Ranking the bill of rights - Duke University



Ranking the bill of rightsBy Benjamin Zhangcenter850008549640game theory and democracyprofessor hubert brayDuke University1000000game theory and democracyprofessor hubert brayDuke UniversitySummaryThe Bill of Rights is, without a doubt, one of the most influential and controversial documents in the history of the United States. Consisting of the first ten amendments to the United States constitution, the Bill of Rights arose as a result of a dispute between the Federalists and the Anti-Federalists, the latter of which opposed the creation of a strong federal government and refused to ratify the United States Constitution. For over 150 years after its ratification in 1791, the Bill of Rights played a very minor role in judicial proceedings, but beginning in the 20th century, it was thrust into the forefront as the basis for many Supreme Court decisions. Since then, the Bill of Rights has become a major talking point among scholars, politicians, and average citizens alike. Of the ten amendments in the Bill of Rights, certain ones are debated more frequently, while the merit of others is rarely questioned. The differences in the amendments give rise to the question – which ones are more important? While this is a subjective question without a clear answer, what follows is an attempt to answer it quantitatively.All of the amendments were assigned a number on a scale of 1-10 in the following categories: relevance (e.g. does the amendment still apply in today’s society, or is it outdated?), clarity (e.g. is the wording of the amendment clear, or does it spark debate?), and judicial use (e.g. is the amendment cited often in court decisions, or is it rarely mentioned?). The three ratings for each amendment were then averaged, and the amendments were ranked in order of their averages. The following is the table of the amendments, ranked in order of their average score.Judicial UseRelevanceClarityAverage Score1st Amendment1010695th Amendment79886th Amendment5987.3333333334th Amendment78677th Amendment19106.6666666679th Amendment5776.3333333332nd Amendment89168th Amendment6565.66666666710th Amendment36653rd Amendment11104The Bill of Rights is, without a doubt, one of the most influential and controversial documents in the history of the United States. Consisting of the first ten amendments to the United States constitution, the Bill of Rights arose as a result of a dispute between the Federalists and the Anti-Federalists, the latter of which opposed the creation of a strong federal government and refused to ratify the United States Constitution. The Bill of Rights was drawn up by James Madison to limit the power of the United States government and guarantee certain personal freedoms. Only after the Federalists promised to support it did the Anti-Federalists acquiesce and agree to ratify the Constitution (Labunski).For over 150 years after its ratification in 1791, the Bill of Rights played a very minor role in judicial proceedings, but beginning in the 20th century, it was thrust into the forefront as the basis for many Supreme Court decisions. Since then, the Bill of Rights has become a major talking point among scholars, politicians, and average citizens alike. Of the ten amendments in the Bill of Rights, certain ones are debated more frequently, while the merit of others is rarely questioned. The differences in the amendments give rise to the question – which ones are more important? While this is a subjective question without a clear answer, what follows is an attempt to answer it quantitatively.All of the amendments were assigned a number on a scale of 1-10 in the following categories: relevance (e.g. does the amendment still apply in today’s society, or is it outdated?), clarity (e.g. is the wording of the amendment clear, or does it spark debate?), and judicial use (e.g. is the amendment cited often in court decisions, or is it rarely mentioned?). The three ratings for each amendment were then averaged, and the amendments were ranked in order of their averages. While some may claim that this rating system is still rather subjective, it is, at the very least, more quantitative than a simpler system that ranks the amendments solely qualitatively. Still, one must be aware that the inclusion of numbers does not fully remove all subjectivity from the ranking, and therefore, these rankings are by no means absolute definitions of the relative importance of the amendments.The following is the table of the amendments, ranked in order of their average score. Following the table are justifications of the rankings of the amendments presented in the table. Judicial UseRelevanceClarityAverage Score1st Amendment1010695th Amendment79886th Amendment5987.3333333334th Amendment78677th Amendment19106.6666666679th Amendment5776.3333333332nd Amendment89168th Amendment6565.66666666710th Amendment36653rd Amendment11104The First Amendment states that “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” (US Const. amend. I). Throughout the 20th and 21st centuries, the First Amendment appeared time and time again as the primary basis of court decisions. This fact can be attributed to the broad scope of the amendment. The “freedom of speech” doctrine alone has played a role in a variety of Supreme Court cases. Justices have used the doctrine to uphold a conviction for speaking out against the draft during World War I (Schenck), strike down a Los Angeles law that criminalized the distribution of anonymous pamphlets (Talley), and invalidate prohibitions on desecrating the American Flag (Texas). As these cases demonstrate, the ideas in the First