Bill of Rights

The first ten amendments to the constitution, added by Congress as a block in 1789 and ratified by 1791, guarantee civil liberties to citizens and rights of the states and citizens. That this charter is often taken “as the Constitution” shows how important contemporary debates over its provisions, often decided by the Supreme Court, have been to changing fundamental American practices. As a living charter, however, one should be aware that the interpretation of these provisions also has shifted, especially from a focus on the engagement of public citizens with the limits of the state to a focus on individual rights within the state.

The 1st Amendment, for example, guarantees freedom of religion, speech, the press, assembly and petition, which have been worked out through a number of critical court cases in the postwar period, constraining censorship, separating church and state and defining political and public discourse. Much of this debate has involved the actions of liberal interest groups before judicial activist courts like those of the Warren era. The 2nd Amendment, by contrast, deals with the right to bear arms, creating a focus for debates on guns and gun control. Here, constitutional defense has tended to be on the Right, while those on the Left have sought to limit applications of the amendment or even to repeal it.

After the 3rd Amendment, which prohibits forced quartering of soldiers in peacetime, the next five amendments deal with citizens’ rights in criminal prosecution and punishment. Hence, the 4th Amendment prohibits unreasonable search and seizure, while the Fifth precludes double jeopardy or self-incrimination—often heard in the movie cliché “I refuse to answer on the grounds of the 5th Amendment self-incrimination.” The 6th Amendment guarantees civil rights in trials—a speedy process, the ability to confront witnesses and evidence, the rights to defense and to a jury. The 7th Amendment ensures rights to a jury in civil trials, and the Eighth precludes cruel and unusual punishment. Again, under the Warren court all five of these amendments became charters for rethinking the rights of the accused and the conduct of fair trials in the 1960s. Subsequent courts have sought to trim back these guarantees as they are sometimes seen as hindrances to effective police work or the conviction of criminals. The cruel and unusual punishment clause has appeared repeatedly in arguments about capital punishment.

The final two amendments limit government by reserving rights not delegated to the states and ultimately to the people. These have also provoked controversy as to whether interpretations of the federal Bill of Rights can be extended to state circumstances.

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