Due to the unforgivably glacial pace at which I’ve been updating this blog, I’ve decided to speed up the process by combining multiple amendments that have similar characteristics into single entries. Otherwise, I’d get through all the amendments by, oh, the country’s Tricentenial or so…
Today, we’ll look at the Fourth through Eighth Amendments, or as I would call them, the “Your Day in Court” amendments. They all have to do with crime and punishment and due process and justice, so here we go:
The Fourth Amendment
“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.”
In a nutshell, the government must have reasonable suspicion that you’ve been part of a criminal activity and must offer evidence of such suspicion to a judge in order to obtain a warrant to search you or your property. This was a reaction to the British practice during Colonial times of issuing “writs of assistance” or general warrants that did not expire, permitting law enforcement officials to search pretty much whatever they wanted whenever they wanted under authority of the crown.
In a very recent Supreme Court case, Riley v California, the court brought the amendment’s provisions into the digital age by holding in a strong 9-0 decision that police may not search a suspect’s cell phone during an arrest without a warrant.
Of course, as we’ve discussed before, there is no absolute right here. In other words, not every search requires a warrant. A police officer who pulls you over for speeding and sees a bag of white powder in plain view on the passenger seat may reasonably suspect that you are a drug dealer/trafficker and conduct further searches. Likewise, if illegal weapons are in view, a search is not only permitted but quite reasonable.
But in the vast majority of cases, if the police of other governmental authority wants to search you , your house, your office, your documents or any other personal property, they must have a warrant, and you are well within your rights to demand they produce one. There is nothing “uncooperative” about requiring to see a warrant before admitting any government official into your home or place of business if they indicate they want to search it. That’s the law, and we all benefit when we all understand it and follow it.
The Fifth Amendment
“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.”
Anyone who has ever watched a cop show on TV is familiar with the litany, “You have the right to remain silent…” The Fifth Amendment’s provisions against self-incrimination were made famous by the landmark Miranda v Arizona case, which compelled police to ensure that suspects placed under arrest were properly informed of their right to not testify against themselves and to have an attorney work on their behalf.
A more recent case, Kelo v New London, infamously tested the “takings” clause when a Connecticut woman’s house was condemned and transferred to use by a development company. She sued on the basis that private economic development was not “for public use”, according to the Fifth Amendment. The Supreme Court decided in New London’s favor in a 5-4 decision, which sparked outrage nationwide. Forty-four states modified their “eminent domain” laws in response to Kelo. In New London, the developer abandoned the project for lack of financing, Ms. Kelo’s former lot is still vacant and the city of New London eventually issued an apology to her, though she had moved away from New London in the aftermath and has not returned.
And finally, despite what you’ve seen on TV with Alex Trebek, “double jeopardy” is prohibited by the Fifth Amendment. Not, not the big-money part of the game show, but the provision that one cannot be tried again for a crime of which he or she had been previously acquitted. As an example, even if solid evidence were to appear that O.J. Simpson was without a doubt the murderer, he could not be tried again in criminal court on those charges, as he has already been acquitted. On the other hand, a convicted criminal may certainly be granted a new trial if evidence of his innocence comes to light. In short – if you’re found guilty, you can be tried again and found not guilty, but if you’re found not guilty at first, you can’t be tried again to be found guilty.
The Sixth Amendment
"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."
Simply put, this amendment guarantees that an accused will simply not “rot in jail” while waiting for a trial that may or may not happen. Also, the accused must know the precise nature of the accusation and to face the witnesses against him in a public court. No secret trials, no anonymous witnesses – everything out in the light of day. And as we discussed in the Miranda case above, the accused must have legal counsel available to help in his defense and the opportunity to present defense witnesses. No one is compelled to face a criminal trial without a lawyer in his corner (civil trials are a different story). While this amendment is extraordinarily important to our justice system, it is also, thankfully, one of the easiest to understand.
The Seventh Amendment
"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 re-examined in any court of the United States, than according to the rules of the common law."
The Seventh Amendment makes for a good bar bet or dinner party trivia quiz: what is the minimum amount of money at stake that guarantees the plaintiff the right to a jury trial in federal civil cases? Yup – you read it right – twenty bucks. One little Andy Jackson or a pair of Alexander Hamiltons gets you the chance to plead your federal civil case in front of a jury. How about that?! In practice, of course, no one goes to a jury trial over twenty dollars, but isn’t it cool that you could?
But perhaps the more important provision of the Seventh is that no federal judge can overrule findings of facts by juries in federal civil cases. The jury (a minimum of six people, as required by the Colgrove v. Battin case, 1973) is the final authority in civil cases.
Interestingly, the Seventh Amendment is one of the few amendments not “incorporated” against the states. In other words, most of the amendments have been found by the Supreme Court to bind the states as well as the federal government, but this one stands out as not being one of them. The states can determine their own criteria for state civil cases regarding minimum amounts of money at stake and jury trials.
The Eight Amendment
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
This shortest of the amendments we are discussing today is also one of the most open to interpretation. What, exactly, is “excessive” bail? Does it depend on the nature of the crime, or the ability of the accused to pay? Can two people accused of the same crime be required to post different amounts of bail? The answers to those questions have not been defined by either the Congress or the Supreme Court, and remains a very subjective judgment on a case-by-case basis.
So, what is “cruel and unusual” punishment? Again, very subjective, but at least there are a few cases to look at, though clearly the Supreme Court’s idea of “cruel and unusual” can change, and often quickly. The Furman v Georgia case of 1972, while not explicitly outlawing capital punishment, effectively ended it, but just four years later, Gregg v Georgia led to the re-introduction of the death penalty, famously in the case of Gary Gilmore, as depicted in Norman Mailer’s Pulitzer Prize-winning book, "The Executioner’s Song".
The question of what precisely constitutes “cruel and unusual” continues to be hotly debates, especially as regards the death penalty. Recent cases of executions by lethal injection that took what seemed to be excessive amounts of time for the condemned to die have re-ignited the debate on the morality and methods of capital punishment.
In less-than-lethal cases, the argument can be – and has been – made that poor prison conditions may constitute cruel and unusual punishments, along with certain types of forced labor by prisoners.
Again, the shortest, but perhaps least clear of all the “Your Day in Court” amendments.
Thanks for reading. Discuss.
Next up – the Ninth and Tenth Amendments