Tag: purpose

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.

Article Thirty-nine of the Magna Carta (1215) proclaimed that “no free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land.” This “law of the land” requirement, which is often called the principle of legality, prohibited unilateral, arbitrary action by the king against certain protected private interests.

The phrase “due process of law” made its first appearance in a statute of 1354 concerning court procedures. “Due process of law” meant that judgments could only issue when the defendant was personally given the opportunity to appear in court pursuant to an appropriate writ (i.e., was served process). The phrase retained this technical meaning in English law into the eighteenth century.

At the time of the drafting of the Bill of Rights, at least eight state constitutions contained clauses restraining government from depriving persons of life, liberty, or property except pursuant to the law of the land. The Fifth Amendment, which otherwise tracked the form of these state provisions, used the phrase “due process of law” instead of “law of the land.” The reasons for this change in terminology are uncertain, but it is likely that the Founding generation was misled by some seventeenth-century statements of Sir Edward Coke (familiar to virtually all the Founders), who had declared—wrongly, in the judgment of modern historians—that the phrases “law of the land” and “due process of law” were essentially equivalent. Accordingly, the constitutional meaning of “due process of law” almost certainly refers to the principle of legality rather than to pleading technicalities.

Until very close to the time of the Framing, the judicial power was generally viewed as an aspect of executive power. Thus, the essence of the eighteenth-century American understanding of the phrase “without due process of law” meant something like “executive or judicial action taken without lawful authorization and/or not in accordance with traditional forms of justice.” The Supreme Court extended the principle to Congress in Murray’s Lessee v. Hoboken Land & Improvement Co. (1856). There, the Court determined that the Due Process Clause limited the power of Congress to authorize novel forms of adjudication. The case involved a constitutional challenge to a statutory procedure in which the government collected deficiencies from tax collectors without first having a court determine whether the tax collector really owed the money to the government. The Court found that the clause “is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process ‘due process of law,’ by its mere will.” In order to determine whether legislatively prescribed forms of adjudication violated due process of law, the Court looked to “those settled usages and modes of proceeding existing in the common and statute law of England.” The Court found a long tradition in English and American law of auditing tax collectors without prior hearings and accordingly upheld the practice.

The Due Process Clause requires that deprivations of “life, liberty, or property” be accompanied by due process of law. The deprivation of other interests that do not fall within this enumeration need not be accompanied by due process of law. When the Due Process Clause was ratified in 1791, the meaning of “liberty” as a personal right was clear. Sir William Blackstone, whose influence on the Founding generation was enormous, wrote in his Commentaries on the Laws of England that the right to liberty meant “the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” That definition excludes such matters as bodily integrity. Those interests, however, were encompassed by Blackstone’s definition of life, which referred to an array of rights lumped together under the general heading of personal security: “a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.” The term “property” in 1791 was more ambiguous. It could have referred to land, to land plus chattels, to anything of exchangeable value, or (what seems most likely) to whatever interests common-law courts would have recognized as property entitled to legal protection. None of these understandings would include as property future enjoyment of government benefits, such as jobs or licenses. The law sharply distinguished between property rights and mere privileges that the government could continue or terminate at its pleasure.

The eighteenth-century lawyer trying to define the phrase “life, liberty, or property” would have had to face a very sticky problem that could not be answered by reference to Blackstone, tradition, or any other authoritative source of meaning: Do these terms draw their meaning from federal law, state law, or both? Does the Constitution contain its own internal definitions of those terms, so that the Constitution itself determines whether a particular interest is property? Are they defined by reference to the laws of the states, so that a particular interest might be constitutional “property” in Pennsylvania but not in New York? Or must the universe of constitutionally protected interests be determined by some combination of federal and state law?

Perhaps the best answer, though it is impossible to prove this claim decisively, is that federal law sets the outer boundaries of “life, liberty, and property” and state law fixes the details. Surely the Constitution does not itself determine whether a particular estate in land, such as a surface estate on mining land, is or is not “property” for purposes of the Due Process Clause; either answer is permissible and, accordingly, can vary from one jurisdiction to another. But if a state decided that land was henceforth no longer to be considered “property,” that would pass the boundaries of acceptability. Federal law thus establishes for each term a “core” of meaning that no jurisdiction can alter, but beyond that core, governments are free to expand or contract the range of constitutionally protected interests.

Modern doctrine has significantly modified the original understanding of how one determines compliance with “due process of law.” Instead of reference to traditionally accepted procedural forms, contemporary law, dating back a century, has judged the adequacy of procedures by a mélange of practical factors that resist easy reduction. As Justice Frankfurter summarized matters in a famous concurring opinion in Joint Anti-Fascist Refugee Committee v. McGrath in 1951: “‘[D]ue process’ is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess….It is a delicate process of judgment by those whom the Constitution entrusted with the unfolding of the process.”

This is a fancy, (and fanciful), way of saying that like pornography, the court will know “due process” when it sees it!

