American Government and the Constitution Lecture Six

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American Government and the Constitution Lectures: 1-2-3-4-5-6-7-8-9-10-11-12

Background to the Bill of Rights

Near the end of the Constitutional Convention, on September 12, 1787, two of the most prominent Framers proposed adding a Bill of Rights. These Framers were George Mason of Virginia and Elbridge Gerry of Massachusetts. George Mason had written the 1776 Virginia Declaration of Rights, and Elbridge Gerry was a future Vice President. Both enjoyed the enormous respect of their colleagues at the Constitutional Convention. Mason and Gerry were also from the two most politically powerful States of the young Nation: Virginia and Massachusetts, which became the States of residence of the first six presidents of the United States (4 were from Virginia, and 2 from Massachusetts).

Mason and Gerry proposed prefacing the Constitution with a Bill of Rights.

But their proposal was unanimously rejected on a vote at the Convention. (Recall that each State had one vote, depending on how the majority of the delegates from that State voted. So Mason and Gerry could have voted for it within their States, but were apparently outvoted by the other delegates from their own States and it lost by a unanimous votes of the States.)

Eight months later Alexander Hamilton, writing one of the last articles in the Federalist Papers, explained why the delegates did not feel a Bill of Rights was needed and why he disagreed with the criticism of the Constitution for lacking a Bill of Rights:[1]

The most considerable of these remaining objections is, that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked, that the constitutions of several of the states are in a similar predicament. I add, that New-York is of this number.

[T]he constitution proposed by the convention contains, as well as the constitution of this state, a number of [protections of individual rights].

Hamilton then listed the many provisions in the original Constitution which protect individual rights. He cited Article I, section 3, clause 7 (protection against impeachment); Article I, Section 9, clause 2 (protection of the "privilege of the writ of habeas corpus"); clause 3 ("No bill of attainder or ex post facto law shall be passed.") Clause 8 ("No title of nobility shall be granted by the United States: And no person holding any office of profit or trust under them, shall, without the consent of the congress, accept of any present, emolument, office or title, of any kind whatever, from any king, prince or foreign state.") And all those protections are in Article I alone!

Article III contains individual protections also. Its Section 2, clause 3, protects the right to a jury trial:

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed.

Article III, Section 3, contains special protection against prosecution for treason:

Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Article II, Section 3, clause 2, provides additional protections:

The congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.

Alexander Hamilton explained further in his Federalist No. 84 how fundamentally important all of the above protections are. Interestingly, he called the prohibition on the titles of nobility "the corner stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people."

Hamilton even had a philosophical argument against adding a Bill of Rights. He observed that:

bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the Barons, sword in hand, from king John. Such were the subsequent confirmations of that charter by subsequent princes. Such was the petition of right assented to by Charles the First, in the beginning of his reign. Such also was the declaration of right presented by the lords and commons to the prince of Orange in 1688, and afterwards thrown into the form of an act of parliament, called the bill of rights. It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations.

The Constitution is by and for the people, beginning with the phrase: "We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." Hamilton, perhaps the most brilliant of all Framers, added that the preamble to the Constitution "is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government."

Hamilton felt that the addition of a Bill of Rights was both "unnecessary" and "dangerous" because specifically declaring some rights would invite evasion of their protection, and intrusion on rights based on what was not said:

For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? ... What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this, I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.

Despite the best arguments by the finest minds in America, many people—including brilliant men like George Mason—remained unconvinced by Hamilton's reasoning. The Anti-Federalists still wanted protection by a Bill of Rights. They vigorously opposed ratifying the Constitution without a Bill of Rights to protect the people against infringement on individual rights. Many people, particularly in important large States, were fearful of giving too much power to a new federal government, and they opposed ratifying the Constitution for that reason. Nine States, most of them small, ratified the Constitution because they liked how it gave them power equal to the large States in the Senate. But the large States of Virginia and New York refused to ratify the Constitution, and without their agreement, there could hardly be a new United States of America. Supporters of the Constitution knew that it was essential to obtain ratification by Virginia and New York in order for the Constitution to be successful. In addition, the smaller States of Rhode Island and North Carolina refused to ratify the Constitution without a Bill of Rights.

