United States to appropriate a parcel of land in the city of Cincinnati as a site for a post-office and other public uses. The government was preparing to create a site for a post office in the city of Cincinnati. The plaintiffs owned a land in perpetual lease in that place. They moved to the Court 

It was held in the case that the government of the United States has the right to exercise the right of eminent domain under the Fifth Amendment.

Federal Due Process Clause

The Federal Due Process Clause ensures that no citizen is deprived of “life, liberty, or property without due process of law.”  The “due process” refers to the fair trial and justice. It is mentioned in the Fourteenth Amendment and shares a lot of similarity with the Fifth Amendment. 

The Sixth Amendment

The Sixth Amendment (and the Seventh Amendment as well) provides how the legal system works. As an individual accused of a crime, one has the right to a speedy public trial and an impartial jury. One also has the right to counsel and stand according to one’s choice. It prevents the accused from rotting in the jail forever and ensures that the prosecution proceeds without delay.

In a nutshell, the Sixth Amendment provides a citizen the following rights:

1. Speedy and public trial: Despite the presumption of innocence, sometimes people get arrested for the crimes they did not commit. If they cannot afford bail (pretrial release from prison), they may rot in jail for years. A speedy trial ensures that it does not happen.
2. Good and impartial jury: A good and impartial jury ensures the proper outcome of the trial.
3. Right to Counsel: The accused should be provided with proper legal assistance from the state even if the accused cannot afford to bear the cost of a counsel.

Powell v. Alabama (1932)

In this case, nine black youths, later known as the Scottsboro Boys, were convicted with the  charge of raping two white women in Alabama and was sentenced to death except a 13 year old boy among them. They appealed on the ground that they were not provided with any legal counsel to prepare for the trial.

The Supreme Court reversed the conviction and declared that under the Sixth Amendment, the State must provide an accused with a Counsel irrespective of the ability to afford one.

The right to confront the witness

The right to confront the witness, also known as the ‘Confrontation Clause’ applies only to criminal proceedings, not in civil or any other proceedings. However, in the case of Maryland v. Craig (1990), the US Supreme Court held that this right is not absolute.

The Seventh Amendment

The Seventh Amendment a citizen has the right to a jury trial, where the innocence or guilt in criminal proceedings and right or wrong is decided by the twelve (12) impartial peers in the open courtroom as opposed to a judge alone.

Curtis v. Loether 

One of the notable cases under the Seventh Amendment is Curtis v. Loether (1974). In the case, the petitioner filed a suit because she was refused to be rented because of her race. The opposition requested for jury trials which was refused by the District Court.

On appeal, the Supreme Court held that the Seventh Amendment provides the right to jury trial and any of the parties can plead for it.

The Eighth Amendment

While the Fifth Amendment provides the protections for a suspect of a crime and the Sixth and Seventh Amendments provide protection during trial in court, the Eighth Amendment protects when an individual is officially accused of a crime and has been proved guilty in the eyes of the law.

• No excessive bails or fines: The first part of the Eighth Amendment provides that no excessive bails  or fines cannot be taken from the accused.
• No cruel and unusual punishments: The Eighth Amendment also prohibits cruel and unusual punishments. There have been a lot of debates as to what are the punishments that fall under the category of ‘cruel’ and ‘unusual’.

Furman v. Georgia (1972)

This case revolved around the issue of cruel and unusual punishment as provided under the Eighth Amendment. The three petitioners  were charged guilty of grievous crimes of murder and rape and were sentence to death. On appeal, a substantial question that revolved around the Supreme Court was whether it violated the ban on the cruel and unusual punishment as provided under the Eighth Amendment. 

The death penalty was temporarily suspended to make sure it is not imposed arbitrarily. The death penalty was then reinstated in the case Gregg v. Georgia (1976).

Gregg v. Georgia

Gregg was found guilty of armed robbery and murder and was sentenced to death by the Georgia Supreme Court. He appealed on the ground that his “capital punishment” violated the Eighth Amendment.