Amendment are perennial. As long as speech, religion, the press, etc. exist, they will continue to evolve. As time passes, new disputes involving them that have never been encountered before will appear and be challenged in the courts. The continual evolution of the ideas of the First Amendment, in addition to guaranteeing its current judicial use, seems to also sustain its relevance. First Amendment court cases usually prompt plenty of discussion and action from the American people. A recent case that overturned the Stolen Valor Act, which criminalized false statements about the ownership of a military medal (United States v. Alvarez) prompted outrage from several veterans’ organizations. The First Amendment is also notable because of the ambiguity of several of its phrases. No consensus, for example, has ever been reached on the definition of the word “religion”. It has been suggested that the multitude of religions present in the United States has blurred the concepts of “religion” and “religious beliefs”. Attempts to create a simple, all-encompassing definition by scholars have all failed (Choper). Other ideas in the First Amendment are also not as clear-cut as it may seem at first blush. The United States Copyright Act of 1976 can be interpreted as a law made by Congress that abridges the freedom of speech and the freedom of the press – thus making it unconstitutional (Nimmer). Does that mean that copyright laws in the United States are invalid and should be repealed? One can certainly not be faulted for taking this point of view. All of this leads to the inevitable question – how can you regulate an idea or concept if there is no real consensus on what it actually means? The Bill of Rights has managed to survive for over two hundred years on a couple of these ambiguous ideas. As will soon be demonstrated, many of the other amendments that comprise the Bill of Rights are share the First Amendment’s ambiguity. There exist, however, certain over-arching definitions that are generally accepted by the American people. While no one person may be able to accurately define “religion”, for example, people as a whole generally have an idea of what it means – and that idea is enough to apply to most situations. The courts are waiting for the gray-area situations in which the commonly agreed-upon definition do not apply. Inevitably, the imperfectness of the courts when dealing with these exceptions means that the American people may just have to deal with imperfections like the Copyright Act – they have to be willing to give up some of the freedoms of the Bill of Rights in exchange for security, order, and other conveniences. Although this exchange would have displeased the Anti-Federalists of old, it has so far escaped any major problems.While the First Amendment is not particularly clear in its meaning, the Second Amendment is an absolute free-for-all when it comes to understanding what it is trying to state. It says that “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” (US Const. amend. II). The wording of the amendment (specifically, the inclusion of the second comma) has sparked endless debate. Americans are divided into two groups: the “exclusively state’s right” group, which claims that the amendment only protects the rights of states to maintain organized militias, and the “individual right” group, which claims that the amendment guarantees the rights of individuals themselves to own arms. While most legal scholars side with the former view, the latter can be justified, which has led to “The Great American Gun War” (Kates). The Supreme Court has heard many involving the right to bear arms, and its view on the Second Amendment’s meaning has changed over time. At one point in time, it ruled that the amendment only applied to the federal government (United States v. Cruikshank). However, it has recently decided that the Second Amendment protects the individual right to possess and carry firearms (District of Columbia). It is unlikely that any real consensus will be made in the near future on this issue. The conflict between the two sides of the American Gun War is increased by special-interest groups such as the National Rifle Association. And as long as Americans continue to own guns, there will continue to be high-profile incidents like the Sandy Hook shooting that propagate discussion of the Second Amendment and what it really means. Surprisingly, there still does not exist any useful body of law based on the Second Amendment (Van Alstyne). It remains to be seen whether or not this will change in the years to come. Certainly, the debate over the Second Amendment will continue.The Third Amendment states that “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” (US Const. amend. III). No Supreme Court case has ever directly interpreted the Third Amendment, although it has been invoked in some cases as an indicator of an individual’s right to privacy (Griswold). At the time of the writing of the Constitution, the ideas enumerated in the amendment were relevant. Plenty of involuntary quartering of British soldiers took place in the colonies before and during the Revolutionary War. The damage to persons and property that ensued caused much grief among the colonists and led to the creation of the Third Amendment (Fields and Hardy). Since that time, however, the issue of quartering has not been very prevalent, due to the lack of any modern conflicts on American soil. Today, the Third Amendment appears to merely serve as a deterrent to expanding military power and another tool used to guarantee and protect the individual rights of man (Rogers). It can be seen as a