The Bill Of Rights In Action Essay

, Research Paper Introduction “[A] Bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”

, Research Paper


“[A] Bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”

— Thomas Jefferson December 20, 1787

The American Bill of Rights, inspired by Jefferson and drafted by James Madison, was adopted, and in 1791 the Constitution’s first ten amendments became the law of the land.

The Bill of Rights was added to the constitution for many purposes and has adapted to take on many more. The amendments are used to provide answers to challenging questions in critical court cases and have taken shape with the ever-changing times.

In Our Defense presents the many sides of the Bill of Rights. It exemplifies how the Founding Fathers protected the individual rights of the people against the power of the government and how it still affects our lives today.

The First Amendment

The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. Freedom of expression consists of the rights to freedom of speech, press, assembly and to petition the government for a redress of grievances, and the implied rights of association and belief.

The right to freedom of speech allows individuals to express themselves without interference or constraint by the government. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. This is where the clear and present danger test comes in.

During the First World War, an activist named Schenck campaigned against the draft, which he alleged constituted illegal involuntary servitude. He was convicted of inciting desertion in violation of the Espionage Act. He circulated material, which claimed that the conscription act violated the Thirteenth Amendment, and asserted that a conscript is little better than a convict. In 1919 this issue presented a close case for the Court, and in Schenck v. United States, the Court affirmed the conviction. Justice Holmes delivered the opinion of the entire Court. He stated, In many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. However, any act depends on the circumstances in which it was done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The clear and present danger rule came out of this. He also wrote Circumstances that would create a clear and present danger, Congress has a right to prevent . When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. Schenck was sentenced to a maximum of twenty years in a federal penitentiary. This case had a great impact on the country, because it gave rise to a clear and present danger rule.

Though a test was created, the courts had a difficult time determining if a danger is clear enough, or how remote it could be to still be present, and exactly how dangerous the danger must be.

Over the years, the courts established certain guidelines regarding the clause. In Brandenburg v. Ohio, the court held that the government could restrict speech only when it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. The Supreme Court also decided that courts may regulate when, where, and how speakers express themselves, as long as they don t do it to restrict the content of speech. As a result, numerous communists were released from prison, The Nazis were permitted to parade in Illinois, and the KKK was permitted to host a cable show on Public Access Television to spread their racial beliefs.

In regard to the benefits and necessity of free speech, there are many different opinions. Justice Holmes is convinced that a marketplace of ideas should be allowed to prevail in society. This idea is one that advocates the exchange of ideas among people. It states that we should feel free to say what we want and not be afraid. Instead of restricting speech, his opinion is to combat it with counter speech. People should be permitted to hear different opinions, and good and right will prevail in the end.

On the other hand, Reverend Cleaver feels that counter speech is ineffective and that society does not have time to wait for truth to prevail. Accordingly, the Reverend felt a responsibility to challenge the KKK, who desired to obliterate him and his entire race. Furthermore, Stephen Pevar suggests that free speech must mean free speech- whether for popular or unpopular views. To him, freedom of speech represents an example of a constitutional law that is the price we pay for liberty.

Despite popular misunderstanding the right to freedom of the press guaranteed by the first amendment is not very different from the right to freedom of speech. It allows an individual to express themselves through publication and propagation. It is part of the constitutional protection of freedom of expression. It does not afford members of the media any special rights or privileges not afforded to citizens in general.

In reference to this clause, absolutists claim that there should never be a limit from the government on the press. Traditionalists have a different view; they feel that in certain situations exceptions can be made, especially in the realm of national security. This matter requires both confidentiality and secrecy. If a person has acquired “top secret” information about missiles and wants to print it, they may not. If printing those military secrets will jeopardize our national security, their freedom of the press must be limited. For this reason, the courts have created a National Security exception to this clause. To set a standard for what can be released and what cannot, the courts created the standard of direct and immediate harm. Justice Warren created this rule in the Progressive case, fearing Morland s The H-bomb Secret would result in nuclear annihilation.

In my opinion, the press must be held liable for what they write. If material is printed which can jeopardize our national security, the government must be able to intervene. We must be willing to limit or freedoms in order to ensure everyones safety and security.

