What is the purpose of the Bill of Rights?

[4freemarket]

The discussion on Open Carry is very interesting. It raises the question:

What is the purpose of the Bill of Rights?

There is an all encompassing answer that is shorter than the question. What would that answer be?

 

[Atomic Pirate]

To add to the Constitution when necessary and provide a method to keep it updated and with the times.

 

[Oryx]

To add to the Constitution when necessary and provide a method to keep it updated and with the times.

Wait, but the bill of rights says nothing about updating the Constitution.

 

[4freemarket]

Oryx is correct.

The Bill of Rights says NOTHING about changing the Constitution, OR updating the Constitution to keep up with the times.

 

[Atomic Pirate]

Oryx is correct.

The Bill of Rights says NOTHING about changing the Constitution, OR updating the Constitution to keep up with the times.

I meant that it provides a method to update it by providing a method to amend it because times change, and sometimes new amendments are necessary. I didn't mean that it changes what the constitution says.

 

[4freemarket]

"and sometimes new amendments are necessary."

Yes, sometimes the Constitution needs to be amended. Article V of the Constitution describes the methodology for such changes, not the Bill of Rights.

 

[Corvus of the Black Night]

Traditionally, the Bill of Rights were a group of amendments added to the Constitution so that it could be accepted by enough states to become validated.

Today, each amendment has its own unique issue with current day politics (bar the 3rd amendment)

"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."

A very relevant amendment, and a powerful one too. It means that, as long as people abide by peaceful requirements, they are allowed to pretty much say what they want. Some people abuse this amendment by claiming that it revokes the ability to disagree with someone - this is the exact opposite of what happens: freedom of speech protects people to say whatever they want, but it also allows anyone to form a rebuttal. It simply claims that government censorship is forbidden. What is interesting is that often on a smaller scale (and even on a larger scale), this particular amendment is broken, in the case of things like banned books.

Most parts of this amendment don't really face much opposition in terms of defining it (outside of libel and slander cases), but freedom of religion is an exception. Many social issues balance on this, and, because it's hard to draw the line between "equal rights" and "religious beliefs", it often pops up in modern culture.

"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."

I.E. Right to bear arms. A very vague amendment that has lead to some controversy due to the advancement of gun technology, making them much more dangerous than when this was written. Bottom line though, it is THE amendment that prevents the government from a complete militarized takeover unlike many other states - nobody likes to argue with a shotgun.

Personal opinion: While regulations on firearms are not breaking this rule (you still have the right to have them, just not go and do some stupid ♥♥♥♥ with them), outright eliminating them does go against this amendment. Depending on the future of firearms and American culture, it may be necessary to produce another amendment that revokes this one (similar to Prohibition) but it's much too early to tell.

"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."

Due to the United States never fighting on their own home turf for the last 100 years, this amendment is irrelevant. It was written as a response to Redcoats forcing American colonists to house soldiers in wars, such as in the French and Indian war.

"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."

This basically means that the government cannot search through your stuff without a reason. There are exceptions, such as the common plain sight (sorry kids - having a bong in your car is not covered by this amendment). This is actually the amendment that sparked all the controversy regarding the NSA and Snowden, so I believe it's an extremely relevant amendment, especially considering the computer age. However, in very few circumstances, such as child pornography, it is reasonable to excuse a person's privacy for protecting, say, children being taken advantage of and abused.

"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."

Basically, when you go are arrested for a crime, you have the right to be treated fairly by the courts. You cannot be charged with something and have any damages to your person or your belongings until you are convicted.

Although not as frequent as some other amendments, I would still say this one is very relevant, as it forces courts to at least have some fairness.

"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."

The 6th amendment is additional stuff for the fifth. It goes into more detail about what services must be provided for criminal cases, such as access to a lawyer. Similar to the 5th, it's less relevant than some other amendments but it's still important.

"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."
Basically, right to a jury and you can't be charged twice with the same crime. In almost all cases this helps protect people's innocence (there are very few cases where incriminating evidence for a crime was found later and the criminal could not be charged, but this is extremely rare). A very important amendment.

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

Punishments must suit the crime, basically. You can't be lynched for stealing a $5 keychain in Claire's. The execution of this amendment is extremely debatable, since there are many laws that are considered "cruel and unusual punishment", such as minor violations of drug use or animal welfare laws. In addition, some people cite this amendment when regarding unlawful treatment of people from officers, such as random beatings or tasering.

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

Basically, just because the rights aren't outlined here in the constitution doesn't mean that they don't exist. Going back to "freedom of religion", this is the counterargument to the "religion vs oppression" debate. For example, you could argue that homosexual marriage should be illegal because it goes against religious rights; however, the other side could argue that due to the 9th amendment, eliminating rights for other people just because it's not in the constitution is unconstitutional. This is often paired with the 13th amendment.

"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."
Basically, if it's not mentioned in the constitution, it's a state or people based issue. Not really followed considering many federal laws are not directly in the constitution, but the constitution is pretty clearly not meant to be read literally, considering its ability to be amended.

 

[4freemarket]

Well thought out response, daigonite, but it bypasses the question, "What is the purpose of the Bill of Rights?"

True, the Constitution would not have been adopted had the Bill of Rights not been attached but what problem did the the Bill of Rights solve for the Colonists? Is that purpose still valid?

 

[Corvus of the Black Night]

Well thought out response, daigonite, but it bypasses the question, "What is the purpose of the Bill of Rights?"