In Matthews v. Eldridge (1976), the Court attempted to clarify its case law by requiring consideration of

first, the [significance of the] private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [weight of the] Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

This balancing-of-factors approach is universally decried as unpredictable. Many observers also object to the Court’s optimistic goal of accurate decision-making, and there is considerable disagreement about which other possible goals of procedure should be factored into the mix.

In addition, one of the trickiest questions in modern law concerns the timing of procedures: which procedures (if any) must come before the government deprives people of protected interests? The law in this area remains unsettled in many important respects and defies simple description.

The most dramatic transformations in modern due process have concerned the range of interests encompassed by the phrase “life, liberty, or property.” As late as 1950, the original meaning still largely held sway, though Blackstone’s broad understanding of “life” mysteriously vanished in favor of a much narrower meaning. No doubt this development, which was never expressly acknowledged, put pressure on the other terms in the enumeration to include such worthy interests as physical integrity and reputation. More importantly, the rise of the post-New Deal administrative state vastly expanded the range of circumstances under which official action could affect people’s lives, and the concomitant expansion of government benefits, jobs, and licenses raised the stakes of excluding such interests from procedural protection. By the early 1960s, a majority of the Court was prepared to treat the phrase “life, liberty, or property” as a convenient shorthand for “any interest whose loss would be grievous” rather than as a list of three distinct terms with distinct, ascertainable meanings—a development that some commentators half-jokingly described as “lifelibertyproperty.” On this new understanding, government benefits could easily constitute interests whose loss would be grievous.

In 1970, the Court formalized this understanding in Goldberg v. Kelly, where the State of New York, in its argument to the Supreme Court concerning the need for elaborate pretermination hearings prior to termination of benefits under the Aid to Families with Dependent Children Act, did not even argue that expected future receipt of AFDC benefits was not a constitutionally protected interest. Subsequent cases quickly extended constitutional protection to such interests as government licenses and reputation.

In 1972, the Supreme Court established the framework of modern law in Board of Regents of State Colleges v. Roth. That case reestablished some differentiations among the three protected interests. The Court held that “liberty” and “property” were distinct terms with ascertainable meanings, though “life” continues to be conspicuously absent from modern recitations of the range of protected interests. The Court explicitly stated, however, that these terms would not be construed in accordance with their original meaning, but would have to be construed to include the extended range of interests recognized in prior case law, including government benefits.

Accordingly, the Court has expanded the definition of the term “liberty,” beginning with Meyer v. State of Nebraska (1923), in which it declared that “liberty” includes “not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized…as essential to the orderly pursuit of happiness by free men.” It is true that the term has been held not to include (at least under some circumstances) a right to government employment, an interest in reputation, or many interests claimed by prisoners. The government is free, however, to construct these excluded interests to be constitutionally protected through statutes and regulations by specifying a clear causal connection between satisfaction of criteria of eligibility and receipt of a benefit, but they are not automatically protected as a matter of constitutional command. Nonetheless, the Court’s extraordinary expansion of the concept of “liberty” reached its apogee in the famous (some critics say infamous) declaration by Justice Anthony Kennedy: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).

It is state law today that primarily defines the term “property.” Interests within the traditional understanding of property are generally still considered to be property. Interests beyond the traditional understanding, such as government benefits and licenses, are constitutionally protected if statutory or regulatory provisions draw a clear causal line from the satisfaction of eligibility criteria to the receipt of benefits. The case law distinguishes the substance of the created interest from the procedures for its termination. The latter is what the Due Process Clause protects. Within the zone beyond the constitutional core of “liberty” and “property,” government can determine which substantive interests shall receive due-process protection, but once that substantive decision is made, the constitutional law of due process assesses the adequacy of the procedures. In other words, the government may not make acceptance of “unconstitutional” termination procedures a condition of receiving government benefits.

If an interest does not fall within the meaning of the phrase “life, liberty, or property,”, (as defined by the Court), the Due Process Clause does not mandate any particular procedures for its deprivation. Other sources of law, whether constitutional or statutory, may well do so, but the Due Process Clause is, so to speak, “turned off.” There are several other “on-off switches” that determine the applicability of the Due Process Clause.

First, the clause only applies to government action; private entities are not bound by the Fifth Amendment or, indeed, by anything in the Constitution except the Thirteenth Amendment. This can pose difficult questions when the acting entity is nominally private but is involved in some fashion with the government. See “State Action” in the Fourteenth Amendment, Section 1. Second, modern law holds that the word “deprived” in the Due Process Clause means an intentional (or, at a minimum, a reckless) taking of a protected interest. Losses inflicted by government negligence do not implicate the Due Process Clause.

Third, and most importantly, administrative agencies are responsible for the vast bulk of governmental actions that work deprivations of interests within the compass of the Due Process Clause. Those agencies engage in two forms of official action: rule-making, which strongly resembles in form and function the promulgation of a statute by the legislature, and adjudication, which strongly resembles in form and function the decision of a case by a court. The Due Process Clause has never been understood to impose procedural requirements on legislatures (though it does, under modern understandings, regulate the content of legislation that authorizes executive or judicial procedures). For almost a century, courts have held that agency rule-making shares in this legislative immunity from due-process analysis; agency rule-making is subject to no constitutional procedural requirements. Agency adjudication, however, is subject to due-process analysis, but agencies do not stand in the same shoes as courts. Procedures that would be obviously inadequate in judicial proceedings are considered constitutionally adequate for agency adjudication. The size of the gap is uncertain, which typifies the complexity of the modern law of procedural due process.

