When the Constitutional framers drafted the first ten amendments
of the Constitution more than two hundred years ago, commonly
known as "The Bill of Rights," their intent was to protect
individuals from undue government interference. The rights they
enumerated were deemed so basic to the concept of justice that
without them true democracy could not flourish.
The Amendments have since been liberally construed and codified to ensure
that those who stand at the greatest risk of losing their
liberty are afforded maximum protection from what has been
perceived the gravest danger of all: An overreaching government
left unchecked. Of course, the framers could have little imagined
the complex issues that would today riddle our courtrooms.
They could not have foreseen how the "fighting words"
exception to the First Amendment would be used to litigate
against hate crimes. And they certainly did not foresee a
day when forensic technology would demand answers to questions
like whether compelled DNA sampling is a violation of Fourth
Amendment search and seizure or Fifth Amendment freedom from
self-incrimination. So below we revisit the Constitution to
understand the bases of contemporary criminal law, which remains
the cornerstone of American Justice.
Meaning ... even the Nazi party or Ku Klux Klan has
the right to convene 'peacefully' in front of a Synagogue
or a black university. Recent limitations have been imposed
on hate-crimes for speech intended to and reasonably likely
to incite violence against certain protected classes, such
as racial and ethnic 'minorities' and homosexuals.
See Blueprint for a Murder, where a publisher was
held accountable for detailing a murder plan; Also see The
Matthew Shepard Story , where a gay-bashing homicide led
to an exception for the use of language intended and reasonably
likely to incite violence against protected classes, including
minorities and homosexuals.
Meaning ... this one is still hotly contested, but the
right to bear arms has not been deemed a fundamental liberty
guaranteed to the states via the 14th Amendment equal protection
Meaning ... the government can occupy private property
under a theory of "eminent domain," where it is
rationally related to the execution of national security,
public welfare and military defense. Nonetheless, citizens
are entitled to the just value of any damage or destruction
that derives from this 'taking.' Of course, this hasn't come
up much, since the United States has thus far waged its wars
on other countries' soil.
Meaning ... citizens cannot be subjected to random
searches by police or government officials simply because
someone doesn't look like they 'belong' in a certain neighborhood
or because they look 'suspicious.' This has largely arisen
in cases involving racial profiling, where police were formally
given great discretion based on their 'seasoned experience'
to conduct warrantless stops and searches. Now, more specific
reasons must be articulated to justify even a limited intrusion
and where none are present, the fruits of the illegal search
are deemed constitutionally 'tainted' and inadmissible.
Meaning ... a defendant is not required to take the
stand in court. Moreover, the prosecution may not even allude
to a defendant's failure to take the stand. To prevent the
use of trials as 'fact-finding' expeditions by the government,
the double jeopardy clause ensures that if the prosecution
fails to produce sufficient evidence and the jury returns
a verdict of not guilty or acquittal, the defendant walks
away freely and cannot be retried, even if damning evidence
is later discovered. Note that this does NOT pertain to civil
See Getting Away with Murder, where the double jeopardy
clause enabled a killer to walk free; For an example of how
military jurisdiction facilitated two separate criminal trials
for same crime, see The Green Beret Murder Mystery.
Meaning ... despite what you may have seen on TV, someone
may not be detained by police or held in custody for hours
on end with only cigarettes, threats and coffee for sustenance.
In addition, police must inform potential suspects of their
right to counsel (even if a suspect states that they already
know their rights). Once a request for a lawyer is articulated,
a moratorium on further questioning attaches, and any further
admissions based on police questioning will not be held constitutionally
admissible, unless specifically voluntary.
See In the Hands of a Child, where a young girl was
held and interrogated by police without counsel until she
confessed to a crime, without necessarily understanding the
nature of the charge. See also Who Is The Lipstick Killer?,
where the failure of government to compel favorable witnesses
led a jury to convict a man on uncorroborated testimony.
Meaning ... while twenty dollars doesn't go as far
as it used to, the right to a trial by jury remains a mainstay
of penal justice. In fact, in order to waive this right, a
criminal defendant must be interviewed by a Judge with counsel
present--called a plea colloquy--and sign a sworn affidavit.
Cases that have arisen under this issue have dealt with whether
plea terms have been contractually honored and whether a defendant
was competence to understand the nature of the right being
See We The Jury, a probing examination of jury selection,
profiling and practices, featuring candid interviews with
prosecutors and defense attorneys.
Meaning ... even a criminal on death row cannot be caused
to suffer unduly. In addition, sentences must be reasonably
commensurate with the severity of the crime, which is why
judges are given such wide discretion in sentencing.
See Justifiable Homicide, where the murder of a detested,
abusive man who was hated by one and all led to a life sentence
without parole; See also An Execution in Doubt, where
a potentially innocent man was executed; See also Who is
the Lipstick Killer, where failure to produce witnesses
left an arguably innocent man-the first to finish a college
degree from a jail cell-- to serve a life sentence; Lastly
see Cruel and Unusual, for glaring cases of brutal
police misconduct and excessive sentencing.
Meaning ... some states, like Vermont, Hawaii and
California, choose to give greater protections than those
recognized under the Constitution. Federal law does not forbid
states from granting or expanding individual liberties beyond
those constitutionally mandated.
Meaning ... states are permitted to pass laws, for instance
zoning laws and health regulations, where the issue is not
dealt with and pre-empted by Federal law. Smoking laws are
an apt case in point.
Meaning ... the fundamental liberties enumerated in
the Bill of Rights are extended to state courts through the
due process or inclusionary clause (with the exception of
the right to bear arms and the right to a grand jury). The
Fourteenth Amendment was passed as a means to ensure that
citizens from different states were afforded equal protection
and would not face discrimination within their local judicial
arena. Historically, this issue has come up to protect against
local prejudice against "discrete and insular minorities."
See A Questionable Doctor, where a pariah in the
community was charged and convicted and later exculpated for
a murder on the basis of circumstantial evidence and local
prejudice; See also The Hurricane Carter Story , where
a young black athlete was falsely convicted for a triple homicide
based on a questionable identification for nearly thirty years
until the decision was finally overturned.