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The Eighth Amendment: What are the limits?

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When the Constitution was ratified, it gave the federal government significantly more power than the Articles of Confederation had had. One of these powers was to decide what constituted a federal crime, and what the subsequent punishment would be. There were worries that the government would create and use torture to oppress citizens. For this reason, the Eighth Amendment was added. In its most basic form, the amendment stops the federal government from doing anything too harsh or barbarous; examples pointed out by debaters at that time include the Spanish Inquisition. Torture as a means of punishment was deemed unconstitutional, as was torture as a means to gain information or a confession. Additionally, the amendment prohibits the federal government from making bail money too expensive and from fining citizens excessively.

Despite the previous two points, the majority of debates surrounding the Eighth Amendment focus on the point surrounding punishment. When discussing this amendment, scholars argue if courts should judge punishments by the 1791 standards that were present during the amendment’s creation, or by modern standards. One scholar, John F. Stinneford, makes a case that the Eighth Amendment should be viewed through 1791 standards. He says that a more modern interpretation would allow the Supreme Court to use the vague interpretation to accomplish their own partisan goals, pointing to Judges Scalia and Thomas’s severely narrow definition of the Eighth Amendment to prove his point. On the contrary side of the argument, Bryan A. Stevenson argues that the Eighth Amendment should be updated in the minds of the court, in order to preserve equality and adjust to the standards of decency in America as they evolve over time. Stevenson uses concrete examples to point out that these notions have changed over time in the past, pointing out how, for example, whipping is now considered unconscionable.

In this fashion, the court needs to prohibit modern punishments that did not exist in 1791. He points out the practice of extended solitary confinement as an example of a punishment that had not been implemented in 1791, but he thinks would be considered cruel. He says that the Amendment serves the country well, but that it must be extended to more than just its historical context. Ultimately, Stevenson’s argument is more convincing, utilizing extremely relevant and specific examples of how the Eighth Amendment’s vagueness has been detrimental. Stinneford makes an interesting point on potential abuse in the Supreme Court, but we have some major disagreements – the main one being that he is worried about the abolition of the death penalty, which he argues is a justifiable punishment. Fundamentally, I disagree with that conclusion, as does Stevenson. Additionally, Stinneford argues that the Eighth Amendment has protected Americans from the federal government, but I’d argue that it has not actually stopped cruel and unusual punishments from occurring: one only needs to look at the government practicing solitary confinement, drug cocktails, the electric chair, or waterboarding. I certainly find these punishments cruel and unusual, and I can find no constitutional or moral justification for any of them, no matter the context surrounding the Eighth Amendment. Either the federal government admits that it does not follow this amendment, or the meaning of “cruel and unusual” is expanded and these practices are stopped.

The Ninth Amendment – Arabella Moffitt

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During the Constitution’s ratification process, a group emerged known as the Anti-Federalists. This group favoured a strong state government and a weak central government. The Anti-Federalist’s primary fear was that the new American Government would have too much power over states and individuals and threaten individual liberties. On the other hand, a group known as Federalists, who believed in a strong central government and a weak state government, firmly believed that the Constitution did not need the addition of a Bill of Rights. One notable Federalist, James Wilson, argued against including The Bill of Rights. Wilson insisted that adding a Bill of Rights would imply that any right that was not mentioned did not exist. Despite this, the Federalists agreed to add amendments to the Constitution to protect the rights of the people and to satisfy the demands of the Anti-Federalists. After the ratification of the Constitution on September 25h, 1789, a Federalist name James Madison proposed 12 different amendments to the Constitution to Congress, 10 of which were ratified by the states and became collectively known as the Bill of Rights.

The Ninth Amendment is commonly understood to mean that the rights listed in the Bill of Rights should not be used to conclude that American Citizens do not have any rights beyond those outlined. However, much debate is over what James Madison meant by “Rights retained by the people”. It is believed that James Madison intended that “Rights retained by the people” referred to people’s natural rights. For example, in Madison’s notes for his proposed amendments, he refers to the freedom of speech as a natural right and that the people retained it due to its standing as a natural right. On the other hand, Roger Sherman believed that “rights retained by the people” referred to people’s individual rights, which are given to them upon their entrance into society. This included acquiring property, pursuing happiness and safety, and press freedom. However, since only some of these individual rights were included in the Bill of Rights, based on the Ninth Amendment appears to have been designed to prevent others which are not included from being taken away by the government.

