The Bill of Rights

The first Ten Articles of Amendment to the Constitution, collectively known as the "Bill of Rights", were proposed by the First Congress of the United States and submitted to the States September 25, 1789. They were ratified by the following States, and the notifications of the ratification by the governors thereof were successfully communicated by the President to the Congress; New Jersey, November 20, 1789; Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; Pennsylvania, March 10, 1790; New York, March 27, 1790; Rhode Island, June 15, 1790; Vermont, November 2, 1791; Virginia, December 15, 1791. ProForma ratifications by Massachusetts, March 2, 1939; Connecticut, April 19, 1939; and Georgia, March 18, 1939 made the ratification unanimous for the thirteen states qualified to ratify the amendments. The ratification by Vermont also was ProForma, having joined the union March 4, 1791, a year and a half after the proposed amendments were sent to the states.  

They were adopted and became effective December 15, 1791, with the tenth qualified ratification by Virginia completing the three-fourths of the states required for adoption, as declaratory and restrictive constraints of National power as against We The People and the States, in addition to like curbs in the body of the Constitution.

In the reign of Charles II, Parliament, for the purpose of compelling all persons to attend the established Church, passed (1665) The Conventicle Act making every one over sixteen years of age who attended a conventicle (any meeting for religious worship at which five persons were present besides the household) subject to imprisonment, with transportation beyond seas for the third offense. During the same reign it passed the Test Act requiring oaths in support of the established religion. Under those acts, which were not repealed until recent times, all nonconformists of whatever religious belief were very severely dealt with. Those acts hastened emigration to America, as did intolerance in continental countries.  

"It is strange indeed," says Ridpath (Popular History of the United States", p. 128), "that the very men who had so recently, through perils by sea and land, escaped with only their lives to find religious freedom in another continent, should have begun their career with intolerance and persecution."  

The established Church of England had been set up in several of the Colonies and taxes were levied for its support.  

Madison and Jefferson had waged (1784) a battle in Virginia against the establishment, finally securing the passage of a law declaring that any interference by the civil authority with religious opinion is against natural right.  

A clause like this failed of adoption in the Constitutional Convention. As a member of the first House of Representatives under the new Constitution, Madison brought up this Amendment. After the House had adopted it the Senate rejected it, but it was later re-instated by that body.  

When Madison became President he vetoed (1811) a bill passed by Congress for incorporating a church organization because he held it contrary to this Amendment, and shortly thereafter he vetoed another which would make a gift of public lands to a church.  

Before the Constitutional Convention sat several of the States had put in their constitutions clauses for religious freedom. All of them have such clauses now. The prohibition under consideration is against the Nation and not the State.  

In 1890 the Supreme Court of the United States, concluding a great contest begun in the District Court of the Territory of Utah in 1887, held that the National Government had "a perfect right to prohibit polygamy and all other open offenses against the enlightened sentiment of mankind, not withstanding the pretense of religious convictions by which they may be advocated and practiced."  

It is of great interest to note that in the ensuing years since this Amendment was ratified that in the wording of the First Amendment, the third of the first twelve Amendment proposals, that in the true bill submitted to the states for ratification "Congress shall make no law respecting the establishment of religion, . . . " , not " . . . an establishment of religion, . . . " The word "THE" is definitely more "declaratory and restrictive" than "AN". This fraudulent deception has allowed misconstruction of a very explicit restriction on the legislatures and the government. This changed wording appears in virtually all presentations of the 1st Amendment today, including the official NARA presentation. It was correctly presented in history books prior to the Civil War. The correct wording as presented to the States for ratification is shown in this image of the "True Bill". See the discussion of the first twelve Amendment proposals.  

Let it be borne in mind that ALL of the first ten Amendments are of National effect.

"The liberty of the press consists, in the strict sense," says Hallam ("Constitutional History of England"), "merely in an exemption from the superintendence of a licenser."  

He states that when, in the reign of Henry VIII (1509-1547), the political importance of the art of printing began to be apprehended, that monarch thought it necessary to take absolute control of it. Not only did he limit the privilege of keeping a press, but he also required previous inspection of the matter by a licenser. The same authority states that "the Long Parliament (1640-1660) did not hesitate to copy this precedent of a tyranny they had overthrown."  

What our forefathers meant by the liberty of the press was defined by Blackstone (1758) two centuries after the time of Henry III as . . .  

Quote. . ."in laying NO previous restraints upon publications, and not in freedom from censure for criminal matter when published. EVERY FREEMAN has an undoubted right to lay what sentiments he pleases before the public; . . . but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.  

That is, he will be held accountable, by criminal proceeding or in civil action for damages, should he slander or libel another. And his oral and written speech is subject to restriction by the police power for the protection of the moral health of the community. Nor is he free to advocate the overthrow of civil order." . . . End Quote  

In 1771, following the publication of imperfect reports of the debates in Parliament, the sessions of which were then in secret, the House of Commons issued a proclamation forbidding the publication of debates. A printer who disobeyed and who ignored a summons to appear at the bar of the House was arrested by its messenger. The magistrate of London released him on the ground that the proclamation was without legal force. Then the House sent the lord mayor of the city to the Tower, but the crowds that followed him showed the Parliament that public opinion was against it. Further attempt to prevent reports was not made. "The first English Journals," says Green ("The English People", Vol. 5, sec. 1504), "date from this time."  

By the Sedition Law of 1798, which expired by limitation on March 3, 1801, the end of Adam's administration, Congress, in the opinion of many, went to the limit of its power under this clause: but in the cases which arose at the time the courts sustained the legislation. The law was designed to suppress seditious newspapers which were attacking the Government chiefly because it had, upon the declaration of war against England by the new Republic of France, issued a proclamation of neutrality, declaring a policy which has ever since been followed. There was such a widespread sympathy in the United States with the French Revolution that people exulted in the guillotining (1793) of Louis XVI and of Queen Marie Antoinette, whose assistance had made American independence possible. The belief was that the United States should become involved in the European conflict and many foreigners were publishing papers assailing the Government for not doing so. The first minister "Citizen" Edmond GenOt from the French Republic and other emissaries had taken advantage of this sentiment and openly worked against our policy of neutrality. The Sedition Law forbade the publication of matter which was intended to defame the Government or to bring its officers into disrepute. The fact that Washington favored it explains the fear which was entertained by sober men that the end of all government and law which had come in France would eventually destroy the United States.  

