amendment

Charlotte Sleeper – Sixth Amendment

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The Sixth Amendment elaborates on the second section of Article III, and declares that defendants also have the right to a speedy trial by jury, representation by a lawyer, and the right to face the witnesses for the prosecution. This amendment was particularly relevant to the Framers’, as one of the driving forces of the Revolution was the fact that, due to the Sugar Act allowing King George III to hold the colonists on trial in England, they were not given a fair trial.  

The Framers’ had to ensure that the people had faith in the American trial system in order for the constitution to be ratified. This is clear in the Federalist Paper Number 51, in which Alexander Hamilton remarks that both the Federalists and Anti-Federalists could agree upon the significance of safeguarding the right to trial by jury. The most contentious point of the amendment is how it can be applied to modern elements of the prosecution process, most notably the concept of forensic evidence. While, initially, the right to be presented with the witnesses for the prosecution was not a contentious matter, it has grown significantly more complicated in the world of advancing forensic analysis as well as video testimony.  

Stephanos Biblas, a U.S. circuit judge, believes that the sixth amendment does not require the exclusion of forensic evidence from a prosecution case if the coroner or other members of forensic investigations are unable to attend the trial if they have died or are otherwise unable to attend. He emphasizes the fact that forensic reports are a separate matter from police reports, stating that the Confrontation Clause of the sixth amendment was only meant to limit the replacement of live testimony with police reports had thus has no jurisdiction over limiting the use of forensic evidence. Another scholar, Jerry L. Fisher, argues that forensic evidence should be considered similarly to other forms of testimony and thus excluded if the analysts are unable to attend a live trial. He cites the fact that, while forensic evidence is often considered to be objective, the process of forensic analysis can be much more biased than the prosecution presents, leading to a false conviction if the forensic analysts cannot be cross-examined by the defense.  

While I sympathise with Biblas’s points surrounding the significance of forensic evidence, I ultimately concur with Fisher that the defendant has the right to have forensic evidence cross-examined. Although not explicitly stated, it is widely accepted that the Sixth Amendment illustrates the implied right of defendants to be considered innocent until proven guilty. Without the cross-examination of defense lawyers, it is too difficult to determine if the conclusions that forensic analysts come to are accurate. The debate surrounding Shaken Baby Syndrome (SBS) illustrates this point well, as it exemplifies that many forensic conclusions are based upon observations of symptoms, such as (in this case) patterns of head trauma. Since 2019, at least 21 people convicted based upon evidence of SBS have been exonerated, demonstrating the fallibility of forensic evidence, and thus the need for cross-examination of forensic analysts should the defendant desire it.

Layla Boyce: Amendment V

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The Fifth Amendment

The Fifth Amendment to the United States Constitution protects individual rights by ensuring a fair and just legal system. One event does not appear to have prompted the addition of the Fifth Amendment; rather, the amendment was born out of a recognition of the importance of a just legal system. The Fifth Amendment includes five separate protections: right to a trial by jury (the right to be judged by an unbiased audience of informed citizens), protection against “double jeopardy” (one cannot be tried multiple times for the same offense), protection against self-incrimination (individuals are not compelled to implicate themselves), the right to a fair and speedy trial (cases should not involve prejudice or unnecessary delays), and protection of private property (without compensation, the government cannot seize personal property). Of these provisions, one of the most controversial features of the Fifth Amendment is the protection against self incrimination, commonly known as the “right to remain silent”.  

The relevant text of the Amendment reads, “ …nor shall be compelled in any criminal case to be a witness against himself…”.  Generally, it is interpreted to mean individuals are permitted to refuse to answer incriminating questions or “take the 5th” during a criminal trial.  These protections have been extended to the pre-trial investigation stage.  Law enforcement is obligated to inform suspects in custody of their right to invoke the Fifth Amendment by reading them an explanation known as a Miranda warning.