Two clauses in the First Amendment guarantee freedom of religion. The establishment clause prohibits the government from passing legislation to establish an official religion or preferring one religion to another. It enforces the “separation of church and state. The Supreme Court has declared some governmental activity related to religion constitutional. For example, providing bus transportation for parochial school students and the enforcement of “blue laws” is not prohibited. The free exercise clause prohibits the government, in most instances, from interfering with a person s practice of their religion. The Yukon Indians used this clause when they went to court against the US Forest Service, who decided to build a logging road through the heart of their sacred land.

Even though the government may not outlaw religious practices, some regulation is permitted. Courts are the ones to determine if the asserted religious belief is sincerely held. Only then, if the state s interest is convincing, will it overshadow the individual s right to the free exercise of religion. Consequently, the court ruled in favor of the government in the Yukon Indian s case. Basically, the government could not operate if it were required to satisfy every citizen s religious needs and desires.

In Santa Fe Independent School District v. Jane Doe, the court ruled that public schools cannot allow student-led prayer before high school football games, a decision that reinforces the wall between church and state erected by the First Amendment. The court decided that allowing prayer violates the First Amendment’s establishment clause, which states that Congress “shall make no law respecting an establishment of religion.”

The right to assemble allows people to gather for peaceful and lawful purposes. Implicit within this right is the right to association and belief. The right to petition the government for a redress of grievances guarantees people the right to ask the government to provide relief for a wrong through the courts or other governmental action. It works with the right of assembly by allowing people to join together and seek change from the government.

The right to assemble has caused much dispute and complication. The Supreme Court has recognized that in times of peace, protecting the rights of individuals is easy. It is in times of conflict and calamity that there exists a need to speak out and oppose. If changes are wanted, the law grants people the right to pursue them peaceably. Thus, the law permits freedom of association and the right to petition in order for people to achieve these goals.

In Hobson v. Wilson, members of New MOBE and BUF filed suit against the FBI for conspiring to violate their right to assemble peaceably by attempting to interrupt their anti-war demonstration. The FBI justification was that they wanted to prevent the groups from turning violent. The courts ruled that the government is allowed to interfere with a group engaged in unlawful activities, but not to hamper lawful civil rights.

A federal appeals court ruled in May of 2000 that under the First Amendment, a photographer has the right to assemble a large group of nude people on a street to take their picture. Spencer Tunick was within his rights to take a photo of 100 nude people in Manhattan one morning in July.

The Second Amendment

The second amendment states the right of the people to keep and bear arms. The Quidici v. Morton Grove lawsuit centered on whether this right belongs to the individual or to the people as a group. There has been a longstanding question of whether the second amendment is referring to a person s right to own a gun, or to a collective right to defend the state.

The opposing theories, perhaps oversimplified, are an ”individual rights” theory whereby individuals are protected in ownership, possession, and transportation, and a collective theory whereby it is said the purpose of the clause is to protect the States in their authority to maintain formal, organized militia units.

Advocates for the individual rights theory argue that the usage of the people in this amendment mean nothing different then when stated in other amendments. The others say the clauses written support them. For example A well regulated militia, being necessary to the security of a free state restricts the right of arms to activities that the state determines are necessary to maintain a militia. They argue that the right was primarily created in defense of the state when Congress s military powers were severely limited, and are no longer necessary. I agree with the verdict of the court to tremendously support the collective rights theory. Today, the right to bear arms is extraordinarily dangerous and no longer needed.

The United States v. Cruikshank was the first case in which the Supreme Court had the opportunity to interpret the Second Amendment. The Court recognized that the right of the people to keep and bear arms was a right which existed prior to the Constitution when it stated that such a right “is not a right granted by the Constitution . . . [n]either is it in any manner dependent upon that instrument for its existence.” The indictment in Cruikshank charged a conspiracy by Klansmen to prevent blacks from exercising their civil rights, including the bearing of arms for lawful purposes. The Court held, however, that because the right to keep and bear arms existed independent of the Constitution, and the Second Amendment guaranteed only that the right shall not be violated by Congress, the federal government had no power to punish a violation of the right by a private individual; rather, citizens had “to look for their protection against any violation by their fellow-citizens” of their right to keep and bear arms to the police power of the state.

