This article is written by Ms. Sushree Surekha Choudhury, a student of KIIT School of Law, Bhubaneswar. The article gives an insight into the United States Bill of Rights and its ten famous Amendments. The article gives an overview of the legal interpretations of these ten Amendments while also discussing their modern-day implications, supported by relevant case laws and judicial interpretations.
it has been published by Rachit Garg.
What according to you is one of the first steps of moving into a new country? Say, the United States. What according to you is the basics of living by virtue of birth or residence in a country? We say it is to know your basic rights there. It is crucial that a person is aware of the rights, liberties, and freedoms he is entitled to have. He must also know his duties and obligations towards the country of his domicile or residence. Additionally, he must know what constitutes a crime in that country. He must know the system of punishment prevalent in that country. All of these questions can be answered in one document. Can you guess? Yes, it is the Constitution of that country. The Constitution is the supreme law of any land and it is the governing document that determines all the aforementioned questions. Additionally, the government enacts and implements several other legislation, codes, rules, and regulations to supplement the Constitution. Such is also the case with the US Constitution and the US government. The US Constitution is the supreme law in the country. It is followed by all its citizens, government officials and departments, and everyone else alike. It makes no discrimination on the basis of caste, color, creed, or religion. This is something that has been achieved over years of debate and scrutiny. When the US Constitution was initially framed, it was up for recognition by way of ratification by different states in the country. But like any other legal enactment, the US Constitution also faced support and opposition alike. Initially, the US Constitution was not as it is today. The first draft of the US Constitution was formulated and discussed for the first time in Philadelphia in 1787 (Constitutional Convention of 1787) when delegates from 13 different states joined to do so. While the outcome of this gathering was historical, the initial document was flawed with several shortcomings. The biggest shortcoming of this draft of the US Constitution was that it lacked an annexure/bill prescribing individual rights that the US citizens would be entitled to have. The proposed draft talked about the powers and rights of the US government by specifying the things that the government could do, but it remained silent on what the government could not do. In other words, the proposed draft was such that it gave unlimited and unrestricted powers in the hands of the government without imposing reasonable restrictions to prevent arbitrariness and abuse of power. Additionally, while the current Constitution of the United States is based on the values of non-discrimination, it was not such in its initial draft. Back in the day, racial discrimination was deeply plaguing the United States. The US Constitution was no exception. The initial draft of the US Constitution stated that it would apply only to the elite white men who own property. This draft of the US Constitution went through phases of discussions and debates where people were divided into federalists and anti-federalists. To address these issues and provide a just and equitable solution to them, the US Bill of Rights was proposed to be enacted.
In this article, we will learn everything about the United States Bill of Rights, its history, its amendments, and its legal implications, with the help of legal understanding and relevant case laws.
Brief history: development and enactment of the Bill of Rights
The US Constitution is the supreme law of the land that binds the government, citizens, and other authorities alike by defining rights, freedoms, and fundamentals of governance of the state. It prescribes punishment for infringement and remedies against violation of guaranteed rights. The US Constitution was adopted in 1788. At this point, it was ratified only by nine states as others demanded certain changes and additions be made to the Constitution before they ratified it. This is when the US Congress introduced the Bill of Rights. It contained a total of twelve proposed rights and liberties out of which ten were adopted in 1791. Thus, the first ten amendments to the US Constitution are collectively known as the Bill of Rights (1791). The Bill of Rights also puts certain reasonable restrictions on the conduct of the government and its departments in order to guarantee rights to citizens. The Bill of Rights amendments derived its inspiration from the 1215 Magna Carta.
Magna Carta is an age-old 13th-century document that gave rights and liberties to people against the tyranny of the king. The principles of rights, justice, and freedom as have been enshrined in the Magna Carta inspire American society even today. Apart from this, the US Bill of Rights was also inspired by the Virginia Declaration of Rights (1776), the Northwest Ordinance (1787) as well as the English Bill of Rights (1689).
Federalists v/s anti-federalists
The period between the adoption of the US Constitution to the drafting of the Bill of Rights faced both support as well as opposition from sections of society and political revolutionaries. They were essentially divided into two groups – federalists and anti-federalists.
The federalists, in a series of Federalist Papers, opposed the inclusion of the Bill of Rights in the US Constitution because they believed it would create procedural uncertainties in the country. They believed that the government is wise and diligent enough to protect and guarantee personal liberties to citizens.
On the other hand, anti-federalists opposed a Constitution without a Bill of Rights that vested untamed power in the hands of the government. Anti-federalists focused on the need to have a Bill of Rights in the Constitution to limit the powers of the federal government by instilling certain reasonable restrictions. They believed that an untamed government will ultimately become a tyrant and individuals’ rights would be under threat. After much debate, the Bill of Rights was incorporated as an amendment to the US Constitution in 1791.
United States Bill of Rights: arrangement of Amendments
The Bill of Rights was drafted on the theory of natural rights which states that individuals are entitled to certain rights and liberties by God himself. Thus, the state does not have the power to infringe upon these rights. James Madison is the most notable name in the drafting of the Bill of Rights. James, along with others, ensured a Bill of Rights that would put a check on the federal powers of the state in a way that guaranteed the full realization of individual liberties. This was done in the form of the following ten amendments:
First Amendment: “freedom of religion, speech and press; rights of 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.”
These are the rights guaranteed under the First Amendment of the US Constitution which accords the liberal status to America. The First Amendment of the US Constitution:
- Forbids the government from making laws that would hinder the free exercise of religion by any religious community in the states.
- Forbids the government from interfering in the religious affairs of any community in the states or making an effort to control it.
- Forbids the government from restricting people’s freedom of speech and expression in the states.
- Guarantee absolute freedom of the press and not restrict or control it by states’ action.
- Guarantee its citizens’ rights and freedom to assemble when done peacefully.
- Guarantees a right to petition the government for redressal of their grievances.
These fundamental liberties make American citizens some of the most liberated in the world. Americans get these liberties by virtue of birth. They do not have to attain the legal age to exercise these rights. Even citizenship is not a bar to the exercise of these rights and liberties. Both citizens and non-citizens have the right to assemble, freedom of speech, press, and exercise their choice of religion in the US without any hindrances from the state. This includes the right to petition the government for grievance redressal.
Right to religion
Religious freedom refers to the right of individuals to believe, profess, and participate in the religious affairs of any community, publicly or in private. Religious peace and freedom are fundamental to any democratic nation. Non-intervention of the state in religious practice and the establishment of one or a community is the basis of religious freedom enshrined under the First Amendment to the US Constitution. All these rights and freedoms exclude the government from supporting, promoting, or opposing any particular religion in the US.
It was held in Reynolds v. United States (1878) that Congress is not allowed to exercise legislative authority over the religious opinions of people and it can only manage affairs that concern civic obligations of the state or to protect public order. A unique concept developed through this case in the US Supreme Court called the “wall of separation between the church and the state.”
It was further held by the US Supreme Court in Walz v. Tax Commissioner of the City of New York (1970) that the federal government or the state governments cannot indulge in establishing or sponsoring any religious institution because it indicates economic assistance and direct participation of the state in religious activity. This is inconsistent with the First Amendment of the US Constitution.
Freedom of speech
Freedom of speech can be defined as the unrestricted, free flow of ideas and expression without any restriction or intervention by the state or any of its departments. Freedom of speech and expression is said to be guaranteed when it is exercised without the fear of repercussions.
The US Supreme Court observed in New York Times Co. v. Sullivan (1964) that the freedom of speech and that of the press are fundamental liberties guaranteed to American citizens and exercise of this right is the basis of a free society and feature of a free government.
