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Bill of RIghts

The Bill of Rights was strongly influenced by the Virginia Declaration of Rights, written by George Mason. Other precursors include English documents such as the Magna Carta, the Petition of Right, the English Bill of Rights, and the Massachusetts Body of Liberties. When teaching, it is important to look at the events of history that would have biased the population and early leaders to add these rights to our fundamental US Constitution.

Amendment 1

Arguably, the First Amendment is also the most important to the maintenance of a constitutional republic style government. The first part of Amendment 1 reflects the framers’ experience with the long history of religious strife in Europe. They realized that religious discord can be explosive and cause tremendous disruption in politics. It would be doubly so if one religious sect were favored over all others. So, they ensured that federal government cannot interfere in the citizens’ practice of their religion.

The freedoms of speech, press, assembly and the right to petition the government and seek redress of grievances proclaim that citizens have the right to call the government to account. Freedom of speech and press allows citizens to communicate their ideas verbally and in writing, while freedom of assembly lets them publicly express a common interest. The right to petition allows citizens to point out to the government where it did not follow the law, to seek changes, as well as damages for such missteps.

Of course, there are limits to these freedoms. One may not force the tenets of his or her religion on those who do not observe those beliefs. Harmful speech, such as yelling “fire” in a crowded room, is not protected, nor is a written lie that causes harm. As well, gatherings must be peaceful. Destruction of the property of others is not protected by the First Amendment.

Amendment 2

Basically, this: The very first battle of the Revolutionary War was over the colonist’s desire to stockpile arms and defend their homeland. April 19, 1775, the British Troops were marching on Lexington and Concord to confiscate the store of weapons. Had the British been successful, there would not have been any revolution. The weapons were needed to form an army, to train troops to go “toe to toe” with British Regulars, were commonly called the “Brown Bess.” For all purposes, this was the assault weapon of the 18th century.  Patriot militias  were made up of farmers, shop keepers, tradesmen, all required to own arms for use in defending their colonies. 1

The intent of the 2nd, from the perspective of the states, was to keep the federal government out of the business in the states, entirely. At the time, the notion of a powerful federal army was very unpopular, and the vision was that state militias would be used for this instead. The idea was that the state use of force would be retained by the people, as an effective military apparatus. And that as such it would be very difficult to be abused by a future overbearing federal government. Also, the term “militia” referred to the citizens of a colony. All owned and maintained firearms for the purpose of self protection and preservation of life and liberty, two “unalienable rights” as viewed by God Himself.

The final version of the Declaration of Independence declares: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are LifeLiberty and the pursuit of Happiness.”

Amendment 3

The Third Amendment to the United States Constitution was added to the Bill of Rights by the Founding Fathers to protect American citizens from being forced to house and feed federal troops against their will. The responsible action for this amendment is often seen as The Quartering Act of 1765. This law was extremely important to our Founding Fathers, but it is not so well known to modern Americans. America’s Founders had just experienced the quartering of troops on their private property by the British government during the Revolutionary War and even before.

The Third Amendment says that troops cannot be quartered on private property at all during peacetime, and only as prescribed by law during wartime. Americans’ experience with the quartering of troops in their homes began shortly after the French and Indian War ended in 1763. The British Parliament decided it was necessary to keep a permanent supply of troops in the colonies to protect them from further uprisings of the French and Indians.

English law forbade the presence of a standing army without the consent of the people, in preference to a citizen army. Standing armies were viewed as threats to freedom because they could quickly and easily overpower the common person. So, the colonists rightly viewed the presence of a standing army in their midst without their consent as a threat to their freedom. Both rights, freedom from taxation without consent and freedom from standing armies without consent, were guaranteed to English citizens in English law since the English Bill of Rights of 1689.

Amendment 4

John Hancock Signature on the Declaration

You need to go back to the confiscation of the ship Liberty. In their attempts to fight smuggling the British issued general warrants that allowed them to search anywhere, anyone, at any time. Since proceeds from capturing smugglers were split between the governor, the informer, and the crown there was a massive incentive for abuse. Imagine how bad civil asset forfeiture would be if the police chief or mayor got to personally keep 1/3 of the haul and could search any building anytime and could even keep the building.

If you’ve ever wondered why John Hancock signed his name to the Declaration so big the ship Liberty was his. The Liberty came into port with a 1/4 load of Madeira wine. The British didn’t believe it was true and accused him of offloading the other 3/4 in the night before the customs officials checked the ship. The two men on-board initially attested that nothing had been offloaded.

A month later one man changed his story, the ship was confiscated, and Hancock was arrested and charged. John Adams defended Hancock in Admiralty court where charges were dropped after a five-month trial under unknown circumstances. The ship was used by the British for anti-smuggling duty until it was burned by angry colonists in Rhode Island.

Hancock never shook the claim he was a smuggler but abuses like the one he suffered led directly to the fourth amendment. Like the other amendments it was based on English court findings that weren’t always enforced due to the murkiness of the preeminence of the law or monarch in Britain.

Amendment 5

The 5th Amendment is better known to most Americans than the other amendments in the Bill of Rights because of the familiar phrase “I plead the fifth,” often used as a defense in criminal trials. The 5th Amendment also guarantees Americans several other basic rights, including the right to trial by Grand Jury for certain crimes, the right not to be tried or punished more than once for the same crime, the right to be tried only with due process of law and the right to be paid fair compensation for any property taken by the government 5th Amendment

The Grand Jury Clause guarantees that Americans cannot be charged with serious federal crimes except with an indictment by a grand jury. This is generally considered to be a protection from corrupt government officials who might try to prosecute people unfairly, because a group of fellow citizens is required to look over the evidence first.

