Vail Law: Part 3 of a look at the U.S. Constitution
Vail, CO, Colorado
In the first two parts of this series, we took a broad overview of the U.S. Constitution, briefly considered the history of its making, and probed the original seven Articles ratified by convention of the States on Sept. 17, 1787. In parts three and four of the series, we will move through the Bill of Rights, the fundament of human rights throughout the world.
The Bill of Rights is the first 10 Amendments to the Constitution. The amendments define individual freedoms, as opposed to the rights, powers, and privileges reserved to government.
The Bill of Rights, like so many things American, arose of the foment of discord following adoption of the Constitution. The collective gripe was that the Constitution, as adopted, was not sufficiently explicit as to individual and state rights. The cacophony led to an agreement to submit to the people immediately after the adoption of the Constitution a number of safeguarding amendments. And so, on Sept. 25, 1789, the first Congress, at its first session held in New York City, adopted and submitted to the states 12 proposed amendments. Ten of the 12 were adopted by the states.
A model of brevity
The Bill of Rights is brief. None of the amendments is longer than a paragraph. Most are a sentence or two in length. Yet within the crucible of these spare words is the elixir of freedom that forms the bedrock of our nation and of the freedom-loving nations that have patterned after us.
The First Amendment guarantees freedom of religion and establishes the separation of church and state. It guarantees freedom of speech and freedom of the press. It ensures the right of the people to peaceably assemble and to petition the government for redress of grievances. A scant 45 words, the amendment is much too succinct to have been penned by lawyers.
The Second Amendment has been the subject of much interpretation and debate. It holds that the right of the people to keep and bear arms shall not be infringed. What is the subject of debate, however, is the precise intent of the amendment, which reads, in full:
“A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”
Did the Framers intend to provide for an armed militia made up of the citizenry, or did they intend to allow unfettered ownership of arms? You make the call.
In modern times, the Third Amendment rarely, if ever, takes its place upon the stage of debate. It provides that in time of peace, no solider may be quartered in any house without the owner’s consent. In other words, the government can’t use your digs as a barracks.
The Fourth Amendment is a biggie, particularly in the area of criminal law. It ensures that citizens shall be free from unreasonable searches and seizures. In other words, the storm troopers of the government must have reasonable and supportable cause in order to search your person or abode, or to take possession of you or your stuff.
The Amendment also prescribes the procedure by which a warrant will be granted. In essence, if a warrant for a search or seizure is to issue, it must be based upon a finding of “probable cause,” based at least in part upon the swearing of an oath or affirmation describing the place to be searched, and the person or things to be seized.
Explaining the fifth
The Fifth Amendment provides that one shall not be compelled, in any criminal case, to bear witness against himself. In other words, you have a right not to incriminate yourself, and can refuse to answer.
The Amendment also articulates the precepts of “double jeopardy” – that is, that a person may not be twice tried for the same offense. The Amendment also holds that before a person may be deprived of life, liberty or property, he must granted “due process” of law. Thus, before a person is sentenced to any criminal penalty, he must have his day in court.
The Amendment also provides that if the government takes one’s private property for the public use (say, for example, it condemns your land for a public roadway), it may do so only if just compensation is paid. Finally, this Amendment provides that, with certain exceptions pertaining to service in the military or in times of war, no person shall be made to answer for a capital crime, unless upon presentment or indictment of a Grand Jury. What this vouchsafes is that a person who may be charged with a capital offense has a right to know what charges are to be leveled against him, and has the right to be assured that such charges are not capriciously leveled.
Next time, Amendments six through 10, rounding out the Bill of Rights.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He may be reached at 970-926-4461 or at robbins”colorado.net.