Inspired Constitution :: The Constitution of the Founding Fathers

The Constitution of the Founding Fathers


	The Constitution of the Founding Fathers Table of Contents Introduction Part 1 Part 2 Part 3 Part 4 Appendix 1 Appendix 2 Appendix 3

Part III. Bill Of Rights

MEANING OF TERM
1. “Bill has many meanings—in context of Bill of Rights means important written document
2. Rights”—elements of individual freedom beyond the lawful power of the government to interfere with
  J. Reuben Clark:
  “I am an American because I believe in a bill of rights which places wholly beyond the reach of lawful government certain matters affecting ‘life, liberty, and the pursuit of happiness,’ and specifically the right of freedom of conscience and worship, the right of free speech and a free press, the right peaceably to assemble and petition government, and the right to gain and hold property without molestation except by due process of law.” (Stand Fast by Our Constitution, p. 1)
3. The term “Bill of Rights” means an important written document containing a list of the basic rights of individuals and confirming that the government power is so limited that it does not have the lawful power to violate those rights
4. Compare with important agreement between two parties—one gives other oral assurances that document does not give him certain powers—other says too important for oral assurance—wants written amendment certifying that those powers not given
REASON FOR BILL OF RIGHTS
1. Text of Constitution contains a number of Bill of Rights provisions
2. A separate more detailed Bill of Rights was not included for several reasons (Federalist No. 84)
  1. Unnecessary and inconsistent with type of government being established—a Bill of Rights is a limitation on government with general powers—but they were establishing a government with specific limited powers [p. 53]
  2. Listing rights may give impression that people do not have other rights not listed
  3. Could be dangerous—by limiting powers that didn’t exist anyhow might give support to argument that government really does have powers greater than those specifically delegated to it
3. But people not satisfied—felt that without more detailed Bill of Rights might be too easy for government officials to destroy instead of protect freedom
4. Constitution ratified with understanding that would be amended to include more detailed Bill of Rights
BILL OF RIGHTS NOT INCONSISTENT WITH CONSTITUTION
1. James Madison in first Congress was principal architect of Bill of Rights
2. Amendment 9 confirms that the enumeration of rights shall not be construed to mean that the people do not have others not enumerated
3. Amendment 10 confirms that the federal government has only those powers delegated to it
BILL OF RIGHTS AS AID IN INTERPRETING CONSTITUTION
1. Jefferson on chains of Constitution (Elders p. 8)—people felt that chains on government officials needed tightening to protect individual freedom of choice
2. Emphasizes that true concept of rights is protecting freedom by restricting government power
3. Satanic perversion is that a right is something you are entitled to from other people and the government should force them to give it to you—reduction of freedom and increased government power
4. Typical Satanic argument is need power to control people to stop abuses, but greatest abuse is to give that power—violates purpose of Lord who established Constitution to preserve freedom of choice (D&C 101:77-80; Henry Grady Weaver, Elders p. 121-122; Daniel Webster, Elders p. 122)
5. History also shows that government promises to solve problems are no better than Lucifer’s promise to save all men if he were given the power to control them (Moses 4:1-4; Adam Smith, Elders p. 117; See Elders Chapter 10, p. 83-100) [p. 54]
BILL OF RIGHTS A LIMITATION ON FEDERAL POWER NOT STATE POWER
1. State governments were already set up—most had own bills of rights
2. Federal government was new government people hesitated to give power to—insisted on Bill of Rights limiting that power as condition to acceptance of federal government with powers granted to it in Constitution
3. Contrary to original intent, Supreme Court in recent years has gradually interpreted Bill of Rights as binding on states and used it to exercise control over states—justifies its usurpation by interpreting 14th Amendment to give it a different meaning from that intended (See Elders, Chapter 8, p. 49-79 and comments under 14th Amendment)
BILL OF RIGHTS AND FREEDOM
1. Usually even oppressive government doesn’t oppress those who go along with ruler’s wishes—violation of individual rights falls most heavily on individuals who try to point out evil deeds of government officials and bring about desirable change
2. Even though Bill of Rights sets forth rights of individual citizens, what is really involved is freedom itself—it is through these rights that individuals are able to criticize government officials and correct improper practices and remove undesirable office holders