Freedom to speak and freedom to print, guaranteed by this clause, must be considered in the light of other clauses, for the Constitution is to be read as a whole and effectuated in all its parts as nearly as may be done. Thus another clause empowers Congress to raise armies. May speaking or writing under the former clause impede or cripple the Nation in its measures of defense under the latter clause? The Supreme Court has answered No. And so a Federal court remarked (1921) that while it is very desirable to enforce the Eighteenth Amendment, that end must not be accomplished by searches and seizures in violation of the Fourth Amendment, or by making a citizen bear witness against himself in violation of the Fifth. And while under the clause respecting the post office the Government has almost absolute power and may exclude objectionable matter from the mails, it may not, in disregard of the Fourth Amendment, search or seize letters to find whether the sender has committed a crime. Those examples show how the various clauses of the Constitution must be coordinated and applied together.  

Freedom of speech is not abridged by the prohibition of addresses in public parks or of the publication of libelous, indecent or blasphemous articles or matter injurious to public morals or private reputation.  

In many States it has been held under similar constitutional provisions (for, as before mentioned, the First Amendment here restricts Congress only) that freedom of speech and printing is not abridged by State laws for the censoring of moving pictures.  

Among the laws of Congress springing from the World War was the Espionage Act of June 15, 1917, which forbade any one willfully to cause and attempt to cause insubordination, disloyalty mutiny, or refusal of duty in the military or naval forces of the United States. Every one of those who spoke and wrote against our being in the war or who tried to dissuade men from enlisting, promptly invoked in self-defense this constitutional provision for free speech. But the Espionage Act was upheld by the Supreme Court in the first case to reach it, and that declaration was repeated in many following cases of varying facts and circumstances. On March 1, 1920, affirming a sentence to the penitentiary of the editor of a foreign language newspaper who had, during recruiting, published articles against our action in the War, abusing and belittling the American and his government, and showing up what he called "the failure of recruiting", the Supreme Court said:  

"But simple as the [Espionage] law is, perilous to the country as disobedience to it was, offenders developed, and when it was exerted against them challenged it to decision as a violation of the right of free speech assured by the Constitution of the United States. A curious spectacle was presented: that great ordinance of government and orderly liberty was invoked to justify the activities of anarchy or of the enemies of the United States, and by a strange perversion of its precepts it was adduced against itself."  

In March, 1921, the Supreme Court upheld the action of the Post Office Department in excluding from the mails during the World War a newspaper which had denounced our government as a "plutocratic republic", a financial and political autocracy, which denounced the Selective Service Law of Congress as unconstitutional, arbitrary, and oppressive, which denounced the President as an autocrat, and the war legislation as having been passed by "a rubber stamp Congress", and which contended that soldiers could not legally be sent outside of the country and that the United States was waging a war of conquest. The National Defense Act of 1917 said that any newspapers published in violation of its provisions should be "non-mailable" and "should not be conveyed in the mails or delivered from any post office or by any letter carrier." Pointing out that the published matter "was not designed to secure the amendment or repeal of the laws denounced . . . but to create hostility and to encourage violation of them", the Supreme Court said:  

"Freedom of the press may protect criticism and agitation for modification or repeal of laws, but it does not extend to protection of him who counsels and encourages the violation of the law as it exists. The Constitution was adopted to preserve our government, not to serve as a protecting screen for those who, while claiming its privileges, seek to destroy it."  

In an earlier case (1892) it was held to have been no abridgment of the freedom of the press for Congress to exclude from the mails newspapers containing advertisements of lotteries, as the government can not be "compelled arbitrarily to assist in the dissemination of matters condemned by its judgment."  

The State supreme courts, under State constitutional provisions guaranteeing freedom of speech and of the press, have stated the doctrine as it has been expressed in the foregoing decisions by the Supreme Court of the United States . Thus the Constitution of New York provided for freedom in speaking and writing and prohibited restraint of the "liberty of speech or of the press"; but it made the citizens "responsible for the abuse of that right." The court of last resort in that State held (1902) that a seditious publication instigating revolution and murder and suggesting the persons in authority to be murdered was not protected by the State constitution, which the court said, places "no restraint upon the power of the legislature to punish the publication on matter which is injurious to society according to the standard of the common law -- it does not deprive the State of the primary right of self-preservation." 

And in 1918 the Supreme Court of Minnesota upheld a law of that State (1917) which had been passed in aid of the Nation and which made it unlawful "for any person to print, publish, or circulate in any manner whatsoever" anything "that advocates or attempts to advocate that men should not enlist in the military or naval forces of the United States or of the State of Minnesota." Persons had been convicted of violating the Act and circulating a pamphlet asserted that "this war was arbitrarily declared without the will of the people": that "the President and Congress have forced this war upon the United States."; that now "they are attempting by military conscription to fight a war in which we are opposed"; that "the integrity of the country is being menaced"; that this war was declared to protect the Investments"; and so on. The Supreme Court of the State said that the Act was not in conflict with the Espionage Law of Congress because the citizens of the State (who are also citizens of the United States) "owe a duty to the Nation to support, in full measure, the efforts of the national government." It was specifically held that the State statute did not abridge the freedom of National citizenship in violation of the Fourteenth Amendment to the Constitution of the United States.  

In President Jackson's seventh annual message (December 1835) he took cognizance of the abolitionist newspapers and magazines and called upon Congress to prevent the transmission of them by the Post Office Department, "under severe penalties," as they were "intended to instigate the slaves to insurrection." Although many in Congress shared his view, no bill was passed.  

Supreme Court Justice Thurgood Marshall, (1908-1993) stated ,

"Above all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."  

