One of the biggest arguments between the Federalists and the Anti-Federalists was over the absence of a bill of rights in the Constitution. In part to gain the support of Anti-Federalists, the Federalists promised to add a bill of rights if the Anti-Federalists would vote for the Constitution. Thus, the Bill of Rights was written in 1789, and was formally added to the Constitution in 1791. It includes the first ten amendments to the Constitution.
The Bill of Rights
The first ten amendments to the Constitution are collectively known as the Bill of Rights. The Bill of Rights is the source of many of our basic freedoms.
Click to review each of the Amendments in Bill of Rights.
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.
Explanation: The freedoms guaranteed in the 1st Amendment are sometimes referred to as our fundamental freedoms. They are some of the most valued freedoms that Americans possess.
- Congress cannot “establish” a religion for the United States. This protects us from Congress creating a State religion that all Americans must follow. The 1st Amendment also protects our “free exercise” of religion, and makes sure that Congress cannot tell us to pray, go to church, or what church to belong to.
- Speech has been defined over time to mean both spoken and symbolic speech.
- Press is the freedom of the press to print what it likes, without government interference.
- Assembly is the right to gather freely, in meetings, demonstrations, and protests.
- Petition is the power of the people to appeal to their government, to ask them to fix any perceived wrongs.
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.
Explanation: The 2nd Amendment is quite controversial, in that different people read it in different ways. One reading is that to maintain a militia (a part-time army made up of citizen soldiers), the people of the states will need to have arms (weapons).
- Some people believe this means that the government cannot make any laws that restrict the right to bear arms.
- Others believe it means that, to maintain the militia or army, people will need weapons.
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.
Explanation: This amendment is one of the most ignored in the Constitution. It is a protection against quartering, using private homes to house military troops in times of war or peace. The provision was included in the Constitution because the practice had been used by the British in the Colonial Period, but the U.S. Supreme Court has never heard a case based on the 3rd 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.
Explanation: The 4th Amendment protects our right to be free from illegal search and seizure, and establishes that the government can search our property or person ONLY upon probable cause (the reasonable expectation, based on evidence, that someone has perpetrated an illegal act) and with a search warrant, that specifically states the location and person to be searched, and what the government is looking for.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment of 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.
Explanation: The 5th Amendment provides for several key rights.
- Grand Jury: A citizen cannot be held or arrested for a crime unless he or she has been indicted (formally charged) by a Grand Jury. The grand jury is a large jury, usually 23 citizens, who determine if there is enough evidence to charge a defendant with a crime. This protects us from unlawful arrest, by making sure that the government has enough evidence to prove in court that an accused person may have committed a crime.
- Double Jeopardy: A citizen cannot be tried for the same crime twice (Double Jeopardy). This way, we cannot be harassed by the government. If we are arrested, tried, and found not guilty, the government cannot continue to prosecute us for the same crime until they convict us.
- Self-Incrimination: We cannot be forced to be a witness against ourselves; this protects us from self-incrimination. We sometimes hear those giving testimony “taking the fifth.” This means that they are refusing to testify, under oath, because telling the truth might implicate them in a crime. Rather than lie (and commit perjury), they simply refuse to answer the questions. One does not have to testify, if doing so might implicate that person in a crime.
- Due Process: The government must respect all rights guaranteed by the Constitution before depriving a person of life, liberty, or property. This means that everyone is entitled to a fair trial.
- Just Compensation: The government cannot take a person’s property for public use without giving them appropriate compensation, which simply means the government cannot take your land or property without paying you a fair price.
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.
Explanation: The 6th Amendment creates a list of rights for those accused in criminal prosecutions.
- Speedy and Public Trial: The Constitution does not define “speedy,” but Congress has passed the Speedy Trial Act, which says trials should begin within 70 days. Some pretrial matters may delay this for specified periods of time. A “public” trial means that anyone can come to court and watch the trial. Public trials are just one way to guarantee everyone is treated equally and fairly.
- Trial by Impartial Jury: The 6th Amendment also provides a right to a “trial by an impartial jury,” which is chosen from the state or district where the crime allegedly occurred.
- Know the Charges: We have the right to know the “nature and cause” of the accusation, or the right to know what we have been accused of. This protects us from unlawful imprisonment, as we have to be formally indicted or accused to be held by the government.