The Third Amendment

This amendment, which focuses on the quartering of soldiers, is sometimes referred to as the “forgotten amendment.” It is a reminder that, in addition to being written for ages to come, the Constitution was written to address the real and immediate grievances endured by it’s authors. The Quartering Act was one of the “intolerable acts” of the British Parliament, which allowed British troops to be quartered wherever necessary. The colonists were forced to place soldiers in their homes and provide them with food. The colonists barely had enough money for themselves, much less British soldiers stationed there to control the colonists’ every move. This amendment was therefore passed with little debate.

However, the Third Amendment has proven to be one of the least-litigated sections of the Constitution. The changing economics and practicalities of waging war have left little for the third amendment to do. As most other amendments have become flashpoints for controversy and milestones for great communal change, the third amendment has gone its own way. The Supreme Court has never directly reviewed the meaning of this amendment. Indeed, only one court has ever tackled the meaning of the amendment, in a case decided nearly 200 years after it was ratified.

Engblom v. Carey grew out of a “statewide strike of correction officers, when they were evicted from their facility-residences … and members of the National Guard were housed in their residences without their consent.” The district court initially granted summary judgment for the defendants in a suit brought by the officers claiming a deprivation of their rights under the Third Amendment. On remand, however, the District Court held that because the officers’ third amendment rights had not been clearly established at the time of the strike, the defendants were protected from suit by a qualified immunity.

The Fourth Amendment

The Fourth Amendment, which protects us all from unreasonable searches and seizures by governmental entities, is one of the greatest legal protections in the history of mankind. To pass under the Fourth Amendment, detention must be ‘reasonable. ‘ Advances in law enforcement and technology have made this determination far more complex than the framers could have ever anticipated. For example, if a police officer looks through your pocket, you have been searched. Today this includes wiretapping, testing your blood or your urine for drugs or alcohol, and DNA testing. These are all part of a person s privacy.

The Fourth Amendment entails a search to be based on probable cause. That is, government investigators must have a rational belief that a crime has been committed and that evidence or fruits of the crime can be found. The question courts will ask when a citizen claims to have been unconstitutionally searched is whether that person had a reasonable expectation of privacy in the place, papers, or information that government agents have examined or taken.

In order to be valid under the Fourth Amendment, a search warrant must “particularly describe the place to be searched, and the persons or things to be seized.” (The purpose of this particularity requirement is to avoid “a general, exploratory rummaging in a person’s belongings. ). An adequately particular warrant describes the items to be seized in such a manner that it leaves nothing to the discretion of the officer executing the warrant.

This issue was the basis of the McSurely v. McClellan case. While preparing to move, a search warrant to seize “seditious matter or printing press or other machinery to print or circulate seditious matter” and an arrest warrant were issued on the McSurely s behalf. Not only was their house searched, but scoured as well. Everything was taken from their home, including their work papers, college exams, phone bills, tax returns, telephone books, and Mrs. McSurely’s very personal diary. The McSurely’s were freed, but their possessions were locked up in “safekeeping” in case there was an appeal.

The McSurelys felt neither local Kentucky officials nor the Senate subcommittee members had obtained their documents in a reasonable manner. They appealed to the U.S. Court of Appeals, claiming their conviction was based on evidence seized in an illegal search. The Court of Appeals found that the affidavit did not support a search warrant, since the warrant was issued on hearsay. Also there was no particular description of what materials were to be seized, other than “seditious matter or printing press or other machinery to print or circulate seditious matter”. Because of the items taken from the McSurely’s home, the Court of Appeals held that this was a prime example of a general search in violation of the Fourth Amendment. Therefore, the convictions were reversed.

On November 28, 2000, the United States Supreme Court decided the case of Indianapolis v. Edmond. In Edmond, the Court held that it was unconstitutional under the Fourth Amendment to set roadblocks “whose primary purpose was to detect evidence of ordinary criminal wrongdoing.”

The Indianapolis checkpoint scheme at issue in Edmond allowed officers to conduct a search only by consent or based on the “appropriate quantum of particularized suspicion.” Further, the officers were required to conduct each stop in the same manner until particularized suspicion developed and then the officers could extend the search based on the suspicion. The cars were stopped in groups with approximately 30 officers stationed at a particular checkpoint. Prior to reaching the checkpoint, a lighted sign would identify the checkpoint and state, “Narcotics checkpoint _____ miles ahead, narcotics K-9 in use, be prepared to stop.”