The legal effect of the Ninth Amendment, in its original meaning, is that it serves as a rule of construction. It tells people how not to interpret a written Bill of Rights, specifically that just because specific rights are listed or mentioned does not mean they are any more important than those not mentioned. Due to this, the Ninth Amendment is inconsistent with one of the footnotes in The United States V Carolene Products (1938). The footnote suggests that when a law goes against the rules stated in the Constitution, especially the Bill of Rights, there is less room for assuming that the law is conditional. This opinion goes against the Ninth Amendments’ rule of construction by downplaying rights that are not explicitly included. If allowed to amend the Ninth Amendment, I would not. The vague nature of the Ninth Amendment allows for flexibility in recognition of new rights that could emerge over time, reflecting society’s evolving needs and values. Amending the language of the Ninth Amendment would hinder the flexibility that it provides.

The Treason Clause Is a Catch-22

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The tensions rising between Great Britain and the American colonies in the 18th century, such as taxes disproportionately rising for the colonies, fueled dissent among the colonists against the monarchy. Yet, such dissent—whether it was simply ideological or political—that threatened the power or prevailing order of Great Britain was widely categorized as treason, particularly in the case of the colonists. The Framers of the United States Constitution, directly encountering the injustices of treason charges, clearly defined treason and established safeguards that protected the freedom of expression and thought of those being tried for the crime in the Treason Clause in Article III, Section 3. The Clause, however, is a catch-22: compelling and particular proof is required to convict one of treason, complicating the process and resulting in very few cases ever convicted of treason. Simultaneously, this process protects those being wrongfully convicted.

Though the Framers aimed to stray away from any ambiguity that may engender an abuse of power, the constitutional protection of the Clause narrows the scope of the offense, making it an umbrella term for many other similar crimes. The two types of actions that are defined as treasonous are: (1) “levying war” against the United States, or (2) “adhering to [the] enemies [of the United States], giving them aid and comfort.” The testimony of two witnesses or a confession from the person being tried is also required as part of procedural requirements. Scholars Paul Crane and Deborah Pearlstein identify the distinction between treasonous action versus thought the Framers weaved in the Clause, increasing the complexity of convicting one of treason as they must have taken concrete action against the national security of the United States. In Cramer v. United States (1945), the lawyers of Anthony Cramer, being tried because he assisted German soldiers in invading American land, argued treason charges should be reserved in times of war. This made convicting one of treason complicated because “levying war” implies one must have been unequivocally involved in an armed rebellion against the United States, and this would occur usually only in times of war. Requiring the testimony of two witnesses or either a confession, the Clause becomes even more complex as further evidence is required rather than solely circumstantial evidence that may convict an innocent person. Thus, what may seem as treason is subverted to, as Pearlstein says, “treason by any other name.” Frequently, cases of suspected treason that do not meet the particular needs of the Clause are convicted of espionage. This is seen in Rosenberg v. United States (1953), when couple Julius and Ethel Rosenberg were convicted of espionage rather than treason for revealing atomic secrets to the Soviet Union solely because they did not meet all the safeguards of the Clause.

Today, the Clause still remains complex. The January 6 insurrection of Capitol Hill by supporters of Donald J. Trump, though widely considered treason by the left-leaning American population, has not yet been tried for treason. Scholars believe the complexity the trial imposes legally, as well as the historically few cases convicted of treason, causes prosecutors to shy away from advancing with their argument. This implores us as Americans to think: Has the day come to modify the Clause to portray modern day America in context of the January 6 riot? How do we reconstruct a Clause that is free of political bias and inclusive of all Americans and their political views?

The bibliography of this written component has been submitted on Google LTI. 

A Deconstruction of the 4th (and why its meaning has changed)

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The writs of assistance were search warrants issued to British law enforcement officers to search ships and homes for smuggled goods to upkeep smuggling laws. These writs of assistance and general warrants that England was imposing on the colonial homes and businesses, specifically to enforce trade and navigation laws, must have concerned the authors of the Bill of Rights. Limiting the power the government has on searching and seizing the peoples’ property would especially be an anti-federalist goal since they advocated for individual liberties.   