The Supreme Court further held in Stanley v. Georgia (1969) that the US Constitution provides freedom of thought and opinion, the right to acquire information, and freedom from the government’s intervention in the privacy or thoughts of the citizens. Thus, a community shall not refrain from expressing its beliefs even if they seem unpopular.
However, freedom of speech is not an absolute right. It is subject to certain reasonable restrictions. Situations like child pornography, obscenity, communication of threats, or disrespectful words are not included within the ambit of freedom of speech.
It was held in Schenck v. United States (1919) that the government has the right to prevent the use of words that create the apprehension of imminent danger. The government can prevent the use of such words that incite “clear and present danger.”
The Supreme Court observed ‘obscenity’ to be a ground of restriction to freedom of speech in Miller v. California (1973) where the Supreme Court held that if an ordinary person uses certain words in his work that, by applying modern community standards, incite sexual interests or discuss sexual conduct in a patently offensive manner, the government can put a reasonable restriction on such work when it lacks significant literary, artistic, scientific, political or scholarly merit.
The ‘Miller test’ suggests the presence of three elements whose presence makes a literary or artistic work ‘obscene’. These elements are:
- If the work is of such nature that an average person, applying contemporary community standards, finds the work to appeal to prurient interests.
- When the work is of a nature that describes sexual conduct in a patently offensive manner.
- And when the work lacks any serious literary, artistic, political, or scientific value.
An even stricter interpretation is given to child pornography as a restriction to the freedom of speech. It does not require the elements of the Miller test to be proven for the application of the restriction. If any conduct or expression indicates it to be child pornography by way of a sexual depiction of minors it shall be restricted by the state.
Yet another restriction on the freedom of speech is when words indicate threats to be made against the US President. Title 18, Section 871 of the United States Code forbids threatening the US President with death, kidnapping, or physical harm. This rule applies to the Vice-President and other office bearers as well.
Apart from the abovementioned instances, freedom of speech is also restricted in cases relating to the protection of something regarded as intellectual property. The government may from time to time, expand the horizon of reasonable restrictions as and when it appears necessary to do so.
Right to press
Freedom of the press is a pillar of any democracy as it ensures constitutional validity and adherence. It allows a free and unrestricted flow of information and puts a check and balance on the government’s actions in the state. Therefore, the right to press is guaranteed under the First Amendment to protect it from undue control and pressure from the government. Journalists, news reports, newspapers, magazines, etc., are promoted to disseminate unfiltered and honest information to the public.
The US Supreme Court held in Grosjean v. American Press Co. (1936) that the states cannot levy taxes on newspaper advertising receipts as it is unconstitutional because it hinders the press’ function in forming “informed public opinion.”
The Supreme Court further defined ‘press’ in Lovell v. City of Griffin (1938) as “any type of publication which furnishes a vehicle of information and opinion.”
Right to assembly and petition
The First Amendment of the US Constitution gives its citizens the right to assemble peacefully. The right to peaceful protest is a constitutional right, subject to certain limitations. Similarly, the First Amendment also gives a right to petition the US government for grievance redressal, demand the exercise of authority, and performance of functions. Citizens have a right to reach government officers, seek answers from them, obtain representation from them, and redress their grievances in the way of petitions. These features of the First Amendment guarantee that the US citizens’ voices are heard and their issues resolved by the government and its departments.
Upholding this right, the Supreme Court held in the case of Borough of Duryea v. Guarnieri (2011) that people have the right to assemble to express, pursue, and defend their collective thoughts and beliefs.
Prior to this, the US Supreme Court had also ruled in De Jonge v. Oregon (1937) that the right to assemble is as essential as the freedom to speech and the right to press under the First Amendment to US Constitution.
Right to association
The First Amendment also guarantees a right to form associations in the US. Associations can be religious, political, cultural, etc., and every citizen has a right to be a part of any association without any governmental intervention. Although the right to form associations is not expressly mentioned in the First Amendment, the US Supreme Court held in NAACP v. Alabama (1958) that the right to form associations is an integral part of the rights guaranteed under the First Amendment.
In a recent judgment of Americans for Prosperity Foundation v. Bonta (2021), the Supreme Court held that a Californian law that required revealing the names of wealthy individuals who would be donors to a non-profit organization was unconstitutional and violative of the First Amendment rights of those individuals.
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.”
A rather interesting right that is guaranteed to US citizens by their government is the right to bear arms. US citizens have the right to bear, hold and use arms in self-defense under the Second Amendment to the US Constitution. The civilians can legally possess weapons and they were guaranteed this right without governmental intervention. The idea behind this amendment took its shape as inspired by 16th century England where the Queen required civilians to take part in the national militia and hence, made it legal to keep and bear weapons.
Different perceptions revolve around the Second Amendment rights due to this longline of historical events. Some believe that the right is restricted to a situation of war since the purpose behind its articulation was to form a “well-regulated militia.” While some scholars and experts are of the opinion that in modern society, the right is absolute and protected from government intervention, others argue that the right is not absolute and a civilian can only use arms for self-defense and not otherwise. With these notions in mind, the situation of the state and the military have changed over the centuries. The US military no longer needs civilian participation and wars are no longer common in countries. As such, does the Second Amendment still hold relevance in the present society?
Another legal development relating to the Second Amendment is ensuring equality. Earlier, people of color in American society did not have the same rights as white Americans. This has changed and the Second Amendment and the US Constitution provide equal rights to keep and bear arms to all its citizens alike.
The development of the legal status of gun laws in the US can be better understood with the help of judicial pronouncements:
Initially, it was held in United States v. Miller (1939) that the National Firearms Act of 1934 that the right to regulate and restrict the use of shotguns in specific areas was constitutional. The reasoning behind this judgment was that the Second Amendment gives the right to bear arms for military purposes and not otherwise, and shotguns do not qualify as war weapons. Thus, US Congress can regulate it.
In District of Columbia v. Heller (2008), the US Supreme Court held the District of Columbia Code to be invalid as it barred civilians from owning handguns. This case also clarified that the right to bear arms is a personal right guaranteed to civilians and they can use weapons for self-defense, not just for military purposes. This case further enlisted exceptions to the Second Amendment. Thus, limitations to the right under the Second Amendment are:
- Carrying weapons by felons,
- Carrying or bearing weapons by a mentally unfit person,
- “Sensitive places” like schools, public places, etc., where carrying weapons is not allowed,
- Commercial sale of weapons,
- Carrying weapons by people otherwise than ‘law-abiding citizens.’
Yet again, in 2016, the Supreme Court in Caetano v. Massachusetts declared a Massachusetts statute invalid that banned stun guns in the state. Thus, the legal status that can be derived from these judicial precedents is that civilians are guaranteed a right to bear weapons in self-defense, without any government intervention as long as they use it lawfully and do not fall within the restricted categories.
As the debate around Second Amendment rights continue, gun violence has increased in the states more than ever. Mass shootings, killing innocents, etc., have become dangerously common in the US due to a lack of government intervention. This gave rise to the recent ‘Gun Control Bill (2022)’ formulated by the US government to put some restrictions on the right given under the Second Amendment as well as to reduce gun violence in the states. Under the Bill, certain laws have been passed as state-specific laws; for more details on US gun laws click here. A right balance between rights given to citizens and the government’s obligation to maintain law and order in society must be maintained. The recent developments to the Second Amendment seem to be much needed.
Third Amendment: “housing 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.”