The Court found that while checkpoint programs clearly aimed at reducing immediate hazards posed by the presence of drunk drivers on the road remained constitutional, those checkpoints that were simply directed at a “general interest in crime control” would not withstand constitutional analysis. As the Court noted, if the prime reason of the checkpoint is to detect evidence of ordinary criminal wrongdoing there must be individualized suspicion.

The Fifth Amendment

The Fifth Amendment provides several imperative protections for persons accused of a crime. It requires indictment by a grand jury on a federal offense and protection against double jeopardy and self-incrimination. It also forbids deprivation of life, liberty, or property without Due Process of law and prohibits the taking of private property for public use without just compensation.

In the first entitlement of the Fifth Amendment, we are granted the right to a grand jury indictment. This jury decides whether a crime has been committed and if there is reason to go on to trial. On August 4, 1735, John Peter Zenger was brought to trial and charged with seditious libel. Philadelphia lawyer, Andrew Hamilton, defended him. The prosecution argued that the sole fact of publication was sufficient to convict him and excluded the truth from the evidence. Hamilton admitted that Zenger published the offending stories, but denied that it was libel unless it was false. A grand jury refused to indict Zenger, but the prosecution was somehow able to get an indictment. Hamilton made an eloquent appeal to the jury to judge both the law and the facts; as a result, Zenger was acquitted. His acquittal elevated the grand jury into a fortification against oppressive persecution.

The trial of Zenger was a precedent setting case, in that Zenger was found not guilty of the charge of seditious libel, specifically because what he printed was true. This began a nation wide movement against the present form of government and for freedom of the press, which continued until the close of the Revolutionary War and the establishment of the Bill of Rights. Zenger’s trial is referred to as “the germ of American freedom…which subsequently revolutionized America.”

Today, many states use the grand jury system, while others use a system in which a prosecutor may choose to proceed by grand jury indictment or by information. There are pros and cons to the grand jury system. For one, the proceeding is held in secret. A witness’s testimony is not made public and the names of the jurors are not disclosed. This confidentiality is to ensure that witness reveals as much information as possible, while feeling comfortable. This way, grand jurors, who are everyday people, also feel free to vote their consciences. With this, the accused is kept from the public and avoids embarrassment.

But some people compare the grand jury to an inquisition because of its secrecy. Defense attorneys sometimes feel that this system is unfair to the accused because they are not allowed to present a defense on their own behalf or even speak on their own behalf. Also, the grand juries are allowed to consider unfounded information as evidence, although it cannot be admitted at trial.

The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.

This was the main argument in the case of Green v. U.S. The D.C. Criminal Code required that killing in the course of arson be classified as first-degree murder. The jury found Green guilty of arson and second-degree murder; they should have been instructed that Green either be found guilty of first-degree murder or not guilty. His lawyer’s argued that by accusing him of second-degree murder, they were hereby acquitting him of murder in the first degree. They claimed he could not be retried on the basis of double jeopardy. The Supreme Court ruled in Green’s favor, declaring that, “the underlying idea is that the State with all of it’s resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense.”

In some ways, this amendment is related to freedom of power. It shows that as much power as the US government holds, it has some major restrictions. Once a person is let free, they are free. They cannot take away the freedom that they had once already given over to that person.

The next clause of the Fifth Amendment states that, “No person shall be compelled in any criminal case to be a witness against himself… This means that no individual can be made to testify against himself in any criminal case or give any type of information about him that might serve to incriminate him.

This right originated in England, where people were being forced to testify against themselves. After 1611, if anyone refused to take an oath requiring them to answer all questions truthfully without knowing why they were asked or the charges against them, he could be found in contempt of court and sent to prison until he agreed to swear the oath and answer the questions. This act not only violated the sanctity of conscience and the teachings of Jesus, but also presented people with an excruciating choice of facing eternal damnation or execution.

In 1637, a man was imprisoned for shipping seditious books into England, and refused to take the oath before the Star Chamber. “I was condemned,” he later wrote, “because I would not accuse myself.” This brought about the recognition of the right of self-incrimination.