Regarding “due process” perhaps we should refer back to Lewis Carroll writing in the voice of Humpty Dumpty; “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

This page and its links contain opinion. As with all opinion, it should not be relied upon without independent verification. Think for yourself. Fair Use is relied upon for all content. For educational purposes only. No claims are made to the properties of third parties.

(c) 2018

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.

Scholars have suggested that the privilege against self-incrimination reflects the Framers’ antipathy to two specific abuses. One abuse was the European practice of judicial torture, and the other was the questioning of witnesses sworn to the oath ex officio before the notorious courts of the High Commission and the Star Chamber in England. The oath ex officio pledged the witness to answer any and all questions truthfully, without any indication of the subject matter. The oath was used to persecute political and religious dissenters and had the obnoxious effect of forcing devout individuals to choose between admitting offenses, to be followed by hanging, or denying offenses, to be followed by damnation. Some recent scholarship has offered an alternative to this account. It suggests that the privilege against self-incrimination arose mainly from American practice rather than as a reaction against European or English royal abuses.

In America the privilege arose because of the particular practice of self-representation by defendants. Consistent with the practice of English common law, the accused could not be forced to be sworn as a witness in the late eighteenth and early nineteenth centuries in America. The reason for the rule was fear that the guilty would be tempted to swear falsely and be damned by God. The accused representing himself, therefore, literally could not be called to be a witness against himself. This rule was also congenial with a law, which prevailed in England well into the nineteenth century, that parties to the litigation were themselves incompetent to testify, either on their own behalf or if examined by their adversaries. In effect, the Fifth Amendment codified this practice.

The defendant typically represented himself and could speak for himself throughout the trial, both by making unsworn statements heard by the jury and by examining witnesses. Such statements were, of course, voluntary. On the other hand, early American practice involved pretrial questioning of the accused by a magistrate or justice of the peace where the defendant could be pressed to admit wrongdoing.

The Founders, then, regarded the privilege as valuable enough to include in the Constitution, but their own practice put considerable pressure on defendants to surrender incriminating information before trial. The assertion of the privilege at trial became more common as the advent of modern police forces had the effect of replacing pretrial judicial questioning with custodial interrogation by the police, particularly when defendants availed themselves of professional attorneys.

Judicial interpretations of the Self-Incrimination Clause were slow in coming. John Marshall, both in Marbury v. Madison (1803) and in the treason trial of Aaron Burr (1807), permitted third-party witnesses to claim the privilege. The federal government prosecuted relatively few cases, and the Court held that the privilege, like the rest of the Bill of Rights, did not apply to the states, a situation that did not change until after the Civil War, when the Supreme Court, over a period of many years, read the Due Process Clause of the Fourteenth Amendment to incorporate most of the Bill of Rights.

In the 1880s, the Supreme Court took the view that the privilege protected private books and papers. With antecedents in the common law, the privilege protected an individual against a subpoena demanding incriminating private documents. Indeed, even if the government obtained the papers without a subpoena, the use of private papers as evidence against their owner was equated with compelled testimony. During this same period, the Supreme Court upheld a congressional statute providing for compelled testimony under the grant of transactional immunity, but rejected the claim that corporations could assert the privilege.

In 1964, the Supreme Court held that the privilege applies against the states as a matter of Fourteenth Amendment due process, and that testimony compelled in state court could not be used against the witness in a federal prosecution (and vice versa). Malloy v. Hogan; Murphy v. Waterfront Commission. Subsequently, Fifth Amendment doctrine changed significantly. The most dramatic change was the decision in Miranda v. Arizona (1966), holding that information received from the interrogation of arrested persons by the police was presumptively the product of unconstitutional compulsion in the absence of the specific warnings. The Miranda doctrine prohibits custodial interrogation absent a knowing and voluntary waiver of the rights to silence and counsel.

Subsequent cases have developed in detail the meaning of custody, interrogation, waiver, and the consequences of invoking silence and/or counsel. For example, the Court ruled that if the defendant elects to testify at trial, statements tainted by Miranda violations may be admitted to impeach. The Miranda exclusionary rule is also more limited with respect to derivative evidence than the Fourth Amendment exclusionary rule. In 2000, in Dickerson v. United States, the Supreme Court reaffirmed Miranda and struck down a congressional statute that had purported to return to pre-Miranda practice, although the majority appeared to concede that the Constitution itself did not require the Miranda rule.