Unlike other Amendments in the Bill of Rights, the Third Amendment has not been in question before the US Supreme Court because of the nature of the right it talks about. The Third Amendment right can be dated back to the colonial era and the time of the American Revolution when the practice of quartering soldiers in private homes was prevalent. During wars, the British troops often forced private homeowners in North America to house soldiers during the war, against their will. This was the primary source from which the Third Amendment derived its necessity.
During the drafting of this provision, several arguments arose. The US Congress argued that they will provide housing to states’ soldiers not only during wars but also during peace. Other thinkers believed that it is necessary to prohibit soldiers’ housing in private houses to protect the house owners from forceful quartering as well as loss of property and added risks. Thus, the framers of the Bill of Rights proposed to regulate the right under the Third Amendment. Therefore, the Third Amendment gave the right to house owners to give or not give their consent for housing soldiers. The soldiers could take shelter in private homes only with the consent and permission of house owners during peace and war. The Third Amendment further stated that they shall do so only in a manner prescribed by law. Thus, the states have the power to make regulations in adherence to the Third Amendment while guaranteeing the rights of civilians.
Since this provision is not much relevant in recent years and no disputes have arisen relating to the Third Amendment right, it is often referred to as a right that is ‘forgotten but not gone.’ Due to less relevance, the Third Amendment has often been ignored by lawmakers and its infringement goes unnoticed. During the War of 1812 and the Civil War, American society witnessed infringement of the Third Amendment rights.
As stated before, the Third Amendment has rarely been challenged or scrutinized in the US courts. It has only been a passing reference in rather few cases. However, it was in Engblom v. Carey (1983) where the Third Amendment was discussed by the US court when the New York state government provided housing for National Guard troops in private residences of the government. The court upheld the applicability of the Third Amendment in the instant case as National Guard troops can be categorized as “soldiers.”
Fourth Amendment: “search and arrest warrants”
“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.”
The Fourth Amendment gives a right to American citizens against unlawful search, seizure, and warrants. It protects civilians from unreasonable search and seizure by making it a mandate that search, seizure, and issuance of warrants must be for lawful reasons recorded. This is known as a “Probable Clause” which states that there must be a substantial amount of evidence and reasoning behind searching a person or seizing their belongings, and it must be done only after the issuance of a legal warrant. Any evidence obtained from unlawful search and seizure or without legal warrants cannot be admitted in courts of law. This is also known as the “Exclusionary Rule.”
Just like all other Amendments in the Bill of Rights, the purpose behind the Fourth Amendment is to protect people from the arbitrary use of powers by the government. Strangely, the US Constitution nowhere specifically talks about the right to privacy of its citizens. However, it is often believed that the Fourth Amendment as well as the Ninth Amendment to the US Constitution does this work and attempt to ensure and provide privacy rights to Americans.
The right of issuance of a legal warrant was upheld by the US Supreme Court in Agnello v. United States (1925). The court held that the right to obtain a warrant does not need to be traced back in history; rather, it is a general assumption that a person’s dwelling and properties cannot be searched without a lawful warrant to do so, except in the case of a lawful arrest.
In another interesting case of Kyllo v. United States (2001), the question before the courts was whether the use of special devices to detect and monitor heat emanations as a part of search operations conducted in a person’s home comes within the ambit of restrictions on the Fourth Amendment. The court decided that it is essential to uphold people’s right to privacy and the use of such devices will create reasonable speculations and apprehensions in people’s minds about government surveillance and their right to privacy being violated. Thus, the use of these special devices for monitoring during search operations shall be restricted by the Fourth Amendment to the US Constitution.
The unrestricted use of force and abuse of power by police forces is the reason behind the articulation of the Fourth Amendment. The Fourth Amendment helps people protect themselves, their houses, properties and important documents, etc., from unlawful search and seizure by the police. It further mandates the issuance of warrants on the occurrence of probable cause. Such warrants must contain all the information relating to the place that will be searched, the articles or documents that the police intend to seize for evidence purposes, etc., and the warrants must be supported by oath or affirmation.
In the case of Weeks v. United States (1914) the police force of Kansas City, Missouri went into the house of Mr. Weeks by using his hidden key. The police did so without Mr. Weeks’ consent and searched the house as well. Further, they seized articles like letters, papers, books, etc., all without the knowledge and consent of Mr. Weeks. The police, while doing so, did not have a search warrant. The collected evidence was submitted in court to prove Mr. Weeks guilty. The court after learning the facts and circumstances of the case decided that the evidence obtained is inadmissible in court as it violated the Fourth Amendment of the US Constitution Bill of Rights. This decision gave birth to the ‘Exclusionary Rule’ where the court held that any search or seizure done without obtaining a lawful search warrant shall be illegal and the evidence collected from such illegal search and seizure shall be inadmissible in a court of law.
The US Supreme Court made an exception to the Fourth Amendment right and the probable clause in the case of New Jersey v. T.L.O. (1985). In this case, the Supreme Court came up with the exception of “reasonable suspicion” for schools and educational institutions with an intent to establish a right balance between students’ rights and appropriate school administration. In the instant case, a schoolgirl was suspected of smoking in the school washroom after which the principal called for her and asked for her purse to be checked. When checked, her purse was found with contraband substances and it was found that she was selling them to other students in the school. This was admitted as evidence and she was held guilty. To this, the girl contended that the search and seizure were conducted without a search warrant, and thus, the evidence is inadmissible as she is protected under the Fourth Amendment. When the case reached the US Supreme Court after appeals, the court decided that this act of the school administration did not infringe upon the Fourth Amendment rights of the student. While the court agreed that the girl is protected by the Fourth Amendment, a balance must be made between her rights and the lawful administration of the school. Thus, the reasonable suspicion shall be a reasonably lower standard of the probable clause and the evidence shall be admissible in court.
The court reaffirmed the stand that the Fourth Amendment rights of students must be balanced with the school administration’s responsibility to provide a safe environment in school. It was decided in the case of Veronica School District v. Acton (1995) where the school authorities implemented a drug test policy for their athlete students. One student refused to take the test and his parents did not consent to the test. Thus, the student was not allowed to participate in the football match. As the student and his family challenged this in court, the court validated the school’s decision by stating the ‘balance rule’ even when students are entitled to the Fourth Amendment rights.
In another case of Safford Unified School District v. Redding (2009), the school officials conducted a strip search of a female student on the apprehension of finding some pills that she had given to another student as well. The court held this action of school administration to be violative of the US Constitution and the Fourth Amendment to it, which is guaranteed to the female student. This is because this action of the school administration cannot be said to be a reasonable suspicion. There is no reason to believe that the female student hid the pills in her undergarments and thus, conducting the search without her consent is unconstitutional. Therefore, it can be observed that the court, through its judicial precedents, aims to strike a balance between rights and duties.
Fifth Amendment: “rights in criminal cases”
“No person shall be held to answer for a 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 offense 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.”
Historically the most famous member of the Bill of Rights, the Fifth Amendment is the most invoked in the US. This fame is justified as the Fifth Amendment provides protection to US citizens against self-incrimination, especially to those facing criminal charges and undergoing trials. It embodies the “right to remain silent” as the government cannot force an individual to give statements that will incriminate himself. Thus, when a person “takes the fifth” during criminal trials and proceedings, he or she has the right to refuse to answer questions or render information that will be used against him or her.
The Fifth Amendment can be invoked only in the following circumstances:
- When a person is compelled to answer questions or in any other procedural requirements during the trial proceedings.
- This compelled communication is testimonial in nature, that which is related to express or implied assertion of facts and beliefs.
- Such testimonials must be self-incriminating in nature.
