My Understanding of the Bill of Rights

The Bill of Rights – My Revision

 

As we have learned during our American Government class that the creation of our United States (U.S.) Constitution was no easy task. Bitter arguments arose during the ratification process of the U.S. Constitution between the Federalists and Anti-Federalists. Both competing groups had valid arguments and concerns with the establishment of a new government. The Federalists felt the U.S. Constitution was perfect as is and that the States would provide the protections to its citizens. However, the Anti-Federalist feared that they would lose the hard-earned freedoms that they had fought for in the Revolutionary War without the added protections of a Bill of Right to the U.S. Constitution (Losco & Baker, 2017).  In order to ratify this new U.S. Constitution our framers had to make a compromise. This compromise was the addition of ten amendments known as the Bill of Rights to the U.S. Constitution with specific guarantees such as individual right and freedoms, enumerated rights, limitations on judicial powers, powers reserved to the states not delegated to Congress by the U.S. Constitution (LII Staff, 2018).  However, what applied in the late 18th century does not always apply to the present. If given the authority or the notional approval to revise the original ten amendments, I would do so from an assortment of historical and modern viewpoints.

 

Starting with the First Amendment which states, “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”(Losco & Baker, 2017, p. 484). I would change very little to this amendment because it guarantees freedoms concerning religion, expression, assembly, and the right to petition (LII Staff, 2018). However, I would add more clarity to the free exercise clause in order to prevent some overzealous judicial opinions that can interfere with an individual’s freedom of religious expression. I would also emphasis the important need to protect individuals, small business owners, and companies with firm religious beliefs from federal mandates that may violates those beliefs. Such as in the case of Sebelius v. Hobby Lobb, which the Affordable Care Act mandated that Hobby Lobby had to pay their employee healthcare cost for contraceptives which went against the owner’s religious beliefs (Losco & Baker, 2017). As for freedom of expression I would add a clause that prohibits certain speech such as the desecrated of U.S. Flag used by Anti-Government protesters as symbolic speech or hate messaging used by the Westboro Baptist Church at military funerals which in my opinion are in the same category as hate speech (Losco & Baker, 2017).

 

The Second Amendment is very controversial in today’s society and it states, “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” (Losco & Baker, 2017, p. 485). The District of Columbia v. Heller, was a major victory for supporters of the Second Amendment, which Chief Justice John Roberts (2008) wrote, “Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home” (Losco & Baker, 2017). However, I would reword the Second Amendment in order to clearly define the rights of the people in this amendment and to include what should be the required for ownership such as firearm safety training, legal age of ownership, mental fitness requirements, and their legal responsibilities. I would also expound on the reasonable types of arms one could own because not everyone needs to own a rocket launcher or fully automatic weapon. I would have a caveat, making it illegal to limit the Second Amendments rights via financial institutes, state laws that counter federal laws, and to limit the types of lawsuits against the manufacturers by special interest groups. Overall, I find the current Second Amendment important and relevant in the present.

 

During the early part of our nation’s history the Third Amendment which states, “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” (Losco & Baker, 2017, p. 485). I completely understand why it was relevant to our founding fathers and the historical abuse of power from the British military in the American Colonies. However, I do not currently foresee our government forcing its citizens to house military personnel in their homes against their will, especially during peacetime. In my opinion this amendment is more a relic of the past and should be removed because it does not really apply to the present. I believe an amendment dealing with a person’s reasonable right to privacy is more in line with today’s environment and is currently relevant. I would have caveats that would be applied to government organization like the National Security Agencies and non-government entities like social media outlets like Facebook and Google which would have limits on what personal data they can legally collect without a warrant or consent.

 

The Fourth Amendment states, “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” (Losco & Baker, 2017, p. 485). This amendment is important and I would keep it in its entirety with little revision because it protects against unreasonable searches, seizure of property, detainment, and surveillance without probable cause (LII Staff, 2018). As we have learned during this class that probable cause is a practical and nontechnical calculation of probabilities that is the basis for securing search warrants. (Losco & Baker, 2017, p. 89). I would only add a caveat with the exclusionary rule in the amendment to permanently cement the notion that illegal searches without a warrant would be declared invalid (LII Staff, 2018).