This right already existed in customary law. In the colonial Declaration of Rights of October 19, 1765, it was said "that it is the right of British subjects in these Colonies to petition the King or either House of Parliament"; and in the Declaration of Rights of October 14, 1774, it was complained that "assemblies have been frequently dissolved, contrary to the rights of the people, when they attempted to deliberate on grievances." It was further said "that all prosecutions, prohibitory proclamations and communications for the same are illegal." It was declared also that "their dutiful, humble, loyal, and reasonable petitions to the Crown for redress have been repeatedly treated with contempt by His Majesty's ministers of state."  

In the Declaration of Rights submitted by Parliament to William III and Mary (1689) and accepted by them, it was said that the right to petition the King existed and that the prosecution of petitioners which had taken place was illegal. It was considered so valuable by our forefathers that it was protected by this express provision. Assemblies for the discussion of their rights and petitions for the correction of their wrongs had been repeatedly employed by the colonists.  

"In every stage of these oppressions" says the Declaration of Independence, "we have petitioned for redress in the most humble terms; our repeated petitions have been answered by repeated injury." When this Constitution was written the right of assembly and petition was preserved in the constitutions of the several States.  

Van Buren's administration was marked by a struggle to prevent the receipt and consideration by Congress of petitions for the abolition of slavery. Senator Calhoun declared such petitions a violation of the Constitution.  

The people must assemble "peaceably." Regulations for the preservation of order are not a denial of the right. Nor can the right to petition be employed for the purpose of visiting malice upon others. The petition must be for something within the authority of the body addressed, or the petitioners must in good faith believe it to be.  

The petition in England was based on the fact that Parliament was a court as well as a legislative body. Indeed, at first it was more of a court than a legislature.  

In 1839 the English Chartists (seeking an extension of suffrage, vote by ballot, pay for members of Parliament, and an abolition of property qualifications for suffrage) presented to the House of Commons a petition having 1,250,000 signatures. 

While this First Amendment, and the nine following it are prohibitions against encroachments upon liberties by the Nation, it was held by the Supreme Court in 1937 that the Due Process Clause of the Fourteenth Amendment, written against the States after the Civil War, protects from infringement by a State "the right of the people peaceably to assemble". Holding the Syndicalism Act of Oregon of 1933 violate of the Due Process Clause of the Fourteenth Amendment as applied to a man who attended a meeting "under the auspices of the Communist Party" but said nothing toward "effecting industrial or political change or revolution." forbidden by the Act, the Court declared that "peaceable assembly for lawful discussion cannot be made a crime."

 

The Distinction between the National Guard and the constitutional Unorganized Militia  

Most Americans today believe that the National Guard is the Militia reserved to the states in the State Constitutions and the Constitution of the United States of America.  

Nothing could be further from the TRUTH. The National Guard did not exist from the beginnings of the Republic until 1903 when it was instituted and created by Congress as the Act of January 21, 1903, known by the name of its sponsor as "The Dick Act".  

In 1982 the Senate Judiciary Committee Sub-committee on the Constitution stated in Senate Document 2807:  

"That the National Guard is not the 'Militia' referred to in the Second Amendment is even clearer today. Congress had organized the National Guard under its power to 'raise and support armies' and not its power to 'Provide for organizing, arming and disciplining the militia.' The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. 311(a).  

Title 32 U.S.C. in July 1918 completely altered the definition of the militia and its service, who controls it and what it is. The difference between the National Guard and Regular Army was swept away, and became a personnel pay folder classification only, thus nationalizing the entire National Guard into the Regular Standing Armies of the United States."  

All the arms, munitions, armament and equipment of the National Guard is owned and controlled by the federal government, not by "the people" as clearly stipulated in the last phrase of the Second Amendment.  

The Unorganized Militia consists of all able bodied persons of the nation and of the states between the ages of 17 and 44, and is exclusive of all members of the organized militia, i.e., the Armed Forces of the Federal Government of the United States and of the National Guards of the various states of the Union.  

Title 10 U.S.C. 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are -

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. 

In the Colonial Declaration of Rights of October 19, 1765 it was complained that Kings had disarmed the people. Of course the colonists were by force of early circumstances bearers of arms. This prohibition upon the Nation means that it can never interfere with the people who make the militia of the States; and that therefore the States will always have the means to check by physical force any usurpation of authority not given to the Nation by the Constitution.  
This right already existed. Maryland and Virginia had such provisions in their constitutions when the Constitutional Convention sat, as do all States at this time. These are prohibitions binding upon the States to preclude infringement of this right of the people by each of the individual States. State constitutions and laws may have conditions established which govern, but any conditions which are in opposition to this amendment are nullities and void. From the Father of the Constitution himself, the words of James Madison . . .  

"The proposition of amendment made by Congress, is introduced in the following terms. "The Convention of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstructions or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government, will best ensure the beneficent ends of its institutions."  

Here is the most satisfactory and authentic proof, that the several amendments proposed were to be considered as either declaratory or restrictive; and whether the one or the other, as corresponding with the desire expressed by a number of the States, and as extending the ground of public confidence in the government.  

Under any other construction of the amendment relating to the [right to keep and bear arms], than that it declared the [right to keep and bear arms] to be wholly exempt from the power of Congress, the amendment could neither be said to correspond with the desire expressed by a number of the States, nor be calculated to extend the ground of public confidence in the government." --- James Madison, REPORT OF 1799 on the Kentucky-Virginia Resolutions  

The Founders of our Nation and the Framers of the Constitution were well aware of the dangers of the tyranny and treason of a run-away governmental bureaucracy and had a very PRIMARY reason for the inclusion of the Second Amendment to the Constitution. We shall let them speak for themselves:  

"Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence. From the hour the Pilgrims landed, to the present day, events, occurrences and tendencies prove that to ensure peace, security and happiness, the rifle and pistol are equally indispensable. The very atmosphere of firearms everywhere restrains evil interference - they deserve a place of honor with all that's good." -- George Washington, Commanding General of the Continental Army, Father of Our Country and First President of the United States, Address to the 2nd Session, 1st Congress, 1789.  