Outside the police-interrogation context, the privilege protects against compelled testimonial evidence tending to incriminate the witness. Compulsion is not limited to court order, but includes such pressures as the threatened loss of government employment or public contracts, or an inference of guilt from silence at a criminal trial. Testimonial evidence means a communication of information from the target’s memory or knowledge. Thus fingerprints, tissue samples, and physical evidence are not testimonial: the government can compel their production. In a reversal of its earlier position, the modern Court has held that the Fifth Amendment does not protect physical evidence like private papers unless official compulsion forced the defendant to create the document. In the case of private papers, the Fourth Amendment and not the Fifth Amendment normally governs the government’s power to seize papers, just like the Fourth Amendment limits the government’s powers to seize conversations by wiretap.* The privilege applies when the evidence sought is incriminating, that is, it provides a link in a chain of proof that might be useful, and the risk of prosecution is more than fanciful. Where a violation of the Self-Incrimination Clause is the product of a directly coerced or compelled confession, the government may not use in a later case that confession or any evidence that is the fruit of such coercion. If, however, the original illegality is a violation of the Miranda rule, rather than actual coercion, the government may use in a later prosecution evidence that was discovered as a fruit of the Miranda-violative confession.

Evidence is not incriminating, however, and the privilege cannot be asserted if it is produced under an immunity order by the court, that is, a promise not to use the compelled information against the defendant. The government may grant the witness “transactional immunity,” or “use and derivative use immunity.” Transactional immunity bars any prosecution for the conduct to which the testimony relates. Use and derivative use immunity, the only type of immunity constitutionally required, permits the government to prosecute the witness, but only after proving that it, the prosecution, has made no use of the compelled testimony or any evidence derived from it. Typically, the prosecution will exhaust all other avenues of investigation before applying for a use immunity order, and the supporting affidavit will describe in detail all of the evidence the prosecution has prior to the compelled testimony. Nonetheless, the risk that immunized testimony may aid the prosecution indirectly is thought sufficiently serious that many states still authorize only transactional immunity above and beyond the Fifth Amendment’s protections.

Leaving the Miranda situation aside, the witness must claim the privilege, or it will be deemed waived. Of course, direct police physical or psychological coercion or compulsion that produces a “confession” is inadmissible whether or not a “waiver” is asserted by the police. In addition, the government may not coercively obtain a waiver by, for example, threatening the loss of public employment or government contracts. A criminal defendant who elects to take the stand waives the privilege with respect to questions asked on cross-examination that are reasonably related to the direct examination.

This page and its links contain opinion. As with all opinion, it should not be relied upon without independent verification. Think for yourself. Fair Use is relied upon for all content. For educational purposes only. No claims are made to the properties of third parties.

(c) 2018

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.

Although the principle can be found in Greek, Roman, and canon law, the prohibition against double jeopardy came into the United States Constitution from English common law. According to Sir William Blackstone’s Commentaries on the Laws of England, it was a “universal maxim of the common law of England, that no man is to be brought into jeopardy more than once of the same offence.” A defendant to a criminal charge could plead either a former conviction or a former acquittal to the same offense and have the charges dismissed.

All state constitutions drafted prior to the Bill of Rights contained a double-jeopardy provision. The principle was so universal that when James Madison proposed on the floor of the First Congress that “No person shall be subject, except in cases of impeachment, to more than one punishment, or trial for the same offence,” Members rose to object that the language was not strong enough. Representatives Egbert Benson and Sherman declared that the wording would prevent a new trial for a person who had been improperly convicted. Others argued that it should stand as drafted, because it was merely “declaratory of the law as it now stood.” The House defeated an attempt to remove the words “or trial,” but the Senate revised the language to its present form, which the House accepted.

The history of the interpretation of the Double Jeopardy Clause by the Supreme Court is complex, and, as the Court itself confessed, it is not a “model of consistency and clarity.” Burks v. United States (1978). Over time, however, the Court identified the clause as embodying three protections of the individual against the government: (1) no second prosecution for the same offense after an acquittal; (2) no second prosecution for the same offense after a guilty verdict; and (3) no multiple punishments for the same offense. See Monge v. California (1998). The Court recognized early on that the clause could not be read literally; it refers only to “jeopardy of life or limb,” a reference that made sense when most serious offenses were sanctioned by capital punishment but hardly makes sense today, when most sanctions are merely a fine or imprisonment. Despite the wording of the clause, the Court applies it to any indictment or information charging a person with any statutory or common-law felony or misdemeanor sanctioned by death, imprisonment, or fine. Of course, the Double Jeopardy Clause originally applied only to the federal government, Palko v. State of Connecticut (1937), but in Benton v. Maryland (1969), the Court held that the Double Jeopardy Clause of the Fifth Amendment applied to the states as well as to the federal government.

Current double-jeopardy jurisprudence falls under five basic headings: (1) sovereign, (2) sanction, (3) trial, (4) retrial, and (5) offense.

First, the Court reads the Double Jeopardy Clause as a protection against conduct by the same “sovereign.” Accordingly, as the federal government is, as is each state, a separate “sovereign,” the Double Jeopardy Clause does not prohibit a federal prosecution after a state prosecution. Despite the doctrine, the federal government as a matter of policy will not prosecute a matter first prosecuted at the state level, absent unusual circumstances. Nor does the clause prohibit a state prosecution following a federal prosecution. Nor does it prohibit successive state prosecutions. But it does prohibit successive prosecutions by the state and a local government or two local governments, because each derives its sovereignty from a common source, the state constitution. Indian entities are treated as separate sovereigns.