3. Although criminals sometimes use Bill of Rights to escape just punishment that is a small price to pay for so important a safeguard of freedom
FIRST AMENDMENT—NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION OR PROHIBITING THE FREE EXERCISE THEREOF
1. Establishment of religion meant official government recognition of a particular church
2. Bill of Rights was not a limitation on power of states—several still had official state religions—the various religious problems of the states were being worked out—each in own way
3. Intended to prohibit federal government from getting involved in religious matters [p. 55]
  1. No delegated power authorizing federal government to legislate on religious matters—so this was making doubly sure that federal government must stay out of religious matters—note that military chaplains proper under war powers
  2. Human nature concern—tendency of religious groups to try to use compulsory power of government to oppress others and compel conformity with their beliefs—can also be used as indirect way to stay in power
  3. Satan uses compulsion wherever he can and typically seeks to work through government where compulsory power is centered
  4. No reason for federal power—not like treaties or naturalization or war powers, etc. that necessarily involve more than one state—rather proper for local concern where each state can take into account local differences
  5. Note that Congress was specifically without power to do two things
    1. Establish an official religion for the United States
    2. Prohibit “the free exercise thereof’—which (especially when combined with the absence of any delegated power) would seem to mean that the federal government is without power to interfere in local religious practices
4. Recent Supreme Court decisions on religion are unconstitutional usurpation of local authority
  1. Exercising a power specifically prohibited to Congress
  2. The Supreme Court itself has pointed out the impropriety of federal courts assuming “the power to declare rules of decision which Congress was confessedly without power to enact as statutes.” (Erie Railroad Company v. Tompkins, 304 U. S. 64, 1938)
5. Note that it has traditionally been regarded as proper for the federal government to recognize God and generally encourage religious practices especially since a religious citizenry is indispensable to the preservation of freedom (See Elders, Chapter 5, p. 33-35 on separation of church and state and Chapter 4, p. 25-32 on the need for a religious citizenry) [p. 56]
FIRST AMENDMENT—CONGRESS SHALL MAKE NO LAW . . . ABRIDGING THE FREEDOM OF SPEECH OR OF THE PRESS
1. “Abridge” indicates preexisting recognition of freedom of speech and the press
2. These were hard won rights that were to be preserved and not treated lightly
3. Great underlying purpose was to protect freedom against tyranny
  1. Right to criticize government officials and publicize their improper conduct without having to endure imprisonment or other punishment for doing so
  2. Compare with right of Congressman to be immune to charge of slander for statements made in Congress
4. Pornography not protected under freedom of speech and press
  1. What is pornography—difficult to define—know it when see it—medical books are not pornography
  2. But pornography may be protected where part of a socially redeeming message
  3. Value judgments twisted—small socially redeeming message deliberately planted to protect large amount of filth
5. Problem of prior restraint
  1. Censorship undesirable—but matter of value judgment
  2. Supreme Court has tended to follow French Revolution type of thinking that relied more on reason than experience
  3. Framers distrusted reason and relied more on experience
  4. States have authority to protect health and safety under police power
    1. Few would contend that free to poison water supply and may be punished afterward for harm done
    2. Clearly recognize prior restraint in protecting physical health [p. 57]
  5. Framers recognized that moral and religious society essential to preservation of freedom itself (Elders Chapter 4, p. 25-32)
    1. Experience shows that pornography is like a social disease of the mind and spirit
    2. Not only damages individual—makes society itself sick and undermines its motivation and ability to maintain its freedom
  6. When use freedom of speech to protect pornography have perverted a noble freedom preserving concept
    1. Intent was to preserve freedom by protecting the right of a patriot to criticize improper actions of a would be tyrant without fear of punishment
    2. By protecting pornography are protecting the right to undermine freedom by promoting moral sickness in the society—different from protecting right to express unpopular idea