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in Government." -- Thomas Jefferson, Author of The Declaration of Independence, and President of the United States.  

"The highest number to which a standing army can be carried in any country does not exceed one hundredth part of the souls, or one twenty-fifth part of the number able to bear arms. This portion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Besides the advantage of being armed, it forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. The governments of Europe are afraid to trust the people with arms. If they did, the people would surely shake off the yoke of tyranny, as America did. Let us not insult the free and gallant citizens of America with the suspicion that they would be less able to defend the rights of which they would be in actual possession than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. -- James Madison, principal author of Constitution, principal writer of The Federalist Papers, President of the United States, Mainstream Revolutionary and Militant. 

"What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. ...Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins." - Rep. Elbridge Gerry of Massachusetts, Signer of the Declaration of Independence and Member of the Constitutional Convention, spoken during floor debate over the Second Amendment, I Annals of Congress at 750, August 17, 1789  

"It is not the function of the government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error." -- U.S. Supreme Court Justice Robert H. Jackson  

It is of great interest to note that in the ensuing years since this Amendment was ratified that commas have been inserted after the words "Militia" and "Arms", providing misconstruction of a very explicit restriction on the legislatures and the government. These commas appear in virtually all presentations of the 2nd Amendment today, including the official NARA presentation, and in no early publication that we have found to date. The correct wording as presented to the States for ratification, and as ratified, is shown in this image of the "True Bill" and also in The Federalist On The New Constitution, 1796, Page 16 showing the first 4 amendments; See the discussion of the first twelve Amendment proposals.  

Just recently, June 1999, I have finally found a Government presentation of the Constitution which has the Second Amendment correct . . . without the extra commas after the words Militia and Arms.  

The Presentation, Analysis and Interpretation Annotations of Cases Decided by the Supreme Court of the United States was PREPARED BY THE CONGRESSIONAL RESEARCH SERVICE - LIBRARY OF CONGRESS  

The discussion is not very definitive . . . but worth studying. This, however, is a definitive statement . . . "\1\ Whatever the Amendment may mean, it is a bar only to federal action, . . ."  

The interpretation of the words "Well Regulated" at the time that the Amendment was written was in the context of a field piece (the militia of able bodied citizens, organized or not, is the "field piece" of the American people"). A well regulated field piece is fully manned, armed and equipped, aimed, accurate and ready to defend the rights and freedoms of the citizens. So also the description of a timepiece, accurate, not deviating, precise and to the moment, in present time.  

The second clause is the bar against any and all Federal actions by any branch thereof . . . executive, legislative or judicial.  

The Second Amendment Stands as the Guarantor of All other Rights and of the Defense of the Constitution itself.

 

The Petition of Right of 1628, which Charles I was compelled to accept, complained that "companies of soldiers and mariners had been dispersed into divers counties, and the inhabitants, against their wills, had been compelled to take them into their houses and allow them there to sojourn against the laws and customs of this realm." the English Parliament required that the colonists provide quarters for troops, and when General Gates went from Halifax to Boston he demanded quarters, which were refused.  

The Colonial Declaration of Rights of October 19, 1765, makes no mention of a standing army in the Colonies; but that of October 14, 1774, proclaimed "that the keeping of a standing army in these Colonies, in times of peace, without the consent of the legislature of that Colony in which the army is kept, is against the law"; and an act of Parliament was condemned which required the colonists to provide "suitable quarters for officers and soldiers in His Majesty's service in North America." A complaint in the Declaration of Independence against George III was "for quartering large bodies of armed troops among us" and for "keeping among us in times of peace standing armies without the consent of our legislature."  

"James II's army" says Burnet, "was kept for some time in the western counties, where the lived at free quarters, and treated all that they thought disaffected with rudeness and violence insufferable."  

"Before the Revolution" (1688), says Macaulay ("History of England", Vol. 5, p.234), "our ancestors had known a standing army only as an instrument of lawless power."

 

Hallam mentions that in the reign of Charles I the unconstitutional practice of committing to prison some of the most prominent people and searching their houses for papers was renewed. Cooley says that this constitutional provision probably resulted from the seizure (1683) of the papers of Algernon Sydney, which were used as a means of convicting him of treason; and of those of John Wilkes at about the time (1763) that the controversy between Great Britain and the colonies was assuming threatening proportions. The general search warrant never was considered legal in England after the battle fought by Wilkes. The protection of this clause in not limited to one's dwelling house, but extends to his person and papers. Many cases have arisen, but the courts have invariably held that no vague or general warrant is sufficient and the letter of the Constitution must be closely followed.  

Even under the strict customs laws enacted by Congress, the burden of proof is on the claimant seeking to make seizure, and probable cause must be shown for the act; while the stringent acts of Congress regarding internal revenue require that upon the issuing of search warrants by the district court and the commissioners of courts, the internal revenue officer must make oath in writing that he has reason to believe and does believe that "a fraud upon the revenue has been is being committed upon or by the use of said premises." An order of court requiring a person to produce an invoice of goods for the inspection of government officers and to be offered in evidence against him was held an unconstitutional exercise of authority."  

James Otis of Massachusetts became celebrated in 1761 by contesting in court this form of tyranny through the use of Writs of Assistance. The English practice of personal search had become odious in the Colonies. "A person with this writ in the daytime," said Otis in his argument, "may enter all houses, shops, etc. at will, and command all to assist him." Further, he said, "Every man prompted by revenge, ill humor, or wantonness to inspect the inside of his neighbor's house may get a Writ of Assistance."  

Every day magistrates refuse to issue search warrants because probable cause is not shown or because the oath required by this Amendment is not sufficiently definite and direct.  

An actual entry of the premises is not necessary to a search; a compulsory production of books and papers for use in evidence against the owner of them was said by the Supreme Court to be a violation of the Fourth Amendment. And an Act of Congress requiring a party to produce books and papers, and permitting the Government, in case of his refusal, to assume as true its allegations of what the books and papers contained, was held to be void for conflict with this Amendment.  