By June 1788, about nine months after the Constitution was completed, James Madison had still been unable to persuade his own State of Virginia to ratify the Constitution. The debate ensued, and opposition to the Constitution by prominent men like George Mason and Patrick Henry made it uncertain whether Virginia would ever ratify it. Then James Madison promised to add a Bill of Rights to the Constitution if Virginia ratified it. Based on that promise, Virginia ratified the Constitution by a narrow margin of victory. New York subsequently ratified the Constitution, also by small margin of victory, by attaching a bill of rights to it. North Carolina and Rhode Island later ratified the Constitution after George Washington had become the first president.

James Madison fulfilled his promise by introducing the Bill of Rights in the first Congress. He included 12 amendments (one of which never passed, and another one which did not obtain ratification by enough States until about 200 years later). The ten that were ratified by enough States in 1791 are listed below.

The Bill of Rights

Historically, the Bill of Rights built upon the 1776 Virginia Declaration of Rights, written by George Mason (who participated in the Constitutional Convention but then left it prior to completion, and opposed the ratification of the Constitution), and the 1689 English Bill of Rights. The concept of a Bill of Rights for the people can be traced back many centuries earlier, to the Magna Carta (1215).

Amendment I

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.

Amendment II

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.

Amendment III

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.

Amendment IV

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.

Amendment V

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 offence 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.

Amendment VI

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.

Amendment VII

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 reexamined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

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

Amendment IX

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

Amendment X

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.

First Amendment

Establishment Clause

These are the first words of the Bill of Rights:

Congress shall make no law respecting an establishment of religion ....

Liberals insist that this requires prohibiting classroom prayer, crosses on public property, a national day of prayer, the posting of the Ten Commandments, and other expressions of religion on public property. Conservatives reject that view, and observe that the Establishment Clause merely prohibits the federal government from establishing and funding a particular religion.

Nothing in the Bill of Rights, or anywhere else in the Constitution, requires a "wall of separation between church and state." That phrase was taken from a letter Thomas Jefferson wrote later, after the Constitution and Bill of Rights were adopted, to a small group of Baptists who were unusually opposed to any cooperation between churches and government. Jefferson was not even at the Constitutional Convention or involved in the drafting of the Bill of Rights, and the misuse of his letter illustrates a flaw in going beyond the text of a law to interpret it.

The straightforward interpretation of the Establishment Clause is that it prohibits Congress from establishing an official government church, like the Anglican Church in England. Many people in colonial America were fearful of that. But States at the time did fund churches, particularly in Massachusetts, so the Constitution could not possibly have intended to prohibit States from cooperating with churches however States liked.

It has been hostility to Christianity, and to churches, that has resulted in a misinterpretation of the Establishment Clause to prohibit crosses on public property and prayer in public school classrooms.

Free Exercise Clause

The Free Exercise Clause is the separate portion immediately after the Establishment Clause. The Free Exercise Clause states that Congress also shall make no law:

prohibiting the free exercise thereof.

The "thereof" refers to religion, such that the provision protects the free exercise of religion.

The Free Exercise Clause fully protects someone's right to have any religious belief, but it does not protect every kind of action based on religious beliefs. The U.S. Supreme Court held that the Free Exercise Clause does not establish a right to religious-based polygamy (multiple wives) in the case of Reynolds v. United States (1879). But the Supreme Court has held that the Free Exercise Clause does protect a right of government workers not to work on their religion's Sabbath, a right to educate one's own children through private schools or (if Amish) no high school, and the right of a church to fire employees for violating church doctrine (EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School (2012)[2]).

