Explaining the Bill of Rights

By Barbara Feinberg

Remember how delighted you were when you got your own bicycle? You could ride it all over the neighborhood much more quickly than you could walk. However, you needed to remember the safety rules. That way you didn't have an accident and hurt pedestrians or yourself. What might have happened if nobody bothered to tell you the rules? What if everyone took those rules so much for granted that no one even wrote them down? How could you watch out for pedestrians' rights if you weren't sure what those rights were?

When the delegates sought to have the new Constitution ratified, they faced a similar problem. They thought everyone knew what individual rights were, so they did not define them in the Constitution. However, the lack of specific guarantees of personal liberty was one of the main reasons why a number of states were reluctant to accept the Constitution.

Objections to the Constitution

In order to approve the new Constitution, voters were to elect representatives to special state conventions. In New York, Virginia, and Massachusetts, the people and their representatives were strongly opposed to the Constitution. They were called the "Antifederalists." The Antifederalists included such patriots as Patrick Henry, the Virginia orator; Sam Adams, the Massachusetts agitator; George Mason, who had written much of the Virginian Constitution; and Richard Henry Lee, who had served as Virginia's delegate to the Continental Congress.

The Antifederalists argued that the states would be absorbed into an all-too-powerful national government. They claimed that the limits on direct voting and the long terms of the president and senators would create an aristocratic class. They also feared that the president might become another monarch. In other words, these Antifederalists felt that the new Constitution was most undemocratic.

Their major objection to the new Constitution was its lack of a bill of rights. "Bills of rights" list the specific freedoms that governments cannot threaten or take away. When the Constitution was being written, many state constitutions already had bills of rights. For that reason, the authors of the Constitution did not feel it was necessary to have another one. The antifederalists believed that without a list of personal freedoms, the new national government might abuse its powers. They worried that it would destroy the liberties won in the Revolution.

Supporters of the Constitution

Supporters of the new system were called "Federalists." They included George Washington and two future Supreme Court Chief Justices, John Marshall and John Jay. To help win support for the new Constitution, Alexander Hamilton, James Madison, and John Jay wrote a series of essays for the newspaper. These were eventually published under the title "The Federalist."

In these essays they described the Constitution and explained how it would work. They answered its critics calmly and effectively. They pointed out how the new government was a republic with safeguards against the abuse of power.

By the end of July 1788, 11 states had ratified the Constitution. But the new government could not go into effect: North Carolina and Rhode Island did not approve the Constitution until after the government was set up. However, the Antifederalists' criticisms were not ignored. As soon as the new Congress met, the legislature, under the leadership of Madison, prepared 10 "amendments," or additions, to the Constitution. They were all approved by 1791 and became known as the Bill of Rights.

The First Amendment

The First Amendment is perhaps the most important part of the Bill of Rights. It protects five of the most basic liberties. They are freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and freedom to petition the government to right wrongs. These were the guarantees that the Antifederalists missed most in the new Constitution.

Freedom of Religion. Freedom of religion means that the government may not force you to accept one set of religious beliefs nor may it interfere with the way you worship.

One of the most heated debates of our time involves the issue of prayer and schools. Do students have the right to pray in class? Or would a prayer interfere with another student's rights 'not' to pray? A number of cases have been brought before the Supreme Court to settle this matter. The Supreme Court has held that prayers or even a moment of silence would violate the principles of the First Amendment.

Freedom of Speech. This freedom entitles American citizens to say what they think, provided they do not intentionally hurt someone else's reputation by making false accusations. Neither may they make irresponsible statements deliberately harmful to others, such as yelling, "Fire!" in a crowded theater when there is no fire. There are many issues about which Americans disagree, from child-rearing practices to baseball teams to Presidential candidates. Freedom of speech enables people to state their opinions openly to try to convince others to change their minds.

