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Endangered: The Constitution Part 5

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.

Amendments Three through Eight in the United States Constitution address a variety of legal matters that seek to protect citizens in their commonplace interactions with government.  Most of these rights reflect lessons learned from the ancient Kingdom of Great Britain.  Many are borrowed directly from the British Parliament.  Others were crafted by the framers in deliberate contrast to their experiences as subjects to the Crown.


An unfortunate complication is inherent in the whole of the first ten amendments to the United States Constitution.  Because the Bill of Rights was designed to codify certain limitations on the newly formed federal government, the framers did not specify whether these enumerated limitations were also to be mandated to the states.  The Fifth Amendment provides the example of a requirement for the federal government to form a grand jury to prosecute a crime.  However, the thirteen original states did not seem to have intended for this to be a requirement on themselves.  States and local districts can charge an individual with a crime without the involvement of a grand jury.

The notion of “Incorporation of the Bill of Rights” to the states has been a frequent consideration of the courts since ratification in 1789.  The due process clause of the Fourteenth Amendment, ratified 89 years later in 1868, is normally cited in Supreme Court decisions for incorporating portions of the Bill of Rights to the states, which includes county, city and other such local government entities.  Most of the first eight amendments have been incorporated to the states, but there are some exceptions.

Amendments Three through Eight are discussed below, with notations for each on the status of state incorporation:

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.

This is by far the most obscure of the Bill of Rights and it has rarely been the basis of arguments before the Supreme Court.  But it held a prominent position as the Third Amendment to the Constitution in order to address the fresh torment of living under the dictates of the King.  Within a dozen years before the colonists’ revolt against British rule, the English Parliament had passed two Quartering Acts that authorized British troops to house themselves in private homes as they saw fit.  Human nature being what it is under absolute power, the troops at times took callous and selfish liberties.  This unwelcome intrusion was included in the list of grievances against King George III detailed in the Declaration of Independence, “For quartering large bodies of armed troops among us:For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States.”


Incorporated to the states in Engblom v. Carey.

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.

Without the Fourth Amendment, everyday life in the United States would be very different from our current experience.  In practice, American police officers are typically very respectful and are allowed to pull you over while driving a car only on suspicion of your having violated a traffic law.  Likewise, they can neither inspect the trunk of your car nor intrude into your home based on their impulse.  A very specific warrant, signed by a court is required for such an encroachment.

The other edge of this sword is that it furnishes the frustrating technicalities that defense counsels use to obtain dismissals for truly harmful criminals.  Convicting evidence is sometimes excluded from a criminal trial because it was not properly obtained within the rails of the Fourth Amendment.  Computer, communications, and surveillance technologies present new tests for this natural right.  And the Fourth Amendment is the primary challenge to the constitutionality of the Patriot Act, which is intended to capture terrorist communications within the United States.

Incorporated to the states in Wolf v. Colorado, Mapp v. Ohio,Aguilar v. Texas, and Ker v. California.

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.


A “capital crime” is one for which a conviction would include a death penalty sentence.  An “infamous crime” is one where a conviction would include a sentence ranging from a fine to a penalty of death.

In the recent example of the Boston Marathon bombing, the State of Massachusetts has not allowed itself the option of imposing the death penalty.  However, the Federal Government may bring a charge of a capital crime where the suspect could be sentenced to death.  This will require an indictment by a grand jury, composed of 16 to 23 citizens who will decide whether there is sufficient evidence to exact the capital charges.

Two common expressions arise from the Fifth Amendment; “double jeopardy,” which means not having to stand trial twice for the same accusation and “plea the fifth,” meaning to not answer a question.  Also, the well-known reading of Miranda Rights requirement is based on this amendment.

The Fifth Amendment addresses property that is seized by eminent domain for highways, utilities, railways and other public uses.  It requires that the fair market price be paid to the owner from which that property is taken.

Perhaps the most important protection in the whole of the Bill of Rights is the Fifth Amendment decree of natural law that citizens not be deprived of their life, their liberty nor their property without the due process of law.  These words have provided the debates of conscience for both slavery and abortion.

The first component of the Fifth Amendment has NOT been incorporated to the states.  That is, a grand jury is not constitutionally required for a capital or infamous crime to be charged by a state (See Hurtado v. California).  However, the remainder of this amendment has been incorporated to the states in Benton v. Maryland, Malloy v. Hogan, and Chicago, Burlington & Quincy Railroad Co. v. City of Chicago.


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.

The Sixth Amendment provides specific guidelines for an individual defense against a criminal accusation.  While there is both precedence and room for interpretation in defining “speedy,” prosecutors handle this right with respect, as the typical remedy is dismissal of the charges.  Nearly every trial is indeed public.  Anyone can walk into a courtroom and observe.  Exceptions are sometimes permitted for the sake of the defendant.

The federal government is required to select jurors from within the state (and presumably the Congressional district) where the crime is believed to have been committed.  The accusation cannot be ambiguous and the accused has the specific right under this amendment to confront the accusers in court.

A defendant has the right to be represented by the attorney(s) of his or her choosing.  The famous words from the reading of Miranda Rightsrequirement are based on the Sixth Amendment, “You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.  If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.”


The Sixth Amendment in general has been incorporated to the states (See Klopfer v. North Carolina, Oliver, Duncan v. Louisiana, Pointer v. Texas, Washington v. Texas,and Gideon v. Wainwright).  However, the right to a jury selected from residents of the state and district where the crime occurred has NOT been incorporated to the states (See Caudill v. Scott, Cook v. Morrill, and Zicarelli v. Dietz).

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 re-examined in any Court of the United States, than according to the rules of the common law.

As the judges of the pre-revolution court served at the pleasure of the King, the colonists valued the impartiality of a jury of peers to determine the outcome of a trial.  It was further important, based on recent memory, that a dispute could not be retried multiple times until the desired outcome was realized.

At the time of the adoption of the Seventh Amendment, Thomas Jefferson wrote in a letter to L’Abbe Arnoux, “[w]e all know that permanent judges acquire an esprit de corps; that, being known, they are liable to be tempted by bribery; that they are misled by favor, by relationship, by a spirit of party, by a devotion to the executive or legislative; that it is better to leave a cause to the decision of cross and pile than to that of a judge biased to one side; and that the opinion of twelve honest jurymen gives still a better hope of right than cross and pile does.”

The Seventh Amendment in general has NOT been incorporated to the states (See Minneapolis & St. Louis R. Co. v. Bobolis).  However, the re-examination clause HAS been incorporated to the states (See The Justices v. Murray).


Amendment VIII

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

This critical amendment remains straightforward in its 18th Century language.  This set of rights is, however, particularly startling in its implications.  The framers held a mistrust of centralized power that was based in disturbing British history under the monarchy.  On considering this amendment some ninety years later inWilkerson v. Utah, the Supreme Court determined that drawing & quartering, public dissecting, burning alive, and disemboweling would all fall within the definition of cruel and unusual punishment.

The first and third components of the Eighth Amendment (excessive bail and cruel punishment) have been incorporated to the states.  See Baze v. Rees and Robinson v. California.  However, the second component (excessive fines) has NOT been incorporated to the states.  SeeMcDonald v. City of Chicago.

Next week: Amendments Nine and Ten

This article is the fifth in a series on the Bill of Rights in the United States Constitution.  For the complete set, see http://finance.townhall.com/columnists/markbaisley/

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