Amending the Constitution and the Bill of Rights

How the Constitution Is Amended

Article V sets the procedure. Proposal requires two-thirds of both houses of Congress or a convention called at the request of two-thirds of the states. Ratification requires three-fourths of the states, through their legislatures or special conventions. Congress chooses which ratification method to use and may set a deadline. The Twenty-Seventh Amendment was proposed in 1789 with no deadline and ratified in 1992, more than 200 years later.

Not all constitutional change comes through amendments. Court interpretation (such as selective incorporation), laws passed by Congress, and long-standing custom (such as the cabinet and political parties) also shape how the Constitution works. Formal amendments are the only way to change its text.

The Bill of Rights: Origins and Purpose

The original Constitution contained only a few individual protections, such as habeas corpus, the ban on ex post facto laws, and jury trial in federal criminal cases. Anti-Federalists argued that a powerful national government without a bill of rights would endanger liberty. Several states ratified only after being promised amendments. Massachusetts, Virginia, and New York recommended them in their ratification messages.

James Madison had first doubted that a bill of rights was needed. He then took up the cause in the first Congress, drawing on the Virginia Declaration of Rights, the English Bill of Rights, and the states' proposals. Congress sent twelve amendments to the states in 1789. Ten were ratified and took effect on December 15, 1791. One of the other two eventually became the 27th Amendment.

At first, the Bill of Rights limited only the federal government. The Supreme Court confirmed this in Barron v. Baltimore (1833). Since the early 20th century, the Court has applied most of its protections to the states through the Fourteenth Amendment. See selective incorporation.

For the Bill of Rights as a founding document, see Chapter 14.

First Amendment: Religion, Speech, Press, Assembly, Petition

"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."

First Amendment

Five freedoms in 45 words:

• Establishment Clause: government may not set up an official church or favor religion. Jefferson's 1802 letter to the Danbury Baptists described "a wall of separation between Church & State." Case: Engel v. Vitale (school-sponsored prayer).
• Free Exercise Clause: government may not prohibit the practice of religion. Case: Wisconsin v. Yoder (Amish schooling).
• Speech: including symbolic speech. Cases: Schenck, Tinker, Texas v. Johnson, Citizens United.
• Press: especially protection against prior restraint (censorship before publication). Cases: New York Times v. U.S., Hazelwood.
• Assembly and petition: the right to gather peacefully and to ask government to correct wrongs, through letters, lawsuits, lobbying, or protests.

The religion clauses reflect the Founders' experience. Several colonies had official churches, and dissenters such as Baptists and Quakers had been persecuted. Virginia's Statute for Religious Freedom (1786), written by Jefferson and championed by Madison, was a direct forerunner. Its protections were later applied to the states. See First Amendment clauses.

Second Amendment: Right to Keep and Bear Arms

"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."

Second Amendment

The amendment reflected colonial distrust of standing armies and reliance on citizen militias. The English Bill of Rights (1689) had also protected arms for Protestant subjects. In District of Columbia v. Heller (2008), the Court held that the amendment protects an individual right to keep a handgun in the home for self-defense. McDonald v. Chicago (2010) applied that right to state and local governments.

Third Amendment: Quartering of Soldiers

"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." This responded directly to the British Quartering Acts. The Declaration of Independence complained of the king "quartering large bodies of armed troops among us." The amendment is rarely litigated today. It is often cited as part of the Constitution's protection of privacy in the home.

Fourth Amendment: Searches and Seizures

"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."

Fourth Amendment

Colonists resented British writs of assistance, general warrants that let officers search anywhere for smuggled goods. The Fourth Amendment requires that searches be reasonable. In general, a warrant issued by a judge upon probable cause must particularly describe what will be searched. The exclusionary rule bars illegally obtained evidence from trial. Mapp v. Ohio (1961) applied it to the states.

Fifth Amendment: Rights of the Accused and Property

The Fifth Amendment contains several protections:

• Grand jury indictment for serious ("capital, or otherwise infamous") federal crimes;
• no double jeopardy: a person cannot be tried twice for the same offense after acquittal or conviction;
• no compelled self-incrimination: no person "shall be compelled in any criminal case to be a witness against himself" ("pleading the Fifth"). See Miranda v. Arizona;
• due process before deprivation of "life, liberty, or property";
• Takings Clause: private property may not "be taken for public use, without just compensation." This limits the government's power of eminent domain.

Sixth Amendment: Fair Trial Rights

In all criminal prosecutions, the accused has the right to a speedy and public trial by an impartial jury of the state and district where the crime occurred; to be informed of the charges; to confront witnesses against him; to compel favorable witnesses to appear; and to "the Assistance of Counsel for his defence." Gideon v. Wainwright (1963) required states to provide lawyers to defendants charged with felonies who cannot afford one.

Seventh Amendment: Civil Jury Trials

In federal civil lawsuits at common law "where the value in controversy shall exceed twenty dollars," the right to a jury trial is preserved. Facts found by a jury may not be re-examined except according to common-law rules. This is one of the few Bill of Rights provisions the Supreme Court has not incorporated against the states.

Eighth Amendment: Bail, Fines, and Punishment

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The language comes almost word for word from the English Bill of Rights of 1689. Courts interpret "cruel and unusual" using "evolving standards of decency." For example, the Court has barred the death penalty for crimes committed by juveniles.

Ninth Amendment: Unenumerated Rights

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Federalists such as Hamilton (Federalist No. 84) warned that listing some rights might imply that unlisted rights were not protected. The Ninth Amendment answers that worry: the people keep rights beyond those written down. It reflects the natural-rights view that rights exist before government.

Tenth Amendment: Reserved Powers

"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."

Tenth Amendment

The Tenth Amendment states the principle of federalism and limited government: the national government has only the powers delegated to it, and the rest remain with the states or the people. These are the reserved powers. Examples include education, licensing, local government, and police powers over health, safety, and morals. Supporters of state authority have long cited it, and the Court relied on federalism principles in cases such as United States v. Lopez.