5th Amendment – The 5th Amendment Double Jeopardy Clause guarantees that Americans cannot be tried twice or punished twice for the same crime.

5th Amendment – Self-Incrimination Clause – Have you ever heard the phrase, “You have the right to remain silent. Anything you say can and will be used against you in a court of law?” This is the opening statement of the “Miranda warning” that is read to people when they are being arrested. This clause guarantees that you do not have to testify against yourself in criminal proceedings.

At one time in English history, people could be tortured for not confessing to crimes they were accused of. English citizens eventually stood up against this injustice and claimed that they had a God given right not to testify under such circumstances. This became the basis for what we know as the right to refrain from testifying against oneself, which was formalized by America’s Founding Fathers as the 5th Amendment Self-Incrimination Clause.

5th Amendment – The 5th Amendment Due Process Clause guarantees that the government cannot take your “life, liberty, or property” without following a “due” process. The Due Process Clause guarantees that you must be treated fairly and be informed of the issues at stake any time the government deals with you in a criminal or administrative matter.

5th Amendment – The Eminent Domain Clause, also known as the “Takings Clause,” promises that if the government ever needs to “take” your property for a public use, such as building a highway, that it must pay you a reasonable amount for the property. In modern times, the Supreme Court has even extended this right to compensation if a government activity has somehow damaged your property or lowered its property value.

Amendment 6

The 6th Amendment contains 7 specific protections for people accused of crimes. The seven rights listed in the 6th Amendment include:

  1. The right to a speedy trial
  2. The right to a public trial
  3. The right to be judged by an impartial jury
  4. The right to be notified of the nature and circumstances of the alleged crime
  5. The right to confront witnesses who will testify against the accused
  6. The right to find witnesses who will speak in favor of the accused
  7. The right to have a lawyer

Amendment 7

The 7th amendment was a response to the former government’s (England) practice of creating proprietary courts – those where decisions of the judge were controlled by the sovereign (king) – and which denied the individual a right to trial by their peers. The concept was not new when written in the 18th century as part of the first eight amendments, which concentrate on individual freedoms and government restrictions. The American system has its roots in a 12th century practice found In English jurisprudence.

The primary purpose is to guarantee a person the right of jury trial, and the 7th is actually one of the most cited but often misidentified. An interesting item is that the 7th has never been, nor was it intended to, applied to the state courts. The states were already practicing the jury system, and there has never been a need to use the 7th in the state courts.

Amendment 8

This amendment prohibits the federal government from imposing unduly harsh penalties on criminal defendants, either as the price for obtaining pretrial release or as punishment for crime after conviction. The Cruel and Unusual Punishments Clause is the most important and controversial part of the Eighth Amendment. In some ways, the Clause is shrouded in mystery. What does it mean for a punishment to be “cruel and unusual”? How do we measure a punishment’s cruelty? And if a punishment is cruel, why should we care whether it is “unusual”?

We do know some things about the history of the phrase “cruel and unusual punishments.” In 1689 – a full century before the ratification of the United States Constitution – England adopted a Bill of Rights that prohibited “cruell and unusuall punishments.” In 1776, George Mason included a prohibition of cruel and unusual punishments in the Declaration of Rights he drafted for the Commonwealth of Virginia. In 1791, this same prohibition became the central component of the Eighth Amendment to the United States Constitution.

The proposed Constitution made the federal government much more powerful than it had been under the Articles of Confederation. One of the most significant of these new powers was the power to create federal crimes and to punish those who committed them. Opponents of the Constitution feared that this new power would allow Congress to use cruel punishments as a tool for oppressing the people.

If one looks back at the 11,000 prisoners that perished in the British prison ships off our Eastern Shore during the Revolution, one could understand why this amendment was so important.

Amendment 9

The 9th Amendment to the US Constitution is one of the least referred to amendments in decisions of the Supreme Court. It is also one of the most confusing, controversial and misunderstood amendments to the Constitution. This amendment reserves all rights not listed in the Constitution to the people.

The 9th Amendment’s purpose is clear. The Bill of Rights mentions certain rights that are to be protected from government interference, these rights include freedom of speech, freedom of religion, freedom of the press, freedom of assembly and the right to keep and bear arms, among others.

Just because a right is not mentioned in the Bill of Rights, though, does not mean that the government automatically has the right to interfere with it. Instead, the 9th Amendment says that any right not enumerated, or listed, in the Constitution is still retained by the people. So, in plain language, it means that there are other rights that people have that are not listed in the Constitution.

The Founding Fathers realized that they could not possibly list every natural right of human beings that needed protection. Instead, they delegated certain powers to the government that were specifically spelled out in the Constitution and said everything else is left up to individuals and to their state governments.

Amendment 10

The 10th Amendment to the United States Constitution is a guarantee of States’ rights. The Constitution designed the federal government to be a government of limited and enumerated, or listed, powers. This means that the federal government only has powers over the things that are specifically given to it in the Constitution. All other powers are reserved to the States. Just remember, we are a Constitutional Republic allowing for the individual rights of people who have aligned by Statehood. The explanation is that our forefathers did not want the central government to become too powerful. They didn’t want a government that was located far away from their homes dictating how they lived their daily lives. They wanted as much power as possible to be retained in their local state legislatures.

Back to the Bill of Rights

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