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Amending the Constitution, the "Bill of Rights"
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PostPosted: Tue Jan 31, 2012 10:21 pm    Post subject: Seventh Amendment - Civil Law Rights  Reply with quote

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 re-examined in any Court of the United States, than according to the rules of the common law.

The Fifth and Sixth Amendments had addressed alleged criminal acts, and the rights of individuals when accused - stuff covered in 12 of the 13 States' Constitutions but not in the recently ratified United States' Constitution.

Those enumerated criminal law rights had pretty much been the common experience of all the residents in all the Colonies - regardless of if their, and their ancestors,' had been immigrants from Britain, Ireland, Moravia, or any of the numerous Holy Roman Empire and Scandinavian kingdoms.  
But the civil laws of the Colonies, and then of the States, differed considerably from one another, depending on the heritage of the first and subsequent waves of settlers in each Colony.

The First federal Congress had attempted to standardize that perceived defect with: "The next great right is that of trial by jury. This provides that neither life, liberty nor property can be taken from the possessor, until twelve of his 'countrymen' shall pass their sentence upon oath against him."

The writers of the U.S. Constitution did not see fit to address this (or to include any Bill of Rights, as the States' Constitutions did), and the proposers of what has become the Seventh Amendment loosened the terms - changing the original parameters to establish a minimum value of property before an alleged crime merited a jury trial, and removing the mandate for a unanimous verdict of 12 jurors (like required in criminal trials).  No specific number of jurors is specified and "common law" only required a simple majority for a judgment.  

And this civil law amendment is a bit different than the criminal ones regarding so-called double jeopardy; "no fact tried by a jury, shall be otherwise re-examined...." (emphasis mine).  

In other words, although a civil judgment by a jury can be appealed to a higher court for review of a number of procedural things, including the punishment assigned, the "facts" cannot be reviewed, i.e. the appellate court/judge can't consider alleged new "factual evidence."  

Whatever a majority of what the jury accepts as factual is it, and a "preponderance of evidence" is all that is required; not the "guilty beyond a reasonable doubt" that is required in criminal trials.  

Links to background reading: http://press-pubs.uchicago.edu/founders/documents/amendVIIs10.html
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PostPosted: Wed Feb 01, 2012 9:19 pm    Post subject: 8th Amendment Reply with quote

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

Background documents:

I particularly like the questions raised in the debate in the House of Representatives - and still hear the same questions today, except maybe the "ear" and "whipping" thingees.


Mr. Smith, of South Carolina, objected to the words "nor cruel and unusual punishments;" the import of them being too indefinite.

Mr. Livermore:
The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary.

What is meant by the terms excessive bail?

Who are to be the judges?

What is understood by excessive fines?

It lies with the court to determine.

No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel?

If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.
--- end ---

In Albuquerque, New Mexico courts today a "$1 million cash only" bond is often required!
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PostPosted: Wed Feb 01, 2012 9:44 pm    Post subject: The 9th Amendment Reply with quote

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

Background documents: http://press-pubs.uchicago.edu/founders/documents/amendIXs8.html

This seemingly simple logic continues to this day to somehow be hard to grasp by some people.

Just because certain rights are stated DOES NOT imply that other rights - not stated - can't or don't exist.

Conversely, just because a right is not mentioned doesn't mean it isn't real - after all NONE of these rights were outlined in the Constitution when it was ratified. And in fact it was the concern of the so-called Anti Federalists (actually they were Anti Ratification unless individual rights were included in the Constitution as they did believe in a federal government) that people wouldn't grasp the simple logic which led them to insist on this specific clause of understanding.
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PostPosted: Wed Feb 01, 2012 9:52 pm    Post subject: Tenth Amendment Reply with quote

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.

The 10th Amendment - which draws the line between the powers of the federal government and the powers of the individual states - remains contentiously argued today, especially the concept which was covered in the 9th Amendment in re rights.  

Which is whether all the powers "not delegated to the United States by the Constitution" in the originally ratified Constitution totally encompass the federal powers - at least until an Amendment is ratified.

The "line" was drawn in almost the same words in Article II of the previous U.S. Constitution (Articles of Confederation of 3/1/81), but the alternate wording of "not EXPRESSLY delegated to the United States by the Constitution" was wanted by some of the Fathers, and was addressed in the Ratifying Conventions in Pennsylvania and North Carolina.  Federal Farmer #16 of 1/20/88 and Federalist #45 of 1/26/88 also argued the issue of whether any power not expressly listed for the federal government could later be inferred by the Executive or legislated or adjudicated.

The above and more are linked here:

Finally the issued was resolved in the House of Representatives in debates from 8/18 to 8/1/89, when "EXPRESSLY" was removed from the phrase by a vote of 32 to 17; see debate:
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PostPosted: Thu Feb 02, 2012 8:31 pm    Post subject: RATIFICATION of the AMENDMENTS Reply with quote

As previously noted in the first post on this thread, several dozen Amendments had been proposed during the States' Ratifying Conventions of the Constitution - and the expectation that the proposed Amendments would be considered by the First Congress constituted the argument/compromise which resulted in the ratification of the Constitution.