It was held that in extreme cases of deliberate grievous crmes, the death penalty can be used carefully in a judicious manner.

The Ninth and Tenth Amendments

These Ninth and Tenth Amendments originated from the embroiled debate between the Federalists and the Anti-Federalists. The Federalists argued that creating a Bill of Rights was unnecessary and listing rights may exclude the non-listed rights. Hence, the Ninth Amendment states about the non-listed rights in the Bill of Rights as demanded by the Federalists.

Unenumerated Rights

The Ninth Amendment of the Bill of Rights provides that rights not listed in the Bill of Rights or the Constitution are not forbidden rights just because they are not listed. On the other hand, the Tenth Amendment was a shout out to the Anti-Federalists who were concerned with too much power in the hands of the national government.  

Reserved powers

The Tenth Amendment states that the powers not mentioned to be given to the national government in the Constitution are reserved to the states and its citizens.

Distinction between the Ninth and Tenth Amendments of the Bill of Rights with other Amendments

The Ninth and Tenth Amendments are also called ‘Non rights Amendment’. The Ninth Amendment states that unenumerated rights are also retained by the citizens in addition to the enumerated rights. Further, the Tenth Amendment clearly reserves those powers that the Constitution does not delegate to the federal government to the states. 

Moreover, no specific limitations on the authority of the federal government have been curtailed  by the Tenth Amendment. That does not mean that it grants the states any additional powers. It simply indicates that the states are free to establish and maintain their own laws and policies without conflicting with the federal government.

Proposed unratified Amendments of the original Bill of Rights

In 1789, during the ongoing procedure of addition of the Bill of Rights to the US Constitution, James Madison proposed 19 amendments out of which 12 amendments were passed by the Congress and sent to the states to ratify.  The First and Second Amendments of the original Bill of Rights were not ratified. An amendment only becomes a part of the US Constitution when ratified by 3/4th of the states. 10 of the 12 amendments were ratified by 3/4th of the states. Hence, the Bill of Rights consists of 10 amendments instead of originally proposed 12 amendments. 

Original first proposed amendment of the Bill of Rights

The original first (proposed) amendment dealt with the apportionment of Representatives. It proposed a ratio of the number of people to the representatives in the U.S. House of Representatives. It outlined that “there shall be one Representative for every thirty thousand” and the Congress will arrange the proportions according to the number of people to the number of representatives in case of increasing population.

Original First proposed amendment of the Bill of Rights was ratified by 10 states out of 14 states while 3 states namely Massachusetts, Connecticut and Georgia neither supported nor rejected the Bill of Rights. Critics are of the opinion that this amendment was not ratified for good, since if it was amended, now the number of Representatives would have been more than 6000 compared to the current number of 435 representatives.

Original second proposed amendment of the Bill of Rights

The original second (proposed) amendment dealt with the salaries of the Members of Congress. It simply stated that any change in the pay of the members of Congress should not take effect until after the next election. Out of the 14 states, this amendment was ratified only by 6 states. Massachusetts, Connecticut and Georgia abstained themselves from ratification.

However, the original second proposed amendment became the 27th Amendment, the last amendment to the Constitution in 1992, almost more than 200 years later.

Protection of individual rights and liberties by the Bill of Rights

The Bill of Rights ensures that individual rights and liberties are protected and that the government cannot infringe upon the rights of the citizens. It further limits the ability of the government. 

The Bill of Rights also safeguards the rights of the suspected and accused individuals. 

Thus, the Bill of Rights not only offers protection to individual rights and liberties but also ensures the rights and liberties of the common citizens are not violated by any means.

Applicability of Bill of Rights to the states

The Bill of Rights was originally applicable only in cases of the federal government and courts, but it has been expanded to apply for the states through the doctrine of incorporation.

The Bill of Rights was made applicable to the states through the Due Process clause of the Fourteenth Amendment through the doctrine of incorporation .

Prior to the existence of the doctrine of incorporation the Bill of Rights was only applicable to the Federal Government and to federal court cases. The states and state courts could adopt similar laws, but it was not obligatory for them.