The Roman Catholic Diocese of Baton Rouge filed a petition for cert. with the United States Supreme Court in August 2014, in order to reverse a Louisiana Supreme Court ruling that requires a priest to repeat to a jury what he previously heard in a confession to him. The Louisiana Supreme Court's ruling jeopardized a long tradition of confidentiality that protects the privacy of confessions in Christian churches, including the Roman Catholic Church.[3] The Louisiana Supreme Court's ruling also raised issues with having a lay jury decide whether statements made in the confessional constitute a real "confession" that should be exempt from compelled disclosure.

Free Speech Clause

The Free Speech Clause is perhaps the greatest provision in the Bill of Rights, and is helpful in protecting the preaching of the Bible:

Congress shall make no law ... abridging the freedom of speech

An ongoing controversy is how broadly the Free Speech Clause should be interpreted. Should the Free Speech Clause be interpreted to protect unlimited spending on television ads to help candidates, for example, so that they can win elections?

In Citizens United v. FEC (2010), a 5-4 decision by the U.S. Supreme Court held that the Free Speech Clause protects citizens against attempts by Congress to limit spending during campaigns for election. This decision granted corporations the same unlimited spending rights that the press already had, and liberals were furious at this decision. Conservatives generally welcomed how this decision "leveled the playing field" between the liberal media and more conservative businesses, with respect to the ability to spend money during political campaigns to educate the public.

The impact of the decision is this: corporations may now spend unlimited amounts in favor of or against a candidate, as long as the expenditure is independent of the campaign and not a donation directly to the candidate. For example, Wal-Mart can now spend $100 million or more directly to defeat a pro-union candidate. Unions are allowed to spend unlimited amounts too. The Citizens United decision did not affect the longstanding ban on corporate or union contributions to federal candidates.

Liberals were so furious about this decision that President Barack Obama criticized it in an unprecedented manner during his State of the Union address in January 2010, which created an awkward moment as the U.S. Supreme Court Justices sat there silently in the front row, as is tradition, despite the chastising. Justice Samuel Alito was reportedly observed mouthing disagreement in reaction to President Obama's criticism.

Second Amendment

For more than 200 years after the ratification of the Bill of Rights, including the Second Amendment, it was unclear if the Supreme Court would interpret it to protect an individual right to "bear arms" (own and have a gun), or merely a collective right of militias to have guns.

The Supreme Court answered the question in D.C. v. Heller (2008), a bitterly divided 5-4 decision that was one of the very last opinions issued by the Court that Term. That case involved a challenge to a strict gun control law in the District of Columbia, our Nation's capital. The law prohibited handguns, and some citizens sued for a ruling declaring the law unconstitutional.

The citizens argued that the Second Amendment protects an individual right to possess a firearm unrelated to any service in a militia, and that the Second Amendment protects the right to use a gun for traditionally lawful purposes, including self-defense within one's home. Five out of nine Justices, enough for a majority, agreed with the citizens.

Four out of nine Supreme Court Justices disagreed with the majority, declaring that the Second Amendment protects only the right to possess and carry a firearm in connection with service in a militia.

The Second Amendment has a prefatory clause, which describes the purpose of the amendment, and an operative clause, which grants the rights. Nothing else in the Constitution has this type of grammar, but some state constitutions at the time did. To the 5-Justice majority on the Supreme Court, the Second Amendment could have been written like this without changing its meaning:[4]

Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

The Supreme Court ruled that the prefatory clause in the Second Amendment "does not limit or expand the scope of the operative clause." Under this approach, the Court began its decision by analyzing the operative clause, and then returning to the prefatory clause to make sure that the interpretation of the operative clause is consistent with the prefatory clause. This approach was a victory for "textualism" - focusing first on what the text says, and what the meaning of that text was at the time of passage or ratification. This is slightly different from original intent, which would focus first on the intention behind a law.

Based on the above approach, the Court declared that the Second Amendment protects an individual right to own guns. But in a few States it is still extremely difficult to own a gun for self-defense. Liberals prefer a situation where people are dependent on (and fearful of) government, rather than one where the people are self-sufficient in their own defense.