The common interpretation of the fourth amendment centers around safeguarding the security of individuals, ensuring that neither they nor their belongings can be encroached upon or violated without a reasonable warrant. Warrants are typically awarded to enforcement officers by a judge or a magistrate and must be produced based on probable cause, or be reasonable enough to confiscate or enter your property. Additionally, warrants must be clear about what they will allow authorities to collect or search. The goal of the fourth amendment is that of maintaining citizens’ privacy and security so that you and your property cannot be intruded on or violated without a warrant.   

The exclusionary evidence rule makes all evidence that has been collected illegally, void. The Fourth Amendment has sparked debate over whether the methods of search for the collection of evidence are legal or not. Recently, the controversy has centered due to a shift of applications from physical property, such as the search of your house or your belongings, to informational or intellectual property, such as the mass collection of your internet metadata. Specifically, digital privacy, or the safeguarding of logs that internet providers or telecommunications companies store on servers has been at issue, since the information citizens feel violated by the collection and search of their personal, otherwise private data. On the other hand, the search and collection of evidence helps catch serious criminals who wouldn’t have been otherwise caught. This complicates matters because who decides when the collection is necessary and when it is intrusive?   

Locke considered the right to private property a natural right. Locke’s enlightenment ideals align with the fourth amendment right to no seizure without a proper warrant because he believed the property was private.  I find the interpretation times have changed argument more effective because it points out the similarities between physical and non-physical property. The conflict I come to with the argument that informational property should be treated the same as physical is that times have changed, and oftentimes, there is more information about us online than in our own homes. We should have the right to keep that information private. Although the data is available to internet companies, internet companies do not have the power to arrest you on your own, but the government does. The collection of data can fall under the Fourth Amendment depending on who is collecting it. If I could amend the Fourth Amendment, I would make a point to differentiate what rights people have regarding the security of their physical property versus their digital property.

The Declare War Clause and Its Multiple Interpretations

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America’s primary military conflicts were fought without formal acknowledgment during the immediate post-ratification period. In the early post-ratification period, the Declare War Clause was interpreted to limit the President’s power to declare war independently. The Clause requires a formal declaration of war from Congress for the United States to use force against another country.

Many founders saw this clause as an essential limit on the President’s power and a way to ensure a formal acknowledgment of war was required before the country engaged in military conflicts. The meaning of this text, and its intention, is that The Constitution grants Congress the sole power to declare war. However, there have been various interpretations of the true meaning of the clause. There are four instances where the President can engage in military activity that complies with the Declare War Clause. First, the President may use military force if specifically authorized by Congress.

Second, the President can independently engage in disputes if it is in response to an attack on the United States. Third, the President may use the Commander-in-chief power and other constitutional powers to deploy U.S. forces in situations that do not amount to war. Finally, the President can use force under the authority of the United Nations, which some people have argued can substitute for approval by Congress.  

Scholars and commentators have multiple interpretations of this clause. Some commentators have stated that presidents have claimed authorization from informal or indirect congressional actions, such as approval of military spending, assent by congressional leaders, or even Congress’s failure to object to ongoing hostilities instead of formal direct authorization. In addition to attacks on U.S. territory, defensive responses can extend to attacks on U.S. citizens, forces abroad, or U.S. allies and U.S. interests. 

Multiple scholars have claimed that presidents can initiate the use of force independently without the consent of Congress. For example, President Truman ordered U.S. forces into combat in Korea in 1973, and President Obama used air strikes to support the ouster of Muammar Qaddafi in Libya. Regardless of the original meaning, these examples have established a modern practice that allows the President to have a good amount of independent military power. In the Prize Cases of 1863, the Supreme Court supported Abraham Lincoln’s decision to blockade the Confederate ports following the attack on Fort Summers. On April 19 and 27, 1861, Lincoln issued decrees authorizing a blockade of Confederate ports, yet Congress did not officially recognize a state of war until July 13.

People argued that Lincoln exceeded his constitutional boundaries, but the Supreme Court decided he acted within his rights. While Congress could declare war, it was the President’s responsibility as commander-in-chief to respond to attacks and resist insurrection. This clause offers a debate over a ruler’s constitutional power and how there needs to be a checking system to limit them. Monstisque highly agreed with the notion of checks and balances and concluded that the best form of government was one in which all branches of government were separate and kept each other in check to prevent any branch from becoming too powerful. Although this clause is not a direct product of the checks and balances, the sentiment is the same.