  7. Some argue that prior restraint would be difficult to apply and would increase government control by spreading to other areas
    1. Many hard questions to be decided in political area—don’t abandon because of difficulty
    2. Protection against misuse and spreading to other areas is alert citizenry
  8. Some may argue that Constitution established to protect freedom of choice and since there will be abuses when there is freedom, should be consistent and not seek to restrain purveyors of pornography
    1. Framers considered experience a better lamp than reason—experience shows that some matters do such widespread harm that prior restraint is only appropriate remedy—compare with poisoning water supply
    2. Not just freedom of choice—rather active promotion against youth to corrupt next generation to destroy freedom
  9. Under the Constitution each state makes its own decisions as to what it will do about pornography—Supreme Court decisions imposing its position on states are usurpation [p. 58]
    1. James Madison on extent of federal power (Federalist No. 45, Elders p. 13-14)
    2. Power not given to Supreme Court by First Amendment because federal Bill of Rights was intentionally not made applicable to states
    3. Supreme Court claims to have been given power under 14th Amendment—see discussion of 14th Amendment showing that such claim is unjustified
FIRST AMENDMENT—CONGRESS SHALL MAKE NO LAW . . . ABRIDGING THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE, AND TO PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES
1. Strengthening of general freedom of speech provision—can discuss as a group and present written grievances to government
  1. Need to assemble to resist tyranny
    1. Group discussion and decision of what steps to take
    2. Strength as part of group
    3. Organize to use strength effectively
  2. Standard operating procedure for tyrants to prohibit freedom of assembly—have to meet secretly
2. Petition—make desires known to officials without suffering retribution for doing so
  1. No guarantee that will take action
  2. But guarantee right to make wishes known—similar to freedom of speech directed especially to government
SECOND AMENDMENT—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
1. Militia is all able bodied men—not just national guard (See material under Constitution, Article I, Section 8, Clauses 15 and 16) [p. 59]
2. The security of a free state includes preventing its own public officials from becoming tyrants—bear in mind basic purpose of Constitution to protect freedom against human nature tendency to seek to exercise dominion over others (D&C 121:39; Thomas Jefferson on chains of Constitution, Elders p. 8)
3. An important protection of freedom is the people being armed so the officials know the people are able to resist tyranny
4. Well regulated means efficient, smoothly functioning, responsible, able to carry out intended purpose
5. To have well regulated militia people must have weapons in own possession
  1. Familiar with characteristics of specific weapon
  2. Don’t have efficient, smoothly running militia if have to check out weapons after emergency begins—compare with Switzerland where soldiers keep weapons in own home
  3. Not much protection against would be tyrant if weapons are in central place he has the key to
  4. Also protection greatly diminished if tyrant knows who has what weapons so he can pick them up
6. Second Amendment is clear and not disjointed unless meaning is distorted—following is fair paraphrase
  Because a citizenry well able to take even military action to prevent would be tyrants from taking away their freedom is essential to the preservation of liberty, the right of that citizenry to have their own weapons in their own possession must be maintained
THIRD AMENDMENT—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 TO BE PRESCRIBED BY LAW
1. Recognizes basic freedom concept that entitled to be left alone and not have government officials imposing requirements that will interfere with own decisions concerning home and family (Rexford G. Tugwell, Elders p. 90-91)
  1. Home recognized as “castle” secure against government [p. 60]
  2. Compare with next amendment concerning high standard of probable cause required to get search warrant
2. Quartering without consent is violation of basic freedom concept of control of own property
  1. Compare with laws today depriving of freedom of choice concerning to whom will rent or sell
  2. Having soldiers in home may be dangerous to wives and daughters
  3. May be other reasons prefer not to have them
  4. Basic element is that individual not government makes decision
3. Possible military necessity in time of war justifies eliminating consent requirement at that time
  1. How prevent use of wartime authority as means of oppression of political enemies
