Constitutional Law

When the U.S. Constitution was ratified by the states in 1789, it contained no bill of rights. During the last days of the Constitutional Convention, one of the delegates proposed that a bill of rights be included, but this proposal was voted down by every state. Many Framers of the Constitution believed that there was no need for a bill of rights because the powers of Congress and of the president were explicitly enumerated and limited, and no provision of the Constitution authorized any branch of government to invade the personal liberties of U.S. citizens.

Other Framers were concerned that any list of rights would be hopelessly incomplete and that the government would deny any liberties left unmentioned. This concern was ultimately expressed by the NINTH AMENDMENT to the U.S. Constitution, which provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Ninth Amendment was later relied on by the Supreme Court to recognize the unenumerated right of married adults to use BIRTH CONTROL (GRISWOLD V. CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 [1965]).

By 1791, the need for a bill of rights was viewed in a different light. The residents of the states soon realized that government by the will of the majority not only achieved democracy, it sometimes achieved majoritarian tyranny. The system of checks and balances created by the original Constitution was insufficient to avoid the pitfalls of absolute power endemic to the English form of government that the American colonists had overthrown. A bill of rights was needed to serve as a bulwark between individual liberty and ARBITRARY government power.

As with each of the 26 amendments to the Constitution, the Bill of Rights was proposed by a two-thirds majority in both houses of Congress and ratified by three-fourths of the states as required by Article V. The Bill of Rights, which comprises the first ten amendments to the Constitution, contains both procedural and substantive protections. In some instances, these protections guarantee the right to do, say, or believe something without government interference. In other instances, these protections guarantee the right to refrain from doing, saying, or believing something without government coercion.

The first three amendments provide substantive protections. The FIRST AMENDMENT guarantees FREEDOM OF SPEECH, press, religion, assembly, and petition. The Free Speech Clause protects "thoughts that we hate" (United States v. Schwimmer, 279 U.S. 644, 49 S. Ct. 448, 73 L. Ed. 889 [1929] [Holmes J., dissenting]). Such thoughts can be expressed verbally, as in a racially derogatory remark, or in writing, as in a Marxist-Leninist pamphlet denouncing the U.S. government, and still receive First Amendment protection. The First Amendment also protects certain symbolic expression, such as burning the U.S. flag in protest over government policy (TEXAS V. JOHNSON, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]). The Supreme Court has ruled that no political speech may be curtailed by the government unless it presents a CLEAR AND PRESENT DANGER of imminent lawless action (Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]).

The Free Press Clause prohibits the government from censoring news stories in the print and electronic media merely because the content is critical of the government. However, the Founding Fathers did not agree on the definition of censorship.

A majority of the Founding Fathers adhered to the English COMMON LAW view articulated in the eighteenth century by SIR WILLIAM BLACKSTONE, who equated a free press with the doctrine of no PRIOR RESTRAINT. This doctrine provides that a publication cannot be suppressed by the government before it is released to the public. Nor can publication of something be conditioned upon judicial approval before its release.

While the English common law prohibited prior restraint, it permitted prosecution for libelous and seditious material after publication. Thus, the law protected vituperative political publications only insofar as the author was prepared to serve time in jail or pay a fine for offending the sensibilities of the wrong person.

A minority of Founding Fathers adhered to the view articulated by JAMES MADISON, who said that

The security of the freedom of the press requires that it should be exempt, not only from previous restraint of the executive, as in Great Britain; but from legislative restraint also; and this exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws.

Madison was concerned that authors would be deterred from writing articles assailing governmental activity if the government was permitted to prosecute them following release of their works to the public.

In NEAR V. MINNESOTA, 283 U.S. 697, 51 S. Ct 625, 75 L. Ed. 2d 1357 (1931), the Supreme Court incorporated the doctrine of no prior restraint in First Amendment JURISPRUDENCE, when it ruled that under the Free Press Clause there is a constitutional presumption against prior restraint which may not be overcome unless the government can demonstrate that CENSORSHIP is necessary to prevent a clear and present danger of a national security breach. In NEW YORK TIMES V. UNITED STATES, 403 U.S. 713 92 S.Ct 2140, 29 L. Ed.2d 822 (1971) the Court applied this presumption against the United States JUSTICE DEPARTMENT which had sought an INJUNCTION to prevent the publication of classified material revealing the secrecy and deception behind American involvement in the Vietnam War. If this classified material, also known as the Pentagon Papers, had threatened American troops by disclosing their location or movement, the Court said, publication would not have been permitted.

The Supreme Court's interpretation of the Free Press Clause has also gone a long way toward adopting Madison's sentiments against subsequent punishments for publishers of materials criticizing public officials. In a series of cases the Supreme Court has held that the First Amendment protects media outlets from being held liable in civil court for money damages merely because a published story contains an inaccuracy or falsehood about a public official. The Supreme Court has ruled that the media are immune from LIBEL actions brought by public officials unless the plaintiff can demonstrate that a particular story was printed or aired with knowledge that it was false or in reckless disregard of its veracity, a principle that has become known as the "actual-malice" standard (NEW YORK TIMES V. SULLIVAN, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 [1964]). Finally, the media cannot be punished with civil or criminal sanctions for publishing pornographic material unless that material rises to the level of OBSCENITY (MILLER V. CALIFORNIA, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]).