- An exception to the Fifth Amendment right is that a person who has been previously convicted for a crime or has been sentenced by any court of law cannot invoke the Fifth Amendment.
- Such silence by invoking the Fifth Amendment cannot be used against him to establish guilt. Remaining silent shall not be pursued as guilt in any US courts.
The Fifth Amendment right guaranteed to US citizens can be divided into the following categories or elements:
Grand jury presentment
As the first part of the Fifth Amendment reads, a person shall not be presented to answer for a crime of greater grievousness or which involves capital punishment unless their case is presented to a grand jury. An exception to the grand jury requirement is when the crime involves a person from the naval wing, military, or anything that involves a situation of war and the defense of the public. This part of the Fifth Amendment includes assessing the seriousness of the crime and whether or not it involves a violation of state or federal laws. The purpose behind this part of the Fifth Amendment is to ensure the unbiasedness of the jury while serious charges are levied against him. This is usually done by a prosecutor who presents compelling evidence before the grand jury and it is then the jury that decides whether a case against the alleged person is made.
The second part of the Fifth Amendment right speaks about the prevention of double jeopardy. It states that no person shall be punished twice for the same offense. In a jury trial, double jeopardy often comes into the picture as soon as the jury is empaneled. In a bench trial, double jeopardy applies from the moment the first witness is sworn in a case. The right against double jeopardy has also been upheld by the courts through judicial precedents, such as Downum v. United States (1963) and Crist v. Bretz (1978). In these cases, the court upheld the constitutional right against being punished twice for the same crime.
However, there are certain exceptions to the rule of double jeopardy, for example, cases that are wrongly decided, acquittal by fraud or misrepresentation, a gross violation of natural justice, etc. This was the expansion of the rule of double jeopardy. It was supported by the judicial precedent of Martinez v. Illinois (2014).
In Blockburger v. United States (1932) the court reaffirmed that the right under the double jeopardy rule is not absolute. Thus, a person who breaks two different laws in one wrongful act shall be tried for both charges and not just once. He shall not be protected by the rule of double jeopardy.
Rightly the most crucial part of the Fifth Amendment, it protects citizens’ right against self-incrimination, especially in criminal trials and proceedings. Self-incrimination is when a person indicates his own involvement in a crime, thereby subjecting himself to punishment and prosecution by his own words and statements. Thus, when a person gives a statement that would levy charges against himself (incriminate him), he is said to be subjected to self-incrimination. The Fifth Amendment provides individuals with the right against self-incrimination by providing them the right to remain silent by invoking the Fifth Amendment.
A person can invoke the Fifth Amendment when he is called as a witness. When questions are asked by the prosecutor in an attempt to establish guilt, the witness can take the Fifth and remain silent. He can refrain from sharing information that is self-incriminatory in nature, even when that information is relevant in the present case. The Fifth Amendment provides protection against forceful action of the government, prosecutors, judge or jury, or any other official and department of the government from extracting self-incriminatory statements from a person which will subject him to criminal trials.
It is, however, the choice of the defendant if they wish to waive this privilege guaranteed under the Fifth Amendment. Such waiver shall not be subject to penalty. It is pertinent to note that the right against self-incrimination only applies to testimonies, verbal questioning, or grand jury requests. The privilege does not apply to documentary evidence or other forms of evidence. For example, if a person is asked by the court to produce blood samples, hair samples, go through a handwriting test, or voice recordings, etc., he cannot invoke the Fifth Amendment right and refuse to do so.
Further, a right against self-incrimination rises in civil, administrative as well as grand jury proceedings, if and when it is invoked by the defendant or a prospective defendant. In civil cases, the Fifth Amendment applies to certain situations, for instance, issues related to tax and tax documents.
The US Supreme Court in the case of Chambers v. Florida (1940) held that the Constitution of the US does not allow forceful self-incrimination. The law stands the same for all, without any discrimination on the basis of color, creed, religion, nationality, etc. The judgment came at a time when people of color in the US suffered due to racial discrimination. In the instant case, four black men were forced to give statements that levied murder charges against them under force and imminent danger. This case did not entirely improve the lives of blacks in the US but it was an essential precedent that put a check on the arbitrary use of power by the police department which violated the US Constitution.
In Ashcraft v. Tennessee (1944), the state law enforcement officials subjected a suspect to a 38-hours long forced interrogation. This was followed by a forceful confession by him. However, the Supreme Court overturned the conviction since the interrogation process was conducted and the confession was obtained by force.
Yet another landmark judgment that talks about the Fifth Amendment right is the case of Miranda v. Arizona (1966). The case involved a custodial investigation by police officers, detectives, and prosecuting attorneys in a closed room entirely cut off from the rest of the world. The primary issue, in this case, was that the defendants were not given appropriate and complete information about their rights and privileges during the interrogation process and during trials. After this, Miranda was made to give an oral statement and a written confession was signed and presented before the jury. This confession was used as evidence that sentenced Miranda to 20 – 30 years of imprisonment after finding him guilty of kidnapping and rape. The issue before the court was whether the confession obtained by a custodial interrogation by police was admissible as evidence in court to convict the suspect and whether the Fifth Amendment right is applicable in the instant case or not. The Supreme Court held that the right under the Fifth Amendment is not confined to criminal proceedings alone but extends to all circumstances which involve or indicate the involvement of a person’s right against self-incrimination. Thus, custodial interrogation where a person is taken into custody for questioning, depriving the person of his freedom of action, will come within the ambit of protection of the Fifth Amendment. The court further stated that when a person is not pre-informed of his rights during the interrogation process, such as the right to remain silent, right against self-incrimination, etc., it puts him under unfair pressure to harm himself. With this case, the Supreme Court reversed the initial ruling that convicted Miranda. Along with this, the Supreme Court reversed two other judgments, Vignera v. New York (1966) and Westover v. United States (1968), and upheld the judgment in the case of California v. Stewart (1965), all the cases having similar facts and circumstances.
One of the essential parts of the Fifth Amendment as well as the US Constitution is its ‘due process clause.’ It states that a person in the US shall not be deprived of his rights, liberties, life, and of property without the due process of law. The due process clause is discussed in the Fifth Amendment as well as in the Fourteenth Amendment of the US Bill of Rights. The due process clause under the Fifth Amendment applies to and discusses the due process applicable to the national/federal government. The Fourteenth Amendment of the US Bill of Rights deals with the due process applicable to state governments.
The ‘Due Process of Law’ clause can be analyzed and understood with the help of its two theories, the ‘Fair Procedures Theory,’ and the ‘Legal Procedures Theory.’ The Fair Procedure theory states that the due process of law should be such that it is procedurally fair and just. It focuses on the fact that the procedures followed to guarantee justice shall also be just and fair. This theory is reflected in the case of International Shoe Company v. Washington (1945) where the court articulated the phrase “fair play and substantial justice” based on the Fair Procedure theory. The court observed that the due process of law is said to be followed when trials are called following the existing laws of the land and it keeps changing with changing times.
The second theory, i.e., the Legal Procedures theory talks about legal requirements in any case or trial. It states that due process of law is when it is permitted by positive law or when the procedures followed are in accordance with positive law. This theory further deviates into two categories of positive law, one which talks about contemporary positive law and the other talks about positive law during the framing of the US Bill of Rights, 1791. Contemporary positive law in due process of law means that the positive law which was in effect at the time of the violation of a right or occurrence of an offense shall be taken into account. The other category states that the positive law prevailing at the time of framing of the US Bill of Rights shall be followed at all times.