  2. Must be in manner prescribed by law
FOURTH AMENDMENT—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
1. Note strong recognition of right of privacy—public official has no right to enter your home or otherwise obtain information about you without your consent
  1. Proper government doesn’t need such information—basic function is to protect you and doesn’t need to know about your private affairs to protect you
  2. But a tyrant or would be tyrant will always seek to enter and search and seize to protect himself against being overthrown
2. Not desirable for criminals to be able to use this safeguard of liberty as a shield to avoid punishment for their crimes [p. 61]
  1. Two competing interests—reasonably solved by requiring a search warrant and placing strict requirements to obtain it
  2. May incidentally protect criminals, but real purpose is protection of liberty
FIFTH AMENDMENT—NO PERSON SHALL BE HELD TO ANSWER FOR A CAPITAL OR OTHER 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
1. As approach Bill of Rights protection of persons accused of crimes must bear in mind basic orientation
  1. Great overriding purpose is protection of freedom from tyrannical government
  2. Protect freedom by protecting individual willing to right for freedom from being eliminated by oppressive government officials through improper use of criminal law
  3. That these protections sometimes result in guilty criminals being freed is a small price to pay for the great safeguard they are against oppressive government
2. A grand jury consists of not more than 23 persons called by the sheriff to hear witnesses concerning violations of law and to determine whether individuals should be indicted to stand trial for such violations
3. The grand jury is a very important safeguard preventing government retribution against someone who opposes improper government actions—without it oppressive government could effectively silence opposition by accusing those who stand up for freedom of having committed various crimes
  1. Even if not convicted their reputation could be greatly damaged—people less likely to believe what they say about improper government actions
  2. They could be put to great inconvenience and expense to defend themselves even if innocent [p. 62]
  3. While they were involved in defending themselves against the criminal accusation they would be diverted from exposing misdeeds of public officials
  4. Others realizing they could be similarly charged would think long and seriously before speaking up about government wrongdoing
4. Historically there have been many instances where English grand juries refused to indict individuals and thereby protected those individuals from unjust prosecution demanded by government officials
5. Grand jury protection does not apply in military forces or in militia when militia is serving with regular military forces—appropriate limitation for military effectiveness to protect larger group
FIFTH AMENDMENT—NO PERSON SHALL . . . BE SUBJECT FOR THE SAME OFFENCE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB
1. Tyrant or would be tyrant wants to silence an individual—manage to get an indictment but trial jury won’t convict—have him reindicted and try again perhaps with additional evidence
2. Even if innocent the ordeal of repeatedly defending himself may effectively silence him—individual is protected by prohibition against double jeopardy
3. Supreme Court explanation: “The underlying idea . . . . Is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” (Green v. US, 355 US 184, 1957)
4. State cannot avoid double jeopardy prohibition by trying for different crime arising out of same facts
5. Situation where trial started but not completed
  1. Double jeopardy prohibition applies if state voluntarily—stopped trial
  2. Does not apply if trial stopped for other reason such as illness of juror [p. 63]
6. Trial over and accused or government appeals
  1. Accused is found guilty and he appeals—double jeopardy does not apply to retrial
  2. Accused is acquitted
    1. Federal—government cannot appeal—double jeopardy
    2. States—some authorize appeals by government—no double jeopardy—the original jeopardy includes the appellate process and retrial ordered by appellate court—still part of one overall proceeding
FIFTH AMENDMENT—NO PERSON SHALL . . . BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF
1. Must have testimony of witnesses for legal system to function—so can compel their testimony—but should power to compel testimony be used to compel people to testify against themselves
2. Oppressive ruler wants to get rid of individual who speaks up for freedom—at same time wants to make it look legal and also like individual is really a criminal and his statements should be ignored
3. Frequent method is to get him to testify against himself and then use that self incriminating testimony or confession to incriminate him—often used torture to get self incriminating statements