The Supreme Court case, Bobby v. Dixon, demonstrates the issues caused by the broad language of the Fifth Amendment. Archie Dixon was questioned first about forgery without being Mirandized and his requests for an attorney were ignored. Subsequently, during a second interrogation after receiving Miranda warnings, he confessed to murder. The Sixth Circuit ruled that the police’s actions during the first were unconstitutional and that the second questioning was thus impermissibly tainted. However, the Supreme Court overruled this decision arguing that “Dixon was not in custody when he asserted his right to an attorney, and denied his ability to assert this right before he was in formal custody…” It was decided that there was no nexus between the improper unwarned admission to forgery and his later Mirandized confession to murder. Therefore, the Supreme Court found Dixon’s confession was properly elicited and reinstated his conviction.  

Furthermore, Griffin v. California (1965), a Supreme Court case, challenged the practice inferring guilt against defendants who employed their Fifth Amendment rights. Many people then were coerced into testifying to prevent the assumption of guilt.  The Supreme Court decided in Griffin this practice rendered the Fifth Amendment protections hollow as no one should be  ‘made “worse off” by asserting the Fifth than by not asserting it.’

The Fifth Amendment is a cornerstone of the American legal system, protecting individuals from self-incrimination, ensuring due process rights, and safeguarding property rights. The Fifth Amendment plays a significant role in protecting individual rights against the potential abuses of a  powerful government.

Sorochi Constitution Project – 8th Amendment

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Sorochi Sunday Ms. Lafuse World History I 2 June 2023 By granting powers not included in the Articles of Confederation, the Constitution strengthened the federal government. Federal crimes were established in the Constitution, and Congress had full power to define them and determine the appropriate punishments.

Congress’ authority over federal crimes worried some American leaders. At the time, no part of the Constitution regulated the punishments for federal crimes, leaving the possibility of Congress abusing their power. In response to fears of the federal government issuing oppressive punishments, the 8th Amendment was added to the Constitution. Part of the 8th Amendment prohibits “cruel and unusual punishments,” meaning criminals should not receive inhumane penalties for their crime. 

Debates have risen concerning how the words “cruel” and “unusual” should be interpreted. After defining these terms, the following question is: which standard, 1971, when the Bill of Rights was created, or modern day, should punishments be held to. Supreme Court Justices Clarence Thomas and Antonin Scalia believe that any punishment that was permissible in 1791 cannot be considered cruel or unusual. With their interpretation, capital punishment, while now controversial, would be considered Constitutional, since it was used in America during 1791.

Additionally, they believe that a punishment being disproportionate to crime committed does not necessarily mean the punishment is cruel. Conversely, Chief Justice Earl Warren believes interpretation of the clause should evolve over time to fit the changing standards of decency. He argues that a change in interpretation marks progress in society. Legal scholar John F. Stinneford disagrees with both Justices Thomas and Scalia, and Chief Justice Warren. He believes the meaning of cruel and unusual should fit the original public meaning.

According to him, the standard of cruelty the general public held in 1791 should be the standard judges use as they interpret the Constitution. In an attempt to preserve the original meaning, he also argues “unusual” should be interpreted as new or unprecedented, rather than rare. He claims that his interpretation is founded off of research into the original meaning of the 8th Amendment.  I find Chief Justice Warren’s interpretation most persuasive.

The other two interpretations discussed require one to understand the minds of people living the era of the Constitution, whether that be the framers or everyday people. However, both tasks seem very difficult to achieve in reality. Even with detailed research, discovering the exact thought process of the framers as they wrote the 8th amendment, let alone the average American in 1791, is improbable. Further, while historians have a better chance, with the brief and vague language of the 8th amendment, the average expertise of a judge may not be enough to reach a well-founded conclusion of any true original meaning. 

If I could amend this section, I would specify what is meant by “cruel”. To do this, I would list out some of the ways a punishment could be cruel, like so: a punishment that includes intentional torture or elongated killing, or is disproportionate in severity to the seriousness of the crime. I feel the word “cruel” is more important to the clause than “unusual”, as a punishment can be grossly inhumane, but also common.   