It was observed that both these theories had lost certain relevance with changing times. Therefore, a third theory was articulated known as the ‘Process Theory.’ ‘Process’ in its general sense means a series of operations, a definitive/prescribed manner, and obtaining a result by following the prescribed manner. The beginning of any legal proceedings or trials, manner of proceeding, such as sending summons, calling witnesses, admitting evidence, etc., that takes place until a case is decided by the court of law. It includes different procedural requirements, such as sending a legal notice to the defendant, informing him of the charges, rights, obligations, liabilities, etc. It may include the authority to do certain things, such as the authority to enter a place, search with a search warrant, and seize objects for evidence purposes. It includes informing people under trials of their rights, such as the right against self-incrimination, the right to seek legal assistance, the right to be heard, etc.
The due process clause under the process theory states that no person shall be deprived of their life, properties, and liberties without the service of a valid process, notice, and in the proper jurisdiction. The due process of law is also referred to as the “original process” for summons, notices, etc., as is mentioned under Rule 4 of the Federal Rules of Civil Procedure.
The essence of the Due Process of Law clause of the Fifth Amendment is that American citizens be subjected to a fair and just system and procedure before the government gets the right to deprive them of their life, property, or liberty. Due process of law is said to be followed when established rules and principles of law for the protection and enforcement of private rights are followed in legal proceedings, which includes the right to receive proper notice and a right to a fair trial before deciding a case. Due process of law entails justice and fairness in both substantive as well as procedural law. It also requires legislation, rules, principles, and doctrines to be fair and reasonable to people’s legitimate needs. This is termed the substantive fairness of the law. Substantive fairness refers to maintaining a just way of drafting, enacting, and implementing different legislation. Other aspects of trials and proceedings which have been discussed above, such as sending notices, summoning witnesses, etc., are parts of procedural fairness of the due process of law.
It is imperative to mention the landmark judgment of Miranda v. Arizona (discussed above) while discussing the due process of law. This case established “Miranda warnings” as a part of the due process to be followed while deciding a case. It stated that the right against self-incrimination shall include the following rights, as was discussed in Miranda’s case:
- The right to remain silent.
- Anything said by a person can be used against him in a court of law.
- The right to be represented by an attorney.
- If the person cannot afford to hire an attorney, the government shall appoint one for him as a matter of legal right.
It is the responsibility of government officials, legal officers, and investigating officers to inform people who have been summoned or are in the custody of their rights. Giving Miranda warnings to a suspect at the start of a trial is considered part of their constitutional right and, thus, part of due process of law. After Miranda warnings are given, the suspect has a right to invoke his Fifth Amendment right and opt out of answering self-incriminatory statements. He can also waive his rights under the Fifth Amendment at his will. This decision of invoking or waiving rights can come only from an informed decision. Thus, the due process of law must be followed at every stage of the proceedings to guide the people involved in a case in making informed decisions and to uphold the values of fairness, reasonableness, and justice. If any of these stages of procedural fairness are not met, the exclusionary rule will come into existence, and evidence collected without following due process will become inadmissible in a court of law.
Just and fair compensation for taking private property
The Fifth Amendment ends with the right of landowners and property owners to extract compensation from the government in situations when the government takes over their properties for public use. The government, through its power of “Eminent Domain,” has the right to take private properties for public use. The power of eminent domain can be used by the government when it wants to acquire the private property of any individual. However, the government can exercise this power only when the acquisition is done for public use and welfare. Even so, the government is obligated to pay a fair compensation to the previous owner of such land or property in exchange for the acquisition. If all these essential factors are met, the government can exercise its power of eminent domain. Under this power, the government does not require to take the consent of the property owner. Reflecting on ‘fair compensation,’ compensation is considered to be just and fair when it is equivalent to the fair market value of that property. The principle was reaffirmed in the case of Kelo v. City of New London (2005) where the government took the private properties of certain individuals to make a development project there. This act of the government was considered to be for public use since those owners enjoyed the economic benefit of such a development project.
It is a common conception that the eminent domain power of the government is restricted to land. However, in fact, it extends to every form of private property that the government can acquire and have to pay a fair compensation in exchange for such acquisition. For instance, the eminent domain and fair compensation principle extend to animals, crops, etc., as well. It also includes leases, mortgages, etc., as well as intangible assets like copyrights, trademarks, etc. This concept of fair compensation, under the Fifth Amendment, is also known as the ‘Taking clause.’
Once the eminent domain is exercised, the existence of a regulation of taking is checked thereafter. It is determined whether the government’s taking is legal. In the case of Pennsylvania Coal Co. v. Mahon (1922), the court held that a government regulation shall not be considered a ‘taking’ unless it is backed by damages at the value of the property. In the absence of just compensation, the government’s taking cannot be said to be legal as it infringes upon people’s rights of private ownership.
In the landmark judgment of Penn Central Transportation Co. v. New York City (1978), the Supreme Court observed three determining factors to scrutinize the rationale behind the government’s taking:
- The economic impact of the government regulation on the private owner must be taken into consideration,
- Degree of interference of the regulation on the owner’s “distinct investment-backed expectations” from the land or property, and
- The nature of government action.
These factors are used to determine the burden on the owner of the property whose property the government intends to take.
Once the government taking is validated, the final stage is to determine whether the compensation is paid and whether the amount paid is fair. It was held in Kohl v. United States (1875) that the government’s action of taking property under the power of eminent domain is valid when the owner of the property is compensated fairly. Fair compensation is determined in accordance with the size of the area taken by the government.
Sixth Amendment: “rights to a fair trial”
“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 wherein 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 defence.”
The Sixth Amendment under the US Bill of Rights talks about a system of ‘fair trial.’ Every accused in judicial custody, or undergoing trial, has the right to a speedy, public and fair trial. A public trial is added as an essential under the Sixth Amendment because it ensures transparency and impartiality. The accused has a right to be heard by an impartial judge and be considered innocent until he is proven to be guilty. Further, this Amendment also emphasizes that no case should be heard without adequate jurisdiction. Most importantly, the Sixth Amendment focuses that nobody should be put through the trial proceedings without first informing him of his rights as a person in custody and under trial. He shall also be informed about the charges against him, in detail. Further, due process of law must be followed in deciding every case. The accused has the basic right to gather witnesses in his favour and also to cross-examine the witnesses against him. The accused must have the aid and assistance of a legal counsel at all stages of proceedings. If the accused is financially incapable of hiring an attorney, the state must provide him with one free of cost.
The Sixth Amendment of the US Bill of Rights is inspired by the principle of “justice delayed is justice denied.” It provides essential rights to those under trial and maintains a balance between individual rights and the state’s powers. The Fifth Amendment talks about the duties of the federal government and the Fourteenth Amendment about those of the state government. Thus, they protect the Sixth Amendment rights. The rights under the Sixth Amendment are:
Accused’s right to a speedy and public trial
Every accused has certain basic rights. Those rights are provided to him through the Sixth Amendment of the US Bill of Rights. One such right is the right to be subjected to a speedy trial and a public trial. A public trial ensures justice, transparency, and impartiality. A speedy trial is based on the concept of “justice delayed is justice denied.” The idea behind providing these rights to the accused is that nobody should be discriminated against even when they are facing charges in a proceeding. The accused must be given an adequate and equal opportunity to present and fight his case so that justice is ensured.
The Supreme Court prescribed a four-phased method to determine whether the speedy trial rule has been infringed. The four determining factors, as decided in Barker v. Wingo (1972) are:
- First, the court reviews the length of delay,
- Further, the court reviews the reason for the delay,
- After that, the court examines the presence and credit of the defendant’s rights, and
- Finally, the court balances these factors in favor of the defendant/accused whose right under the Sixth Amendment stands violated.