Doctrine of incorporation of the Bill of Rights

The doctrine of  incorporation is a type of constitutional doctrine in the United States through which the Bill of Rights were applied to the states through the Fourteenth Amendment. 

The doctrine of incorporation was applied both in substantive and procedural ways. Prior to making the Bill of Rights applicable to the states through the doctrine of incorporation, it only applied to the Federal Government and Federal Court cases.

Relevance of Bill of Rights in modern times

The Bill of Rights is still a highly relevant piece of document and the most revered part of the US Constitution. It is still also among the most widely debated areas. For example, the Second Amendment granting the right to carry arms is the source of one of the most serious political controversies in the US today. Again, the requirement and constitutionality of the death penalty under ‘cruel and unusual punishments’ is another where nobody could reach a permanent solution. The Bill of Rights still continues to provide personal liberty and limit what the government can or cannot do. In a broader context, the Bill of Rights to protect individuals from abuse by state and local governments. 

Conclusion

The United States Bill of Rights is a crucial piece of American history. Though the society has undergone many changes in these more than two hundred years, the interpretation and application of these amendments are as vital today as they were, when first ratified.

Frequently Asked Questions (FAQs) on Bill of Rights

1. What is the Bill of Rights?

There have been 27 amendments to the US Constitution till date. Out of these, the first ten amendments are collectively termed as the Bill of Rights.

2. Which date is celebrated as the Bill of Rights Day?

December 15th is celebrated as the Bill of Rights Day.

3. Who demanded that the Bill of Rights be added to the US Constitution?

The Anti-Federalists demanded the Bill of Rights to be added to the US Constitution because they were of the opinion that the Bill of Rights was necessary to protect individual freedom and liberty and would limit the government’s power while the Federalists thought that the Constitution was enough to safeguard individual rights and liberty.

4. Who drafted the United States Bill of Rights?

James Madison, taking inspiration mostly from the Magna Carta, the English Bill of Rights, and Virginia’s Declaration of Rights drafted by George Mason, drafted the 19 amendments containing specific prohibitions on the powers and control of the government, which he submitted to the US House of Representatives on June 8, 1789.

5. When was the Bill of Rights ratified?

The Bill of Rights was ratified on December 15, 1791.

6. Which rights are known as the First Amendment Freedoms?

The 5 basic freedoms enlisted in the First Amendment are termed as the First Amendment Freedoms. They include – right to freedoms of religion, speech, and the press, assemble (gather together) and the right of people to petition (make a request of) the government.

7. What is self-incrimination?

Self-incrimination means incriminating oneself and confessing one’s crime and exposing oneself to criminal prosecution. The Fifth Amendment of the US Constitution prohibits self-incrimination and thud protects the rights of the accused.

8. Why are the Ninth and Tenth Amendments of the Bill of Rights known as non-rights amendments?

The Ninth and Tenth Amendments of the Bill of Rights are known as non-rights amendments because the rights protected by the amendment are not enumerated, they are termed as “unenumerated” rights, contrary to those rights enumerated in the Constitution. The rights not listed in the Bill of Rights in the Bill of Rights are still retained by the people and the states have the rights to make their own rules, regulations and policies.

9. Does the original copy of the Bill of Rights still exist?

The original copy of the Bill of Rights is preserved in the Rotunda at the National Archives Museum in Washington, DC, US.

References

• https://www.archives.gov/founding-docs/bill-of-rights
• https://billofrightsinstitute.org/essays/james-madison-and-the-bill-of-rights
• https://www.archives.gov/founding-docs/bill-of-rights/what-does-it-say
• https://www.loc.gov/exhibits/creating-the-united-states/demand-for-a-bill-of-rights.html
• https://www.aclu.org/other/bill-rights-brief-history
• https://www.ushistory.org/us/18a.asp
• https://www.archives.gov/boston/patriotic-holidays.html
• https://prologue.blogs.archives.gov/2020/01/23/unratified-amendments/
• https://prologue.blogs.archives.gov/2013/12/12/the-bill-of-rights-14-originals

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