2nd Amendment

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The second amendment was written because of a mix of fear of a British invasion and basic mistrust of professional soldiers. With this fear the government decided to add an amendment to the constitution to allow for states to have a militia that allowed them to protect against foreign and domestic enemies without the government being able to stop them.

This was of course before the US had a real military though we do still have something similar to the state militias in the national guard. When it comes to interpreting things into something completely different than the original meaning nothing out does the second amendment the original text reads, “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.” Of course the common interpretation is very different and seems to commonly be everyone in America has the right to own and operate guns without restriction. Because of this so many different opinions and meanings have been debated but to simplify them all i’m going to make three sections: red, purple and blue, the red and blue of course pointing to the extremes not everyone’s views.

The red opinion is that everybody should have guns and that gun regulation will not work whatsoever and is an ineffective solution that we should not try to implement. The purple is more of a middle ground opinion basically saying that we should still allow people to own guns but impose strict regulation to purchase and usage like mental illness, age and criminal record.

And finally the blue this opinion is basically that we should ban all guns as allowing for people to own them is inherently dangerous. Of course the debates made by legal scholars are mainly centered around if the Second Amendment had focused on whether it protects a private right of individuals to keep and bear arms, or a right that can be exercised only through militia organizations like the National Guard, this can be seen in the case District of Columbia v. Heller (2008).

This can of course be connected to the American revolution as the point of the amendment was to allow states to protect themselves. I find the purple opinion the most persuasive as it is a good middle ground that has the highest probability of being agreed upon because though it is not a perfect solution it is one that everyone can agree on. And when it comes to changing the amendment well, I would re-word the entire amendment to be much more specific in the case of gun regulations: specify how they are different for active members of the military and specify the restrictions age and other that are required for owning each separate type of gun.

The 8th Amendment – Jojo

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The 8th Amendment was created to ensure that the government had restrictions regarding punishing criminals so the punishments would not be out of proportion. The Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In simpler terms, this clause restricts what types of punishments the government could inflict upon criminals, such as asking for unreasonable amounts of bail or fines imposed that are disproportionate to the crime. The 8th Amendment was initially derived from the British Bill of Rights written a century before in 1689. The British Bill of Rights also included the clause “cruel and unusual punishment,” which American Politician George Mason got the idea to include in the Virginia Bill of Rights in 1776. This Amendment was instituted because the framers felt the need to have a clause limiting the federal courts’ prosecuting power. 

The two scholars, John F. Stinneford and Bryan A. Stevenson debated the meaning of the 8th Amendment in terms of what “cruel and unusual punishment” really means in today’s context and how this Amendment relates to the death penalty. Stinneford’s argument focuses on the views of Supreme Court justices Scalia and Thomas. Scalia and Thomas argue that in terms of the clause “cruel and unusual punishment,” the only acceptable punishments would be ones that were acceptable back when this Amendment was ratified in 1791. Those punishments also were not to be barbaric because that would violate the “cruel and unusual” part of the Amendment. Regarding the death penalty, they interpreted the Amendment in a way that did not prohibit it, but for someone to be put on death row, they had to be convicted by a grand jury through due process of law. As for Stevenson’s take on the Amendment, he interpreted that punishments had to be proportionate to the crime committed and up to modern standards of decency. His take on if the death penalty is constitutional is highly conditional because he argued that if the decision to sentence someone to death was influenced by racial, economic, or religious biases, then the death penalty is not constitutional. The conviction must be based entirely on facts and free of bias. 

A Supreme Court case that involved this clause was Atkins V.S Virginia. This case occurred in 2002 and concerned a man named Daryl Renard Atkins, who was tried for abduction, armed robbery, and murder. He was sentenced by the Supreme Court to be put to death. However, the Virginia Supreme Court called for a second hearing because they argued that Atkins was mentally disabled and the death penalty was “cruel and unusual punishment.” As a result, the Supreme Court changed the verdict and took him off death row, creating the standard that executing mentally disabled persons is “cruel and unusual punishment.” The interpretations of this Amendment are varied, but Stevenson’s argument demonstrates how the clause should be interpreted with modern problems and standards to properly sentence offenders. The focal point of debate surrounding this Amendment is the constitutionality of the Death Penalty. Unfortunately, no definitive answer can be given about whether it is constitutional because it greatly depends on the crime committed. Nevertheless, this Amendment is crucial in the trial and conviction processes of the United States because it ensures proportionate and constitutional punishment is apportioned.