The First Amendment also gives you the right to disagree with what others say without fear of punishment by the government authorities. However, if you make an outrageous statement, such as, "The earth is flat," free speech will not keep people from making fun of you. If you express an unpopular opinion — for example, that students do not get enough homework — don't be surprised if your classmates avoid you. The First Amendment does not prevent social or peer pressure to conform to what others think.

Freedom of the Press. This freedom makes it possible for Americans to keep informed about what is going on in government. It helps them to be responsible citizens. Reporters and editors can criticize the government without the risk of punishment, provided they do not deliberately tell lies. Newspapers, magazines, and books, as well as television and movie scripts, do not have to be submitted for government inspection before they are published. This censorship would violate the First Amendment.

Freedom of Assembly. This freedom makes it possible for Americans to join clubs or political parties, even if those groups represent unpopular views. Because of the First Amendment, people can join groups to promote animal rights, the nuclear freeze, or conservation. They can join groups to protest government intervention in Haiti, imported clothes and shoes, toxic wastes, or aid to Serbia or Bosnia. By sharing common interests, Americans can learn to work together. There are groups devoted to the interests of young people. Scout troops and 4-H clubs are but two examples.

Freedom to Petition. This important freedom allows people to tell the government what they think is needed. They can try to prevent the government from acting in a certain way. They can complain to the government without fear of penalty when things aren't going the way they should. For example, if people dump garbage near your school, you and your parents can petition the government to clean it up. Freedom to petition helps the government to clean it up. Freedom to petition can also let the government know how well it is doing its job.

The Right to Bear Arms

The Second Amendment guarantees individual states the right to maintain "a well regulated militia," and citizens the right to "keep and bear arms." Because criminals often used unlicensed weapons to hurt others, some people have urged the national government to control the sale of guns. Other people have argued that gun control is a violation of the Second Amendment.

Housing Troops

The Third Amendment pledges that in peacetime, citizens will never have to keep soldiers in their homes without consenting. Before the Revolution, the British forced Americans to provide lodging and food for their troops. The colonists bitterly resented this intrusion on their privacy as well as the cost of feeding hungry soldiers.

Searchers and Seizure

The Fourth through Eighth Amendments concern the rights of people suspected of crime. The Fourth Amendment protects citizens from improper searches of their bodies, possessions, or homes. It requires that a detailed warrant be issued by a judge listing what can be searched. There has to be a good reason for the search. For example, suppose the police knew that someone in your school was selling drugs. The Constitution does not let them search the home of every student. In fact, they could not search the homes of even one or two without a court order.

Rights of the Accused

The Fifth Amendment protects the rights of anyone accused of a crime. It assumes that everyone is innocent until proven guilty. In some countries, exactly the opposite is true. Suspects must prove that they are innocent. When a person is accused of a crime for which the punishment could be death, the Fifth Amendment requires that a 'grand jury' look at the charges before that person can be brought trial. A grand jury is a group of citizens who decide if there is enough evidence to try a person. It is intended to prevent people from being falsely accused of a serious crime. Today, grand juries consider most serious criminal charges. The Fifth Amendment also states that the person cannot be tried twice for the same crime.

The section of the Fifth Amendment that has received the most publicity is the guarantee against 'self-incrimination.' This means people cannot be forced to testify against themselves. Under the Fifth Amendment, law enforcement officials must produce the evidence necessary to convict a person of a crime. The accused person cannot be made to provide it. In earlier times, people were tortured until they confessed to crimes they may not even have committed. The guarantee against self-incrimination makes sure that unfair pressure cannot be used to make a person confess.

In the 1950's, this section of the Fifth Amendment sparked a public uproar. Notorious criminals accused of having ties with the underworld claimed the Fifth Amendment protected them from having to testify. If they had denied those accusations, they probably would have been found guilty of 'perjury,' or lying under oath. Perjury is punishable by law. If they had told the truth, they would have risked punishment. Instead, they refused to testify on the grounds that they might incriminate themselves. Law enforcement officials had to come up with evidence against them or free them.