- Confront Witnesses: The 6th Amendment gives us the right to question the witnesses against us in criminal cases. This means not only that witnesses must testify, in court, in front of the defendant, but that the defense lawyer has the right to ask questions or cross-examine all prosecution witnesses and vice-versa.
- Obtain Witnesses: We also have the right to introduce witnesses in our defense.
- Right to Counsel: The 6th Amendment provides our right to have an attorney in criminal 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.
Explanation: The 7th Amendment allows the parties in civil cases (lawsuits, in which private parties are suing over non-criminal matters), to ask for a trial by jury. The 7th Amendment also tells us that the judge cannot ignore the verdict of the jury, nor can the judge tell a jury to decide the facts in a particular way.
Excessive bail shall not be required, nor excessive fine imposed, nor cruel or unusual punishments inflicted.
Bail: Bail is an amount of money that is provided to the court by the defendant to obtain release from jail until trial. If the defendant (accused person) shows up, he or she receives a portion of the money back.
- The 8th Amendment does not tell us that bail has to be offered, it just says that it cannot be excessive. The Bail Reform Act of 1984 was passed by Congress and allows bail to be denied to people who are found to be too dangerous to remain at large until their trial. This means that if the judge feels that the accused could endanger other people while waiting for trial, he or she might have to remain in jail until trial.
- Bail can also be denied if the judge feels that the accused might run away or be a flight risk.
Fines: The 8th Amendment also states that fines cannot be excessive. Though this language is vague, the intent is clear. If you steal something that costs $5.00 then your fine should not be $5,000,000, which would be excessive.
Punishment: Finally, the 8th Amendment guarantees that “cruel and unusual punishment” will not be inflicted. The language is not specific. The U.S. Supreme Court has decided that, generally, the death penalty is not cruel and unusual punishment, but it may be in some cases. For example, the death penalty may violate the 8th Amendment if the defendant is a minor or if the crime is not murder.
- The 8th Amendment has also been interpreted to mean that people in jail cannot be beaten or tortured by their jailers.
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
Explanation: This amendment confirms that people have un-enumerated rights. The intent behind this amendment, which was written by James Madison, was to ensure that the citizens and government both understood that just because a right IS NOT mentioned in the Constitution, doesn’t mean that we don’t have it. For example, there is no mention of a right to privacy in the Constitution. However, we do indeed have an expectation of privacy in certain things, such as our relationship with our doctors or families.
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.
Explanation: The 10th Amendment is the source of the states’ reserved powers. Since the Constitution did not specifically outline the powers given to the states, the 10th Amendment becomes the strongest statement of states’ rights in the document. Any power not specifically given (delegated) to the federal government, and not specifically prohibited to the states, is then reserved for the states.
- Delegated Power: One that is delegated to the federal government by the Constitution. For example, Article I, Section 8 lists the powers delegated to the Congress.
- Prohibited Power: One that is specifically denied to the states. There is a detailed list of the powers denied to the states in Article I, Section 10 of the Constitution.
The 10th Amendment also states that if the national and state governments don’t have a power, then it is a power retained by the people.
Applying the Bill of Rights to the States
The Bill of Rights protects citizens from the power of the national government, but does it also apply to state governments? After the 14th Amendment was added in 1868, the Supreme Court interpreted this amendment to apply to the states as well as the national government. The federal courts have interpreted and applied the 14th Amendment’s “due process” and “equal protection” clauses to the states in a variety of situations. This protects citizens because it limits the ability of the states to ignore the rights and liberties implied by the Constitution’s Bill of Rights.
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 any person within its jurisdiction equal protection of the laws.
Due Process Clause
- “nor shall any State deprive any person of life, liberty, or property, without due process of law“
- The Supreme Court has held that the due process clause of the 14th Amendment means the states must apply the Bill of Rights.
- This process of making the Bill of Rights binding on the states is called incorporation.
Equal Protection Clause
- “nor deny any person within its jurisdiction equal protection of the laws“
- The Supreme Court has determined that this clause extends to both the state and national governments.
- The equal protection clause has been interpreted to mean that all people have a right to equal protection under the Constitution.
- For example, the equal protection clause has been applied to ensure that women have the same protections as men, or that minorities have the same protections as whites.
- Many of our civil rights laws giving a particular group protection from discrimination are rooted in the equal protection clause. Visit the Student Center page about Civil Rights and Equal Protection to study landmark cases.