The Fourth Ammendment

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In Britain, general warrants allowed the Crown’s messengers to search without cause any person suspected of committing an offense; while in the colonies, the Crown used “writs of assistance” as general warrants, but without time restraints.  Both controversies have led to the inclusion of the Fourth Amendment in the Constitution. The Fourth Amendment speaks to the idea that it is illegal for the government or government authority, such as a  Police officer or Military Personnel, to search or claim your person, property, whether that is your house, car, dog or any other sort of property, without a search Warrant.

 

The 21st century and the advent of modern technology has led scholars to debate whether The Fourth Amendment is applicable to the Internet Age where digital information can be readily accessed via the cloud or third parties “tracking” data. According to Orin Kerr a legal scholar, taking online data should be reasonable search and seizure, because if a burglar had just robbed a store and posted a picture of them with the money, it would only make sense for the court to constitutionally “seize” that photo, and use it in the Court of Law. Carpenter vs. United States was a U.S. Supreme Court case that took place in April 2011. Police detained 4 men who had committed armed robbery and the FBI used the cell phone numbers of these 4 men to determine additional charges. This Amendment connects to Thomas Paine’s Common Sense as they both share themes of independence and inalienable rights.

 

I agree with the view saying that certain data sent to a third party/cell companies should remain private. ‘Public’ information should only be information that you choose to publicize, for if you do not know what is public or not, it violates your rights because it is publicizing data without your consent, and the government should not be able to use that information. Public information should only be info you choose to disclose. If for example you choose to have a private account for example, that information (posts, tweets, etc.) should remain as private information. On social media accounts, there should be options to allow the website to disclose your information to the government/make it public. The user should know whether or not information is public. If they say no, the government will not have access to this information.

 

 

 

 

Dassori – 9th Amendment

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While the Constitution was being ratified, several Antifederalist state representatives only approved the document with the expectation that a bill of rights would be added afterwards to protect the people from an overly powerful government. However, because Federalist James Madison worried that a bill of rights would send the message that any other rights not listed were not protected by the government, he proposed the addition of a statement to protect unenumerated rights. His proposal resulted in the addition of the Ninth Amendment, which states that just because some rights are named in the Constitution does not mean those not mentioned are not protected by the government. 

The Ninth Amendment, which is notoriously vague, has been interpreted differently by many different Supreme Court judges and Constitutional scholars. Three prevalent interpretations of these unnamed rights are rights that are defined on a state-by-state basis, the natural rights of life, liberty, and property each individual has, or any imaginable right that the Constitution does not explicitly deny. Another interpretation ignores the Ninth Amendment because it does not concretely prove the existence of other rights or explain them in enough detail to be valid in a court case. 

Estelle Griswold used this amendment in Griswold v. Connecticut when she argued that married couples have a right to privacy and therefore a right to use contraception. Although privacy is never explicitly mentioned in the Constitution, Griswold used the Ninth Amendment and several other amendments to win her case, arguing that privacy is an assumed right of the American people and cannot be restricted by the law. Griswold v. Connecticut provides an example of how several judges interpreted this amendment differently, however, as only Justice Goldberg believed the right to privacy was represented in the Ninth Amendment while other judges found it in the Fourteenth Amendment or did not find privacy in the Constitution at all. 