4. Voluntary self incrimination not objectionable—but cannot compel an individual to testify against himself
  1. If he is the accused cannot compel him to testify at all
  2. If he is not the accused can compel him to testify as a witness—but he can refuse to answer any questions that might incriminate him
5. Supreme Court explanation: “The privilege against selfincrimination ‘registers an important advance in the development of our liberty . . . . ’ It reflects . . . our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state—individual balance by requiting the government to leave the individual alone until good cause is shown for disturbing him and by requiting the [p. 64] government in its contest with the individual to shoulder the entire load . . . and our realization that the privilege, while sometimes a shelter to the guilty is often a protection to the innocent.” (Murphy v. Waterfront, 378 US 52, 1964)
6. Determination of whether claim of privilege is justified is made by court—person cannot hide behind privilege when no real self incrimination involved—implications of question in setting in which asked ordinarily indicate that danger is real
7. Amendment refers to accused in own criminal trial
  1. Application to witness who is not accused is court extension
  2. Reasonable because otherwise government could compel testimony as witness in preparation of subsequent criminal action against witness
FIFTH AMENDMENT—NO PERSON SHALL . . . BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW
1. Inviolate rights to life, liberty and property—shorthand description of elements of freedom
2. Due process of law refers to a fair trial
  1. Many Bill of Rights provisions included in concept of fair trial—grand jury indictment—trial by jury—place of trial—speedy trial—public trial—no double jeopardy
  2. Due process of law not specifically defined—whatever action is taken by government must not offend sense of justice and fair play—sort of catchall like golden rule—keep all these specific commandments and then apply this general standard
3. Confirming that government can only interfere with freedom (inviolate rights to life, liberty, and property) it is supposed to protect when it has been shown after a fair trial that a person has forfeited his rights by violating other people’s rights
4. Other proper limited areas of authority such as for protection and for health and safety under police power and for taxation to enable government to adequately perform its functions [p. 65]
5. But when government adopts redistribution power—take from haves and give to have nots—is violating property rights supposed to protect
  1. Haves have not forfeited their rights through conviction following a fair trial
  2. James Madison on just and unjust government (Elders p. 86)
  3. No such power delegated to federal government (See comments under Constitution, Article I, Section 8, Clause 1)
FIFTH AMENDMENT—NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION
1. Eminent domain—superior dominion or authority—the right of government to take private property for public use
2. Really a more specific application of prior provision that not be deprived of life, liberty, or property (freedom) without due process of law
  1. The term “due process of law” is not limited to the concept of a fair trial—it also refers to the general requirement of fairness and justice in government dealings with individuals
  2. When private property is needed for public use it can be taken—owner can’t refuse to let public road through his property
  3. But owner must be paid a fair price for his property
3. Clear recognition that redistribution schemes violate basic freedom concepts of framers
  1. Redistribution schemes are supposed to be for general welfare—equivalent of public good
  2. Take property from some to give to others—to promote general good of all
  3. But 5th Amendment prohibits taking property for general welfare type purpose without paying for it—redistribution schemes amount to violation of freedom (property rights) by confiscation without payment [p. 66]
  4. Compare the taking involved in redistribution schemes with the Lord’s commandment: “Thou shalt not take thy brother’s garment; thou shalt pay for that which thou shalt receive of thy brother.” (D&C 42:54)
4. Grey area between property taken for public use which requires compensation—and property taken in exercise of police power which does not require compensation
5. Modern modification of meaning to justify control of land use by government officials
  1. Equate public use with public purpose
  2. Under 5th Amendment can only compel person to give up property for public use such as road or courthouse
  3. But under public purpose can compel person to give up property for redevelopment purposes—after condemnation property is made available to others for private development