The several dozen proposals were wittled down to a couple of dozen by the U.S. Senate, than again reduced to 12 by the U.S. House of Representatives - which on 9/25/89 were submitted to the States' for ratification review.

On this thread the background documents and the debates in the House for the first 10 Amendments - which we now refer to as the Bill of Rights - are linked and/or discussed.  In fact those 10 were #3 thru #12 of the 12 Amendments approved by the House, and sent to the States on 9/25/1789.

The 1st was:
"After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons."

The 2nd was:
"No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened."

The 12 Amendments were ratified by the States as follows:

Maryland, South Carolina, North Carolina, Rhode Island and Providence Plantation, and Virginia ratified all 12 of the Amendments.

Delaware ratified all but the 1st.

New Hampshire, New York, and New Jersey ratified all but the 2nd.

Maryland ratified all but the 1st and 2nd.

Virginia ratified on 12/15/1791, and established the majority which made the then re-numbered first 10 Amendments a part of the U.S. Constitution.

Massachusetts, Connecticut, Georgia and Kentucky didn't bother to hold votes as the issue was moot - although in a fervor of pre-WWII concern of potential federal executive and legislative abuse, Massachusetts, Connecticut and Georgia ratified the First Ten Bill of Rights in 1939.

And the original 2nd Amendment as proposed - and not ratified - in the 18th century, was resubmitted as the 27th Amendment in the 20th century and ratified by the States on May 7th, 1992! Better late than never?

The Supreme Court held its first session 5/29/90, and the 11th Amendment was ratified on 2/7/95 and the 12th on 6/15/1804, thus wrapping up the changeover from the United States under the Articles of Confederation and Congress to the United States under the current Constitution as amended, and the continuous Congresses from the 1st to the 112th.
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PostPosted: Wed Sep 12, 2012 11:37 pm    Post subject: Re: Freedoms of Speech/Press Reply with quote

bieramar wrote:
[On page 1 of this thread]:

The rights of a free press and speech also had a long history of debate in the Colonies, and then in the States, including in many of the Anti Federalist and Federalist papers during the Ratification months.
Portal to the documents: http://press-pubs.uchicago.edu/founders/tocs/amendI_speech.html

The House of Representatives in the 1st Congress also debated the proposed Amendment, prior to sending the package of amendments to the States for ratification.

On 6/8/1789 Madison and Jackson offered opposing views as to the necessity of addressing freedoms of individuals' speech and of the press - all emphasis mine:

[Mr. Madison] The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable....

No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases....

The first of these amendments relates to what may be called a bill of rights. I will own that I never considered this provision so essential to the federal constitution, as to make it improper to ratify it, until such an amendment was added; at the same time, I always conceived, that in a certain form, and to a certain extent, such a provision was neither improper nor altogether useless.

I am aware, that a great number of the most respectable friends to the Government, and champions for republican liberty, have thought such a provision, not only unnecessary, but even improper; nay, I believe some have gone so far as to think it even dangerous.

Some policy has been made use of, perhaps, by gentlemen on both sides of the question: I acknowledge the ingenuity of those arguments which were drawn against the constitution, by a comparison with the policy of Great Britain, in establishing a declaration of rights; but there is too great a difference in the case to warrant the comparison: therefore, the arguments drawn from that source were in a great measure inapplicable.

In the declaration of rights which that country has established, the truth is, they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite.

Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body, the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British constitution....

I wish also, in revising the constitution, we may throw into that section, which interdict the abuse of certain powers in the State Legislatures, some other provisions of equal, if not greater importance than those already made. The words, "No State shall pass any bill of attainder, ex post facto law," &c. were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the State Governments than by the Government of the United States.

The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community.

I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no State shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every Government should be disarmed of powers which trench upon those particular rights.

I know, in some of the State constitutions, the power of the Government is controlled by such a declaration; but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the State Governments are as liable to attack the invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against....

[Mr. Jackson] The gentleman endeavors to secure the liberty of the press; pray how is this in danger? There is no power given to Congress to regulate this subject as they can commerce, or peace, or war.

Has any transaction taken place to make us suppose such an amendment necessary? An honorable gentleman, a member of this House, has been attacked in the public newspapers on account of sentiments delivered on this floor. Have Congress taken any notice of it? Have they ordered the writer before them, even for a breach of privilege, although the constitution provides that a member shall not be questioned in any place for any speech or debate in the House? No, these things are offered to the public view, and held up to the inspection of the world.

These are principles which will always prevail. I am not afraid, nor are other members I believe, our conduct should meet the severest scrutiny. Where, then, is the necessity of taking measures to secure what neither is nor can be in danger?

[Then on 8/15/89 the debate began in earnest]

The next clause of the fourth proposition was taken into consideration, and was as follows: "The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed."