The protection of the Constitution is not, however, confined to the dwelling-house," says Cooley , "but it extends to one's person and papers, wherever they may be. It is justly assumed that every man may have secrets pertaining to his business, or his family or social relations, to which his books, papers, letters, or journals may bear testimony, but with which the public, or any individuals of the public who may have controversies with him, can have no legitimate concern; and if they happen to be disgraceful to him, they are nevertheless his secrets, and are not without justifiable occasion to be exposed. Moreover, it is as easy to abuse a search for the purpose of destroying evidence that might aid an accused party, as it is for obtaining evidence that would injure him, and the citizen needs protection on the one ground as much as on the other."  

In 1920 the Supreme Court held that this Amendment protected a corporation and its officers from an unwarranted "sweep of all the books, papers, and documents" made by representatives of the Department of Justice of the United States under an invalid subpoena in the hands of the United States District Attorney. Admitting that the seizure was wrongful, the Government contended that it might use the information so obtained to make later a specific demand for papers which it was unable to make before. The Court said NO!

 

A capital crime is one punishable by death and an infamous crime is one punishable by death or imprisonment.  
The grand jury consists of not more than twenty-three men called in by the sheriff of the county (or by the United States marshal of the District) to hear witnesses respecting any subject that may properly be brought before them. If they believe that a person accused should be brought to trial, they return into court a "true bill" or indictment, which is a formal charge in writing that acts were done amounting to a crime; otherwise they write "no bill." The person indicted is later brought to trial before a petit jury of twelve, which after hearing the evidence on both sides, returns a verdict of guilty or not guilty. The grand jury originated when men were executed or imprisoned upon the order of the King or on the charge of his subordinates. It was designed to prevent unjust punishment, for the grand jurors (who sat secretly and, therefore, could not be called to account for opposing the government) presumably would protect the accused from wrong. But it is out of time now and many States have abolished it. In those States an "information" is filed by the prosecuting attorney against the person whom he wishes to bring to trial. The Information sets out the charges as the indictment of the grand jury does. The grand jury cannot be dispensed with as a National institution until this Amendment has been changed.  
Here an Englishman had been indicted and put on trial and the evidence did not appear sufficient the court discharged the jury but ordered the prisoner to be held until more proof might come in. Hallam says that he was accordingly indicted again. When he pleaded that he had already been tried, the judges had the effrontery to deny that he had ever been put in jeopardy. A person is considered to have been brought before a court of competent jurisdiction upon an indictment or information in sufficient form and a jury has been impaneled and sworn to try him. Of course he has not been put in jeopardy where a jury fails to agree and the jury has been discharged for that reason, or where a conviction has been reversed by an appellate court.  

Nor can his trial be stopped after the jury has been sworn to try him should it then appear that the evidence against him is insufficient. The trial must proceed to verdict.  

He cannot be required to testify either directly or indirectly. His papers and books cannot be made to speak against him. In this particular the Fourth and Fifth Amendments unite for one purpose. "This provision." says the Supreme Court, "had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons which had been obtained in the Continental system and . . . was not uncommon even in England." It has been remarked as singular that this provision should not have been in the body of the Constitution, as it was already in the constitutions of several States at the time of the Convention.  

Officers of the army placed a man in the establishment of one suspected of disloyalty, and he purloined papers which were used in evidence against the owner of them. Pointing out once more that the Fourth and Fifth Amendments cooperated to protect a man from being made a witness against himself, either orally or by his papers, the Supreme Court of the United States reversed (1921) the trial court for permitting the papers to be used, and said:  

"It has been repeatedly decided that these Amendments should receive a liberal construction, so as to prevent stealthy encroachments or 'gradual depreciation' of the rights secured by them, by imperceptible practice of courts, or by well-intentioned but mistakenly over-zealous executive officers."  

In 1893 Congress enacted that no person should be excused from producing books and papers in response to a subpoena duces tecum (a formal writ demanding the production of specified records) of the Interstate Commerce Commission; but it kept the statue within the purpose of this clause by adding that no prosecution should follow any disclosure made. The prosecution being made impossible, the basis of the constitutional right to refuse to answer the Interstate Commerce Commission no longer exists. This special legislation was considered necessary to aid the Commission in its investigations of railroad operation and management.  

Of course a person may waive the privilege. And if the statute of limitation bars prosecution for the crime, he will be compelled to answer. So he cannot claim privilege if he has already been pardoned, for that prevents prosecution.  

Compulsory self-incrimination existed for four hundred years after the Magna Charta, and it gained some recognition among the early colonists, for the record of the trial of Mrs. Anne Hutchinson in 1673 shows that Governor Winthrop, who presided, was not aware of any privilege against self-incrimination.

 

 

This prohibition as to National power is repeated in the Fourteenth Amendment respecting the conduct of the States.  

Due process of law means substantially the same as "the law of the land" as used in the English Petition of Right in 1628. Indeed, both expressions were linked in that celebrated Petition, which said that no man should be "in any manner destroyed but by the lawful judgment of his peers or by the law of the land"; and that no man should be "put out of his land or tenements, nor taken nor imprisoned, nor disinherited, nor put to death, without being brought to answer by the due process of the law."  

In 1855 the Supreme Court of the United States answered the question, What is due process of law? A trial or other legal proceeding must, in order to give due process, conform (1) to the guarantees contained in the Constitution, and (2) to all other guaranties that have come to American law through the adoption in this country of any part of the laws of England. This clause preserves to the citizen against action by Congress, against action by the President, and against action by the courts, not only the rights enumerated in the Constitution itself, but also those privileges and immunities to which he became entitled through the early adoption and application of English law.  

"The Constitution contains," said the Court, "no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it is due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process 'due process of law,' by its mere will. To what principles, then, are we to resort to ascertain whether this process, enacted by Congress, is due process? To this the answer must be twofold. We must examine the Constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country."  