The right to remain silent also protects innocent people. During the 1950's, the government became concerned about Communists. Politicians held hearings in which people were asked which organizations they had joined and who their friends were. If they answered that they had been involved in certain groups or friendships, they were accused of being Communists. At times, the accusations became wild and unfounded. Many people took refuge in the Fifth Amendment protection against self-incrimination. Some, perhaps, were Communists who might have wished to see the government overthrown. Others, however, were innocent citizens who had been caught up in a hysterical movement. The Constitution protected them against ruthless accusations.

Due Process of the Law

Another section of the Fifth Amendment holds that "no one can be deprived of life, liberty, or property without due process of law." In other words, the government must follow certain legal procedures before deciding on a penalty. It can't jail a person because it suspects that the person committed a crime. It must prove the accusation by following certain rules and methods. However, "due process of law" is a rather vague and general term. As times have changed, so has its meaning.

In the 1930's, photographers and newsreel cameramen were allowed to record trials. (There was no television news.) The trial of a man accused of kidnapping the aviator Charles Lindbergh's child took on the atmosphere of a circus. Lawyers and witnesses became more interested in creating publicity than in determining justice. They began to make exaggerated claims.

In later years, to discourage publicity stunts and other distractions, only artists and reporters were allowed to be present in court. Now some judges permit television cameras to record trials. How might the presence or absence of cameras affect a defendant's right to due process?

Eminent Domain

Finally, the Fifth Amendment requires the government to pay citizens when it takes over their property for a public use. The government's right to take this property is called 'eminent domain.' Suppose the state wanted to build a highway which would run right through your residence. It would have to pay the owners a reasonable price for the property. The government could force you to move, but at least it would have to provide you with the money to relocate.

Fair and Speedy Trials

The Sixth Amendment provides more requirements for a fair trial in criminal cases. It guarantees a speedy, public trial by an impartial jury in the area where the crime was committed. The defendant must be able to question the accusers and to force favorable witnesses to testify. The accused has a right to a lawyer.

How would you feel if you were falsely accused of cheating on a test? Suppose you had no idea who was accusing you. How could you question your accuser? How could you defend yourself? Your reputation could be hurt if you had to wait a long time before the matter was cleared up. Wouldn't you want a chance to prove your innocence? This is why the Sixth Amendment is so important.

Jury Trials

The Seventh Amendment guarantees that Americans will receive a jury trial in civil (as opposed to criminal) cases involving property worth more than $20. Today, however, people do not bring such cases to federal courts unless a much larger sum of money is involved.

Bails, Fines, and Punishments

The Eighth Amendment protects people from having to pay unreasonably high 'bail' in order to be released from prison before they go to trial. Bail is money given to pledge that a person accused of a crime will appear for trial. The Eighth Amendment also protects people from unreasonably high fines. Finally, it outlaws cruel and unusual punishment. This requirement, as well as the Fifth Amendment's guarantee against self-incrimination, protects citizens from the use of torture. Some people have argued that the death penalty is a form of cruel and unusual punishment.

Reserved Powers

The last two amendments address the liberties of citizens and the rights of states. The Ninth Amendment states that the Constitution and the Bill of Rights do not define all of the fundamental rights people have. Such rights exist whether or not they are defined. The Tenth Amendment makes a similar claim concerning the rights of the states. It holds that the states and the people have powers that are set aside and not listed item by item. These powers are called 'reserved powers.' They can be contrasted with 'express powers,' which are specifically defined in the Constitution.

In this way the Constitution allows for growth and change. With the invention of radio, movies, television, automobiles, jet planes, computers, and satellites, what rights might the states and the people now claim? How else can the Constitution be kept up to date?

Adapted from The Constitution: Yesterday, Today, and Tomorrow, by Barbara Silberdick Feinberg. Scholastic, Inc., 1987.

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