Don't Know Much About History, Anniversary Edition: Everything You Need to Know About American History but Never Learned (Don't Know Much About®) (99 page)

In June 2008, the Supreme Court, led by George W. Bush appointee Chief Justice John Roberts (appointed in 2005, following the death of Chief Justice William Rehnquist), went beyond the Bush administration’s arguments. In
District of Columbia v. Heller
, the Court struck down a thirty-two-year-old Washington, D.C., ban on handguns as incompatible with the Second Amendment. The majority opinion in the five-to-four ruling stated that an individual right to bear arms is supported by “the historical narrative” both before and after the Second Amendment was adopted, wrote Justice Antonin Scalia. The Constitution does not permit “the absolute prohibition of handguns held and used for self-defense in the home.”

Amendment Three

Sets conditions for quartering of soldiers.

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 prescribed by law.

A reaction to the enforced quartering of British troops in colonial America before independence was achieved, this amendment has never been the basis for a Supreme Court decision since its adoption. It does mean, however, that the Army can’t just move into your house if it decides it needs a barracks for some troops. The only significant case that invoked the Third Amendment involved striking corrections officers who lived in housing owned by New York State. While the officers were on strike, the State of New York moved National Guard troops into their homes, but the courts found that the amendment did not apply.

Amendment Four

Protects from unreasonable search and seizure.

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.

At the heart of the debate over “criminals’ rights,” this amendment was intended to protect privacy and personal security as essential to liberty. This means that no one can be arrested without a warrant naming a specific individual with a specified crime. Arrests without warrants may be made in the case of a felony when the police arrest someone suspected of a crime. After such an arrest, a judge must determine if there is probable cause to hold that person. A police officer can also arrest someone who commits a minor infraction, or misdemeanor, in the presence of the arresting officer.

The amendment also permits only “reasonable” searches and covers evidence that is uncovered during a search that relates to a separate crime. All of these issues depend on the court hearing them. No warrant is necessary for police to look for something outside a building or private yard or property.

Amendment Five

Guarantees provisions for prosecution and due process of law. Double jeopardy restriction. Private property not to be taken without compensation.

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.

“Pleading the Fifth” has acquired the connotation of “He must be hiding something” for many people. If you have nothing to hide, they reason, you would tell the truth. But the idea behind protection from self-incrimination is part of a tradition of reasoning that begins with the presumption of innocence and was designed to check the power of the government. Written by men who knew the unlimited power of a monarch or church to compel evidence, the Bill of Rights placed the interest of the individual above that of the state. Under this amendment, the Constitution requires the state to establish guilt by independent evidence, protecting everyone from a potentially abusive government.

Amendment Six

Guarantees the right to a speedy trial, witnesses, counsel.

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.

This amendment also protects the individual’s rights in criminal proceedings. Having seen people taken to jail under a monarchy, never to be seen again, the authors of the Bill of Rights wrote specific protections against that possibility. Speedy trials, public trials instead of secret inquisitions, jury trials in the district where the crime is committed, the right to confront accusers, and the guarantee of legal representation are all bedrock rights in the American system of justice.

Amendment Seven

Guarantees the right of trial by jury in federal civil cases.

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.

This amendment gives a right to a trial by jury for monetary damages in federal court. The Constitution does not require a jury in civil cases in state courts.

Amendment Eight

Protects from excessive bail or fines; cruel and unusual punishment.

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

Another of the amendments that protect the rights of the accused, it allows the accused to post bail, a guarantee that he will return for trial, in order to be free from detention to prepare his defense. A judge can determine that factors such as the gravity of the offense and previous record weigh against bail.

More controversial is the “cruel and unusual punishment” line, which has been used to argue against the death penalty. Under current Court rulings, the death penalty is not considered cruel and unusual, although the United States is one of the few industrialized nations that permits the death penalty.

Deterrent Argument:
One widely accepted argument has been that the death penalty acts as a deterrent, preventing further murders. Statistically speaking, there is no evidence to support that idea. In fact, some statistics suggest that the opposite is true. Over the last twenty years, the homicide rates in states with the death penalty have been 50 to 100 percent higher than the rates in states without it, a 2000
New York Times
study found. Twelve states do not have the death penalty, and the homicide rates in ten of them are below the national average. Of the seven states with the lowest homicide rates, five do not have the death penalty. The lowest homicide rate in the country belongs to Iowa, which abolished the death penalty in 1965. On the other end, of the twenty-seven states with the highest homicide rates, all but two have the death penalty.