In the foregoing case the property of a revenue collector of the Government, who had failed to turn over more than a million dollars, was summarily seized under and act of Congress (1820) authorizing such procedure. The warrant of seizure issued by the Treasury was legal process, but was it due process? The Constitution requires that charges of crime be tried by a jury, while the Seventh Amendment guarantees a jury trial in all civil cases involving over twenty dollars. Had the delinquent collector been denied a constitutional right? The Supreme Court said No. In protecting its revenue or itself the Government is not obliged to sue or be sued like an individual; and as under English law, repeated substantially in the laws of Massachusetts (1786) and most of the other young sttes, like procedure had been established for safeguarding the public funds, the act of Congress complained of merely stated what was due process on both sides of the Atlantic when the Constitution was adopted.  

Due process of law is another name for legal, judicial and governmental fair play. But a trial in court is not always essential to due process. When a man has had a full hearing before the Secretary of the Interior, for example, on some question concerning public lands, the decision of the Secretary may be final and he cannot be heard in court. So of questions of fact before the Interstate Commerce Commission, which is not a court. And a tax-payer who has been permitted to produce evidence before a taxing board, in accordance with settled procedure, cannot complain that due process has been denied. 

It was a rule of Roman law that private property could be taken for public use upon the owners being paid and estimated value made by good men. Magna Charta provided that no one should be deproved of his property except by the law of the land or a judgement of his peers. The Code of Napolean of France (1807) required "a just and previous indemnity" for the taking of property for public use.

 

A celebrated case under this article arose respecting the estate left by the widow of General Robert E. Lee, the military chieftain of the Southern Confederacy in the Civil war, which had been sold under and act of Congress for collecting taxes "in the insurrectionary districts" and upon one part of which military officers, acting under orders of the President, had, after seizing the estate, erected a military fort and upon another made Arlington Cemetary. In the trial court a jury, acting under definite instructions as to the law, returned a verdict that the sale for taxes had been illegal, The United States Government carried the case to the Supreme Court of the United States and that court said, in 1882: "It is not pretended, as the case now stands, that the President had any lawful authority to do this, or that the legislative body could give him any such authority except upon payment of just compensation. The defense stands here soley upon the absolute immunity from judicial inquiry of everyone who asserts authority from the executive branch of government, however clear it may be made that the executive possessed no such power. Not only no such power is given, but it is absolutely prohibited, both to the executive and the legislative, to deprive anyone of life, liberty, or property without due process of law, or to take private property without just compensation. . . .. No man in this country is so high he is above the law." 

Owing to an equal division in opinion of the justices of the Supreme Court of the United States the decision of a State Supreme Court (1917), declaring valid a State's minimum wage law, stood. But an act of Congress requiring employers to pay minimum wages to women and children, regardless of their earning capability, was held (1923) to take private property for the public welfare in violation of this clause. This decision was later reversed (1937) and the Women's Minimum Wage Act upheld.

 

This is the second time that provision is made for the trial by jury in criminal cases. When the Constitution was written, several of the States had such constitutional declarations.

 It was charged in the Petition of Right to Charles I (1628) that when accused persons illegally held were released by judges in habeas corpus proceedings "they were detained by your Majesty's special command" and "were returned back to several prisons without being charged with anything to which they might make answer according to the law." That is, they had no "speedy and public trial", or trial of any kind; they were left lanquishing in prison at the will of the king. It was pointed out that Magna Charta provided that no freeman should be take or imprisoned "but by the lawful judgment of his peers [jury trial] or by the law of the land." Our forefathers were well learned in English history.  

The speedy trial is one without unreasonable delay. A trial may not be demanded by the accused before the prosecuting attorney has had time to make preparation. But it was decided by the Supreme Court of the United States (1909) that a man might be held by the governor of a State without any trial at all when his imprisonment as the leader of persons in insurrection was deemed necessary to preserve the peace. The Court said that as in suppressing insurrection by force the governor might kill, the milder method of preserving the peace was not obnoxious to this clause guaranteeing speedy trial. The public trial is for the benefit of the accused and not the public, that publicity may prevent the doing of injustice to him. Therefore in proper cases the court may exclude those of the public who should not hear objectionable testimony. It is enough if a few of the public remain.  

A complaint in the Declaration of Independence was "for transporting us beyond seas to be tried for pretended offenses." Hence the provision requiring that the accused be tried in the district wherein the crime was committed. This is the second time that this safeguard is stated. It was clearly stated in the Constitution and it was repeated in an Amendment. Nevertheless, many unsuccessful attempts have been made to break over this barrier.  

This is done in criminal cases by serving upon the accused, as required by an act of Congress, a copy of the indictment by the grand jury. He then has adequate time to prepare to meet in court before a petit or trial jury the charges set forth in the indictment. A demand in the Petition of Right was "that freemen be imprisoned or detained by the law of the land or by due process of law, and not by the king's special command, without any charge."  

This clause and the Fifth Amendment were held by the Supreme Court (1923) to have been disregarded by Congress in framing the Food Control Act (1917), a war measure to restrict the enhancing of prices and to prevent the monopolizing of necessities. A mercantile company was indicted in the language of the Act for making "an unjust and unreasonable and charge" for sugar; and it contended in defense that the law fixed "no immutable standard of guilt", but left the criminal act to be determined by "the variant views of the different courts and juries which may be called on to enforce it." Referring to "the conflicting results which have arisen from the painstaking attempts of enlightened judges in seeking to carry out the statute" Chief Justice White said that the section of the Act in question "was void for repugnance to the Constitution." It has long been settled that a criminal law must be so clear and specific that a citizen will know whether the act which he intends to do will violate it. "It would certainly be dangerous," said the Supreme Court in and earlier case (1875), if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large. This would, to some extent, substitute the Judicial for the Legislative Department of the government."  