relic of the past and one of the main indicators that the United States Constitution is outdated and needs to be revamped. There does exist a minority of people in the United States that promotes this viewpoint.The Fourth Amendment states that “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” (US Const. amend. IV). Like the first amendment, the Fourth Amendment suffers from a lack of clarity, as it contains plenty of ambiguous verbiage. The main problem is that, over time, the Supreme Court appears to have broadened its scope in a way that the Framers of the Constitution had not intended it to be. At the time of the writing of the Constitution, there were two main legal doctrines: common law, which dealt with criminal arrests and searches, and legislation, which dealt with customs and excise revenue searches. The Fourth Amendment was created primarily for use in situations involving the latter. It is unlikely that it was ever supposed to be applied to criminal searches – that was the expected job of the “due process of law” clause of the Fifth Amendment (Davies). This expansion of power has caused much of the confusion and chaos surrounding the Fourth Amendment today.The Fourth Amendment, like the First Amendment, derives its longevity from the fact that its primary ideas are continuously evolving. The “unreasonable searches and seizures” phrase has been involved in a wide variety of cases over the years, ranging from one that upheld the constitutionality on searches by public school officials (New Jersey) to one that held that a strip search (a more modern phenomenon) by school officials was unconstitutional (Safford Unified School District). These two cases also demonstrate one of the main problem plaguing the Fourth Amendment over the years: often, different courts will reverse or partially reverse the decisions of former courts, making it difficult for the amendment to certain one clear meaning. For example, the court enforced the exclusionary rule, which states that evidence obtained through a violation of the Fourth Amendment is inadmissible, during the years of the Warren Court (Mapp). However, the subsequent Burger Court handed down a multitude of Fourth Amendment decisions that gave more power to the police and lessened the power of the exclusionary rule (Wasserstrom). While the amendment remains relevant, due to the continuing presence of searches and seizures in everyday life, the contradictions of the Supreme Court in various legal cases centered on it have made its text rather murky as a whole.The Fifth Amendment begins a series of series amendments that relate to the operation of trials and other legal affairs. These amendments are all very much relevant today. The United States has a rather abstruse legal system that does not always produce results that are popular among the persons involved in the case and the American people in general. The recent George Zimmerman trial is an example of a case that sparked an intense debate over the American justice system. Due to the status and structure of the system, it is extremely imperative to guarantee the rights of an individual in court. The ultimate goal of the justice system to is to produce a fair and just resolution to any case. While the amendments do not necessarily assure that this goal is met, they help to defend against results that could be deemed outrageous forms of justice. The Fifth Amendment enumerates some important protections afford to individuals during trials. It states that “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” (US Const. amend. V). These protections have more or less stood the test of time, with the Miranda warning – given to a suspect by the police to inform him of his rights to remain silent and obtain an attorney – being the most famous result of a Supreme Court decision regarding one of these protections, namely the privilege against self-incrimination (Miranda).The scope of the Fifth Amendment is surprising. For example, while its due process clause might only seem to serve a function in the courtroom, it was actually relied upon by the Supreme Court to overturn part of the Defense of Marriage Act (United States v. Windsor). The takings clause of the amendment, which expounds upon the ideas of eminent domain and “just compensation” is another indicator of the evolution of the ideas of the Fifth Amendment and the variety of situations in which it can be applied. Originally, the clause was devised by James Madison as a simple safeguard for rights in general. In the eighteenth century, it was not unusual for colonial legislatures to take private property without offering its corresponding owner any form of compensation. At the time, land was taken primarily for use in building public roads (Treanor). Today, the same takings clause created by Madison over two hundred years ago may play a factor in future court cases involving net neutrality. The Federal Communication Commission’s recent attempts to regulate the content of the Internet can be interpreted as a permanent occupation of private broadband networks and a taking of the providers of these networks’ property without “just compensation” (Lyons). No arguments along these lines have yet found their way into courtrooms, but they may in the near future, thanks to the power and eternal presence of the Fifth Amendment. Continuing along the lines of individual rights in legal matters, the Sixth Amendment states that “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” (US Const. amend. VI). Like the Fifth Amendment, the Sixth Amendment has not been debated as much as some of its compatriots in the Bill of