  4. May seem like desirable way to improve area—but amounts to violation of property rights (freedom)—into area of government control of property based on judgment of government officials as to what should be done with it whether owner wants to or not
SIXTH AMENDMENT—IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO A SPEEDY AND PUBLIC TRIAL
1. Entire 6th Amendment pertains to criminal prosecutions
2. Criminal prosecutions are a typical way for a tyrant to eliminate or silence those who oppose his improper activities
3. Not only removes opponents—discredits them at the same time
4. Bill of Rights contains strong provisions to protect freedom by preventing use of criminal proceedings to eliminate opposition—have already referred to several—grand jury—double jeopardy—self incrimination—due process of law
5. Speedy trial is an important safeguard
  1. Without requirement of speedy trial tyrant might delay trial so that in effect imprisoning without trial [p. 67]
  2. Delaying trial can be a form of intimidation to accused and others—emotional stress of uncertainty
6. Public trial is another important safeguard
  1. One of characteristics of fairness is willingness to have public see proceedings
  2. Secret trial is likely to be a kangaroo type of trial where due process principles of fairness and justice are ignored
  3. If trial is unfair a public trial alerts others to fact that their own freedom is in jeopardy
  4. Those who might assist with defense are able to attend
  5. Show of support from spectators may have some influence on judge and jury
SIXTH AMENDMENT—IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO . . . AN IMPARTIAL JURY OF THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH DISTRICT SHALL HAVE BEEN PREVIOUSLY ASCERTAINED BY LAW
1. The Declaration of Independence spoke of “a long Train of Abuses and Usurpations” evincing “a Design to reduce them under absolute Despotism
2. One of the facts listed in support of that charge was “depriving us, in many Cases, of the Benefits of Trial by Jury”—this was done by extending the jurisdiction of the admiralty courts where there were no juries
3. Apart from the separate Bill of Rights added by the first ten amendments, the Constitution itself guaranteed the right of trial by jury in all criminal eases (Article III, Section 2, Clause 3)
4. Alexander Hamilton in Federalist No. 83: “The friends and adversaries of the plan of the convention (the Constitution), if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.” (a palladium is an important safeguard or protection) [p. 68]
5. The importance of trial by jury to the preservation of freedom itself is largely lost sight of today—modem emphasis is on more rapid trials and reliance on skill of judge
6. Importance of jury trial is in preservation of freedom—provides protection for individual who speaks out against oppressive actions by government officials who might seek to silence him through “arbitrary methods of prosecuting pretended offences.” (Federalist No. 83)
  1. The judge is an officer of the government—where the government is oppressive he is not likely to oppose it—in fact his continuance in office as a judge is probably dependent on his willingness to cooperate with the wishes of the tyrant
  2. But a jury of the peers of the accused can protect him by refusing to find him guilty
7. A serious problem has arisen from losing sight of the jury’s function as a preserver of freedom
  1. Tyrant wants to get rid of someone who he knows has not committed a crime so there is nothing a jury can convict him of
  2. Tyrant passes a law making something that person does a crime
  3. A trial is held and the jury is told their function is limited to judging the facts—if the person has done the particular act they must convict him
  4. By depriving the jury of the right to judge the law as well as the facts its function as a protector of freedom is greatly impaired
8. At the time of adoption of the Bill of Rights the jury was able to protect individuals against unjust laws through its clearly recognized right to judge both the law and the facts
  1. Even if the facts clearly showed that the person did the act the law said was a crime the jury could refuse to convict him on the ground that they felt that under the circumstances it would be unjust to do so
  2. John Jay was a lawyer and one of the most respected men in the colonies at the time of independence—he had been president of the Continental Congress—he was the author of the first New York constitution and that state’s first Chief Justice—he was one of the [p. 69] negotiators of the peace treaty with England ending the Revolutionary War—he was one of the authors of The Federalist—he was the first Chief Justice of the United States