True, the Constitution would not have been adopted had the Bill of Rights not been attached but what problem did the the Bill of Rights solve for the Colonists? Is that purpose still valid?

"Traditionally, the Bill of Rights were a group of amendments added to the Constitution so that it could be accepted by enough states to become validated."

This is the most literal response to it.

Historically, the Bill of Rights was added to the constitution because some colonies did not want to join together, due to not agreeing with certain parts of the constitution, even after it was considered "published". Therefore, the Bill of Rights' original purpose was to provide unity and bring the country together on a united government system. Without that, it is likely that the United States would be divided by more powerful countries and would not exist today in its present form.

The individual amendments themselves, for the most part, are still relevant today, although their original "purpose" has changed.

 

[4freemarket]

We are getting there but I would disagree that the original purpose of the Bill of Rights has changed.

The several Colonies would not have approved the new Constitution because, as written, it gave too much power to the Federal Government and restricted the individual's ability to control his own destine too much.

The real purpose, the sole purpose, of the Bill of Rights was, and is, to protect the citizens from their government. Every single Amendment of the Bill of Rights restricts the power of government to impose its will upon the citizen. There is no other reason for the Bill of Rights.

The fact that citizens have gradually, all be it willingly, given more and more authority to the Federal Government at the cost of personal liberty does not mean the purpose has changed.

 

[Esper]

What problem did it solve? It made it so people would compromise and stick together under one set of laws. That's a good thing, generally speaking. If not for something like this then every colony/state/group/etc. would try to form its own little country and they'd all have wildly differing laws and rules and beliefs and a lot of them would probably be at odds with one another and starting fights and wars and so on.

What it did was make people learn to live and work together. Well, maybe not as well as we could, but as a country America is much more open to difference than many other modern countries.

 

[4freemarket]

Esper, you are confusing the Constitution with the Bill of Rights. The Constitution established specific responsibilities for each of the three Branches of Government. It set uniform procedures for making laws that affect the whole of the nation. The Bill of Rights specifically enumerated things the Federal Government could NOT do.

 

[Corvus of the Black Night]

We are getting there but I would disagree that the original purpose of the Bill of Rights has changed.

The several Colonies would not have approved the new Constitution because, as written, it gave too much power to the Federal Government and restricted the individual's ability to control his own destine too much.

The real purpose, the sole purpose, of the Bill of Rights was, and is, to protect the citizens from their government. Every single Amendment of the Bill of Rights restricts the power of government to impose its will upon the citizen. There is no other reason for the Bill of Rights.

The fact that citizens have gradually, all be it willingly, given more and more authority to the Federal Government at the cost of personal liberty does not mean the purpose has changed.

This is debatable. I'm not denying that it is part of what the bill of rights is about, however, it is unlikely that it was written as simply for that reason. If it were, it would not need to be included as a set of ten amendments in the first place.

Your description of the Constitution in response to Esper's post is quite naive. The Constitution is not merely a list of things the "government can do". It is the actual construction of the government. It lays out the responsibilities of each side of government, and how the entire system is supposed to work. It lists what branches of government can do because that is necessary in describing a government itself. The reason why the bill of rights was not initially included in the Constitution is because initially, the Constitution was written as a document to explain the construction of the government of the United States.

Our forefathers were not perfect beings. In fact, I honestly believe their most important contribution was the power of foresight - the realization that the Constitution would need to be amended. This is realized extremely quickly as there was a very big split between the colonies in terms of ratifying the Constitution. The Bill of Rights was added to help encourage more colonies to join. Not only this, but the Bill of Rights is also considered a sort of "rebuttal" to the actions of the British colonies at the time. This is notable since most of the amendments in it are relevant to Colonial issues (The first amendment for example is a retaliation to how Britain only promoted one major religion, and the third amendment, which is almost useless today, is a retaliation against quartering soldiers in residential areas during the French and Indian War).

It was initially honestly less about anyone's freedoms and more about getting as many people on board to promote unity. Only later would it be recognized more as a platform for freedoms.

It should be noted that the freedoms of Americans have actually greatly expanded in many ways since the endowment of the original Bill of Rights, including a much more heterogeneous population and expanding those people's rights through several further amendments, most notable being the 13th, 14th, 15th, 19th and 24th amendments.

Your comment about citizens giving up their rights gradually is plain false. Federal power has actually fluctuated several times in American History. One of the most intense times of federal power was actually in WWII, over 70 years ago. What is occurring now is much less than other "spike" periods of federalism and honestly is debatable depending on who you ask. There are certain rights that have most certainly been infringed upon by the government, but it is also important to remember that the world that we live in now is much different than that which existed 200 years ago.

A good example is Child Pornography. The authours of the Constitution and the Bill of Rights could not have predicted the emergence and distribution of child pornography in the scale that exists today. While it violates one's right to privacy to invade someone's personal browsing space, this is done to locate hosts for child pornography, locate the children and punish the host, producers and consumers of it. Most people would believe that this is a perfectly fine exception to one's constitutional rights, because it protects children who were preyed on by very manipulative and abusive people.

This leads to a debate that is almost as old as the Constitution itself - should it be read literally or should it have flexibility? While the 9th amendment actually condones the latter, it is still up to debate just "how" liberally one should take it. A fully literal reading is probably not the best route in today's modern world (it was written over 200 years ago after all; even less than 50 years after it was written the Constitution was essentially ignored with the Louisiana Purchase) but the level of liberation from the original premises are debatable.