It was held in Strunk v. United States (1973) that when these phases of scrutiny are performed and an infringement of the speedy trial rule under the Sixth Amendment is found, the court either reverses the judgment or dismisses the indictment.
Accused’s right to be heard by an impartial jury
Voir dire in French means “to speak the truth.” This ideology is relevant and famously used in the US in determining a fit, proper and just judge. It involves a preliminary examination of a prospective juror by a lawyer or judge to decide whether he is fit to become a judge. His qualifications, qualities, and suitability are under scrutiny. This is done to ensure that trials and proceedings in the US courts are conducted in an impartial manner, free from bias and other shortcomings.
The juror’s acceptability and suitability for a particular case are examined by asking them essential and relevant questions. Upon satisfactory answers, the juror is selected and assigned to hear and decide on a case. The suitability of a prospective juror is tested based on his background, values, and belief system as well as experience. Further, the selection procedure must be free from bias and discrimination. The examining judge or lawyer must be impartial and make no difference based on the prospective jurors’ race, ethnicity, color, cultural background, etc. The accused is given this right to be heard by an impartial jury. A judge or jury’s impartiality is determined on the basis of their approach in deciding on a case. If they resort to an unbiased approach in hearing both parties’ contentions, admitting evidence, and hearing witnesses in a lawful manner while following the due process of law, the judge or jury can be said to be impartial.
Accused’s right to know charges and cause of charges
A person accused of a crime has the right to know the ‘why’ and ‘how’ about it, meaning an accused person has the right to know why he is accused, under what charges, and for what crimes. He has a right to know the cause of such an accusation. He has the right to know his rights regarding the same and he has the right to know the procedures that will follow. The information related to charges framed against an accused must be given to him with specific details. He should be made aware of the possible implications of it. Specificity implies informing the accused of the specific sections and provisions of the specific legislation under which charges against him are framed.
This part of the Sixth Amendment right of informing the accused of the charges against him is otherwise known as the ‘Notice Clause’ under the Sixth Amendment. However, the notice clause is limited to informing the accused about the charges framed against him. It does not speak about the manner of trial and purpose behind adopting this manner in detail. This is specified by different provisions of different US legislation along with the supreme law of the land, i.e., the US Constitution. For instance, a federal crime is heard and decided by a grand jury, as has been mentioned under the Fifth Amendment of the US Bill of Rights. This requirement will vary for a lesser crime as well as be different in different states.
Accused’s right to confront witnesses against him
The accused person has a right to confront people who are willing to testify against him. This part of the Sixth Amendment is known as the ‘Confrontational Clause.’ The accused person, under the confrontational clause, has a right to appear before the people who are willing to testify against him and ask questions to them with the intent to cross-examine the witnesses. Thus, this clause can be classified into two parts: confronting the witnesses and cross-examining them.
As a part of the confrontation, the accused has a right to appear and be present in all trial hearings against him and while the case is being decided. This forms a part of the due process of law clause under federal as well as state laws and regulations. The Federal Rules of Criminal Procedure 43 talks about the defendant’s presence, when it is necessary and mandatory, when it is not necessary and when the defendant can waive this right to appear and be present. The other part of this right of the defendant is the right to cross-examine the witnesses against him. This right is given as a part of ensuring the defendant a right to make his case and prove his innocence (plea of not guilty).
However, there are three exceptions to this confrontation right of the defendant:
- An exception is made for minors and/or special categories of people who may suffer harm due to the confrontation with the defendant.
- An exception on statements made by a person on his deathbed who was aware of the fact that he is dying. This is because it is presumed that a dying man has no reason to lie.
- An exception on the statements made by a person who was detained or kept away by the procurement of the defendant.
Accused’s right to call for witnesses in support
Every person who is accused of committing an offense has the right to call for witnesses in his support. The people whom the defendant wishes to call to appear as witnesses are bound by a legal force. While they can appear voluntarily, they have to appear even in instances where they do not wish to. This is because of the compulsory nature of this clause. The witnesses are under a legal obligation to appear in court when called upon to do so. The court can exercise its power by sending warrants or subpoenas to summon these witnesses.
The purpose behind granting this right to a defendant is to ensure him a fair and square chance of presenting his case and making his plea of not guilty. The defendant has a right to present the facts and circumstances of the case from his perspective and make his defense. This process often requires the backing of witnesses. It is only when both the prosecution and defendants make their contentions that the jury can decide on the case. This right also ensures an equal opportunity to the defendant as given to the prosecution to make their case and present witnesses. This forms a fundamental part of the doctrine of due process of law.
Accused’s right to seek legal assistance and representation
Every person alleged to have committed an offense has the right to seek legal assistance and their case be represented in a court of law. If the accused is financially ineligible or, for any other reason, is unable to hire an attorney to represent his case, it is the duty of the government to provide him with legal assistance. It was held in Gideon v. Wainwright (1963) that a defendant has the right to be legally assisted by a lawyer appointed by the court at the cost of the government.
It becomes the duty of these court-appointed lawyers to represent the case of the defendant, should the defendant choose to go to trial. It is also the duty of these lawyers to inform the defendant about the consequences that will follow if they choose to plead guilty or make a confession. They are under an obligation to give necessary legal advice to the defendant with his good in mind. The court bears and provides legal assistance to a defendant when his indigency is proven. For the defendant’s ease and to ensure that justice is not denied or delayed due to financial constraints, the court additionally waives certain court fees and filing charges for the defendant.
Furthermore, to ensure justice and equality, the Sixth Amendment goes on to say that merely providing legal assistance to the defendant is not enough. The appointed lawyer for the defendant should be equal in qualifications, skills, experience, etc., to that of the prosecution lawyer. A two-step test was framed in the case of Strickland v. Washington (1984) to determine the effectiveness of the court-appointed lawyer:
- Whether the lawyer’s actions were reasonable, and
- Whether those actions proved to have helped the defendant’s case in the final hearing.
Seventh Amendment: “rights 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.”
The Seventh Amendment of the US Bill of Rights talks about the formal rules that govern civil trials in the US. It establishes a firm categorization between the role of courts and that of jurors. It affirms that facts decided by a jury shall not be subjected to examination by any court in the US unless required. The Seventh Amendment was framed essentially at a time when the common law system prevailed in the West. This is reflected in the drafting of the provision which states that common law rules shall be followed in civil trials and in necessary re-examinations.
Two kinds of court and judicial systems prevail in the US: the federal court system and courts in each state. The provisions of the Seventh Amendment apply only to federal courts. This is an interesting and unusual provision that has been prevalent since the beginning of the articulation of the Seventh Amendment. Since the Seventh Amendment does not apply to states, it is excluded from the purview of the due process of law clause established under the Fourteenth Amendment as it applies to states. However, provisions of the Fifth Amendment apply to the Seventh Amendment. This is the only exception that has been made for states, as they are required to follow every other provision of the US Bill of Rights similar to the federal court. However, the states have the liberty to make provisions for civil jury trials in their state constitutions and abide by those rules.