Second, a sanction counts for double-jeopardy purposes only if it is a criminal “punishment.” What counts as a punishment for double-jeopardy purposes depends on the nature of the sanction imposed. Based on identical conduct, a civil forfeiture of property may follow a criminal acquittal of the owner of the property. Civil fines are not a form of criminal punishment. But a tax may not be specially imposed on criminal conduct. A sexual predator may be retained in civil confinement after his criminal term of imprisonment ends; the Court holds that the confinement is punishment under neither the Double Jeopardy nor the Ex Post Facto Clauses of the Constitution.

Third, determining when a “lawful trial” begins and ends is crucial to the application of the concept of double jeopardy. Accordingly, the court must have jurisdiction over the offense. Jeopardy attaches in a bench trial when the first witness is sworn; it begins in a jury trial when the jury is sworn. Finally, the trial ends with an acquittal, that is, a decision of not guilty on the facts, whether the decision is legally right or legally wrong, even if the acquittal is “based upon an egregiously erroneous foundation.” An appellate court may also grant an acquittal.

Fourth, the Double Jeopardy Clause does not absolutely prohibit retrials. The clause is no bar to a new trial when the defendant successfully appeals his conviction, but a successful appeal of a lesser charge (manslaughter) by a defendant precludes a retrial on a greater charge (murder). Nor may a new trial be held if an appellate court finds that the conviction was not based on sufficient evidence. On the other hand, retrials may be held when a defendant requests a mistrial or when a “manifest necessity” is present. Manifest necessity is present, for example, if the jury deadlocks or is unduly influenced by the misconduct of the defense counsel.

Fifth, a crucial issue turns on the definition of “offense.” Modern criminal law is characterized by “specificity in draftsmanship”; it is also characterized, as a result, by an “extraordinary proliferation of overlapping and related statutory offenses.” Double-jeopardy protections depend, therefore, on a careful ascertaining of what constitutes an “offense,” that is, what is the “allowable unit of prosecution.” However, few limits, if any, are imposed by the Double Jeopardy Clause on the legislative power to define offenses. But once a legislature defines that proscription, it “determines the scope of protection afforded by a prior conviction or acquittal.” To ascertain whether two statutory offenses constitute two “offenses” for double jeopardy, which would prohibit successive prosecutions, the Court follows a multiple-element test to determine whether each “offense” contains an element that is not common to the other. Blockburger v. United States (1932). Under the Blockburger test, the Double Jeopardy Clause prevents successive prosecutions for both greater and lesser included offenses. The focus of the test is on statutory elements rather than evidence or conduct. Nevertheless, a prosecution of a lesser offense (e.g., assault and battery) does not preclude the prosecution of a greater offense (murder) if all of the elements of the greater offense (e.g., death) were not present at the time of the prosecution of the lesser offense. On the other hand, a distinction is drawn between successive prosecutions and multiple punishments. Even if individual offenses are not separate under the Blockburger test, the Double Jeopardy Clause does not prevent multiple punishments for them when they are tried together, when the legislature intended the higher level of punishment.

This page and its links contain opinion. As with all opinion, it should not be relied upon without independent verification. Think for yourself. Fair Use is relied upon for all content. For educational purposes only. No claims are made to the properties of third parties.

(c) 2018

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.

Grand juries have historically served two functions: accusatory and protective. The accusatory function has roots in the English common law. The Founders’ motivation for adding this provision to the Constitution was principally to protect those accused of crimes from prosecutorial overreach. Contemporary practice, however, limits the extent to which grand juries are capable of performing that aspect of their traditional role.

A typical federal grand jury consists of twenty-three citizens drawn from the community. The jurors meet in a closed courtroom, with no judge, no accused, no press, and no lawyer but the prosecutor present. The prosecution presents evidence that a particular suspect committed a crime; the prosecutor is then excused, and the jurors deliberate and vote on whether there is enough evidence to justify the filing of criminal charges against this suspect and sending the case forward to trial. If a majority of jurors believe that there is sufficient evidence, the jurors return a “true bill,” which when signed by the prosecutor becomes the indictment: the formal criminal charge that the government must prove beyond a reasonable doubt at trial.

Grand juries originated in England, probably in the twelfth century, and began as an effort to increase the king’s power. Their original purpose was strictly accusatory; grand jurors were expected to bring to the proceedings any information or suspicions they had about their neighbors and criminal activity. By the mid-seventeenth century, the jurors also assumed the responsibility to investigate and protect citizens against unfounded charges. This dual role of accuser and protector of the accused was the model that settlers brought with them to this country. The first grand-jury session was held in Virginia in 1625, and the practice soon spread to the other English colonies.