Rights. Nevertheless, the courts have occasionally had to clarify certain elements of the Sixth Amendment. One of the most notable cases involving the amendment declared that its right to counsel was a fundamental right as a result of due process, a clause contained in the Fifth Amendment that acts as a safeguard from denial of life, liberty, or property by the United States government (Gideon). While the Fifth Amendment itemized notable, generic trial protections, the Sixth Amendment focuses on criminal proceedings. Society tends to attach more gravity to these proceedings, and therefore, they must be regulated to ensure that as few mistakes as possible are made. The Sixth Amendment helps to lessen the possibility that there will be a rush to accuse and jail a defendant by providing him or her with a counsel and right to defend himself or herself in a court. The least desirable result – placing an innocent citizen in prison for a crime s/he did not commit – is less likely to occur as a result. The Sixth Amendment still raises some important questions, however. The word “counsel” does not have a clearly-defined meaning. Does a recent law school graduate who was never participated in a criminal case count as “counsel”? The prosecution and the defense in the case may answer this question differently. The qualifications of a counsel may be seen as some as important to consider, but as inconsequential by others (Green). Another interesting section of the Sixth Amendment addresses the “compulsory process for obtaining witnesses”. With not many opportunities to address this particular clause, the Supreme Court has ruled in a variety of manners. There are two noteworthy opinions. One interprets the right to procure witnesses broadly, stating that any evidence that can be measured by a jury under the adversary system (e.g. cross-examination, jury instructions) is able to be presented by the accused. Another opinion of the court takes a much narrower point of view, stating that any rational concern that any evidence is trustworthy or reliable cannot be employed by the accused (Hoeffel). All of this goes to show that even the least controversial amendments can still be the subject of debate from differing points of view.The Seventh Amendment, like the Third Amendment, is notable for its lack of controversy. It states that “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” (US Const. amend. VII). With the Sixth Amendment addressing the use of juries for criminal cases, the Seventh applies their use to civil suits. The main point of contention regarding the amendment is normally not an individual’s right to a civil jury. There does exist the view, however, that civil juries are inefficient, swayed by sympathy, and occasionally simply incompetent, rather than cornerstones of democratic government (Moses). Rather, it is the “historical test”, which states that the Seventh Amendment relies on English common law to determine whether or not a civil jury is necessary in a particular trial (United States v. Wonson). However, this test presents certain troubling questions. Is it not far too difficult to determine the exact codification of English common law that is hundreds of years old? And does not the reliance on this common law mean that the United States’ supposedly-modern judicial system relies on the antiquated policies of a society that is also hundreds of years old?The Eighth Amendment states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (US Const. amend. VIII). Like the First, Second, and Fourth Amendments, the Eighth Amendment has its influence marred by questionable diction. The amendment is at the heart of one of the most prominent ethical issues – the death penalty. The million-dollar question is whether or not the death penalty can be considered “cruel and unusual punishment”. In the 1970s, the Supreme Court famously answered “yes” (Furman) and “no” (Gregg). There is no real good answer to this much-discussed question. While most individuals have the same general concept of what can be constituted “cruel and unusual”, when it comes to the death penalty, opinions run the gamut. The death penalty illuminates one of the main problems of the Eighth Amendment – its provisions often vary from one area of the United States to the next. Capital punishment is not a legal sentence in all fifty states, for example. Laws dealing with bail also vary from state. The natural question that arises is: can you regulate the doctrines of the Eighth Amendment with this sizeable variance present in the United States? The Supreme Court has struggled to answer this question. In two recent cases, Baze v. Rees and Kennedy v. Louisiana, the Court chose defer to state policy to a high degree in the former and not defer to state policy at all in the latter. There was no justification from either the Court or legal scholars for these actions (Berger). With verdicts being handed out in the United States every day and the desire to not administer any extreme sentences at the forefront, it can be seen as troubling that the Supreme Court is still searching for answers, especially because Eighth Amendment cases are continuing to evolve as time passes. A recent Supreme Court decision ruled that prison officials who deliberately ignore a substantial risk of harm to an inmate violate the Eighth Amendment (Farmer). Although some lauded the ruling, it appeared to raise more questions than answers. The fact that officers were liable only for risks that they noticed could encourage them to simply not pay attention to them in the first place, thus putting the inmates at more risk than before. Also, the