I believe that this right is necessary. According to the US justice system, a person is innocent until proven guilty. This is a right and advantage in our society that must be upheld; people should be able to protect themselves from the law.

This clause has been widely identified with the phrase “taking the 5th” used by witnesses testifying before congressional investigating committees or judicial bodies. Although its one of the best known of the Bill of Rights amendments, it is also one of the least popular. It is often viewed as a shield for the guilty, rather than a shield for the innocent, since an innocent person should have nothing to hide. This provision proves that the Bill of Rights does not always by the will of popular demand, but it tries to advocate just and reasonable practices as best as it can. People sometimes highlight that this clause may also protect innocent people who find themselves in incriminating circumstances, such as “Fifth Amendment Communists.”

Perhaps the most famous case concerning the Fifth Amendment is Miranda vs. Arizona. In this case the court was asked to decide whether or not incommunicado interrogation of suspects by police infringed upon the right against self-incrimination guaranteed by the Fifth Amendment. In their ruling the court stated that prosecutors could not use statements stemming from custodial interrogation of defendants unless they demonstrated the use of procedural safeguards. The court also specifically outlined the criteria that should be included in police warnings to suspects that included the right to remain silent and the right to have legal counsel present during questioning. These rights have come to be known as “Miranda Rights” over the years and they have been extremely important in law today.

The next part of the Fifth Amendment guarantees that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one’s life, liberty, or property. It also essentially guarantees that a law shall not be unreasonable, arbitrary, or capricious. This provision differs from other facets of the Bill of Rights. Unlike other freedoms that are concerned with the substance and scope of the protection, the due process cause focuses on the actual procedure itself.

The concept of due process originated in English common law. The rule that individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves predates written constitutions and was widely accepted in England. The Magna Charta is an early example of a constitutional guarantee of due process. That document includes a clause that declares, “No free man shall be seized, or imprisoned . . . except by the lawful judgment of his peers, or by the law of the land” This concept of the law of the land was later transformed into the phrase “due process of law.”

The Fifth Amendment also provides that private property shall not be taken without just compensation. The government’s right to take private land for public use is known as the power of eminent domain. There is a great deal of controversy surrounding exactly how much compensation is just and determining whether the property has been taken for public use. Public benefit must be clear and significant.

As a result, in Poletown Neighborhood Council v. Detroit, The courts ruled that giving land to General Motors most certainly constituted public use , as it would provide some 6,000 new jobs and revitalize the city s economy.

This provision has been extremely crucial to society, for it shows the freedom of power. It is comforting to know that the government cannot come and force one to move without reason or without full and just compensation. Once again, this puts a limit on what the government can and cannot do.

The Sixth Amendment

The Sixth Amendment sets forth the rights of the accused in criminal proceedings: a speedy and public trial, an impartial jury, the location of the trial in the area where the crime took place, full notification of the prosecution charges, a confrontation with witnesses for the prosecution, compulsory methods to obtain favorable witnesses, and counsel.

The right for a person to be tried by an impartial jury is in compliance with the Supreme Court’s belief that the jury as a group can reach a balanced result only if it reflects the different beliefs and attitudes of the community. A trial jury must be selected from a representative impartial cross-section of the community where the crime was committed, without excluding large or distinctive groups of the population. To ensure an impartial jury, lawyers from both sides conduct a “voir dire,” in which they question prospective jurors before trial to uncover any bias or prejudice.

This process is essential to the term innocent until proven guilty. It must be clear, even before the trial begins, that the jurors have not been previously swayed to believe that the defendant is either guilty or not guilty.

The next provision in this amendment is the right to confront. This guarantees defendants that trial witnesses will testify under oath, be subject to cross-examination, and be observed that the judge and the jury in order to assess their credibility. The accused person has the right to confront face-to-face any and all of the witnesses testifying in the case.

In Coy v. Iowa, Coy questioned the one-way mirror that had been placed between him and the two victims as to spare them from any more trauma. He claimed his right to confront had been disregarded. But here, the Court found that the welfare of the two female child victims was outweighed the defendant’s right to confront.

