How far can the government go? Bill of Rights Day challenges Americans to ask tough questions

Brandon Paykamian • Dec 14, 2017 at 11:49 PM

In 1941, former President Franklin Roosevelt designated Dec. 15 Bill of Rights Day to commemorate the date of its ratification in 1791.

The document, primarily written by former President James Madison, who was a congressman at the time, spells out the rights of American citizens and individual protections.

But many Americans do not fully understand the Bill of Rights, and many who know the amendments interpret them differently, much like religious texts.

To understand the amendments that spark contemporary controversy, such as the Second Amendment, East Tennessee State University history professor Daryl Carter said it’s important to look at the context of each debate.

First Amendment

The First Amendment prohibits Congress from enacting theocratic legislation or prohibiting freedom of speech, the press and the rights of people to peaceably assemble. Today, Carter said many insist on using religion as a political tool, and some infer that the right to free speech means a free pass to say anything.

When it comes to free speech, however, Carter said things can get tricky.

“Free speech is there to protect people's rights to express themselves, and that can get dicey when you get into things like hate speech,” he said. “In some cases, I think there’s no doubt that some are trying to incite people. We saw that in Charlottesville back in August when people came armed, and we’re watching this play out at college campuses, where right-wing extremist groups are going there because they see fertile ground to recruit and get a negative reaction.”

The most notable case involving issues of religious freedom and free speech today is the Masterpiece Cakeshop v. Colorado Civil Rights Commission case, in which Jack Phillips, the owner of Masterpiece Cakeshop, is said to have violated Colorado’s anti-discrimination laws for refusing to make a wedding cake for a same-sex couple due to his religious beliefs. So far, the Supreme Court has been divided on whether his refusal to serve the couple was protected under the First Amendment.

Second Amendment

The Second Amendment, which advocates a well-regulated militia and the right to bear arms is perhaps the most contentious amendment today. Carter said this debate is nothing new. He believes the debate, which resurfaces after every mass shooting, “gets people riled up,” and this in turn translates into big profits for gun manufacturers.

“Over a period of the last 40, 50 years, the National Rifle Association has become a political arm of the Republican Party,” he said. “They have used their current 4 million plus membership to drive policy debates. The debate always pops up because it divides people. That's what politicians of all types do — they divide people.

“I like the idea of private ownership of guns, but the public has a right to feel secure, and it's hard to do that when you know so many people are armed.”

Other key amendments

The Fourth, Fifth and Sixth amendments, which aimed to protect citizens from unreasonable searches and seizures and ensure citizens’ rights to fair trials, become particularly contentious in the context of today’s war on terrorism.

Carter said the principles of security, transparency and individual freedom often find themselves at odds with each other, creating a gray area that makes people ask, “How far can the government go?”

“There's a striking resemblance between Bush, Obama and Trump on national security, because they are all claiming greater Constitutional power to justify enhanced executive power to deal with the war on terror,” he said. “And the Fourth Amendment in particular is being challenged in regard to technology.

“For example, during the war on terror — which we’re still in — can you surveil an American citizen? What about probable cause?”

When it comes to national security and criminal justice, Carter pointed to a case in 2011 when former President Barack Obama ordered the assassination of Anwar al-Awlaki, an American citizen who had never been formally charged with a crime. The drone strike in Yemen, according to Carter, again raises the question — “How far can the government go?”

Another amendment that is often overlooked is the Eighth Amendment, which prohibits cruel and unusual punishment. But compared to prisons in Nordic nations, the conditions in U.S. prisons are often appalling, and the excessive bail that is required for inmates in jails directly goes against the stipulations of this amendment, which Carter said is “problematic” and comparable to debtors prisons.

“When you’re talking about getting rid of cruel and unusual punishment, you have to look at bail, executions and prison conditions as well,” he said.

The fact that this amendment is often overshadowed is part of a disturbing trend associated with an increasingly polarized society, Carter said. 

“We are seeing a rise in an authoritarian, anti-democratic, illiberal way of thinking throughout our entire body politic now,” he said. “The problem is that we are in a fever and that fever has not broke yet. Once it does break, people are going to ask, ‘Why did we do this?’

“Americans are retreating in their own respective worlds where they only listen to likeminded people.”

Carter said Bill of Rights Day needs to not only be a day to commemorate the document, but also to foster healthy debate.

“People love to manipulate the constitution – liberals, Republicans, everybody,” he said. “We are a great country with great people, ideas, industry and schools. We just need to bring back some of our basic beliefs in treating people how we want to be treated, no matter who we are.”

Amendment I

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.

Amendment II

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.

Amendment III

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.

Amendment IV 

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.

Amendment V

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.

Amendment VI

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.

Amendment VII

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.

Amendment VIII 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

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. 

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