The Constitution gives Congress this executive power to ensure the President cannot abuse his position. The most convincing interpretation is that presidents can independently engage in disputes as a defensive measure to protect the nation’s security. If an external force poses a threat to the integrity of American citizens, a defensive reaction is mandatory for the safety of the country.

Analysis of the Free Exercise Clause in the First Amendment

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The Free Exercise Clause states that Congress cannot make laws “prohibiting the free exercise” of religious beliefs. The clause is part of the Bill of Rights, ten constitutional amendments that listed rights the federal government must protect. It was a natural outgrowth of a long debate about religious freedom in the Thirteen Colonies, where some colonies restricted religion while others, such as Virginia, enabled religious freedom. Founding Fathers like Patrick Henry and Thomas Jefferson advocated for religious freedom, which was eventually instated in the First Amendment. 

The plain English interpretation of the Free Exercise Clause is that Congress may not pass laws that stop citizens from practicing their religion. However, the Supreme Court has interpreted this clause to allow some limitations. The central question for interpreting the clause is to what extent it protects religious actions considered harmful to society. In the case Reynolds v. United States, the Supreme Court decided that, while a law may not regulate religious beliefs, it can regulate actions that result from those beliefs. The Supreme Court revised the rules in Wisconsin v. Yoder to limit laws that regulate religion to situations where the public interest is “compelling,” meaning it must be absolutely necessary to protect the state or citizens. Further laws and cases have added that regulations on religious actions must use the “least restrictive means,” limiting religious expression as little as possible even if that makes enforcing laws harder. The result of these interpretations is a compromise between total adherence and disregard for the Free Exercise Clause

The debate surrounding the Free Exercise Clause reflects multiple themes from our class and throughout history. The American Constitution, including    a vision of religious tolerance developed by European Enlightenment thinkers like John Locke and Voltaire demonstrates history’s  interconnectedness. The clause also shows how laws reveal values, similar to how the Manden Charter in Mali provided a lens into that society. Finally, the Free Exercise Clause demonstrates the complexities of dealing with  the “Other,” protecting minority rights in the Constitution but allowing old white men with power to limit those protections through court cases.

Personally, when it comes to the Free Exercise Clause, I think both abolishment or literal interpretation would be dangerous. Without the clause, the majority could dictate the expression of beliefs of minority groups. A literal interpretation, however, would let people use religion as an excuse and make it impossible to protect society. The only solution is a compromise as the court has attempted to achieve, but it is challenging to find the perfect balance. This difficulty leads to the Supreme Court occasionally allowing unjust violations, like upholding President Trump’s “Muslim Ban” against many majority Muslim countries. It also sometimes allows religious practices that harm people, such as making it legal for employers to deny full healthcare due to religious beliefs in the case Burwell v. Hobby Lobby Stores. While compromises may be complicated and lead to some bad decisions, finding a balance is necessary to create a functioning democracy.

The Sixth Amendment: Equitable Treatment For All

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The Sixth Amendment was created to both organize the legal system and help give defendants a fair and legitimate trial. The authors of the amendment created this amendment in response to the disorganized, unjust legal system in effect at the time the Constitution was ratified.  The Amendment gives defendants the right to a trial without unreasonable delay with an unbiased jury, in which the defendant is informed of their accuser and the charges against them. They are also given the right to an attorney either hired personally or by the government if the defendant cannot afford a private lawyer. The Amendment also gives defendants the right to call witnesses.  Among the many rights granted by the Sixth Amendment, “assistance of counsel” and the right to an “impartial jury” have been the most heavily debated in the courts and by scholars. 

In defining the meaning of the right to assistance of counsel, the Supreme Court has looked to the reality of the situation and the consequences to a defendant to determine if constitutional requirements are met. Often, public defense lawyers hired by the government are tasked with hundreds of cases at once, not allowing them to fully research and develop a case for a client. In some situations, public defenders ask their clients to plead guilty for a shorter sentence, even when an innocent verdict is possible, just to save time and effort. In Gideon v. Wainwright, a 1963 Supreme Court case, Clarence Gideon was denied his right to free counsel in a Florida trial for breaking and entering because Florida state law only required that defendants be granted counsel if the death penalty were a possible sentence. The Supreme Court held the Florida law unconstitutional, and concluded that in all trials where a possible sentence could include prison time, the defendant is entitled to “effective” counsel. 