Prior to the American Revolution, the grand jury’s role as a shield for the accused took on increasing importance. The most famous such case involved John Peter Zenger, accused of seditious libel in 1734 for publishing material that was critical of the governor of New York. The evidence against Zenger was strong, but three grand juries refused to indict, impressing on colonists their power to frustrate the enforcement of unpopular laws. As the Revolution drew closer, royal prosecutors who tried to enforce English tax and import laws also found themselves stymied by local grand juries, who at times refused to let even meritorious cases go forward to trial. These experiences, coupled with the writings of influential legal thinkers (particularly Sir William Blackstone, Henry Care, and John Adams), convinced the colonists of the need for grand-jury review as a restraint on government power. When there was no mention of grand juries in the original Constitution, the criticism was swift; so in December 1791, the Fifth Amendment to the Constitution, containing the Grand Jury Requirement Clause, was ratified.

The Supreme Court has concluded that, unlike nearly all of the other provisions of the Bill of Rights, the Grand Jury Requirement Clause is not “incorporated” against the states, that is, the federal Constitution does not require that states use grand juries at all. If they do, they are not required to follow the federal procedures. Hurtado v. California (1884). The result is that many states use grand juries sparingly, and, if they do, use significantly different procedures from those that are required in federal criminal cases. Given that states are still the primary enforcers of the criminal law, this interpretation severely limits the importance of this part of the Fifth Amendment.

The current state of the law restricts the ability of a grand jury to serve as a significant shield against prosecutorial overreach. There are several reasons for this. First, the Supreme Court has greatly limited the ability of criminal suspects to challenge federal grand-jury procedures. The proceedings are secret, and thus a suspect has no way of knowing if the evidence presented by the prosecution is complete or accurate. Even if a suspect can ascertain what evidence the jury hears, his ability to attack the indictment based on this information is small. Federal courts have not required prosecutors to disclose evidence to the grand jurors that is favorable to the accused. See United States v. Williams (1992). In addition, the Supreme Court has held that a suspect has no ability to challenge an indictment even if the jurors only considered evidence (such as hearsay) that would not be admissible in a later trial; “[a]n indictment returned by a legally constituted and unbiased grand jury,” the Court has said, “if valid on its face, is enough to call for a trial of the charge on the merits. The Fifth Amendment requires nothing more.” Costello v. United States (1956).

Second, criminal law enforcement has changed dramatically since the Bill of Rights was ratified. Prosecutors are now highly professional and specialized, and federal criminal laws have become more complex. One result of this change is that grand jurors lack the realistic ability to decide whether the prosecutor has presented “enough” evidence to justify an indictment. The question that jurors are asked is ultimately a legal one concerning the sufficiency of the evidence, a question that is posed after the only lawyer in the room—the prosecutor—has recommended that the defendant be indicted. Because the prosecutor has complete control over the evidence the grand jurors hear, and because the jurors have no benchmark against which to measure that evidence, it is rare for jurors to second-guess a prosecutor’s recommendation. Consequently, grand jurors agree with the prosecutor’s recommendation and return a true bill in nearly every case where they are asked to do so.

So despite the original purpose of the Fifth Amendment, most observers now agree that the grand jury has returned to its accusatory roots and is now used as an investigative tool that is much more of a benefit to the prosecutor than to criminal suspects. Grand juries today have broad subpoena power, which enables them to gather an extraordinary amount of evidence in criminal investigations. Suspects often waive the right to grand-jury review of their case; they may prefer to forgo the minimal protection that comes from this review and avoid the potential for a more searching investigation of their conduct.

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“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.”

The discussion inevitably ends up pitting the claim for greater protection and security by a large sector of society against the right to keep and bear arms as guaranteed by the Second Amendment. This debate — and the constitutional issued involved — produces a sense of political vertigo.

The Second Amendment declares, “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.” A quick reading of this amendment would seem to suggest that the right to keep and bear arms is conditioned on the necessity of having a well-regulated militia for the security of a free state.

This has been the interpretation favored by those who have an interest in limiting individual rights in matters related to firearms. This interpretation, of course, upturns the fundamental purpose of the Bill of Rights, which aims to protect and guarantee individual rights from the “tyranny of the majority”.

If only we knew what the Founding Fathers intended with the Second Amendment!

Well, let’s ask them:

“A free people ought not only to be armed, but disciplined…”
– George Washington, First Annual Address, to both House of Congress, January 8, 1790

“No free man shall ever be debarred the use of arms.”
– Thomas Jefferson, Virginia Constitution, Draft 1, 1776

“I prefer dangerous freedom over peaceful slavery.”
– Thomas Jefferson, letter to James Madison, January 30, 1787

“What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms.”
– Thomas Jefferson, letter to James Madison, December 20, 1787

“The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”
– Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776

“A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks.” – Thomas Jefferson, letter to Peter Carr, August 19, 1785

“The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed.“
– Thomas Jefferson, letter to to John Cartwright, 5 June 1824

“On every occasion [of Constitutional interpretation] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying [to force] what meaning may be squeezed out of the text, or invented against it, [instead let us] conform to the probable one in which it was passed.”
– Thomas Jefferson, letter to William Johnson, 12 June 1823

