Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence (11 page)

The Sixth Amendment is appropriately considered the center-piece of the American criminal justice system. In addition to guaranteeing all criminal defendants a trial by jury, it provides an outline of the basic procedures to be followed in such trials. The trial shall be a speedy one, which is to say that accused criminals cannot be imprisoned for lengthy periods of time before receiving a trial. The trial must be public. The framers of the Sixth Amendment specifically rejected the format of English Star Chamber proceedings; that is, proceedings held in private, away from scrutiny by the public. The juries in criminal trials should, in normal instances, be drawn from ordinary citizens who are resident in the state and region where the crime was committed (although in unusual cases, if the crime is of such a sensational nature that it might prove impossible to impanel an
impartial
jury, the trial might be held in a jurisdiction other than the one in which the crime was committed).

The Sixth Amendment also guarantees to the accused the right to be confronted with the nature of the charges brought against him; the right to confront, either directly or through an attorney, the witnesses against him; and the right to present witnesses in his defense. Finally, criminal defendants are entitled to “Assistance of Counsel”; that is, a competent attorney to assist them in their defense. These basic guarantees have been elaborated in countless court cases in the more than two hundred years since the amendment was ratified and, through the incorporation doctrine, have become the standard procedure for criminal trials in states and other localities as well as in federal courts.

The Seventh Amendment provides guarantees similar to those of the Sixth with respect to civil suits, although it does limit the right of trial by jury to suits in which there are substantial sums of money involved. The terms and extent of the application of this amendment have been worked out through myriad court cases involving plain-tiffs (the person bringing the suit) and defendants (the person being sued). For example, while the standard for conviction in a criminal trial is a jury’s unanimous verdict that the accused criminal is guilty “beyond a reasonable doubt,” a jury in a civil case may award damages to a plaintiff if a majority of jurors find a “preponderance of evidence” on his or her behalf. The incorporation doctrine has not been applied to this amendment and, for the present, civil suits tried in state and local courts may follow different procedures from those outlined in the Seventh Amendment.

The prohibition against excessive bail (a sum of money put up to gain release from prison while awaiting a trial and returned if and when the accused appears for trial) is a reflection of the belief that an accused criminal is “presumed innocent until found guilty.” The definition of “excessive bail” is a subjective one, but the intent of the amendment is to demand a sum of money sufficient to guarantee that the accused does show up for the trial, but not so high as to make it impossible for the accused to gain release.

The prohibition of “excessive fines” is intended to assure that “the punishment fits the crime.” It is closely connected in its rationale with the final section of the amendment, the guarantee against “cruel and unusual punishments.” Again drawing on English common law traditions, Americans were seeking to move away from ancient practices of gruesome punishments for relatively minor offenses. The definition of “cruel and unusual punishments” has often proven a point of contention. Currently, opponents of the death penalty argue that that punishment qualifies as cruel and unusual. Except for a period during the 1970s, the Supreme Court has not agreed, and both state governments and the federal government are free to permit executions if they desire (at present, thirty-five of the fifty states have laws permitting death penalties in some cases—usually, but not exclusively, murder cases).

One of the reasons given for the framers’ omission of a Bill of Rights from the original Constitution was their fear that if they unintentionally failed to mention some fundamental rights in such a listing, those rights might go unprotected. That concern caused many of the delegates to fear that any debate over a bill of rights might drag on for weeks or months, as they sought to cover every conceivable right. The Ninth Amendment makes it clear that the list of rights mentioned in the Constitution and its amendments do not constitute all the possible rights to which the people are entitled. Over the years, the courts have defined “unenumerated” rights, such as the right to vote; the right to move about freely; and, perhaps most controversially, the right to privacy, including the right of a woman to have some control over her health and reproductive decisions.

When the Constitution was presented for ratification to the people of the thirteen independent states, many were surprised—and alarmed—by the extent to which powers previously exercised by the states (for example, taxation and control over commerce) were now to be exercised by the federal government. In the words of Virginia statesman Patrick Henry, the new government was not really “federal” in character but rather a “consolidated government,” one which would render the identity and powers of the states meaningless. The Tenth Amendment reserves all powers not specifically given to the federal government by the Constitution (most of which are contained in Article I, Section 8, in the enumeration of the powers of Congress) to the state governments; it was intended to allay fears about the federal government possessing excessive power.

In one sense, the Tenth Amendment is one of the most important features of the Constitution, for it articulates the principle that the federal government is one of specifically delegated powers, and that it should only exercise those powers explicitly enumerated in the Constitution. But in fact, the Tenth Amendment, because of its generality, has not proven to be much of an impediment to the steady expansion of federal power since the time the Constitution was adopted, although opponents of “big government” have in recent years invoked the Tenth Amendment in their arguments with greater frequency.

In 1793 the Supreme Court ruled that it had a right to hear a suit brought by two citizens of South Carolina against the state of Georgia. Many members of Congress and of the state legislatures vigorously criticized the court’s ruling, claiming that the federal courts had no business interfering with the “sovereign immunity” of state courts. The Eleventh Amendment reserved to the individual states the right to hear cases brought against them either by citizens of another state or another country. As is the case with many of the amendments to the Constitution, the Supreme Court has ruled that there are exceptions to this general rule. For example, since 1824 the Supreme Court has held that state government officials are not immune from being sued in a federal court if they act in violation of a right guaranteed by the U.S. Constitution.