The U.S. Bill of Rights
The Bill of Rights was proposed and passed through twelve amendments but only ten were successfully ratified and became part of the United States Constitution, which was at first considered incomplete because it lacked what proponents called the basic human rights. The common belief at that time was that the framing and ratification of the Bill of Rights was to eliminate fears of the Anti-Federalists that the proposed Constitution did not satisfactorily guarantee individual freedoms. Even if individual liberty was important during the debate for the bill of rights, the Bill of Rights was not the prevailing theme.
The Philadelphia Convention was formed and authorized by the Confederation Congress on September 17, 1787 purposely to revise and submit suggestions to the Articles of Confederation. The Convention then submitted a document that proposed to divide authority between a more powerful national government and the states. There were objectives to the constitution because of the absence of the Bill of Rights. It was George Mason who proposed that the Bill of Rights should be included in the constitution (Devaney, 2010).
The Bill of Rights has been interpreted by the U.S. Supreme Court as a guarantee that every person can have his way of the good life without unnecessary intrusion from “the will of majority” (Devaney, 2010, p. 4). The Court’s preference for its interpretation of the Bill of Rights as a basis for individual freedom is also seen in other subjects of law, notably the freedom of speech which is also linked with the freedom of expression and the right of privacy. The Court also interpreted the freedom of speech as guaranteeing “self-fulfilment for each individual” (Devaney, 2010, p. 4).
One of the complaints of the Anti-Federalists was the absence of a bill of rights which would promote the privileges of some states, or prerogatives to have their own separate political, legal, and social arrangements. Social arrangements would refer to unwritten practices which they had practiced as part of their tradition and history (Devaney, 2010, p. 165).
As we examine the Bill of Rights in its historical context, we can deduce that it was formally meant to define the constitutional structure and advance the original purpose of federalism as mentioned in the original constitution. The Philadelphia constitution allotted powers among the states and the federal government that encouraged a decentralized form of government. The Bill of Rights stressed what was already inferred in Article I, Section 8, which separates the federal government from the states, or the powers reserved to the states. The federal government has no right to intervene with matters pertaining to free speech or the free exercise of religion. Further, individual rights were recognized and protected by state constitutions, statutes, and the common law. The Bill of Rights tended to protect the authority of local communities, which sometimes disparaged individual rights. The rights of free speech, including assembly and to seek redress of grievances were seen by ordinary Americans as the typical rights of the individual who wants to dissent against the majority. This context is different from the opinion of those who framed and ratified the First Amendment (Devaney, 2010).
The jury, which is a significant institution in a republican form of government, is protected in the Fifth Amendment, while In the Sixth Amendment, there is the criminal petit jury, and the civil jury is protected in the seventh Amendment. We all know that a jury trial provides for a fair judicial proceeding for opposing parties, particularly criminal defendants who should be provided with fair trial to determine their guilt or innocence. The grand jury has great authority to investigate misconduct by government officials, and prevent evil prosecutions.
What the Anti-Federalists, who pushed for the Bill of Rights, were asking for were assurances in a provision that secures sovereignty of the states that needed the provisions of the Bill of Rights. The freedoms that should be protected by the states should include freedom of the press, freedom of religion, and criminal procedure, especially trial by jury. These freedoms or liberties were enjoyed by the colonists as the historic rights of Englishmen (Devaney, 2010).
On the other hand, the Federalists argued that a bill of rights was dangerous to the nation as it would mean that the national government only had general powers and it could assume any authority not prohibited.
The Bill of Rights is now used in protecting the disadvantaged or so-called vulnerable minorities from oppressive majorities. According to Amar and Les Adams (, courts are using the Bill of Rights against states, with the Fourteenth Amendment not stressed but cited only in passing. We should be able to see the Bill of Rights and its power when it was conceived.
The Bill of Rights is incorporated into state laws but only on a selective basis, instead of full or total incorporation. The Fourteenth Amendment has this “Due Process Law” which demands states to apply the Bill of Rights into state laws. Selective incorporation has been decided by the Supreme Court and it is now applied by most states. The Bill of Rights has safeguarded people’s rights against oppression and abuse from both federal and state governments. Moreover, the Fourteenth Amendment significantly altered the allocation of power between the national government and the states, which was triggered by the application of the Bill of Rights to the states. It was at the start of the twentieth century that the Supreme Court has made it known of this “selective incorporation,” emphasizing on individual rights but substantially eclipsing the more traditional deference to the beliefs and practices of local communities (Devaney, 2010, p. 219). Incorporation has become a debatable subject among judges and legal scholars because of the ambiguous decisions of the Supreme Court regarding the limitations of the doctrine.
What are 2 major avenues of relief pursued by prisoners?
Federal courts now protect the constitutional rights of all individuals, including prisoners. Prisoners also have the right to seek redress of grievances. The Eighth Amendment also provides for protection from cruel and unusual punishments and prisoners can ask for better prison conditions and let them live as human beings (Justia US Law, n.d.).
Under the Fourteenth Amendment, criminal rights are protected. The protection of criminal rights is enforced on the state and that local tribunals may not have jurisdiction over it but the federal government. This is provided in the Supremacy clause which has more force as it gives “federal pre-emption” (Marceau, 2008, p. 1233). There is, however, a confusion into the relation between the provisions of the Bill of Rights and § 2254 of the Anti-Terrorism and Effective Death Penalty Act. Marceau (2008) argues that § 2254 is inconsistent with the Bill of Rights and the Fourteenth Amendment. The Supreme Court has not provided a meaningful explanation of the application of federal rights, which refers to criminal procedure rights. This provides confusion in the criminal procedure which is perceived in its 2007 ruling of Danforth v. Minnesota. Nine justices agreed that the Supremacy Clause of the Constitution provides that all state courts should apply criminal rights that should be carried out in federal courts (Marceau, 2008). The Fourteenth Amendment limited the authority of the states.
References
Amar, A., & Adams, L. (2013). The Bill of Rights primer: A citizen’s guidebook to the American Bill of Rights. New York: Shyhorse Publishing.
Devaney, J. (2010). The bill of rights and federalism: An interpretation in light of the unwritten constitution (Doctoral thesis, The Catholic University of America). Retrieved from http://ezproxy.sothebysinstitute.com:2195/dissertations/docview/499955176/fulltextPDF/5743CBA3701D4250PQ/16?accountid=13958
Justia US Law: Rights of prisoners. (n.d.). Retrieved from http://law.justia.com/constitution/us/amendment-14/64-rights-of-prisoners.html
Marceau, J. (2008). Un-incorporating the bill of rights: The tension between the fourteenth amendment and the federalism concerns that underlie modern criminal procedure reforms. The Journal of Criminal Law & Criminology, 98(4), 1231-1303. Retrieved from http://web.b.ebscohost.com/ehost/pdfviewer/pdfviewer?sid=a2ffa427-10f5-4467-8e81-09d2e82d6821%40sessionmgr101&vid=0&hid=102