Mr. Sedgwick submitted to those gentlemen who had contemplated the subject, what effect such an amendment as this would have; he feared it would tend to make them appear trifling in the eyes of their constituents; what, said he, shall we secure the freedom of speech, and think it necessary, at the same time, to allow the right of assembling? If people freely converse together, they must assemble for that purpose; it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called in question; it is derogatory to the dignity of the House to descend to such minutiae; he therefore moved to strike out "assemble and."...

[Mr. Madison] The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government; the people may therefore publicly address their representatives, may privately advise them, or declare their sentiment by petition to the whole body; in all these ways they may communicate their will. If gentlemen mean to go further, and to say that the people have a right to instruct their representatives in such a sense as that the delegates are obliged to conform to those instructions, the declaration is not true.

[And again on 8/17]

The committee then proceeded to the fifth proposition:
Article 1, section 10. between the first and second paragraph, insert "no State shall infringe the equal rights of conscience, nor the freedom of speech or of the press, nor of the right of trial by jury in criminal cases."

Mr. Tucker: This is offered, I presume, as an amendment to the constitution of the United States, but it goes only to the alteration of the constitutions of particular States. It will be much better, I apprehend, to leave the State Governments to themselves, and not to interfere with them more than we already do; and that is thought by many to be rather too much. I therefore move, sir, to strike out these words.

Mr. Madison conceived this to be the most valuable amendment in the whole list. If there was any reason to restrain the Government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the State Governments.  He thought that if they provided against the one, it was necessary to provide against the other, and was satisfied that it would be equally grateful to the people.

Mr. Livermore had no great objection to the sentiment, but he thought it not well expressed. He wished to make it an affirmative proposition; "the equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any State."

[Again on 9/3 and 9/4]

The fourth article was then taken up, namely: "The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed." It was moved to insert, after the words "common good," these words: "to instruct their representatives."

On this question, the yeas and nays being required, it was decided as follows:

Yeas (2) - Messrs. Grayson and Lee.
Nays (14) - Messrs. Bassett, Carroll, Dalton, Ellsworth, Elmer, Gunn, Henry, Johnson, Izard, King, Morris, Paterson, Read, Wingate.

A motion was then made to insert after the word "press,"these words: "in as ample a manner as hath at any time been secured by the common law;" but this motion was unsuccessful; as also was a subsequent motion to strike out the words, "and consult for their common good, and."

The further consideration of this article was then postponed until the next day, (the 4th,) when it was adopted in the following form: - "That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances."

On the 9th of September, the subject was resumed. The third article was then amended to read as follows: "Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or the press, or the right of the people peaceably to assemble, and petition to the government for the redress of grievances."

On the 23d, Mr. Madison made a report to the House of Representatives on the subject, which was taken up for consideration on the 24th; whereupon,

"Resolved - That this house doth recede from their disagreement to the first, third, fifth, sixth, seventh, ninth, tenth, eleventh, fourteenth, fifteenth, seventeenth, twentieth, twenty-first, twenty-second, twenty-third, and twenty-fourth amendments, insisted on by the Senate:

Provided, That the two articles which by the amendments of the Senate are now proposed to be inserted as the third and eighth articles, shall be amended to read as followeth:

"Article the third. 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."

The wording "...to assemble and consult for their common good to instruct their representatives, and to apply to the government for redress of grievances, shall not be infringed" - agreed to by two  Representatives - gives a bit of insight into the meaning of "common good" in their minds.

And 223 years later:

Over nine decades of working for peace, the American Friends Service Committee has seen what can happen when a government is allowed to use fear to justify denying basic rights to some vulnerable group -- Japanese-Americans, Native Americans, Jews, civil rights advocates, or political dissidents.

In 1942, who could defend someone of "foreign enemy ancestry?" In the 1950's, who dared defend someone accused of being a "communist?" And today, who would speak up for someone labeled a "terrorist?"

AFSC has consistently resisted such attempts to isolate and scapegoat, and we continue to do so - this time, in a lawsuit against the U.S. government. See  http://afsc.org/story/eight-moments-advocacy-civil-rights-and-liberties

We are challenging the government's power to impose arbitrary restrictions on our First Amendment rights to engage in "coordinated advocacy" with Muhammad A. Salah, a U.S. citizen living in Chicago. He is the only U.S. citizen residing in the United States who is currently labeled a "Specially Designated Terrorist." Once an individual is so labeled, any person or organization is prohibited from engaging in coordinated speech with him, even if only to raise important questions about the government's conduct.

AFSC strongly objects to arbitrary limits on our right to raise public awareness about government actions we believe to be unjust.
We brought this case as a last resort, but one we are compelled to undertake, both as a matter of conscience and to protect the practice of speaking truth to power. As this case proceeds, please check for updates at http://afsc.org/first-amendment .
Source: http://afsc.org/story/toward-peace-and-justice-september-2012

This is a lawsuit and initiative that all conservative constitutionalists - especially the Tea Partiers who proudly affirm the U.S. Constitution - should get behind, support and publicize.

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