Bill of Rights

The Bill of Rights refers to the first ten Amendments of the U.S. Constitution.

The First Amendment provides for most of our fundamental freedoms.  It provides for many of our civil liberties.  The first Amendment states that:

Congress shall make no law abridging

1. freedom of speech,
2. freedom of the press,
3. freedom of religion,
   a.. free exercise clause
   b.  no establishment clause
4. freedom of petition, and
5. freedom of assembly.

In addition the First Amendment and the plethora of the Constitution have created two additional fundamental rights, namely:

6. freedom of association, and

7.  the right of privacy.

The Second Amendment provides that:

"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."

The Third Amendment provides that:

"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."

The Fourth through Eighth Amendments enumerate some of the procedural rights required for a fair trial.

Fourth Amendment:  No Unreasonable Searches or Seizures

Fifth Amendment:  Indictment by Grand Jury, No Double Jeopardy, No Self Incrimination, Due Process, and Eminent Domain

Sixth Amendment:  Speedy and Public Trial, Impartial Jury, Informed of the Nature and Cause of the Accusation, Confronted by Witnesses, Compulsory Process for Obtaining Witnesses in Favor of the Accused, Right to Counsel

Seventh Amendment:  In suits of common law, the right to trial by jury shall be preserved.  Rules of the common law apply to all facts tried in civil cases.

Eighth Amendment:  No excessive bail, no excessive fines, no cruel and unusual punishment.

Ninth Amendment

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

Tenth Amendment:  Reserved Powers of the States

"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."

What is meant by the Double Standard

Original Constitution had no Bill of Rights

Federalists were forced to add a Bill of Rights as a condition for getting the U.S. Constitution approved by the Conventions held in the thirteen States.

Nationalists and State Rights positions on the Constitution

Chief Justice John Marshall believed in a strong national government within its sphere of authority, but he also believed in a rigid division of power.  This is called dual federalism.

Dual Federalism and the Bill of Rights

Federal Bill of Rights applied only to the National government.  It did not limit the States.  Barron v. Baltimore (1833)

States were limited by their respective State Bills of Rights

This gave rise over time to a double standard of justice in America's courts.  One standard of justice applied in Federal courts; another standard in State courts.  Defendants' rights were usually more respected in Federal courts than in State courts.  For example a speech which might be protected under the First Amendment against action by the Federal government could still be punished in State courts because the speech was not protected under State law..

Bridging the Double Standard

Beginning in 1925 in the case Gitlow v. New York, the U.S. Supreme Court began to rule that certain provisions of the Federal Bill of Rights DID APPLY to the States.

The "due process clause" appears twice in the U.S. Constitution.  In the 5th Amendment, due process limits the Federal government.  In the 14th Amendment, the States are required to abide by due process.  Why should "due process" have two different meanings?  One meaning in Federal courts and a lesser meaning in State courts?

Beginning with Gitlow, the U.S. Supreme Court has incorporated most of the Bill of Rights into the due process clause of the Fourteenth Amemdment.  This is the incorporation doctrine.  Today, most of the Federal Bill of Rights applies equally to both Federal and State courts. This has bridged the double standard and nationalized the Federal Bill of Rights.

Nationalizing the Bill of Rights

Gitlow v New York (1925)                     Freedom of Speech
Near v Minnesota (1931)                        Freedom of Press
Powell v. Alabama (1932)                       Right to Lawyer in Capital Case
De Jonge v. Oregon (1937)                     Assembly and Petition
Cantwell v. Connecticut (1940)             Freedom of Religion
Everson v. Board of Education (1947)  Separation of Church & State
In Re Oliver ((1948)                                 Right to a Public Trial
Wolf v. Colorado (1949)                         No Unreasonable Searches & Seizures
Mapp v. Ohio (1961)                              Exclusionary Rule
Robinson v. California (1962)              No Cruel & Unusual Punishment
Gideon v. Wainwright (1963)              Right to Lawyer in Criminal Felony Cases
Mallory v. Hogan (1964)                       No Compulsory Self Incrimination
Griswold v. Connecticut (1965)            Right to Privacy
Miranda v. Arizona (1966)                    Local Police must give Miranda Warning
Parker v. Gladden (1966)                       Right to an Impartial Jury
Klopfer v. North Carolina (1967)          Right to a Speedy Trial
Benton v. Maryland (1969)                    No Double Jeopardy

Most, but not all, the provisions of the Federal Bill of Rights apply to both the Federal and the State governments.