The Seventh Amendment is divided into two parts: the first part is popularly known as the ‘Preservation Clause’ and the other part is the ‘Re-examination Clause.’ The preservation clause speaks about the types of cases that are subjected to be decided by civil jury trials. These are the cases whose pecuniary limit exceeds twenty US dollars. The re-examination clause prevents federal courts and judges from examining facts decided by civil jury trials. Further, common law today means the law observed by the judges instead of the law made by legislators. However, in the context of the Seventh Amendment, common law is laws, rules, and procedures made by the courts where the jury system prevailed instead of laws, rules, and procedures followed in equity and other courts. The Supreme Court further held in Dimick v. Shiedt (1935) that the common law referred to in the Seventh Amendment is the common law system that prevailed in England (because of British origins of the concept) during the times of ratification of the US Bill of Rights, i.e., 1791. Currently, six jurors form part of a civil jury in the US.
The civil jury system has become extinct for the rest of the world. It can be seen only in rare situations. Issues with the civil jury system are the long and expensive procedures involved in it. The outcome of a civil jury system becomes unpredictable because of the number of jurors involved in it. Parties instituting a suit often wish to refer their cases to judges for decision. The Seventh Amendment can in no way revive this system which is disappearing because of its shortcomings. Therefore, lawmakers and experts often suggest repealing this Amendment. Another reason for such a suggestion is the British colonial roots of this system. It seems almost irrelevant to present-day America.
Eighth Amendment: “bails, fines and punishments”
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The Eighth Amendment of the US Bill of Rights talks about bail, fines, and punishments. Bail, in its simplest terms, means the release of a person from prison with a promise and surety that the person released on bail shall appear in court whenever he is called to do so. In the US, bails are of four kinds: release on one’s own recognizance, cash bail, release on a cash bond, and release on a property bond. While the latter three kinds require a form of security collateral to release a person, bail granted on one’s recognizance is based on a promise and signature of the released person for appearance. When a person is released on bail, he is allowed to live within a specific territorial community and appear in court when his case is scheduled for hearings.
As the name itself suggests, a person will have to have a good ‘recognizance’ to be released on it. It is the discretion of the court whether or not to grant such bail. The court decides on it by looking into the criminal history, background of the accused, the gravity of the offense committed, his reputation in the community he lives in, and credibility in adhering to the agreed terms. Even when the bail is granted, it comes with certain restrictions that the court imposes. These restrictions are imposed at the court’s discretion in reference to the facts and circumstances of each case. The most common ones include restricting the accused from contacting the victim in any way, restricting the accused from moving out of the territorial jurisdiction of the court, etc. The concept of bail is based on the doctrine of “innocent until proven guilty.”
The second form of pleading for release on bail is in the form of cash bail. In a cash bail, a sum of money is deposited to release the prisoner. This money acts as security collateral to release. The issue with cash bail is that not every defendant can afford it. Many people in US jails are imprisoned due to the fact that their cases are pending in courts because of probation, parole, or because they cannot afford a cash bail.
This gives rise to another way of availing of bail, i.e., in the form of bail bonds. A bail bond is an instrument used to release a person from prison in which only a particular amount of the bond is paid to release. This amount is used as collateral security. This is supported by a person who acts as a surety for the person released on bail. Usually, the person himself pays a small percentage (mostly 10%) of the total bond amount. Thereafter, he is released. A person acts as his surety and promises to pay the remaining amount of the bond should the accused fail to appear in court whenever he is needed to.
This part of the Eighth Amendment is called the ‘Excessive Fines Clause.’ This clause protects the accused from suffering due to excessive fines imposed on him by courts. This clause refers to the fines imposed upon conviction in criminal cases. Different codes, rules, statutes, and legislation prescribes different fines and penalties for different crimes. Punishments are inflicted upon conviction in a case. These punishments vary between imprisonment, capital punishment, probation, parole, or in the form of fines. Usually, crimes of less grievousness, such as thefts, non-violent crimes, etc., are punished with fines. This is referred to as a pecuniary penalty payable to the government’s treasury.
The court defined an excessive fine in the case of United States v. Bajakajain (1998) as a fine imposed which is disproportionally high in comparison to the offense committed. It also stated that, in addition to restricting fines at a reasonable level, the court must also ensure that the other forms of punishments imposed for a crime are proportional to the offense committed.
The court enlisted three factors that a court must take into consideration before imposing a fine. It was held in the case of United States v. Jose Parks (2007) that the factors are:
- Whether the statute/code which prescribes a fine was drafted to punish the accused.
- The court looks into the aggregate amount of other penalties approved by the court that is to be paid by the accused.
- The seriousness of the crime or the harm he has caused, to check proportionality.
The court determines the fairness of the fine imposed after looking into these factors in the facts and circumstances of each case.
Often referred to as the most essential part of the Eighth Amendment, it states that the courts must not impose unusual or cruel punishments on a convicted person. A “cruel and unusual punishment” is defined as a punishment that is torturous, degrading, inhuman, grossly disproportionate to the offense committed or shocking to the morals of a community. [Weems v. United States (1910).] Because of the nature of this provision, it is difficult to determine the degree of punishment that can be categorized within the ambit of “cruel and unusual.” Debates often run around the question, ‘how cruel is unusual?’
As the debate continues, it surrounds the death penalty, capital punishment, and cases that are eligible for these punishments. Thus, this divides the American justice system and its believers into two categories: those who believe that the death penalty/capital punishment is just and proper punishment given the gravity of qualifying cases and those who believe it to be cruel and unusual. As the death penalty/capital punishment continues to be legally inflicted upon certain criminals, opposition often raises questions, like, ‘does the person who has been punished with a death penalty/capital punishment have the right to choose the way he should die?’
In the case of Solem v. Helm (1983), the Supreme Court stated certain factors that must be taken into consideration to determine proportionality:
- The seriousness of the offense should be considered.
- The degree of harshness of the punishment/penalty.
- Cases of similar nature within the same jurisdiction and the degree of punishment inflicted thereon.
- The court shall also consider the punishments imposed in different jurisdictions on similar offenses and on different offenses.
While proportionality is seen as a determinant of inflicting punishment, the reality often differs. The courts pronounce judicial precedents from time to time and base their decisions on the proportionality test. The Supreme Court, in the case of Harmelin v. Michigan (1991) overturned the prohibition on disproportionality that was imposed. It only stated that the possibility of parole shall not be taken away as that would be unconstitutional and violative of the Eighth Amendment.
The court further held in the case of Lockyer v. Andrade (2003) that proportionality is not a myth. However, it is to be taken into consideration in extreme cases that are exceedingly rare. It shall not be used as a general norm. The court further upheld this decision in the case of Miller v. Alabama (2012) where it was decided that not granting the right to seek parole in cases involving juveniles is constitutionally invalid and violative of the Eighth Amendment.
Additionally, the Eighth Amendment also provides protection to prisoners by granting them certain basic rights while in prison. These rights include guaranteeing a safe environment and living conditions to prisoners, providing appropriate healthcare, hygiene, protection against sexual assault inside the prison, etc. The prisoners are entitled to human conditions even in confinement and they are entitled to adequate food, clothing, shelter, and healthcare. This was held by the court in Farmer v. Brennan (1994).
Ninth Amendment: “rights retained by the people”
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
As the words themselves suggest, the Ninth Amendment is often seen as an ambiguous and vague part of the US Bill of Rights. Different scholars suggest different interpretations of it. The Ninth Amendment aims to suggest that the presence of certain rights by virtue of the US Constitution shall not be a reason to deny the existence and retention of some other rights by people. Thus, it emphasizes certain additional rights that an individual might possess. The Ninth Amendment aims to establish that rights people are entitled to are not limited to the US Constitution and its amendments.