I am most strongly persuaded that the “unenumerated rights” protected by the Ninth Amendment refer to natural or unalienable rights. These rights are featured in the writings of many of the Constitution’s framers and their Enlightenment contemporaries and are seen clearly in the Declaration of Independence. Because it was not specifically stated that the rights would be defined by the states or that they were completely limitless, I think the framers were referring to their own ideas of basic human rights, a concept that heavily influenced the rest of the Constitution and especially the Bill of Rights. I would change this amendment to specify what kind of rights it was meant to protect because I think its vagueness restricts its power. By not clearly defining what it protects, the amendment allows many potential rights, such as the right to privacy, to be ignored by someone whose interpretation of the amendment did not include that right. If the Ninth Amendment had specifically stated that it, for example, protected natural rights, modern judges would be more likely to interpret it accurately instead of ignoring or abusing it. 

Parker – Eighth Amendment

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The Eighth Amendment of the United States Constitution is interesting and especially difficult to grapple with because of the lack of clarity in the writing of it. It reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Prior to the Revolutionary War, the Americans had been under British rule and had witnessed different forms of harsh punishments. They also wanted to protect individual liberties as much as possible and by preventing “Excessive bail,” they took some power away from the government because ultimately, the colonists were still afraid of giving too much power to the government. Although confusing, there are only so many possible interpretations of such simple writing. A common one is that bail should not be priced at a very high amount and that there would be a prohibition of inhumane and barbaric punishments and consequences.

The problem with the phrasing of the Eighth Amendment is the phrasing is overly simple to the point where it is nearly impossible to know how the author of this section intended for it to be interpreted. For example, Some people think that a “Cruel” punishment is going to jail in the first place and others think that the death penalty falls under “Cruel” punishments. A common claim made by legal scholars is that the treatment of the Eighth Amendment should evolve over time as society changes. Obviously the definition of “Cruel and unusual” will change and has changed over time. When the constitution was being written, people were still getting branded and hanged in public. Those forms of punishment haven’t been used in the states in an extremely long time. 

A famous court case that involves the Eighth Amendment is Atkins vs. Virginia. The case dealt with the question: is it cruel or unusual punishment to sentence people with intellectual disabilities to the death penalty? Ultimately, it was deemed cruel and or unusual because it was decided that people with intellectual disabilities lacked understanding of what the causes of their actions were and that they did not understand the consequences of them. A major factor in the decision of this case was in fact, the eighth amendment because ultimately, putting mentally challenged people to the death penalty was deemed “Cruel and unusual.”  

This year, we have learned about many forms of harsh and brutal punishments, so this was especially interesting to see that a country tried to mitigate them. It’s also fascinating to see how hard the authors tried to move away from British themes and practices; such as “Cruel and unusual” punishments. Out of all the arguments surrounding the Eighth Amendment, I find that the perception of it should and will continue to change over time. In my opinion, it is completely irrational to treat the Eighth Amendment like it was treated back in the eighteenth century because we’re not living in the eighteenth century. Dealing with issues from an eighteenth century perspective today, in the twenty-first century, is almost laughable if you think about how much has changed in the last 250 years. If I could, I would keep this clause in the constitution, but I would make sure to change the language to something more specific and have it reflect the current time period. It would also make sense to add something like, “The eighth amendment will be amended every 50 years” or something of that nature. Overall, I do think that the Eighth Amendment is important to the constitution, but with some changes, it could be much more valuable and applicable to solving different cases.

Molly – The Second Amendment

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The Bill of Rights was created following the American Revolution and the creation of the Constitution. The Second Amendment was crucial because the Founding Fathers wanted to legally give Americans the right to protect themselves and their security through the use of firearms and weapons. The amendment is responding to the desire for protection amongst the American people against unlawful violence. Most people understand the Second Amendment as being the individual right to bear arms. There is some divergence between who this right belongs to as some believe it is the right of the people while others believe it is the right of militia organizations. 