case addressed a specific aspect of prison life and only focused on a small part of the picture. It is likely that prison life is in reality much harsher than the picture the case painted. The point of view that American prisons are themselves “cruel and unusual punishment” may soon become a valid argument in the courts (Dolovich).The Ninth Amendment states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (US Const. amend. IX). It is perhaps one of the more quirky and interesting amendments in the Bill Rights. The Ninth Amendment has not been cited very often in judicial proceedings, most likely as a result of its rather broad, sweeping language that makes it difficult to pin down its exact meaning. It was created by James Madison, a Federalist, as an attempt to mitigate the evils he believed would arise from the addition of a Bill of Rights to the Constitution and a summation of his arguments against the document (Dunbar). It played a minor role in an aforementioned Supreme Court case that ruled a Connecticut law criminalizing contraceptive use violated the individual right to privacy (Griswold). Since that case, however, attempts to clarify the definition of the Ninth Amendment and use it in court cases – most notable Roe v. Wade – have on the whole failed. However, the ranks of those who believe it to protect “judicially enforceable unremunerated rights” is growing. That is, the Ninth Amendment acts as a defense for rights of man that are not explicitly stated in the Constitution (McAffee). Thus, paradoxically, the Ninth Amendment, while not appearing to be particularly important, may serve a much larger function in the Bill of Rights than one could have imagined.The Tenth Amendment, like the Third and Ninth Amendments, is one of the least cited amendments of the Bill of Rights. It states that “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” (US Const. amend. X). The Supreme Court has only used it in situations in which the federal government must compel the states to enforce federal statutes. One particular case ruled that Congress could not compel states to enforce a regulation of the low-level radioactive waste within their borders (New York). Other than the occasional mention, however, the Tenth Amendment is largely absent from the discussion of scholars and citizens alike, although it has enjoyed a resurgence in popularity beginning with Justice Clarence Thomas and the Rehnquist Court. The lack of popularity of the Tenth Amendment can be partly explained by its origins. It was drafted by James Madison to reinforce the enumerated powers scheme of the Constitution (Mayer). However, since Ninth Amendment has become more of the poster child for the enumerated powers idea, as previously mentioned, the Tenth Amendment has essentially taken a backseat to its predecessor. It has found a small niche due to the fact that it addresses the rights of states. However, there is a limitation associated with this – namely, the fact that the Constitution and federal laws take precedence over state laws. Thus, the rights that the Tenth Amendment affords states are inherently limited, further increasing the amendment’s lack of applicability (Abrams).Works CitedChoper, Jesse H. "Defining religion in the First Amendment." U. Ill. L. Rev. (1982): 579.Nimmer, Melville B. "Does copyright abridge the first amendment guarantees of free speech and press." UCLA L. Rev. 17 (1969): 1180.Kates, Don B. "Handgun prohibition and the original meaning of the Second Amendment." Michigan Law Review 82.2 (1983): 204-273.Van Alstyne, William. "The Second Amendment and the Personal Right to Arms." Duke Law Journal 43.6 (1994): 1236-1255.Fields, William S., and David T. Hardy. "The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History." The American Journal of Legal History 35.4 (1991): 393-431.Labunski, Richard. James Madison and the Struggle for the Bill of Rights. Oxford University Press, 2006.Rogers, James P. "Third Amendment Protections in Domestic Disasters." Cornell JL & Pub. Pol'y 17 (2007): 747.Davies, Thomas Y. "Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment Search and Seizure Doctrine, The." J. Crim. L. & Criminology 100 (2010): 933.Wasserstrom, Silas J. "Incredible Shrinking Fourth Amendment, The." Am. Crim. L. Rev. 21 (1983): 257.Treanor, William Michael. "The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment." The Yale Law Journal 94.3 (1985): 694-716.Lyons, Daniel A. "Virtual Takings: The Coming Fifth Amendment Challenge to Net Neutrality Regulation." Notre Dame L. Rev. 86 (2011): 65.Green, Bruce A. "Lethal Fiction: The Meaning of" Counsel" in the Sixth Amendment." Iowa L. Rev. 78 (1992): 433.Hoeffel, Janet C. "Sixth Amendment Lost Clause: Unearthing Compulsory Process, The." Wis. L. Rev. (2002): 1275.Moses, Margaret L. "What the Jury Must Hear: The Supreme Court's Evolving Seventh Amendment Jurisprudence." Geo. Wash. L. Rev. 68 (1999): 183.Berger, Eric. "In Search of a Theory of Deference: The Eighth Amendment, Democratic Pedigree, and Constitutional Decision Making." Wash. UL Rev. 88 (2010): 1.Dolovich, Sharon. "Cruelty, Prison Conditions, and the Eighth Amendment." NYUL Rev. 84 (2009): 881.McAffee, Thomas B. "Original Meaning of the Ninth Amendment, The." Colum. L. Rev. 90 (1990): 1215.Dunbar, Leslie W. "James Madison and the Ninth Amendment." Va. L. rev. 42 (1956): 627.Mayer, David N. "Justice Clarence Thomas and the Supreme Court's Rediscovery of the Tenth Amendment." Cap. UL Rev. 25 (1996): 339.Abrams, Kathryn. "On Reading and Using the Tenth Amendment." Yale LJ 93 (1983): 723. ................
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