  3. The following is part of a charge to a jury given by Chief Justice John Jay in 1794 (ratification of the first 10 Amendments was completed in 1791)
    “It may not be amiss, here, Gentlemen, to remind you of the good rule, that, on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this and on every other occasion, however, we have no doubt, you will pay the respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the courts are the best judges of law. But still both objects are lawfully within your power of decision.” (Georgia v. Bailsford, 3 US 1, 1794)
9. The jury’s right to decide the law as well as the facts was gradually eliminated over a period of many years
  1. To a considerable extent the change was brought about by judges refusing to allow juries to judge the law in spite of statutory and state constitutional provisions to the contrary (Lloyd E. Moore, The Jury, Tool of Kings, Palladium of Liberty, p. 179)
  2. That disregard of law by judges in arrogating to themselves the legal rights of juries emphasizes the importance of juries as protectors of individuals
10. The value of a jury as a protection against tyranny is not limited to a situation where someone takes over a government and seeks to eliminate opposition
  1. Judges are human and sometimes they become unreasonable and let themselves be influenced by their own prejudices
  2. United States Supreme Court opinion in Duncan v. Louisiana, 391 US 145, 1968: “Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the complaint, biased or eccentric judge.” [p. 70]
11. Impartial jury—no protection for individual standing up for freedom if government officials he criticizes can choose as jurors their own men who they know will convict him
12. Jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law
  1. Jury familiar with general standards and attitudes and circumstances in community
  2. Their own general knowledge of the surrounding facts would make it difficult for a prosecutor to mislead them
  3. Their general familiarity with the people and circumstances would help them in judging the law as well as the facts—even if the accused did the act which the law says is a crime, is he really being brought to trial for some other reason
13. Previously ascertained by law
  1. Tyrant might try to juggle district boundaries to get jury less familiar with circumstances and that can more easily be persuaded by prosecutor
  2. Cannot do so—district must have been previously set by law
SIXTH AMENDMENT—IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT . . . . 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 DEFENSE
1. Informed of nature and cause of accusation
  1. Can’t prepare defense if don’t know what charged with
  2. Without this protection an oppressive public official could much more easily get rid of a person who points out his wrongdoing—much greater likelihood of conviction if have to go to trial without opportunity to prepare defense [p. 71]
2. Confronted with witnesses against him
  1. Easy to get rid of someone on trumped up charge if witnesses don’t have to appear and can’t be subjected to cross examination
  2. No adequate chance to show their bias or interest or lack of opportunity to observe
  3. Jury deprived of chance to see both witnesses and accused as a help in deciding which to believe
3. To have compulsory process for obtaining witnesses in his favor
  1. Oppressive government officials could intimidate potential witnesses in favor of accused so they are afraid to come testify for him
  2. Compulsory process can strengthen resolve of favorable witnesses—not directly opposing will of tyrant—they can point out that required by law to attend
  3. Even if favorable witnesses really don’t want to attend the accused can compel their attendance at trial
4. Assistance of counsel for his defense
  1. Much easier to convict and get rid of someone if can deprive him of assistance of counsel for his defense
  2. Person alone and under emotional stress of being defendant is likely to bungle defense if has to handle entire defense himself
    1. No benefit of interchange of ideas
    2. Lack of guidance from one familiar with trial techniques and procedures
  3. If in jail and unable to raise bail, no one on outside to prepare defense [p. 72]
SEVENTH AMENDMENT—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
1. This amendment pertains to jury trials in civil cases under common law
2. References to common law confirm that Constitution set up new plan of government, but not new system of underlying law
3. Constitution itself guaranteed jury trials in criminal cases but not civil cases
  1. In Federalist No. 83 Alexander Hamilton mentioned that although criminal trials are used to get rid of opposition so that the protection of a jury is essential there, he could not “readily discern the inseparable connection between the existence of liberty and the trial by jury in civil cases.”