Fourth Amendment

Typically about 10% of the cases in which the Supreme Court "grants cert" involve the Fourth Amendment, which is more than any other issue. Each year there are new questions about when the police must obtain a warrant before searching someone's car, cell phone, computer, etc., or tracking someone's movements by secretly putting a GPS unit on his car. The U.S. Supreme Court likes these cases because they seem important without causing bitter divisions on the Court, as social issues like abortion and same-sex marriage do. These Fourth Amendment issues are also easy to understand, and the opinions are simple to write. This is easy work for the Supreme Court, and the Court "grants cert" on a disproportionately high percentage of its cases on this topic.

Should the government be able to search someone's cell phone, upon his arrest, without obtaining a warrant first? That was a question decided under the Fourth Amendment by the U.S. Supreme Court, in Riley v. California (2014). The Court unanimously held that a warrant is required by the Fourth Amendment before government can search the contents on someone's cell phone.

Was that the best decision? There were, of course, no cell phones at the time of the Constitutional Convention.

Knowledge about the Fourth Amendment can make the difference between being sent to jail for years, or not being arrested at all. If a cop stops a teenager who is carrying a backpack, does the police officer have a right to search the backpack? If the teenager grants consent to the cop to search his backpack, then the search is lawful; some cops are clever in obtaining that consent. But if the teenager knows his Fourth Amendment rights and refuses to consent to search his backpack, then the cop will probably not search it because of the Fourth Amendment. If there is something illegal in that backpack, then that exercise of Fourth Amendment rights by the teenager can mean the difference between going to jail and never being arrested.

In the case U.S. v. Jones (2012), the Court was divided over whether police could secretly attach a GPS monitoring device to a suspect's car without a search warrant, and thereby monitor his movements electronically. The police could then automatically track exactly where the suspect went every day and night. Do you think the Fourth Amendment should be interpreted to protect citizens against this government action, when done without first obtaining a search warrant? The court held that this was a "search" under the meaning of the Fourth Amendment, and thus ordinarily a warrant would be required before government could secretly attach a GPS unit to someone's car.

In a case in New Jersey, a man was sentenced to seven years in jail merely for having a gun in the trunk of his car, a gun which he lawfully owned in Colorado before moving here. New Jersey Governor Chris Christie had to intervene to "commute" (lift) his sentence so that he could be released from jail. There was a Fourth Amendment issue of whether the police properly searched his trunk without his consent and without a search warrant. If the search had not been properly authorized, then he never would have gone to jail. Of course, if an owner of property consents to a search, then it is authorized and no warrant is required. In this case, the defendant was away from his car when it was searched by police.

When a search is done in violation of the Fourth Amendment, then the evidence obtained is declared inadmissible against the defendant in a criminal case. This is the "exclusionary rule," which is unique to the American justice system. It has resulted in many cases of criminals being freed. Indeed, not only is the evidence excluded from trial, but all other evidence discovered based on the illegally seized evidence is excluded too. In the 1970s and 1980s, this was often criticized for interfering with the prosecution of defendants known to be guilty. But now it is an accepted remedy for searches that are unlawful under the Fourth Amendment.

Many forget that the existence of a warrant is not the end of the story about where a search is proper. A warrant must be signed by a proper authority, and must describe specifically what can be searched. The question, "do you have a signed warrant?" should be followed by examining what the warrant actually says, which places limits on what may be searched.

Seventh Amendment

The Seventh Amendment preserves the right to a jury trial in civil cases as it existed in 1791, when it was ratified. There are two important facts to know about the Seventh Amendment. First, it does not require a jury trial in all cases. If a party does not seek money damages, then a jury is not available. For example, if the only relief being sought is an injunction (a court order to require a party to do or not to do something), the court may hear the case without a jury.[5] Second, parties may waive their right to trial by jury. For example, a party that agrees to arbitrate disputes (have them resolved by an independent neutral arbitrator) necessarily waives the right to trial by jury for those disputes. Liberals, nonetheless, incorrectly claim that the enforcement of a party's binding agreement to have disputes arbitrated violates the Seventh Amendment.