Some scholars today argue that the scope of the Sixth Amendment should be restricted to increase its effectiveness in cases where consequences are the most grave. For example, limiting the right to situations where defendants face prison time of a year or more or potential deportation could increase the effectiveness of public defenders by reducing their caseload. Scholars also suggest that trials outside the scope of the Sixth Amendment be simplified, allowing defendants to represent themselves with minimal assistance from court clerks. These two changes could have the effect of increasing the effectiveness of counsel in consequential cases and enabling defendants to competently defend themselves in simpler situations, both of which would make trials more impartial and equitable for those who cannot afford a private attorney, part of the sixth amendment’s original purpose. 

The Amendment’s right to “impartial jury” has also ignited debate. One often discussed topic is whether juries should know about possible sentences or play a part in sentencing before coming to a verdict. This is extremely important in cases punishable by a long prison sentence, death, or deportation. For these situations, the jury needs to know their true power to further strengthen their “impartiality”, as envisioned by the amendment. However, the Supreme Court has never agreed with this point of view. Scholars cite Padilla v. Kentucky, a 2010 case in which the Supreme Court decided that lawyers must disclose to their clients if a guilty verdict could result in deportation. The court stated that not doing so would be violating the defendant’s right to “effective” counsel. It can be argued that if attorneys not letting their clients know of possible sentences is unconstitutional, then why is the jury exempt from being informed of sentencing so they can correctly understand the consequence of their verdict? Making this change to the interpretation of “impartial jury” in the Sixth Amendment would be effective in further strengthening the amendment’s goal of making trials fair and just for all. 

The Third Amendment– Why is it important today?

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A lot of the context behind the Third Amendment stems from America and Britain’s tensions before the American Revolution. After the Seven Years War between Britain and France, Parliament passed the Quartering Act in 1765, which required American colonists to provide barracks or inns, stables, and alehouses for British soldiers to sleep in. The colonists were also required to provide provisions such as bedding, firewood, and beer. The Third Amendment constitutionally advocates for rights that previous oppressive laws like the Quartering Act denied. It also aligns with the values of the Declaration of Independence and the Constitution, including liberty and the right to personal property. 

The Third Amendment is commonly interpreted as largely limiting the federal government’s ability to quarter soldiers in any person’s private home. The term quarter in this amendment has been commonly interpreted to mean sheltering, placing, or lodging. The phrases “time of peace” and “time of war” refer to the American colonists after the Seven Years War who were forced to quarter British soldiers despite a lack of war or conflict. 

The Third Amendment is one of the least cited and independently debated amendments, but the few interpretations about it still reveal significant details about the intent behind the amendment and its importance to the Constitution throughout history. A notable landmark case directly addressing the Third Amendment was the 1982 Engblom v. Carey case. This case was the first time the Third Amendment was ever interpreted. Engblom v. Carey was a case concerning whether the state of New York violated the Third Amendment rights of correctional officers when it used their state-owned residences to house New York National Guards. In the process of analyzing the case and specific use of the Third Amendment, the Second Circuit Court ended up making three distinct interpretations. The first is how national guards fit the Third Amendment’s description of a “Soldier”. The second was how the Third Amendment’s restrictions applied to state governments as well as the federal government. Finally, the third interpretation was that the Third Amendment also applied to people who were not owners of the property, as long as they had control over the privacy of the property. All of these interpretations illustrate the Third Amendment as less of an exclusive law protecting the private properties of a select few from an oppressive government and military, but more of a law protecting the properties of the general public from various enforcers under governments of all scales. The interpretations of the Third Amendment in Engblom v. Carey make the amendment broader and more applicable in modern contexts.

The Third Amendment and its implications are strongly connected to concepts about establishing independence and national identity. Language in this section of the constitution such as “Soldier” and “quartered” directly refers to its historical context, which included the Quartering Act. By including an amendment that directly opposed Britain’s oppressive Quartering Act, the colonies were able to future separate themselves from Britain and portray themselves as beacons of liberty, people’s rights, and anti-oppression. The Constitution’s Third Amendment is a prominent example of how the colonies were able to forge a uniting anti-Britain identity and establish themselves as an independent, revolutionary nation. This is similar to the impact of the Declaration of Independence over 10 years prior, where unique attributes of the United States were listed to contribute towards the making of a novel national and international identity. 