In 1988, the Supreme Court reversed on its previous opinion that a defendant can testify behind a screen or monitor. It now maintains that defendants have a right to at least see the ones against them face-to-face, emphasizing that this is an essential aspect to a fair trial. On the other hand, this right is still not absolute; a traumatized child may testify through a monitor, screen, etc.

The compulsory process includes the legal mechanisms to require people to give depositions and be present to testify at trial or pretrial hearings. If they do not wish to appear, a subpoena can be sent, thereby compelling them to appear. It also includes the right to compel the production of documents. All together, it gives the defendant the basic right to present a defense.

The defendant s need for evidence is so crucial that in a case where this provision conflicts with the First Amendment, the Sixth Amendment will take precedence. This decision of the Supreme Court is based on the grounds that the Sixth amendment is the paramount amendment, guaranteeing all our other rights, including our First Amendment rights, because it provides for a fair trial. In addition, it overwhelms the First Amendment right for the press to withhold information.

I agree with the decision of the Supreme Court on the basis that if the right to present a defense is perhaps the most basic right a criminal defendant has, how can courts deny the evidence which they claim is critical to exercise that right.

The right to counsel has been recognized by the Supreme Court as notably consequential. Of all the rights that an accused person has, the right to be represented by council is by far the most pervasive for it affects his ability to assert any other rights he may have. Without aid of counsel, the Supreme Court upholds that the accused may be put on trial and convicted upon improper evidence.

In the landmark 1863 case, Gideon v. Wainwright, the court was faced with a man who was convicted of felony breaking and entering in a Florida state court without any counsel appointed to represent him. The Supreme Court ruled in a unanimous decision that Gideon was guaranteed the right to be represented by a public defender in the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. It ruled that the right to counsel is so fundamental that it must apply to both the State and Federal governments and that any person brought to court that is poor cannot be assured a fair trial unless counsel is provided for him.

The Supreme Court has long acknowledged that the right to counsel is the right to the effective assistance of counsel, but had not expressed standards by which effectiveness should be judged. The Strickland v. Washington case set new standards. Here, the courts declared that the purpose of the Sixth Amendment right to counsel is to guarantee a fair trial. Therefore, the standard for determining ineffectiveness is whether the counsel s conduct resulted in the trial having produced an unjust result. A two-part test is used to make this judgment. First, a defendant must identify specific acts or oversights by the counsel were outside the range of professionally competent assistance. Second, a defendant must show that the counsel s errors prejudiced the defense to the point where he was denied a fair trial.

The Seventh Amendment

The Seventh Amendment guarantees trial by jury in civil actions in the federal courts where the amount in controversy exceeds $20. It may be the on most likely to affect, and disrupt, an average citizen’s life.

Historically, The Seventh Amendment has been one of the most prized and accepted of all those in the Bill of Rights. It guarantees the right to a jury in a civil- as opposed to a criminal- trial. Like the criminal jury, the civil jury was designed to act as a check on the arbitrary power of the state. Recently, however, problems have arisen. As civil suits are becoming longer and more complex, many argue that the civil jury has become an “instrument of arbitrary power,” because jurors are deciding cases that they cannot possibly understand. Some argue that these juries are sometimes forced to make seemingly impossible decisions that should not be in their hands to decide, such as putting a price tag on a life or limb. This has prompted many experts to argue for the creation of a “complexity exception.” They say this exception would save time and expense for the judiciary, ensure a fairer result, and perhaps, spare the hapless civil jury.

The jury is sometimes seen as a safety valve in highly controversial cases, or cases that require drawing fine lines between certain kinds of behavior. When judges decide such cases, their rulings may appear arbitrary or be vulnerable to charges of corruption or bias. It is thought that a jury lends that appearance of fairness and legitimacy to such difficult cases. The “collective wisdom of the community” is sometimes considered superior to that of a single judge.

The US Supreme Court has never decided the Seventh Amendment complexity issue.

