Info Brief: A Walking Tour of the Bill of Rights

Review the rights protected in the first ten amendments to the United States Constitution.

The First Congress formally approved the Bill of Rights on September 25, 1789, and sent it to the states for ratification. On December 15, 1791—so, over two years later—the first ten amendments to the Constitution were ratified. Today, we refer to these first 10 amendments as the Bill of Rights. These amendments originally applied only to abuses by the national government—not the states.

Ratified after the Civil War, the Fourteenth Amendment—and later Supreme Court cases—would extend many of these rights to protect the American people against state abuses. Scholars call this process “incorporation.”

Today, the Bill of Rights is now truly a national charter of national freedom—applying to abuses by all levels of government—national, state, and local.

Let’s walk through the ten amendments that make up the Bill of Rights. In this discussion, we’re going to borrow from Yale’s Akhil Reed Amar, using his helpful frame for bundling certain sets of rights protected in the Bill of Rights.

First Amendment

We begin with the First Amendment, which is its own bundle of rights—including rights associated with religion, speech, press, assembly, and petition. These five freedoms connect broadly to our freedom of conscience.

Religion

The First Amendment protects religious liberty in two ways.

First, it guards against government establishment of religion. And second, it protects the free exercise of religion.
Together, these constitutional promises are at the core of our freedom of conscience—the right to freely believe (or not) as we wish.

Speech and Press

Generally speaking, the government may not jail, fine, or punish people or organizations based on what they say or write, and the Supreme Court protects speech unless it is directed to (and likely to) cause immediate lawless action.
Today, the Supreme Court protects free speech rights more strongly than at any time in our nation’s history—and American free speech protections are among the strongest in the world.
At the same time, there are certain contexts when the government has more leeway to regulate speech—for instance, with low-value speech like defamation or when speakers (like public school students) have a special relationship with the government.

Assembly and Petition

Throughout American history, minorities and those without power have used assembly and petition rights to find voice and power in their quest for greater freedom and equality.
The list includes African Americans, women, unpopular political groups (like the abolitionists in the early 1800s), and many others.

Second and Third Amendments: The Military Amendments

It’s possible to group the Second and Third Amendments together as “Military Amendments.”

Second Amendment

For the Founding generation, the Second Amendment addressed early concerns about standing armies and the value of rooting the community’s (and nation’s) safety in a “well-regulated,” citizen-led (and -filled) militia.

In recent decisions, the Supreme Court has also ruled that the Second Amendment grants an individual right to keep and bear arms for self-defense.

Third Amendment

The Third Amendment protects us from being forced by the government to house soldiers in our homes in times of peace. It grew out of the experience of the British Quartering Act of 1774. The Founding generation saw these British abuses as tyrannical and viewed this Act as invading the sanctity of private property and the home.

Fourth Amendments: Privacy and Property Rights

It’s possible to bundle the Fourth Amendment together with the Fifth’s Amendment’s Takings Clause to cover concerns about privacy and property rights.

Fourth Amendment

The Fourth Amendment can be broken down into a few parts:

Which things are protected?: persons, houses, papers, and effects.
Against what?: unreasonable searches and seizures by government officials.
However, there is a warrant exception.

The bottom line is that before the government can search your home or seize your property, it needs a good reason.

The Fifth Amendment’s Takings Clause

The Fifth Amendment’s Takings Clause is connected to the Founding generation’s commitment to property rights. It protects private property from being taken by the government for public use without just compensation. It means that if the government wants to take your property, it has to be for public use and the government has to pay you a fair price for it.

Fifth, Sixth, Seventh, and Eighth Amendments

It’s possible to bundle the rest of the Fifth Amendment, the Sixth Amendment, the Seventh Amendment, and the Eighth Amendment into concerns about “Fair Process, Jury Rights, and the Rights of the Accused.”

Fifth Amendment

Let’s begin with the rest of the Fifth Amendment. It grants certain rights to criminal defendants: the “right to remain silent”/against self-incrimination (e.g., “you have the right to remain silent” and “I plead the Fifth!”), the right to protection against double jeopardy, a right to a grand jury for capital crimes, etc.

It establishes a right to the due process of law—a fair process—before the government may deprive anyone of life, liberty, or property.

Sixth Amendment

The Sixth Amendment grants even more rights to criminal defendants.

Right to a jury trial in criminal cases
Right to counsel (So, to a lawyer)
A speedy and public trial
An impartial jury
The “right to be informed” of what crime the government is charging against you
The Confrontation Clause—basically, a right to cross-examine witnesses against you in person
Compulsory process for witnesses—basically, the power of the court to order someone to appear in court as a witness for the defense

Seventh Amendment

The Seventh Amendment grants the right to a jury trial in civil (so, non-criminal) cases. It responded to a key concern of the Anti-Federalists.

Eighth Amendment

The Eighth Amendment protects the right against cruel and unusual punishment, excessive bail, and excessive fines. It reflected concerns of Anti-Federalists like Patrick Henry, who worried that a new (and powerful) national government would simply invent new crimes to oppress the American people.

Ninth and Tenth Amendments: Popular Sovereignty Amendments

It’s possible to bundle the Ninth and Tenth Amendments together as “Popular-Sovereignty Amendments.”

Ninth Amendment

The Ninth Amendment is Interpreted by many scholars to write natural rights into the Constitution—a cautionary note that the American people have even more rights than are written clearly into the Constitution itself. It reflects widespread concerns that the Bill of Rights might not list all of the most important rights/liberties and might not limit the national government’s power enough.

Tenth Amendment

The Tenth Amendment reflects the Constitution’s commitment to federalism—the traditional balance of power between the national government and the states. It was meant to protect the “reserved powers” of the states—meaning the powers that the states held before the Constitution was ratified (the “police power”).

Big Idea

With the Bill of Rights, the founding generation wrote some of our nation’s most cherished liberties—from free speech to religious liberty and due process—into the Constitution. As originally crafted, the Bill of Rights protected Americans from abuses by the national government. However, with the ratification of the 14th Amendment and later decisions by the Supreme Court, the Bill of Rights is now truly a national charter of national freedom—applying to abuses by both national government and the states.

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