“I enclose you a list of the killed, wounded, and captives of the enemy from the commencement of hostilities at Lexington in April, 1775, until November, 1777, since which there has been no event of any consequence … I think that upon the whole it has been about one half the number lost by them, in some instances more, but in others less. This difference is ascribed to our superiority in taking aim when we fire; every soldier in our army having been intimate with his gun from his infancy.“
– Thomas Jefferson, letter to Giovanni Fabbroni, June 8, 1778

“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
– Benjamin Franklin, Historical Review of Pennsylvania, 1759

“To disarm the people…[i]s the most effectual way to enslave them.”
– George Mason, referencing advice given to the British Parliament by Pennsylvania governor Sir William Keith, The Debates in the Several State Conventions on the Adooption of the Federal Constitution, June 14, 1788

“I ask who are the militia? They consist now of the whole people, except a few public officers.”
– George Mason, Address to the Virginia Ratifying Convention, June 4, 1788

“Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops.”
– Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787

“The right of the people to keep and bear arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.”
– James Madison, I Annals of Congress 434, June 8, 1789

“…the ultimate authority, wherever the derivative may be found, resides in the people alone…”
– James Madison, Federalist No. 46, January 29, 1788

“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”
– William Pitt (the Younger), Speech in the House of Commons, November 18, 1783

“A militia when properly formed are in fact the people themselves…and include, according to the past and general usuage of the states, all men capable of bearing arms… “To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.”
– Richard Henry Lee, Federal Farmer No. 18, January 25, 1788

“Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined…. The great object is that every man be armed. Everyone who is able might have a gun.”
– Patrick Henry, Speech to the Virginia Ratifying Convention, June 5, 1778

“This may be considered as the true palladium of liberty…. The right of self defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”
– St. George Tucker, Blackstone’s Commentaries on the Laws of England, 1803

“The supposed quietude of a good man allures the ruffian; while on the other hand, arms, like law, discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The balance ofpower is the scale of peace. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside. And while a single nation refuses to lay them down, it is proper that all should keep them up. Horrid mischief would ensue were one-half the world deprived of the use of them; for while avarice and ambition have a place in the heart of man, the weak will become a prey to the strong. The history of every age and nation establishes these truths, and facts need but little arguments when they prove themselves.”
– Thomas Paine, “Thoughts on Defensive War” in Pennsylvania Magazine, July 1775

“The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.”
– Samuel Adams, Massachusetts Ratifying Convention, 1788

“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”
– Joseph Story, Commentaries on the Constitution of the United States, 1833

“What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty …. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.“
– Rep. Elbridge Gerry of Massachusetts, I Annals of Congress 750, August 17, 1789

“For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.”
– Alexander Hamilton, Federalist No. 25, December 21, 1787

“If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.”
– Alexander Hamilton, Federalist No. 28

“[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”
– Alexander Hamilton, Federalist No. 28, January 10, 1788

“As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.”
– Tench Coxe, Philadelphia Federal Gazette, June 18, 1789

“(The Constitution preserves) the advantage of being armed which Americans possess over the people of almost every other nation…(where) the governments are afraid to trust the people with arms.” -James Madison

The right to keep and bear arms has more than just the Second Amendment to protect it. By characterizing the right as fundamental and pre-political, the Founders accepted the truism that this right is an extension of the ancient right to self-defense. And the right to defend oneself does not come from the government; it comes from our humanity. It is a natural right.

Who among us, when confronted with the terror of nearly certain annihilation, would concern himself with the niceties of the law? Life itself is at stake. The right to self-defense is a manifestation of the natural instinct for survival, borne in the hearts of all rational people.

But, what of public safety? Why not “common sense” gun laws, like gun-free zones?

No-gun zones are arbitrarily designated on public property by local authorities, stripping law-abiding folks of their lawfully owned guns — their natural right to self-defense — and exposing them to terror and death.

The Constitution does not permit public no-gun zones any more than it does public no-free-speech zones. If the right to keep and bear arms is truly fundamental, the government cannot interfere with it based on geography.

In the final analysis, “gun control is 0% about guns and 100% about control.

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(c) 2018

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.

These forty-five words encompass the most basic of American rights: freedom of religion, freedom of speech, freedom of the press, the right of assembly, and the right of petition. But what do those words mean?

We think of the U.S. Constitution as about rights, but mostly it isn’t. It is about the powers of the federal government that the framers created, and it is a fundamental rule book for the operation of that government.

The 55 (or so, they kept coming and going from Philadelphia during the Constitutional Convention summer of 1787) white men who drafted the Constitution didn’t write the Bill of Rights . And most of them opposed including any such section in their document.

As soon as the Constitutional draft was finalized, Madison sent Jefferson a copy for his reaction. Jefferson’s  biggest objection — described in a letter back to Madison — was “the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws and trials by jury.”

Patrick Henry, the preeminent Virginia politician/tactician of the time, conceived a strategy to defeat the draft without directly calling for “no” votes.

So Henry asked his allies to seek a vote that would ratify the Constitution conditionally. The “condition” was the Constitution couldn’t take effect until it was amended to correct its flaws.