 

The Fifth Amendment states, “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” (Losco & Baker, 2017, p. 485). I would only revise this amendment with a caveat which states, law enforcement must inform those accused of a crime of their rights. This would be written similarly to the present day Miranda rights warning (Losco & Baker, 2017). The rest of this amendment would remain the same, because it perfectly guarantees important rights in both criminal and civil proceedings. For example, this amendment protects the accused from being tried for the same crime twice with the “double jeopardy” clause. It also protects the accused from being forced to self-incrimination and most Americans have probably heard of the term, “I plead the fifth” watching their favorite crime show on television. The amendment firmly established that “due process of the law” must be used in any case that might deny a citizen of “life, liberty, or property” which I believe attempts to make the judicial system more equal. Another reason I would not modify this amendment because if the government confiscate or take private land for public use then the government must compensate the owners for their land (LII Staff, 2018).

 

 

The Sixth Amendment states, “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” (Losco & Baker, 2017, p. 485). I would keep this amendment with very minor changes because it has specific guarantees for that protect the rights of criminal defendants. For instance it includes a speedy public trial with a right to an impartial jury. It also, gives the accused the right to legal counsel and allows the accused to know the accusations, the accusers, and the evidence against them. I would only strengthen this amendment with a caveat that states, that if you cannot afford a lawyer one will be provided and the right of the defendant to legal counsel guaranteed unless waived by the defendant (LII Staff, 2018). I feel this would strengthen the “assistance of counsel for his defense.” It will also assist the 75 percent of accused criminals the assistance to legal counsel (Losco & Baker, 2017, p. 91).

 

The Seventh Amendment states, “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” (Losco & Baker, 2017, p. 485). I find this amendment practical and continues a longstanding historical practice of common law practiced by the English and early American settlers. I would not remove or modify this amendment because it gives the defendant in civil cases the right to a jury trial and has worked well in our judicial system.

 

The Eight Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (Losco & Baker, 2017, p. 485). I would keep this amendment because it protects the accused from the horrendous torture and execution methods found in some parts of the world today. For example, after the withdrawal of U.S. Forces in Iraq in 2011, we witnessed barbarous torture and executions of people accused of a crime by members of the Islamic State of Iraq and the Levant. Ideally, I would add more context in regards to the “cruel and unusual punishment” portion of this amendment since there is a lot of debate with the death penalty in our country. In my opinion, depending on the circumstance I feel the death penalty is a necessary evil. The use of the death penalty should have parameters clearly set in place. For example, it should have the lawful of methods that could be used without undue infliction of pain, the crimes that could result in a death sentence, age, and mental capacity of the perpetrator. It should also have a clear appeals process defined in the amendment which should include mandatory DNA testing and a mandatory review process to ensure the case was handled correctly and unbiasedly.

 

The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (Losco & Baker, 2017, p. 485). I refer to it as the catch all amendment and allows for the expansion of rights that have not been clearly defined in the Bill of Rights. For this reason I would keep the ninth amendment as is without any changes. I believe that when James Madison wrote this amendment he wanted to keep the Bill of Rights as flexible as possible. I am also in the opinion that James Madison wanted to ensure that citizens have unspoken rights that may not be clearly enumerated in the Bill of Rights (Losco & Baker, 2017).

 

The Tenth Amendment states, “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” (Losco & Baker, 2017, p. 485). I like this amendment because it helps establish the relationship of our Federal government with the individual States. However, The Federal government and the States have a love hate relationship dealing with Federal powers vs State powers (LII Staff, 2018). Adding a caveat that clearly defined State powers not granted to the federal government would strengthen this amendment and its original intent in my opinion.

 

In conclusion, there are an unlimited number of other amendments that I had considered for my revision. For example, I considered an amendment in regards to equality with caveats dealing with the right to vote, employment, education, and housing and equal rights to all Americans regardless to one’s wealth, religion, gender, race, ethnicity, age, or sexual preference. Another amendment that I considered was term limits for all elected official in the Executive and Legislative Branches. This would have had caveats declaring no one can serve more than two terms in in both houses of Congress, which I believe would reduce the influence of career politicians and encourage more bipartisanship. However, I believe a lot of these issues have already been resolved with the addition of seventeen later amendments and judicial review. Overall, the Bill of Rights is a vital part of our U.S. Constitution, which protects the State and citizen from a tyrannical government that our founding fathers feared. I believe my revision of the Bill of Rights would only modernize and enhance their original intent.

 

References

1. Losco, J., & Baker, R. (2017). Am gov 2017-2018. New York, NY: McGraw-Hill Education
2. LII Staff. (2018, May 16).  Legal Information Institute. U.S. Constitution. Retrieved January 2, 2019, from https://www.law.cornell.edu/constitution

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