More from the Bill of Rights

This is chapter five of “Know your Constitution”, here are the links for chapters One, Two, Three, and Four.

We pick up with the seventh amendment.

“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”

This one may seem a little mundane. It has never been “incorporated”, that is to say applied to the states, although every state complies. The twenty dollar limit has never been challenged or changed, allowing for inflation $20 in 1789 is about $526 today.

Important parts of this amendment is the establishment of jury trials in civil cases (which may be waived if both parties agree) and protection of civil findings in higher courts. It is the most straightforward and least disputed amendment.

The eighth amendment has been bandied about quite a bit.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”.

The purpose of this amendment is to limit the power of judges. While we look at “mandatory sentences” as ways to force judges to hand out harsher punishments, this amendment requires judges to follow precedent, granting reasonable bail rather than using bail as a form of imprisonment before trial, and limiting punishments to a societal norm.

This amendment is most often brought up in reference to torture. While physical torture appears to be covered by this amendment, it is only because torture is unusual. Punishments are judged based on the crime, so while some have been determined to be excessive for any crime, as in Wilkerson v. Utah, in which the Supreme Court commented that drawing and quartering, public dissection, burning alive, or disembowelment constituted cruel and unusual punishment regardless of the crime, but the reality of the amendment’s meaning is that it would be unusual to sentence someone to five years imprisonment for a parking ticket.

The Supreme Court declared executing the mentally handicapped in Atkins v. Virginia, and executing people who were under age 18 at the time the crime was committed in Roper v. Simmons,  to be violations of the Eighth Amendment, regardless of the crime. “Cruel” is applied more often to mental duress than to physical duress. “Unusual” applies to staying within precedent of historical punishments.

The ninth amendment is protection against legalese.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”.

Quite simply, “Just because we didn’t mention a right doesn’t mean it doesn’t exist”. From this amendment springs all the arguments for interpretation of non enumerated rights. Notice that this is not a limitation of rights, not a “and after a certain time some of these rights no longer exist” statement. This allows for growth and expansion in the recognition of rights.

This idea is reinforced in what was at the time the final amendment, the tenth.

“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.”

This will likely be the amendment cited in states that have legalized marijuana, in that it has been used to remove states from enforcing contradictory federal statutes, in 1998, the Court ruled that the Brady Handgun Violence Prevention Act violated the Tenth Amendment in Printz v. United States.  The act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns. Justice Antonin Scalia, writing for the majority, applied New York v. United States to show that the law violated the Tenth Amendment. Since the act “forced participation of the State’s executive in the actual administration of a federal program”, it was unconstitutional.

These are the ten amendments of the Bill of Rights. Echoing the last few amendments, they don’t cover everything nor were they intended to do so. Another seventeen amendments have been ratified, most recently in 1992.

Our constitution grows, because it is alive. It is vibrant and adaptive, and it never loses its importance.

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4 comments on “More from the Bill of Rights

  1. […] the next chapter, I should finish with the Bill of Rights, and summarize the significance of these first ten […]

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  2. […] chapter six of the “Know your Constitution” series. Chapters One, Two, Three, Four, and Five can be viewed by clicking on each of those provided […]

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  3. […] seventh chapter of the “Know your Constitution” series. Chapters One, Two, Three, Four, Five, and Six can be viewed by clicking on each of those provided […]

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  4. […] eighth chapter of the “Know your Constitution” series. Chapters One, Two, Three, Four, Five, Six, and Seven can be viewed by clicking on each of those provided […]

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