Oriana – The 7th Amendment

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When being ruled by Britain, the colonists had no say in the British Parliament, meaning that they had no control in how they were governed, or what taxes were levied on them. So when the colonies introduced the idea of independence from Britain, colonial juries were a way for the colonies to start governing themselves. And in 1776, when the colonies finally gained their independence, the right to civil jury was included in many state laws.

However, when the Constitutional Convention met in 1787, there were mixed feelings about civil juries. The Federalists felt that including a civil jury in the constitution would lead to the nullification of laws, while Anti-Federalists believed that the lack of this law would prevent citizens from being protected from governmental abuses. Ultimately the 7th amendment was drafted into the Bill of Rights. The 7th Amendment is commonly interpreted as: The right to a jury trial in civil cases, when the case dispute exceeds 20 dollars. No judge can overturn the jury’s verdict. In the 7th Amendment, the term “common law” is used twice.

This term confused many as it was unclear what common law the writers of the Constitution were referring to. America was a young nation, and it did not yet have a common law to base this Amendment on. In the Supreme Court case United States v. Wonson, it was determined that the common law that the amendment referred to was actually the common law of England. This statement was refined in Dimick v. Schiedt (1935), which declared that the 7th amendment was to be interpreted in terms of English common law as it was in 1791. The meaning of this term was clearly defined. However, the Supreme Court ruled in the Baltimore & Carolina Line, Inc. v. Redman (1935) case, the “substance of the common law right of trial by jury” is different in its actual application to every civil case. This means that the right to trial by jury is guaranteed, but certain civil cases can be handled with modifications to the jury, including a decreased size, or the lack of.

I agree with this ruling because there are, especially in the 21st century, many aspects that can go into each case, making them unique from each other. And in some of these cases, juries aren’t required, or would benefit without a jury. Every aspect of this amendment has been clearly defined, except the twenty dollar amount required for a civil case to be tried by a jury. This is because the impact of this dollar amount has changed over the centuries. While twenty dollars may have been a handsome amount of money in 1791, the value has decreased, not accurately representing the amount required for modern day civil cases. And may very well be the case in the future, where the price again becomes irrelevant. It’s best to remove this clause entirely.

The 4th Amendment – Quinn Lester

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During the period before the constitution was created and America was still a part of Great Britain the British soldiers, by decree of the king, were given the right to not only arrest anybody for being suspected of a crime, but to seize their items as well if they were suspected of being used in a crime. Before life, liberty and the pursuit of happiness John Locke said that property was one of the inalienable rights, and the seizure of a citizen’s property without cause would be breaking that right.

This also plays an important role in keeping prejudice out of law to the further extent possible. The fourth amendment states that a governmental organization may not seize your property without probable cause, which is defined as reasonable evidence that you may have committed a crime and that whatever they seize would help them prove that crime.

Even after having this proof a judge must deem it reasonable and give them a warrant. This keeps officers and governmental agencies in check, which adds to the checks and balances that are already in place in the government. Many of the modern debates come from online interactions, and if what is written or said online is sufficient evidence to receive a warrant.

There have also been debates about what is considered probable cause when it comes to cars and vehicle searches. This is because it is very hard to get a warrant on a car, so the officers are expected to find reasonable evidence before searching the car. A case that represents this is Byrd v. United States, a case in which Bryd was in a rental car that he was not the renter of. Police searched the car, claiming that they did not need consent or probable cause because he was not the owner of the car, however when taken to the supreme court they ruled unanimously in favor of Bryd.

This amendment protects citizens from unreasonable searches, which allows them further rights to their property. This amendment also makes it harder to make assumptions or act on assumptions based on characteristics of people instead of their guilt, as officers and governmental agencies need to get permission from a court before they take action.

The amendment, as it was written in 1791, cannot mention things like the technology that we have now, making it hard to make assumptions on how it would have been enacted in the modern era. There should also be a more set definition of what can be considered probable cause, as well as that information being public to citizens. Although this amendment seems as if it helps people get away with crimes, it also ensures that, as citizens, people will not be harassed without cause, especially based on race and gender.