Tenth Amendment

“An offence created by an unconstitutional law, the Court has held, is not a crime.” This was observed by the U.S. Supreme Court in Bond v. United States (2011).[6] Put another way, the Supreme Court observed that a “conviction under such a law is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.”[7]

The Tenth Amendment gives a citizen the right to challenge an unconstitutional law that is beyond Congress's enumerated powers. If Congress tried to prohibit homeschooling, for example, then a homeschooler could challenge the law based on the Tenth Amendment and the lack of an enumerated power for Congress to regulate or prohibit homeschooling.

Direct uses of the Tenth Amendment are relatively new. For many years it was ignored by courts, but it is gaining in popularity as Congress increasingly acts beyond its constitutional powers.

But while the Tenth Amendment is gaining in popularity among the people, the Ninth Amendment is almost never used in court today.

Does the Bill of Rights Apply against the States?

In Barron v Baltimore (1833), Chief Justice Marshall held for the U.S. Supreme Court that the Bill of Rights does not apply against the States. This was Chief Justice Marshall's last opinion for the Court, ending a career that spanned about 35 years. His successor, the future Chief Justice Roger B. Taney, was the attorney who represented the winning side (Baltimore) in that case.

Beginning in 1925, however, the U.S. Supreme Court began applying the Bill of Rights against state governments, in addition to the federal government. In Gitlow v. New York (1925), the Supreme Court held for the first time that the protection of freedom of speech in the First Amendment limits the ability of state governments and state law to infringe on that right. Gitlow and an associate had been convicted under a New York state law against criminal anarchy, because Gitlow and his associated advocated in a revolutionary newspaper for the violent overthrow of the United States government. The Supreme Court upheld the convictions but also ruled that the First Amendment does apply against the States, and thus there are limits to what a State may forbid.

Subsequently, for the remaining 75 years of the 20th century, the Supreme Court has applied nearly all of the Bill of Rights against the States, on a case-by-case basis as certain issues arise.


Answer any five of the following seven questions:

1. Do you think the Second Amendment protects an individual right, or only a collective right of members of a militia? Explain your answer.

2. Do you think the Free Speech Clause should be applied broadly to protect unlimited spending by corporations on political ads in elections? Explain your view.

3. Describe whether evidence that is seized by government in violation of the Fourth Amendment may be used against a defendant. Explain your view of whether government should be allowed to use illegally obtained evidence against a defendant.

4. Should the Fourth Amendment protect against searching things that did not exist at the time of the Constitution, such as computers? Explain your view, including a quotation of the portion of the Fourth Amendment that might apply to the search of a computer by government.

5. Do you think the Free Exercise Clause should be interpreted broadly to allow Native Americans to prevent the building of roads in forest areas that they consider to be sacred? As part of your answer, explain your understanding of the Free Exercise Clause.

6. Should the Bill of Rights apply against the States? Does it?

7. What is your view of whether the Constitution establishes a "wall of separation between church and state"? Does the phrase appear anywhere in the Constitution?


Answer any one of the following two questions:

8. Pick one of the following two issues, and give your view: should government need to have a search warrant before it searches someone's cell phone? Should government need to have a warrant before it tracks someone's movements by secretly putting a GPS unit on his car? Include in your answer a reference to the part of the Constitution that applies.

9. Pick your favorite part of the Bill of Rights and write an short essay about it.


  1. Hamilton, Federalist No. 84, May 28, 1788 (emphasis added).
  3. The Fourth Lateran Council in 1215, for example, ordered that any priest who violates the confidential seal of confession must be "consigned to a closed monastery for perpetual penance."
  4. The 5-Justice majority cited See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867) for this language.
  5. In 2014, for example, courts issued rulings on the enforceability of election laws in Ohio, North Carolina, and Texas without a jury.
  6. The Court was quoting Ex parte Siebold (1880) (inner quotations and brackets omitted)
  7. The Bond court was again quoting Ex parte Siebold (1880) (inner quotations and brackets omitted).