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Vail Daily column: What the Constitution says

Editor’s note: This is the 10th part of a series.

Amendments 6 through 10 round out the Bill of Rights, the first 10 — and some would say, most fundamental — amendments to the United States Constitution.

The Sixth says this: “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.”

PREVENTS JUSTICE SYSTEM ABUSES

What it provides — when you get past the formal language and antiquarian spelling — is that one accused of a crime has a right to be informed of the charges leveled against them, has a right to speedy trial (that is, he cannot languish in custody indefinitely), has a right to confront and cross examine the witnesses against him, has a right to call his own witnesses, has the a right to a jury of his peers and has the right to an attorney to defend him. In a nutshell, the Sixth’s focus is on preventing possible abuses of the criminal justice system.

AMOUNT OF MONEY IN QUESTION

The Seventh Amendment is a wee little lad of a thing that holds, “In suits at common law, where the value in controversy shall exceed 20 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.”

In other words, what the Seventh provides is that in civil cases (as distinct from criminal cases; those involving disputes between private parties), the matter may be heard in federal courts before a jury if the amount of money in dispute is greater than $20. Well, not so much today; although access to the federal courts remains a guarantee, one may only proceed before the federal courts (rather than a state court) in two circumstances: either one has a “federal question” (i.e., a case where the federal courts have primary subject matter jurisdiction — a patent case is but one example), or else a “diversity” case, that is a dispute between citizens of different states.

In diversity cases, instead of $20, the amount in dispute must now be at least $75,000. Presumably, a buck went a little further in 1791 when the Seventh Amendment was ratified.

PREVENTING ‘CRUEL AND UNUSUAL PUNISHMENT’

The Eighth Amendment is tinier than tiny but packs a wallop. Herein is contained the protection against “cruel and unusual punishment.” The Eighth provides that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” So, in addition to the prohibition against cruel and unusual punishment, the Eighth holds that bail must be in proportion to the alleged crime and fines must bear a reasonable relationship to the harm caused if one is ultimately found culpable of wrongdoing. Ratified in 1791, the Eighth remains relevant today; think Gitmo, if you will, or the current debate swirling about the recent botched lethal injection cases in Oklahoma and elsewhere.

OTHER RIGHTS RETAINED

The Ninth Amendment seems understated a first. It is one of those “small prow, big wake” things. What is says is simply, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Hmmm; thinking caps are needed here. What, exactly does this mean? With a bit of cogitation, the meaning becomes clear and the impact is enormous. What the Ninth provides, effectively, is that rights of the citizens are broader than the Constitution provides. As we visited in past columns in this series, not everyone was of a mind that a Bill of Rights should be included in the Constitution. What these Framers worried about was that if certain rights were listed, it might imply that other rights (that is, those not enumerated) did not exist at all. The Ninth Amendment was a compromise meant to allay those fears by explicitly providing that just because a certain right isn’t listed in the Bill of Rights, didn’t mean it didn’t exist. What the Ninth Amendment say is, “just because it ain’t here, doesn’t mean a right does not exist.”

Rounding out the Bill of Rights is the Tenth Amendment, which like many of the others, is brief but pithy. It holds that “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.” So what does it mean? In essence, the Tenth Amendment establishes a strong principle of states’ rights. Any powers not expressly given to the federal government can be assumed to be reserved to the states or held directly by the people.

What the Tenth Amendment established was the principle of enumerated powers; the federal government is conferred upon it certain powers but no more. The Tenth Amendment reflects the overarching concept of the earlier Articles of Confederation, which governed the “united states” and provided, among other things, that although the states agreed to participate in a centralized form of government, they would preserve their self-rule and their own state constitutions. The Articles of Confederation declared that every state would keep their freedom, independence, jurisdiction, rights and sovereignty and so the Tenth made clear that while the federal government had the powers specifically granted to it by the U.S. Constitution, the states and the people also had rights and laws that would be enforced at the state level.

In the next part of the series we will begin our march through what came after the Bill of Rights, starting, logically with 11th Amendment, ratified four years after the flurry of the first 10.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, robbins@slblaw.com or robbins@colorado.net.


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