The First Amendment contains two religion clauses. One guarantees the free exercise of religion. In most instances, the Free Exercise Clause prohibits the government from compelling a person to act contrary to his or her religious beliefs. For example, in Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), the Supreme Court held that a state cannot compel Amish parents to send their children to school past the eighth grade when doing so would violate their religious faith. However, in Reynolds v. United States, 8 U.S. 145, 25 L. Ed. 244 (1879), the Supreme Court refused to exempt Mormons from a federal law against bigamy, reasoning that POLYGAMY was more a religious practice than a religious belief.

The other religion clause in the First Amendment prohibits the government from establishing religion. The Framers drafted the Establishment Clause to prevent the federal government from passing legislation that would create an official national church in the United States as Great Britain had done with the Anglican Church in England. Since the early 1970s, the Supreme Court has applied the Establishment Clause more broadly to strike down certain forms of government assistance to religion, such as financial aid. Such assistance will be invalidated unless the government demonstrates that it has a secular purpose with a primary effect that neither advances nor inhibits religion nor fosters excessive entanglement between government and religion (Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 [1971]).

The Second and Third Amendments also provide substantive protections. The SECOND AMENDMENT acknowledges that a "well regulated Militia" is "necessary to the security of a free State," and guarantees "the right of the people to keep and to bear Arms." The right to bear arms is not absolute. It restricts only federal laws regulating the use and possession of firearms and has no applicability to state governments (Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 [1886]). In addition, Congress may prohibit the possession or use of a firearm that lacks any reasonable relationship to the preservation or efficiency of a well-regulated militia (United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 [1939]). Federal courts have interpreted the term militia to include only military groups that are organized by the state governments, such as the NATIONAL GUARD, and to exclude private military groups that are not associated with the government, such as the Kansas POSSE COMITATUS (United States v. Oakes, 564 F.2d 384 [10th Cir. 1977]).

The THIRD AMENDMENT, which is an out-growth of the American Revolution, prohibits the government from compelling homeowners to house soldiers without their consent. Although the Supreme Court has never decided a case that directly involved the forced quartering of soldiers, the Court of Appeals for the Second Circuit ruled that the Third Amendment's protections apply to the National Guard (Engblom v. Carey, 724 F.2d 28 [2d Cir. 1982]).

The Fourth, Fifth, Sixth, Seventh, and Eighth Amendments contain a mixture of procedural and substantive rights. Most of the procedural rights pertain to CRIMINAL LAW. As such, these rights offer protection against unconstitutional actions taken by government bodies and officials, such as law enforcement agencies and agents. These rights do not offer protection against action taken by private citizens unaffiliated with the government. For example, the FOURTH AMENDMENT prohibits the government from performing unreasonable SEARCHES AND SEIZURES and from issuing warrants on less than PROBABLE CAUSE. The procedural requirements of the Fourth Amendment protect homes, papers, and other personal belongings in which an individual can demonstrate a "reasonable expectation of privacy" (Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 [1967]).

The FIFTH AMENDMENT offers procedural safeguards to criminal defendants and suspects. It provides that no person shall be held to answer for a capital or infamous offense unless first indicted by a GRAND JURY. The Fifth Amendment further safeguards defendants from being "twice put in jeopardy of life or limb" for the "same offence." It also prohibits the government from compelling someone to incriminate himself or herself. The right to be apprised of many of these procedural protections during custodial police interrogations, through what are known as Miranda warnings, is derived from the Fifth Amendment (MIRANDA V. ARIZONA, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]).

The SIXTH AMENDMENT provides a panoply of procedural protections for criminal defendants. Under the Sixth Amendment, defendants are entitled to notice of any criminal accusations against them. The Sixth Amendment guarantees the right to a jury trial for all crimes more serious than a petty offense. The Sixth Amendment guarantees the right to be represented by an attorney during a criminal proceeding and entitles indigent defendants to a state-appointed lawyer when they are charged with a misdemeanor or more serious offense (GIDEON V. WAINWRIGHT, 372 U.S. 355, 83 S. Ct. 792, 9 L. Ed. 2d 799 [1963]). A defendant's right to a speedy and public trial in which she or he can cross-examine adverse witnesses and subpoena favorable witnesses is also protected by the Sixth Amendment.

The protections offered by the EIGHTH AMENDMENT are more substantive. This amendment forbids the government from inflicting a punishment that is "cruel and unusual." The Eighth Amendment also prohibits the government from setting bail in an excessive amount and from imposing a fine that is disproportionate to the seriousness of the crime. Under the CRUEL AND UNUSUAL PUNISHMENTS CLAUSE, the Supreme Court has ruled that it is not necessarily unconstitutional for the government to execute a mentally retarded person (Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 [1989]) or a juvenile above the age of 15 (Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 [1989]).

Some of the protections offered by the Bill of Rights apply to civil proceedings. For example, the SEVENTH AMENDMENT guarantees the right to a jury trial in civil "Suits at common law." In condemnation proceedings, the Fifth Amendment recognizes the power of EMINENT DOMAIN, by which the government may appropriate a piece of property owned by a private citizen and convert it to a public use. Concomitantly, the Fifth Amendment guarantees the right to "just compensation" for private landowners when the government exercises its power of eminent domain.