The fact is that homicide rates are often determined by many other factors, including demographics, unemployment, and poverty. However, states without the death penalty often have noticeably different homicide rates than states that are similar in other ways. North Dakota, a no-death-penalty state, has a lower homicide rate than South Dakota or Wyoming. Massachusetts, which has not executed anyone since 1947, has a lower homicide rate than Connecticut. The homicide rate in West Virginia, which does not have the death penalty, is 30 percent lower than that of neighboring Virginia, which has one of the highest execution rates in the country.

Cost Argument:
Those who favor the death penalty often cite the high cost of maintaining criminals in prison.

Opponents of the death penalty point out that the cost of the litigation involved in most executions that go through lengthy appeals processes is much higher than the cost of imprisonment.

Racial Injustice Argument:
Critics of the death penalty cite the widespread disparity in capital crime convictions of minority defendants.

The Innocent with the Guilty Argument:
DNA, false evidence, faulty evidence, police misbehavior, and prosecutorial misconduct have all been shown to be factors in overturning convictions in recent years.

Obviously once an execution is carried out, there is no do-over. Opponents of the death penalty argue that the execution of an innocent person by the state is not worth all the potentially positive values of capital punishment.

Punitive Argument:
Those who favor the death penalty, in spite of all the arguments against it, often argue as a last resort that it is the only punishment that truly fits the crime. In addition, they point to the large numbers of murders committed by prison inmates against guards and fellow prisoners.

Opponents argue that life in prison, with no chance of parole, can be considered a far worse fate than a quick and painless death by lethal injection.

The execution of convicted terrorist bomber Timothy McVeigh in 2001 came at a time when the country was reexamining its attitudes about the death penalty. The governor of Illinois, a conservative Republican who previously supported capital punishment, and the governor of Maryland, a Democrat, both announced a moratorium on executions when a significant number of death row convictions were overturned in their states. In some of these cases, new DNA evidence proved a convicted person’s innocence; other convictions had been found to be based on tainted evidence or misconduct by police investigators, technicians, or prosecutors.

In 2002, the Supreme Court issued two rulings that also reflected changing attitudes toward the death penalty. In the first case, the Court ruled that the execution of the mentally retarded qualified as cruel and unusual punishment. In another case, the Court held that juries rather than judges must determine if the death penalty is to be used.

Amendment Nine

Establishes the rule of the construction of the Constitution.

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

This amendment is at the heart of the Constitution, and it is based on the idea that all human beings have certain fundamental rights. Some of these rights are specifically mentioned (“enumerated”) in the Constitution, but others are not. Alexander Hamilton believed that the Bill of Rights was flawed because it listed certain rights that gave specific protections, but left the government free to act on any that had not been specifically set down. To protect those rights, including those that were expressed in the Declaration of Independence as “life, liberty and the pursuit of happiness,” this amendment covers fundamental rights not set forth in the Constitution.

The Ninth Amendment is at the heart of the debate over the right of privacy. That concept, never specifically mentioned in the Constitution, was first established in 1965 by the Supreme Court in a case involving contraceptive devices, and added to in several later cases. But most people know it as the underpinning of what is still the most controversial and divisive ruling in recent history,
Roe v. Wade
(1973), which legalized abortion. The Court also recognized that a woman’s right to choose contraception or abortion is “central to personal dignity and autonomy.” (For more on this issue, see “Why Did ‘Jane Roe’ sue Wade?” p. 498.)

Amendment Ten

Lays out the rights of states under the Constitution.

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.

This amendment was a sort of additional “fail safe” designed to allay fears that a central national government might someday exceed its proper powers. It has been the cornerstone of the states’ rights philosophy, but does not diminish or add to the authority of the federal government.

Amendment Eleven

Establishes rules for suing states.

[Proposed by Congress in 1794; declared ratified in 1798, although it was later discovered that ratification had actually come in 1795.]

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.