The pro-ratification forces immediately realized that a conditional ratification was no ratification at all. Unless at least nine states ratified unconditionally (see Article VII), the first congressional and presidential elections could not be held and the new government could not begin operations and a new convention would have to be called to deal with changes to satisfy the “conditional” ratifications.

And so, a compromise was reached and Americans were given a Bill of Rights.

The First 10 Amendments to the Constitution as Ratified by the States December 15, 1791 Preamble Congress OF THE United States begun and held at the City of New York, on Wednesday the Fourth of March, one thousand seven hundred and eighty nine. THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.: ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution. 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 offence 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 defence.   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.

Madison proposed, and pushed through the House, 13 amendments. The Senate killed one of them (interestingly, it would have required the states to respect freedom of religion and expression; Madison argued that it was the most important one on the list). The other 12 were referred to the states for consideration.

After the Senate killed one of Madison’s original 13 amendments, 12 were referred to the states. But the Bill of Rights consists of the first 10 amendments to the Constitution. Two others failed of ratification, at least for a couple of centuries, and they were the first two on the list as referred to the states.

The long lost First Amendment (you’ll find the text, under “Article the first” on this link) is a mind-numbingly boring provision attempting to regulate how many members of the House there would be and how much population per district until certain thresholds are reached after which different numbers apply.

The long lost Second Amendment was simpler. Congress could not pass a pay raise for its own members that would take effect until after the next election. And that one has a fairly amazing (and very touching) history of its own that you may have missed unless you pay very close attention to the news.

In the blog posts that follow each of the ten amendments that constitute the Bill of Rights will be examined.

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ARTICLE 6 Supreme Law

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. (1)

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

ARTICLE VII – Ratification

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,

G°. Washington Presidt. and deputy from Virginia

Delaware

• Geo: Read
• Gunning Bedford jun
• John Dickinson
• Richard Bassett
• Jaco: Broom

Maryland

• James McHenry
• Dan of St Thos. Jenifer
• Danl. Carroll

Virginia

• John Blair
• James Madison Jr.

North Carolina

• Wm. Blount
• Richd. Dobbs Spaight
• Hu Williamson

South Carolina

• J. Rutledge
• Charles Cotesworth Pinckney
• Charles Pinckney
• Pierce Butler

Georgia

• William Few
• Abr Baldwin

New Hampshire

• John Langdon
• Nicholas Gilman

Massachusetts

• Nathaniel Gorham
• rufus King

Connecticut

• Wm. Saml. Johnson
• Roger Sherman

New York

• Alexander Hamilton

New Jersey

• Wil: Livingston
• David Brearley
• Wm. Paterson
• Jona: Dayton

Pennsylvania

• B Franklin
• Thomas Mifflin
• Robt. Morris
• Geo. Clymer
• Thos. FitzSimons
• Jared Ingersoll
• James Wilson
• Gouv Morris

Attest William Jackson, Secretary

(1) Elbridge Gerry objected that the August 21 proposal only gave the new Congress the “power” rather than the obligation to pay back the debt. He feared that this wording would allow Congress to neglect the rightful return on bonds due to the creditor “class of citizens.”

While Edmund Randolph agreed that the United States was still liable for its obligations, he maintained that the “new Govt” was one of enumerated powers and thus would have only the power given to it by the Constitution.* Without an explicit grant of constitutional power, the federal government would be in the strange position of not having the authority to pay off the debts still owed by the country.

Following a motion by Gouverneur Morris on August 25, the Convention changed the clause from a grant of power to Congress to an obligation of the United States. The change was then accepted by the Convention, which split the power to “pay the Debts,” leaving it in Article I, Section 8, from the obligation to uphold “debts” and “Engagements,” moving the latter to Article VI.

*This will be further discussed regarding amendment 10.

Why was the number of states needed to ratify the Constitution different from the number of states needed to revise the Articles of Confederation?

During the Articles of Confederation period all thirteen states were required to make amendments. All states were considered independent and sovereign at this time. Many of these states distrusted central government so in order to create this coalition the amendment process was made in order to make it extremely difficult to change the agreement of power sharing after it was ratified. Congress was only able create foreign policy and could only step in state disputes only if there was a serious issues between states, not within them.

The Articles of Confederation had some serious issues around taxing and revenue generation. Most attempts to amend failed to get all 13 states to agree. They realized the need to allow the Constitution to be amended without requiring every state to agree, since zero amendments passed in six years.

They did believe in majority rule and that the federal government should not have full power (still a lot of distrust of central government) so they changed the requirement from all states to two-thirds of the states in the union.

The Bill of Rights drafted in 1789 and ratified in 1791 is a great example of the success of the newly ratified Constitution. These first ten amendments were a direct result of the power to amend our Constitution and was used to further limit the central authority of the federal government.

This page and its links contain opinion. As with all opinion, it should not be relied upon without independent verification. Think for yourself. Fair Use is relied upon for all content. For educational purposes only. No claims are made to the properties of third parties.

(c) 2018