 

As for matters of debate about the Second Amendment, some believe that there is room for flexibility due to the evolution of weaponry. These legal scholars believe that, as the world evolves, gun control is increasingly necessary to provide order in society. Scholars that believe there should be regulations make the point that gun control isn’t exactly a new concept because, during the Founding Era, there were laws that regulated weaponry.  These laws banned untrustworthy people from possessing guns and required people to have guns that were appropriate for military service. Ultimately, the Second Amendment is about ensuring public safety. Others, however, believe that this amendment should be followed rigidly. They maintain the belief that the right to bear arms shouldn’t be restricted. The Second Amendment is like the First Amendment in that it is an inalienable right that everyone has. Gun control laws, while they aim to save lives and prevent crime, ultimately infringe on the individual freedom that all American citizens have. District of Columbia v. Heller demonstrates is just one example of the issues that come about with this debate. This case is illustrative because it shows how gun control may be violating the Second Amendment. Heller, a D.C. special police officer, was allowed to have a firearm when on duty but he wasn’t allowed to get a license for a handgun to keep at home. He argues that needing a license for a personal firearm infringes on his Second Amendment rights as an American citizen. 

 

This provision connects to the theme of individual rights that come up very often during the course of history. I think the most persuasive matter of debate is the argument that advocates for gun control because of the danger that is posed to so many people without gun control. With the increase of gun violence in America, better gun control laws are incredibly necessary and strictly abiding by the Constitution as time and technology evolve just isn’t viable.  This amendment is already such a major topic of discourse in America, especially today with the rise of gun violence. I would say to advocate for your beliefs on this amendment, go to protests and, most importantly, educate yourself on the topic. I would suggest this adaptation because it is incredibly important to form your own opinion based on unbiased information and to support it.

First Amendment – Freedom of Speech Clause

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The Freedom of Speech Clause is found in the First Amendment and has been highly important since it was ratified in 1791, and continues to be relevant in the present day. The first amendment was created with the original intent to protect each individual’s values and their right to expression. The Freedom of Speech clause prevents the government from ridding the people of their own opinions and from having total control over the way the people are able to interact with others.

It is primarily to state the allowance for people to criticize their own government without retribution. In many countries people face severe repercussions for presenting judgment to their government but this clause enforces the people’s abilities to speak their mind. This amendment was first put in place because the people wanted a written document stating their rights. The Freedom of Speech Clause is commonly understood as the law that gives all people the right to express any idea or opinion they possess openly without any risk of punishment, no matter what the view may be.

Additionally, that they can display these thoughts freely in any manner of expression. But, what a lot of people don’t realize, is the specificity of the amendment and the limitations within it that it holds. This clause presents the right for all people to publicly share their ideas freely without the fear of being punished by the government.  However, the Freedom of Speech Clause does not just give all people the right to say whatever they please to whomever.

The limitation is that people are solely protected from consequences being given from the government, and not others. For example, people can still legally be fired from a job as a result of expressing an opinion unless they are government employees. Freedom of Speech is highly debated as it is disagreeable among many whether or not any ideas should be acceptable to be expressed. This clause has been and continues to be controversial with the argument over making exceptions for what cannot be said publicly.

Most can agree that hate speech and words evoking violence shouldn’t be presented. But it gets difficult to incorporate that message into a law as it is difficult to create the limitation as all people have different views and different definitions of what they find offensive or politically correct. With this clause, the speech that gets the strongest protection is political speech. Praise or criticism of any political happenings are almost always protected by the First Amendment.

It has what is classified as ‘Preferred Position’ which is that all regulations, laws, and executive acts that will limit political speech are almost always shut down by the courts. A very impactful court case on the freedom of speech was Brandenburg v. Ohio in 1968. A Ku Klux Klan leader was delivering speeches that were extremely offensive and could be considered threatening to many people. Since it was political, the court ruled that it was protected by the First Amendment.

Something we also studied this year that can relate to the Freedom of Speech Clause is John Locke and his enlightenment ideas. Both were formed with the intention of giving more rights to the people. John Locke argued that people have the right to life, liberty, and property. The first amendment and John Locke’s enlightenment ideas share similar roots as they both allow people to have more agency and ability to express themselves. The Freedom of Speech Clause has impacted history greatly and continues to be relevant in the present day.