Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence (10 page)

The First Amendment is remarkably brief considering the breadth of protection that it has provided. The section of the amendment prohibiting Congress from making any law “respecting an establishment of religion” is a cornerstone of the American notion of separation of church and state, and the guarantee of “free exercise” of religion has proven a powerful means by which people have been allowed to express their religious beliefs without fear of government reprisal. Similarly, the guarantees of freedom of speech, of the press, and of the “right of the people peaceably to assemble,” as well as the right to petition their government (and by implication to protest the actions of that government) are at the heart of the American constitutional definition of liberty.

Those freedoms have, however, been subject to some restrictions. Until the early twentieth century, the First Amendment applied only to the actions of the federal government; state governments were free to pass their own laws contravening some of the provisions of the First Amendment. For example, the state of Massachusetts continued to accord the Congregational Church special privileges and did not move to explicitly separate church and state until 1833. Moreover, throughout the nineteenth century, and sometimes into the twentieth, state governments have enacted laws placing restrictions on speech, freedom of the press, and on certain forms of public assembly. It was only in the twentieth century, through application of the “incorporation doctrine,” that the Fourteenth Amendment’s guarantee that states must not “abridge the privileges or immunities of citizens of the United States,” nor deny citizens “equal protection of the laws,” began to obligate state governments to guarantee their residents the same freedoms as those articulated in the First Amendment.

The precise extent of the guarantees of the First Amendment continues to be a subject of contention. Oliver Wendell Holmes, in a Supreme Court opinion in
Schenck v. United States
(1919), made the commonsense argument that the guarantees of free speech do not extend to the right to shout “fire in a theatre and causing a panic” when no such danger actually exists. Governments have often asserted the right to regulate public assemblies and protests in order to ensure public safety.

Similarly, the “wall of separation” between church and state is not impenetrable. The United States Congress continues to employ a chaplain, and the word of God is frequently invoked at many official government gatherings. The federal courts are frequently presented with cases in which litigants claim that public displays of religious belief (e.g., the displaying of a Nativity scene in a public square at Christmastime) violate the principle of separation of church and state. Thus far there is no clear resolution of where the boundary between a religious and a civic display lies.

The Second Amendment contains two parts: a preface, which states that a “well regulated Militia” (meaning a citizens’ army authorized by the state) is a necessary and desirable thing, and the operative section of the amendment, which asserts the right of the people to keep and bear arms. Constitutional scholars have argued vociferously about whether the comma separating those two parts signifies that the right to keep and bear arms without state interference is confined to the use of such arms in conjunction with one’s duties as part of a government-sanctioned militia or army, or whether there is an individual right to keep and bear arms under any circumstances. The most recent ruling of the Supreme Court (
District of Columbia v. Heller
, 2008) suggests that the Second Amendment does guarantee an individual, as well as a collective, right to bear arms, but the Court has also conceded that there are some instances (e.g., regulating the sale of assault weapons) in which local, state, and federal governments do have the right to regulate the sale and use of arms. Like many aspects of the Constitution, the meaning of the Second Amendment is subject to varying interpretations.

This amendment, which has lost much of its immediacy over the course of time, was considered of pressing importance by the members of the First Congress, who drafted it because attempts to force Americans to provide lodgings for British troops (whom they considered to be hostile occupiers of their land) during the years leading to the Revolution were an important cause of that revolution. The amendment does, “in a manner to be prescribed by law,” allow the government to use private homes to provide lodging for its own soldiers in time of war. More generally, the Third Amendment has—along with the Fourth, Fifth, and Ninth Amendments—been interpreted to imply another right not explicitly mentioned in the Constitution: the right of privacy.

The guarantees against “unreasonable searches and seizures” of persons, houses, and property, and the insistence that any such searches be based on “probable cause” and accompanied by search warrants, were another product of Americans’ experience during the Revolution, when British customs officers and soldiers carried out blanket searches and seizures without proper warrants. In recent years, through use of the incorporation doctrine, the Fourth Amendment has been interpreted to mean that police officers at all levels of government must demonstrate probable cause before stopping and searching anyone whom they might suspect of a crime. The precise definition of “probable cause” has been much debated, and in many cases police officers are forced to make difficult judgments about whether they should detain an individual and search his or her possessions.

In an age in which advances in technology have offered the government new ways to gather evidence of a possible crime—e.g., wiretapping and other means of sophisticated electronic surveillance—the federal courts have been presented with new dilemmas about how to interpret the provisions of the Fourth Amendment. Enactment of the Patriot Act in the aftermath of the 9/11 attacks in 2001 has significantly expanded the government’s ability to carry out such surveillance.

Reflecting long-standing traditions of English common law, as well as the American perception that the British had violated those traditions in the years leading up to the American Revolution, the Fifth Amendment requires that people charged with capital crimes (i.e., a serious crime that falls under the jurisdiction of the federal courts) be first presented before a grand jury—a group of ordinary citizens drawn from the general population. Those serving in the military are not afforded that protection; they are to be tried in military courts, which set their own rules of judicial procedure.

Although indictment by a grand jury is standard practice in important civil and criminal proceedings at the federal level, many states have not used this mechanism for securing indictments of accused criminals, believing that grand juries are unnecessarily costly and time-consuming. Although many of the provisions of the Bill of Rights have been applied to the actions of state governments through the incorporation doctrine of the Fourteenth Amendment, the Supreme Court has not asserted that states are bound to conform to this particular provision of the Fifth Amendment.

The provision of the Fifth Amendment preventing double jeopardy stipulates that individuals cannot be tried for the same crime more than once. If a defendant is acquitted of a crime, the government does not have the right to prosecute that individual again, and if a defendant is convicted, the government may not impose multiple punishments for the same crime.

The phrase “taking the Fifth” refers to the provision of the Fifth Amendment ensuring the right against self-incrimination: the right to refuse to answer questions in court that might lead either to indictment or punishment for an alleged crime. Finally, the Fifth Amendment contains a very open-ended guarantee, echoing the words of the preamble of the Declaration of Independence, that no person can be deprived of the fundamental rights of life, liberty, or property without due process of law.

The concern for protection of property is further emphasized in the prohibition of the taking of private property for public use “without just compensation.” In fact, federal and state governments have often taken control of private property (for example, for the purposes of building a highway or some other necessary public work) by using the doctrine of “eminent domain.” In those cases, the owners are compensated for the value of their property, although in many cases not without significant litigation.