Chapter 3 Flashcards
The First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. - Fully Incorporated.
Applies to Congress.
The 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. – Fully Incorporated
Unsure of who it applies to.
The 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. - Unincorporated
Unsure of who it applies to, though you could assume the military.
The 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. – Fully Incorporated
Unsure who it applies to. Probably the rights of the people, but protecting them from who.
The Fifth Amendment
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 offense 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. - Partially Incorporated
Unsure who it applies to.
The Sixth Amendment
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 defense. - Partially Incorporated
Unsure who it applies to, though you could assume people accused of a crime.
The 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 reexamined in any court of the United States, than according to the rules of the common law. - Unincorporated
Unsure who it applies to.
The Eighth Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. - Fully Incorporated
The Ninth Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. - Unincorporated
The 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. - Unincorporated
The Fourteenth Amendment
Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2: Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Section 3: No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
James Madison’s proposed amendments
James Madison submitted a list of seventeen amendments to the Constitution during the First Congress.
Madison’s proposed fourteenth amendment said, “No State shall violate the equal rights of conscience, freedom of the press, or trial by jury in criminal cases.”
This proposed article failed to pass. Did its failure to pass signal that the Founding Fathers never meant for the Bill of Rights to be applied to the states?
Early reluctance to incorporate Bill of Rights into State legislature:
Barron v. Baltimore (1833)
Relevant Case Facts:
In the early 1800s Baltimore was becoming a major hub of economic activity. Its growth necessitated constant construction and excavation. Specifically, the vast amount of street construction began to alter the flow of the rivers into Baltimore harbor. This led to an accumulation of sand and silt around their wharves. This ruined Barron’s business because the harbor became too shallow for ships to come into port. Barron wanted the city to pay for the dredging of the harbor, but it did not do so. In 1822 Barron brought suit against the city asking for $20,000 in compensation for the taking of his private property. The court awarded him $4,500 to Barron.
Legal Question: Does the Takings Clause of the 5th Amendment apply to the states?
We are of the opinion that the provision of the Fifth Amendment to the Constitution, declaring that private property shall be taken for public use without just compensation, is intended solely as a limitation on the exercise by the government of the United States, and is not applicable to the legislation of the states. SUMMARY: 5th Amendment does not apply to states.
Early reluctance to incorporate Bill of Rights into State legislature:
Hurtado v. California (1884)
Relevant Case Facts:
Hurtado shot and killed his wife’s lover, an offense punishable by death. While defendants often faced a grand jury to determine if there was enough evidence for a trial, California allowed prosecutors to use an information to initiate a trial rather than a grand jury. The state used this method to bring Hurtado to trial, and he was found guilty of murder. Hurtado’ s lawyer objected to the trial on the grounds that Hurtado had a right to a grand jury and to due process of law. He argued that these rights applied to federal hearings under the 5th Amendment, and therefore the state should also apply these standards under the 14th Amendment’s due process and privileges and immunities clause.
Legal Question:
Does an individual accused of a capital crime have a right to a grand jury in state court under the 5th Amendment?
It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process. SUMMARY: Bill of Rights still does not apply to states.
Early reluctance to incorporate Bill of Rights into State legislature:
Twinning v. New Jersey (1908)
Relevant Case Facts:
State fraud charges against Twinning and other officers of a bank trust. At his trial in state court, Twinning refused to testify sighting his guarantee against self incrimination under the Fifth Amendment. The judge allowed him to claim the Fifth, but in his jury charge, the judge referenced Twinning’s refusal to testify, insinuating that it implied guilt. Twinning was found guilty of fraud and appealed his conviction based on the judge’s reference to his refusal to testify – by arguing that the provisions of the Fifth Amendment applied to the states, thus making the judge’s comments reversible error.
Finally a crack in the door and an admission by the Supreme Court that some rights under the Bill of Rights may be applicable to the states through the 14th Amendment’s due process clause:
It is possible that some of the personal rights safeguarded by the first eight Amendments against [federal] action may also be safeguarded against state action, because a denial of them [by the state] would be a denial of due process of law [under the Fourteenth Amendment’s due process clause].