The purpose behind the articulation of the Ninth Amendment is to affirm the fact that the rights guaranteed to individuals in the US are not confined to those enumerated in the US Constitution. The enumerated list of rights is not exhaustive and final. Rather, it is inclusive. Often it so happens that a right is not explicitly mentioned in the US Constitution but it is guaranteed to US citizens by ways of judicial precedents and legal interpretations. For instance, the US Constitution does not anywhere talk about the fundamental right to privacy. However, courts have had a practice of guaranteeing the right to privacy to their people.
In the case of Griswold v. State of Connecticut (1965), the US Supreme Court held that married couples have a right to use birth control. This right shall not be infringed upon or intervened by the government or its officials. The court observed that, apart from the enumerated rights in the US Constitution, there are other fundamental rights that a citizen is entitled to have. Such rights can be enjoyed free from government intervention. These rights coexist along with those enumerated in the US Constitution. Citizens shall not be deprived of enjoying these fundamental rights simply because they are not codified in clear words in the US Constitution.
This right to privacy has recently been under controversy as the US Supreme Court overturned the years-old Roe v. Wade (1973) judgment that gave the right to abortion to women as a part of their right to privacy. Roe v. Wade firmly established the right to privacy as a fundamental right guaranteed to all US citizens. However, this was overturned in the case of Dobbs v. Jackson Women’s Health Organization (2022) which gave the state governments of each state a right to make laws governing/banning abortion rights in their respective states.
Tenth Amendment: “powers retained by the states and the people”
“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.”
The first part of the Tenth Amendment talks about political power, the power to make rules and to look into the governance of a state and the country as a whole. The Tenth Amendment states that the powers that are neither delegated to the federal government, state governments, or any branches of the government are known as reserved powers. As these powers are not specifically delegated to any of the abovementioned authorities, the Tenth Amendment suggests that the reserved powers are vested in state governments for their particular state.
The framing of the Tenth Amendment was strategically done so as to omit the word ‘expressly’ before writing ‘delegated’ because that would render a narrow interpretation of the purpose of this Amendment. Thus, powers that are either expressly or impliedly delegated to the federal government and its departments distinguish themselves from those that remain. These remaining powers (reserved powers) are deemed to be vested in the state governments or directly to the people.
The Tenth Amendment is based on the doctrine of the ‘separation of powers.’ The US Constitution recognizes the need for separation of powers between different departments and governments in the US in order to maintain a balance of powers between the federal government and the state governments. This right was adopted in the time of framing of the US Constitution as the drafting and enactment of the US Constitution gave rise to fears in the minds of the state government officials and anti-federalists that a large chunk of power would be in the hands of the federal government. They feared that the state governments and other branches would become mere actors of the federal government. The Tenth Amendment gives a right to the state governments to make, enact, and implement laws of their own governance to run their states, provided that these laws do not conflict directly with federal laws or any provision of the US Constitution.
A similar right has been given to states by the 2022 controversial judgment of Dobbs v. Jackson Women’s Health Organization which overturned the 1973 landmark judgment of Roe v. Wade. as a result of this, the state governments have acquired a right to intervene in the abortion rights that were previously guaranteed to women without any government intervention. As a consequence, some states have banned the right to medical termination of pregnancy completely in their state, making it illegal while others have regulated the gestation period of allowing the abortion. States like Texas and Alabama have banned abortion entirely. Some other states, like Washington D.C. and Alaska continue to give abortion rights to their citizens. States such as California and Nevada have set a limit of 24 weeks of pregnancy beyond which abortion is illegal.
Just as in this instance, rights guaranteed under the Tenth Amendment can be controversial and subject to judicial interpretations. However, it forwards a cause of striking a necessary balance between the federal government and the states. The Tenth Amendment can be seen as striking chords between restricting the powers of the federal government while also recognizing the supremacy of the federal government and the US Constitution and respecting them.
The US Constitution is the supreme law of the land. It is the primary document that governs the rights, liberties, and obligations of US citizens. It describes the powers and responsibilities of the federal government, state governments, and different branches of the state. It prescribes substantial as well as procedural fairness. The US Bill of Rights (1791) is the list of the first ten Amendments brought to the US Constitution to improve these rights and duties. The Bill of Rights guaranteed essential rights to the citizens and restricted the powers of the government by limiting their interference in certain matters and rights. It provides essential rights such as the right against double jeopardy, the right against self-incrimination, the right against cruel and unusual punishments and excessive fines, etc. It also talks about the residual powers in the form of reserved rights. These residual powers are left to the discretion of state governments in each state. These are the powers that are not delegated to the federal government, and hence, their interference is restricted.
The US Bill of Rights was formulated in a time of war and in ancient America. Therefore, it is essential that the Bill of Rights and its provisions be updated with the changing societal needs. For instance, the Third Amendment which is often referred to as the forgotten part of the Bill of Rights as it talks about the rights of people against the housing of soldiers without their will could be modified to the present-day needs of diplomatic relations in the US. Similarly, industrialization and economic development have given rise to new opportunities as well as challenges. Additional provisions can be made to ensure protection and guarantee rights in the new world. For instance, the fundamental right to privacy which was guaranteed to US citizens has come under debate and ambiguity in recent times. Efforts need to be made to address this issue. In a 21st-century world where the US being a leading country in global governance and power, regressive decisions and scrapping people’s rights can be seen as unsuitable examples. Thus, efforts must be made to avoid this by incorporating satisfactory and necessary provisions in the supreme law of the land.
A similar praiseworthy instance can be seen in the form of the Gun Control Bill that has been under debate in the US Parliament. The Second Amendment of the US Constitution gives US citizens the right to bear and keep weapons. This right is absolute in nature without any government intervention. The same has resulted in turmoil in the US as gun violence excessively increased and resulted in a state of mass killings and innocent murders. To address this serious issue, the government has come up with a Gun Control Bill to regulate the existing laws. This might mean that the absolute restriction on the government’s intervention in the Second Amendment rights of US citizens can be witnessed to be modified in the recent future. Although the Second Amendment means otherwise in its current form, changing needs demand changed measures. This is to ensure equity and justice in society and run a peaceful administration.
Frequently Asked Questions (FAQs)
What are the “unalienable rights” that the United States Bill of Rights proposed to ensure to US citizens?
The United States Bill of Rights proposed to ensure the following rights as unalienable rights because these rights are naturally given to the citizens and they cannot be taken away by government action:
- The freedom of religion,
- The freedom of speech, expression, petition, and assembly,
- The freedom of the press,
- Privacy rights from government’s intervention and intrusion,
- Due process of law, and
- Equality before the law.
What made the US government add the Bill of Rights to its Constitution?
The initial document of the US Constitution was flawed and discriminatory. It gave unrestricted powers to the federal government. This would have led to arbitrariness and abuse of power and excessive power in the hands of the federal government. It also meant that the state government would have little or no power. Due to this fear and opposition from anti-federalists (people who opposed unrestricted federal powers), the state governments refused to ratify the US Constitution unless it rectified its flaws by adding a Bill of Rights that would limit the power of the federal government and striking a balance of powers between the federal government and the states. Hence, the Bill of Rights was adopted.
What are the three basic rights and values upon which the US Bill of Rights is based?
The US Bill of Rights is based on three basic values in the form of rights: the right to life, the right to health care, and the right against or freedom from torture.
What were the issues with the initial draft of the US Constitution that the Bill of Rights addressed?
The initial draft of the US Constitution lacked a list of individual rights that the citizens shall be entitled to have. It was also discriminatory in nature as it was applicable only to white Americans who owned property. The initial draft did not put any limit on the government’s powers and did not protect individuals’ rights from government intervention. All these issues were addressed and resolved through the ten amendments of the US Bill of Rights.
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