Illustrating the Court’s course of decision on this subject are two unanimous decisions holding that civil juries were required, one in a suit by a landlord to recover possession of real property from a tenant allegedly behind on rent, the other in a suit for damages for alleged racial discrimination in the rental of housing in violation of federal law. In the first case, the Court reasoned that its Seventh Amendment precedents ”require trial by jury in actions unheard of at common law, provided that the action involves rights and remedies of the sort traditionally enforced in an action at law, rather than in an action at equity or admiralty.” The legal cause of action, the Court found, had several counterparts in the common law, all of which involved a right to trial by jury. In the second case, the plaintiff had argued that the Amendment was inapplicable to new causes of action created by congressional action, but the Court disagreed. ”The Seventh Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.”

The Eight Amendment

The Eighth Amendment prohibits cruel and unusual punishment, as well as the setting of excessive bail or the imposition of excessive fines. Punishments that have been declared unconstitutional by the U.S. Supreme Court include torture and loss of citizenship. The Court has also excluded punishment that is excessive in relation to the crime committed, such as prison sentences for narcotics addiction.

This prohibition against excessive fines and cruel and unusual punishment helps insure that objectivity, reason, and justice rather than vindictiveness and revenge guide the costs imposed upon a criminal for his indiscretion of another’s rights.

In Furman v. Georgia, the Court struck down all existing capital punishment statutes by ruling that the optional death penalty violated the Eighth Amendment. Judges pointed out that in most states there were no guidelines for the sentence to follow, and therefore judges and juries had unlimited Many states, then passed new statutes making capital punishment mandatory for certain crimes; in the 1976 case of Gregg v. Georgia, the Court found that these did not per se violate the Eight Amendment.

The Supreme Court then decided on a standard by which the death penalty was to be judged. They based their decision on the evolving standards of decency that marks the progress of a maturing society. The court then declared that any punishment must accord with the basic concept of the dignity of man that underlies the Eight Amendment. A punishment cannot result merely in needless suffering, but must serve a social purpose and be proportionate to the crime.

The evolving standards of decency was applied in Enmund v. Florida. Enmund was the driver of a getaway car who was sentenced to death by the felony-murder statute in Florida. The Supreme Court found a consensus against the death penalty in such a situation; Enmund s death sentence was vacated. It also concluded that a person who did not kill, attempt to kill, or intend to kill can be sentenced to death on the grounds that he has reckless indifference to the value of human life.

This was the case in Tison v. Arizona. The Tison brothers, along with other members of their family, planned and undertook the escape of their father from prison where he was serving a life sentence for having killed a guard during a previous escape. Petitioners entered the prison with a chest filled with guns, armed their father and another convicted murderer, later helped to abduct, detain, and rob a family of four, and watched their father and the other convict murder the members of that family with shotguns. Although they both later stated that the shooting surprised them, neither brother made any effort to help the victims, but drove away in the victims’ car with the rest of the escape party. After the Arizona Supreme Court affirmed the brothers’ individual convictions for capital murder under that State’s felony-murder and accomplice-liability statutes, the brothers collaterally attacked their death sentences in state post conviction proceedings, alleging that Enmund v. Florida, which had been decided in the interim, required reversal.

However, the State Supreme Court determined that they should be executed, holding that Enmund requires a finding of “intent to kill,” and interpreting that phrase to include situations in which the defendant intended, contemplated, or anticipated that lethal force would or might be used, or that life would or might be taken in accomplishing the underlying felony. Despite finding that the brothers did not specifically intend that the victims die, plan the homicides in advance, or actually fire the shots, the court ruled that the basic intent was established by evidence that the brothers played an active part in planning and executing the breakout and in the events that lead to the murders, and that they did nothing to interfere with the killings nor to disassociate themselves from the killers afterward. Although only one of the brothers testified that he would have been willing to kill, the court found that both of them could have anticipated the use of lethal force.


After reading this book and studying additional cases dealing with the Bill of Rights, I have come to realization of just how fortunate I, along with the rest of the United States citizens, truly am. There are many things that we take for granted each day; rights that we could never imagine living without. Our government has gone to the depths of every level so that we can live the way we do; how often we forget that there was a time when things were not as simple.

Our judgments lie in the hands of the Supreme Court and its justices, who every day are forced to make monumental decisions. We are extremely fortunate that they have a document such as this to look into and help them come up with their decisions.

I think that although there have been considerable problems, we should praise our government for taking that extra step to the next level and trying to bestow upon us rights for every citizen.