This clause was framed against the odious practice which had prevailed in England of taking the depositions (written testimony) of witnesses and reading them in court. Not only was the accused not confronted by the witness against him, but he was necessarily in the circumstances prevented also from cross-examining them. The illustrious Sir Walter Raleigh was condemned to death in the reign of James I on the written testimony of a single witness who had in the meanwhile recanted his testimony. "On how precarious a thread the life of every man is suspended," wrote Hallam of the trial of the Duke of Somerset in the reign of Henry VIII, whose demand for confrontation by witnesses was denied, "when the private deposition of one suborned witness, unconfronted with the prisoner, could suffice to obtain a conviction in the case of treason."  

The rule of the law of Imperial Rome regarding formal accusations and the confrontation by witnesses is illustrated in the case of St. Paul. Festus, the Roman procurator of Judea, answered Paul's accusers (Acts XXV, 16) at Jerusalem, "It is not the manner of the Romans to deliver any man to die before that he which is accused have the accusers face to face, and have licence to answer for himself concerning the crime laid against him." When Paul was sent before Felix, the Roman Governor of Ceasarea (Acts XXIII, 35), and the governor had read the letter of accusation, "I will hear thee, said he, when thine accusers are also come."  

In the reign of Edward VI (1547-1553) it was enacted that no one should be convicted of treason except on the testimony of two lawful witnesses who should be brought in person before the accuse at the time of his trial to avow and maintain what they had to say against him. Violations of this right cannot come to pass in the United States, where the Constitution is a law -- "the supreme law of the land" -- and where it is enforced by the courts like every other law.  

As it was well established in law at the time the Constitution was drafted that the dying declaration (because of the solemnity of the circumstances in which it is made impels belief) of a witness may be read against the accused at the trial, It has been stated by the Supreme Court (1897) that the rule is therefore contained in this clause.  

But the Supreme Court held (1894), following a like decision in Massachusetts, that the protection of this Amendment was not violated by the reading on the second trial of the defendant of the testimony of a witness who had since died and who had at the first trial confronted the defendant and been thoroughly cross-examined by the defendant's counsel. The Court said that the defendant had received the substance of the constitutional protection and could ask no more.  

It was not until the reign of William IV (1836) that an act of the English Parliament gave to the accused the right to the assistance and protection of counsel in all cases of felony, that is , in which the offense is punishable by imprisonment or death. But in 1696 a bill was passed by Parliament allowing counsel to persons on trial for high treason, that is, offenses against the royal family or the government. In this country the man without means may have witnesses produced to testify in his behalf. The court appoints counsel to guard his legal rights, who (being an officer of the court) must serve when directed to do so and without compensation. Two lawyers of high repute were thus appointed to see that the case against the assassin of President McKinley should be made at the trial in conformity with the settled rules of law.

 

 
Although the Constitutional Convention very carefully safeguarded the jury trial for those accused of crime [Note 110], it defeated a proposal for a jury trial in civil cases. Suits at common law do not include suits in chancery or equity, such as suits for injunction, for divorce, for enforcing a trust, for canceling naturalization papers, for accounting for specific enforcement of a contract, and for several other kinds of relief, in which the right to a jury does not exist. It is a rather common practice for parties to waive a jury in common law suits or actions and leave the questions of fact to the trial judge along with the questions of law. Under the Workmen's Compensation Acts which many States have passed an injured workman is not entitled to a jury to determine what he should receive. This Amendment does not limit State power. It is therefore within the police power of a State to establish a system of compensation to supersede lawsuits in courts by employees seeking from employers money damages for personal injuries suffered in the course of employment. 
That is, these rules are (1) the granting of a new trial by the trial court and a hearing before another jury, or (2) a new jury trial ordered by an appellate court for some error of law committed by the trial court.. In brief, no judge of a trial court can substitute his opinion of the facts for that of the jury, nor can an appellate court set aside the jury's findings and make a final order on its own.

 

Long imprisonments which had been made possible by excessive bail and the prevention of trials had so offended the English people that when William III and Mary ascended the throne they were required in the Declaration of Rights to assent to a provision substantially like this clause in our Constitution. As far back as the reign of Henry VI (1444) there was an act of Parliament requiring sheriffs and other officers to "let out of prison all manner of persons upon reasonable sureties of sufficient persons." A reasonable bail is one large enough to prevent evasion of law by flight and still not beyond the means of the prisoner. In 1835 bail of $1,000 was fixed by a court for a man who had shot at President Andrew Jackson, but missed him. The court thought the amount sufficient because the offense did not call for imprisonment, no battery had been done, and the defendant had no property. The court said that to require a greater bail than the prisoner could give in such a case would be excessive within the meaning of the Constitution.  
The excessive fine under Magna Charta was the penalty or forfeiture which deprived a man of his "contenement" -- of his living or ability to pursue his calling or his business. In Magna Charta it was declared that "a free man shall not be amerced for a small offense. but only to the degree of the offense; and for a great delinquency, according to the magnitude of the delinquency, saving his contenement." Construing a similar provision in a State constitution, the Supreme Court held void an act of the legislature levying a penalty of not less than $100 nor more than $500 upon any druggist selling liquors contrary to law, and imprisonment of not less than ninety days nor more than one year, or both, with debarring from business for five years for a repeated offense. As the druggist would be cut off from his livelihood for five years, the punishment was excessive. The Supreme Court of the United States held void (1907) an act of the legislature of a State imposing such heavy and cumulative fines upon railway companies and their agents for failure to observe the freight rates and passenger fares prescribed by the State that the persons convicted were by fear prevented from resorting to the courts to determine their rights or to test the validity of the law. The heavy fines imposed by the State (which could not be condemned as fines under this limitation upon National power) resulted in a denial of due process of law, which by the Fourteenth Amendment 173 the State is forbidden to deny. 

In 1909 the Supreme court sustained a judgment for fines and penalties rendered under State law aggregating $1,623,500, and the cancellation of the defendant's permit to participate in commerce within the State. The company, incorporated in another State, was convicted of violating the anti-trust laws of the complaining State. Fines under one law were permitted as high as $5,000 a day for each day of violation. The Supreme Court said that the Eighth Amendment, forbidding excessive fines, is not a prohibition upon the State.  