  2. In the debates over ratification there was great concern over the lack of any guarantee of jury trials in civil cases
4. Why is the guarantee of jury trials in civil cases important to the preservation of freedom against government oppression
  1. Judge is government official and likely to be involved with oppressive rulers
  2. Could get rid of someone who stands in their tyrannical way by evading protection of criminal law through ordinary lawsuit under civil law
    1. Have someone in with them sue the person they want to get rid of for an amount large enough to ruin him
    2. Charge can be fictional but judge involved in political conspiracy can decide in favor of plaintiff
    3. Guarantee of jury in civil matters protects against this [p. 73]
5. No reexamination other than according to rules of common law
  1. Even with protection of jury trial in civil case, oppressive officials could get rid of or silence person by making special rules for trying case again and again
  2. Double jeopardy applies only in criminal cases
  3. This provision gives double jeopardy type protection in civil cases
EIGHTH AMENDMENT—EXCESSIVE BAIL SHALL NOT BE REQUIRED, NOR EXCESSIVE FINES IMPOSED, NOR CRUEL AND UNUSUAL PUNISHMENTS INFLICTED
1. Excessive bail is bail higher than reasonably calculated to insure that accused will stand trial and submit to sentence if found guilty
2. How can oppressive government officials use excessive bail to silence comments about their wrongdoing
  1. Keep person in jail until time for trial
  2. Make it easier to convict him
    1. Denies him opportunity to be out investigating charge against him
    2. Makes it difficult to fully cooperate with his counsel
  3. Can also help silence him by depriving him of opportunity to work to help support family
3. In capital cases bail itself is in discretion of court—where death sentence is possible no amount may be sufficient to insure attendance
4. Oppressive government can also use excessive fines to silence someone who points out its improper activities
  1. Could make fine so high as to ruin the person financially and serve as an example to others that they had better cooperate with the new compulsion system [p. 74]
  2. Fine can be so high that person can’t pay it and ends up in jail where his freedom promoting activities are limited—similar to excessive bail after trial
5. Cruel and unusual punishments can also be used by oppressive government to keep in power
  1. Get rid of opposition and intimidate others
  2. Cruel and unusual punishment includes burning at stake—crucifixion—breaking on wheel—quartering—the rack—the thumbscrew—emboweling a person alive—lingering death
  3. Hanging and firing squad are not cruel and unusual punishments
NINTH AMENDMENT—THE ENUMERATION IN THE CONSTITUTION OF CERTAIN RIGHTS SHALL NOT BE CONSTRUED TO DENY OR DISPARAGE OTHERS RETAINED BY THE PEOPLE
1. The 9th and 10th Amendments are a safeguard against misinterpretation of the Constitution
  1. The 9th refers to the rights of the people—the 10th refers to the powers of the federal government
  2. The rights of the people are broad—the powers of the federal government are narrow
2. A major objection to including a Bill of Rights was that it might lead to the conclusion that the rights enumerated in it are all the rights the people have
3. The 9th Amendment is intended to prevent that conclusion by expressly declaring that the fact that certain rights are enumerated shall not be construed to mean that the people do not have other rights
TENTH AMENDMENT—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
1. The 10th Amendment also arose out of an objection to including a bill of rights [p. 75]
  1. It was claimed that because of the delegated powers nature of the federal government a bill of rights would be both unnecessary and dangerous
    1. A bill of rights is a restriction on government power—but since those powers had not been delegated to the federal government anyhow there was no need for a bill of rights restricting such non-existent power
    2. A bill of rights in such a situation could be dangerous because it could give the impression that the government really did have greater power than that delegated—otherwise there would be no purpose to having a bill of rights
  2. The 10th Amendment refutes that possible dangerous interpretation by specifically reaffirming that the powers of the federal government are limited to those delegated to it
2. The 10th Amendment also confirms the dual nature of the federal system as between the states and the federal government
  1. While the federal government was set up by the people and not the states, it was the people who set up the dual system including recognition of states rights
  2. This amendment confirms the existence of powers not delegated to the federal government and not prohibited to the states that are reserved to the states
3. This amendment also confirms that the remaining powers are reserved to the people
  1. These are the powers not held by the federal government because not delegated to it
  2. And not held by the state governments because prohibited to them
  3. State constitutions may also restrict the powers of the individual states and thereby increase the powers reserved to the people [p. 76]

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