The Origin of the U.S. Bill
of Rights
Part II
Dr. donna Bair-Mundy
Bill of Rights debate: Mason,
Jefferson, et al.
When assigning powers to
the government must also
limit those powers
General warrants and writs
of assistance
Objections to Bill of Rights
Bill of Rights is stipulation a king gives
to his subjects, granting a few
exceptions to rights of the monarch
Bill of Rights dangerous—implies
government has powers not
Could later be misconstrued as allinclusive not granted
(Alexander Hamilton, Federalist paper
no. 84, etc.)
The compromise
Amendment IX
The enumeration in the
Constitution of certain rights shall
not be construed to deny or
disparage others retained by the
people.
First 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.
Privacy an old concern
Halakhah (Jewish law)
Proscriptions on:
Physical intrusion
Visual surveillance
Aural surveillance
Talmud
Walls between houses to be a certain height
Creditor may not enter person’s house
Ancient Roman law (Justinian’s Pandects)
Prohibition against going into a home and
dragging out the person
Hippocratic oath
No disclosure of what in practice seen or heard
that “ought never be published abroad”
Reinterpreting the Magna Carta
Sir Edward Coke
1642
“…for Justices of Peace to
make warrants upon
surmises, for breaking the
houses of any subjects to
search for felons, or stoln
[sic] goods, is against
Magna Carta.”
Coke, Edward. 1642. The fourth part of the institutes of
the laws of England. London: M. Flesher.
General warrants (1)
•
•
•
•
No specific individual
No specific crime
No specific place to be searched
No specific items to be sought
• Illegal according to Sir Edward Coke’s
Institutes of the Lawes of England (first
published 1642 and 1644)
• Illegality confirmed by Sir Matthew Hale
• Illegality confirmed by Sir William
Blackstone
General warrants (2)
• Suspicion of crime related to
government revenue
• Used against anyone who dared to
challenge or limit the authority of
Parliament or the crown
• John Wilkes (member of Parliament)
• Anonymously wrote critical essay
published in North Briton
• General warrant leads to massive
arrests, Wilkes ► Tower of London
Writs of assistance
• Any customs official could enter “any
House, shop, Cellar, Warehouse or
Room or other Place...”
• Seize unaccustomed goods
• Lasted for the life of the sovereign
under which it was issued plus six
months
• According to John Adams, major
factor in seeking American
Independence
Fourth Amendment
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.
Ex parte Jackson
“The constitutional guaranty of the right
of the people to be secure in their papers
against unreasonable searches and
seizures extends to their papers, thus
closed against inspection, wherever they
may be. Whilst in the mail, they can only
be opened and examined under like
warrant, issued upon similar oath or
affirmation, particularly describing the
thing to be seized...”
Justice Field 96 U.S. 727, 732
Ex parte Jackson
“The constitutional guaranty of the right of the people to be
secure in their papers against unreasonable searches and
seizures extends to their papers, thus closed against inspection,
wherever they may be. Whilst in the mail, they can only be
opened and examined under like warrant, issued upon similar
oath or affirmation, particularly describing the thing to be
seized...”
Justice Field 96 U.S. 727, 732
Mail
(often a form
of speech)
Right
to
Privacy
Penumbra
1965
Griswold v. Connecticut
Defendants:
381 U.S. 479
Estelle Griswold – Executive Director of Planned
Parenthood in Connecticut
C. Lee Buxton – Physician serving as medical
director of Planned Parenthood in New Haven
Crime:
Giving “information, instruction, and medical
advice” on preventing conception and for
prescribing a method of contraception to a
married couple, in violation of Connecticut law.
Penumbra
1965
Griswold v. Connecticut
381 U.S. 479
Justice William O. Douglas (majority opinion)
“The foregoing cases suggest that specific guarantees in
the Bill of Rights have penumbras, formed by emanations
from those guarantees that help give them life and
substance.”
…
“In other words, the First Amendment has a penumbra
where privacy is protected from governmental intrusion.”
First
Amendment
Freedom of Speech
Right
to
Privacy
No warrantless wiretapping in
criminal cases
1967
Katz v. United States
389 U.S. 347
Person placing a call “is surely entitled to
assume that the words he utters into the
mouthpiece will not be broadcast to the
world.”
Phone call
(a form of
speech)
Right
to
Privacy
Electronic mail
1993
ECPA
Electronic
Communications
Privacy Act
Addressed the need to protect e-mail sent
and e-mail received.
E-mail
(a form of
speech)
Right
to
Privacy
First & Fourth Amendments
First 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.
Fourth Amendment
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.
First & Fourth Amendments
First Amendment
Freedom of Speech
Fourth Amendment
Right of Privacy
What might this connection mean
for us?
Assaults on Bill of Rights
Round-up of Pennsylvania Quakers
(1777)
Why the Quakers?
Friends Peace Testimony
"We utterly deny all outward wars and strife and
fightings with outward weapons, for any end or under
any pretence whatsoever. And this is our testimony to
the whole world." From "A Declaration to Charles II,"
1661. Full text at:
http://www.quaker.org/peaceweb/pdecla07.html
Actual title: A Declaration from the harmless and innocent people of God, called
Quakers
Assaults on Bill of Rights
Round-up of Pennsylvania Quakers
(1777)
Sedition Act of 1798
• Fears of war used as an excuse
• Passed by the Federalist Party
• Anyone who printed, uttered, or published false,
scandalous, or malicious writings against the
government of the U.S., the Congress, or the President,
could be fined $2,000 and imprisoned for up to two years
• Members of the opposition party (Republicans) were
prosecuted
• Expired 1801
Assaults on Bill of Rights
Round-up of Pennsylvania Quakers
(1777)
Sedition Act of 1798
Espionage Act of 1917 – 1918 amend.
Internment of persons of Japanese
ancestry—WW II
Used against Hungarians, Czechs, Slovaks, Croats, Poles, Jews, Russians,
Lithuanians, Finns, Irish, Catholics, Amish, Mennonites, Jehovah’s Witnesses
(then called Russelites), Roma (then called gypsies), African Americans.