As late as Blackstone's time (1758) "the punishment of high treason in general is very solemn and terrible." He says that the guilty person was hanged by the neck and then cut down alive, when he was disemboweled while yet living. His head was cut off and his body divided into four parts for disposition by the king. By an act of Parliament in 1814, a quarter of a century after our Constitution, that punishment was mitigated.  

Hallam gives many instances of cutting off of the ears, of whippings, of standing in the pillory, of slitting the nose, of branding the cheek. And many of those punishments were followed by "perpetual imprisonment." But he says that punishments on the Continent were even more severe.  

The protection of this clause is needed now, perhaps not as much as formerly, but it is needed. In February, 1910, The Supreme Court of Oregon held void an act of the legislature for conflict with a provision of the State's constitution similar to this of the Eighth Amendment. An officer of the State who was unable to pay a fine of over $577,000, which was imposed upon him for misapplying State funds, was therefore sentenced under a State law to five years in the penitentiary, and the fine was to be discharged by an additional imprisonment in jail at $2 for each day.. The act was upheld as to the sentence in the penitentiary, but it was declared void as to the jail sentence for "not exceeding 288,426 days", a term of nearly 800 years. In 1891 the Supreme Court of the United States held that, as the Eighth Amendment does not apply to States , it could give no relief to a man who had been sentenced to the house of correction in Vermont for 19,914 days or fifty-four years, for shipping liquor from New York into the first named State. And as late as 1916 the flogging of a convict in North Carolina was held by the Supreme Court of that State to be illegal under the State Constitution, the Chief Justice saying that the record contained "unprintable evidence of brutality almost beyond conception."  

The Bill of Rights of the Philippine Islands forbids the infliction of cruel and unusual punishment, adopting this provision from our Constitution. The Supreme Court of the United States held (1910) that this safeguard of the citizen was violated where an officer of the government who had been convicted of making false entries in the public records was subjected to a heavy fine, sentenced to imprisonment for fifteen years, and condemned to carry a chain attached at the ankle and hanging from the wrist. Answering the contention that the cruel and unusual punishments referred to in this clause of our Constitution and in the bill of Rights of the Philippines are those which were known in the time of the Stuart kings when the American Colonies were being planted, the Supreme Court said that the language, while used in the light of "an experience of evils", is nevertheless general and is intended to apply to new conditions. "Therefore," said the Court, "a principle to be vital must be capable of wider application than the mischief which gave it birth. This is particularly true of Constitutions."  

The Supreme Court has steadily refused to apply this Amendment as a prohibition upon State action; and it, therefore, held that punishment by electrocution is within the State power and cannot be considered cruel or unusual under this clause.

 

This is a statement of the rule of construction that an affirmation in particular cases implies a negation in all others. The Amendment indicates that the National Government is one of delegated and enumerated powers and that the powers named (with the necessarily implied powers) are all that the United States possesses or may presume to exercise. A step beyond the enumeration is unconstitutional and void, and possible cause for impeachment for treason.

 

"The reservation to the States respectively," says the Supreme Court, "can only mean the reservation of the Sovereignty which they respectively possessed before the adoption of the Constitution of the United States and which they had not parted from by that instrument. And ANY legislation by Congress beyond the limits of the power designated would be trespassing upon the rights of the States or the people, and would not be the supreme law of the land, but null and void."  

Thus if North Carolina and Rhode Island, which did not ratify the Constitution until after the new government had become operative, had chosen not to enter the Union, they would have had the powers inhering to independent governments, such as the power to declare war, to coin money, to raise armies, to make treaties, to regulate commerce, to impose duties on imports and exports, and so on -- all of which were, under the Constitution, for the general welfare, yielded up to the National Government.  

This Amendment and the preceding one (Article IX) "disclosed widespread fear that the National Government might, under the pressure of the supposed general welfare, attempt to exercise power which had not been granted."  

"I ask for no straining of words against the General Government," wrote Jefferson in 1823, "nor yet against the States. I believe the States can best govern over home concerns and the General Government over foreign ones. I wish, therefore, to see maintained that wholesome distribution of powers established by the Constitution for the limitation of both, and never to see all offices transferred to Washington."  

In the "Federalist" (No. XVIII) Madison had expressed the view of the other party. He reviewed fully the Amphityonic Council of ancient Greece to show that "It emphatically illustrates the tendency of federal bodies rather to anarchy among the members than to tyranny in the head."  

In 1911, discussing also the unsurrendered powers of the States, the Supreme Court used this language:  

"Among the powers of the State not surrendered -- which power therefore remains with the State -- is the power to so regulate the relative rights and duties of all within its jurisdiction as to guard the public moral, the public safety, and the public health, as well as to promote the public convenience and the common good."  

In Canada, on the contrary, the State (Province) has no powers except those which are specified as belonging to it, all other powers being in the Dominion (or National) Government. But thirty-three years later (1900) the Australians followed our plan rather than that of Canada and declared in their constitution that powers not given to the Commonwealth (or Nation) remain in the States.  

The Migratory Bird Act of July 3, 1918, passed by Congress in pursuance of a treaty (1916) with Great Britain for the protection of birds in their annual migrations between Canada and this country, did not violate, the Supreme Court held (1920), the reservation in the Tenth Amendment of power to the States. The claim was made that the State had property in the wild birds, but the Court answered that "the subject matter is only transitorily within the State." An act of 1913 had been held to be invalid by some of the Federal courts, and it was contended that "such an act cannot be made valid by a treaty." The Supreme Court of course held the treaty to be the supreme law of the land. 

This is the last of the first Ten Amendments to the Constitution, collectively known as the "Bill of Rights", proposed by the First Congress of the United States, submitted to the States September 25, 1789, ratified and adopted June 15, 1790 as declaratory and restrictive constraints of National power against We The People and the States, in addition to like curbs in the body of the Constitution.

 

Source: The AWARE Group