Declaration of Independence, Constitution, Bill of Rights – The Basics

“What I believe all Criminal Justice Professionals should know about the preparation and/or adoption of the Declaration of Independence, the Constitution, and the Bill of Rights.”

 

The Declaration of Independence is NOT a legal document; it is a political document.  In it, however are several principles that later are reflected in laws that are much later adopted by the Continental Congress and then US Congress.  The first sentence is about “Natural law;” that is, universal law.  The principle of “reasonableness” also is first presented here. (Becker, Declaration of Independence, 277-279).  The criminal justice professional must respect that it is universally understood that people; and not government, have rights.  Nevertheless, citizens must act reasonably when exercising their rights under Natural law.

 

The famous preamble has an enumeration of certain rights that are unalienable; i.e., beyond discussion!  Among others these include “Life, Liberty and the pursuit of Happiness.” (D of I)  The criminal justice professional must way these rights with respect to the alleged criminal AND those of the victims.  The government has the responsibility of protecting its citizens without, in so doing, violating rights of some of its citizens.

 

The rest of the Declaration cites grievances against the Crown and the reasons for revolution.  (D of I)  As a historical note, most of the citizens of the American colonies did NOT favor revolution.  (Hazelton, Declaration History, 13; Middlekauff, Glorious Cause, 318.)  Even if the British Government were to address all of the grievances cited, the revolution was still going to happen.  In large part, Britain wanted the American colonies to pay the cost of defeating the French and Indians two decades earlier.  Yes, money is at the root of the revolution.

 

The author of most of the Declaration of Independence was Thomas Jefferson who drew from his education of the evolution of legal thought that began in America and England around 1689 with the English Declaration of Rights.  (Malone, Jefferson the Virginian, 221; Maier, American Scripture, 125–26).  Jefferson’s most immediate sources were two documents written in June 1776: his own draft of the preamble of the Constitution of Virginia, and George Mason‘s draft of the Virginia Declaration of Rights. Ideas and phrases from both of these documents appear in the Declaration of Independence. (Maier, American Scripture, 126–28).

 

The Articles of Confederation and Perpetual Union, the first “constitution” proved inadequate for running the country.  Once again, money was a significant reason for amending the Articles of Confederation, which brought about a “do-over” with the scrapping of the entire document.  The central government assessed the states to pay for the cost of the revolution, but most states sent little or no money.  (Maier 2010, pp. 11-13).  The current Constitution of the United   States was ratified by the States and put into effect March 4, 1789. (Paul Rodgers (2011). United States Constitutional Law: An Introduction).  The Constitution deals primarily with the separation of powers of the federal government into an executive, legislative and judicial and how the individuals take their offices.  Emphasis was also put on the power of States would continue and be on par with the power of the federal government. (Constitution).

 

The criminal justice professional must be aware that the laws that he or she is empowered to enforce are derived from a government process.  In one respect this absolves the criminal justice professional from questioning the “rightness” of the federal and state laws.  In another respect, federal authority, by inference, is superior to state authority.

 

A Bill of Rights was noticeably missing from the original Constitution.  Using the amendment mechanism in the Constitution, 12 amendments were originally proposed as the Bill of Rights, of which, 10 were ratified December 15, 1791. (“The Bill of Rights: A Brief History”. ACLU.org. March 4, 2002.  Retrieved June 13, 2012).  The Amendments of most concern to the criminal justice professional are as follows:

 

Amendments (Constitution)

 

Fourth Amendment – Protection from unreasonable search and seizure.

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.  The criminal justice professional must act reasonably, pursuant to a warrant, sworn out under oath, and understand the limitations of the warrant. 

 

Fifth Amendmentdue process, double jeopardy, self-incrimination, eminent domain.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.  The legal principles presented here are important to the criminal justice professional because what is outlined with respect to individual rights is the grand jury indictment process, illegality of double jeopardy, right to remain silent and the right to due process of law.

 

Sixth AmendmentTrial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.  The legal principles presented here are important to the criminal justice professional because the trial process and the rights of the individual in that process are presented.

Eighth Amendment – Prohibition of excessive bail and cruel and unusual punishment.

 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.  The criminal justice professional, while powerful in the determination of arrest, has to realize that the presumption of innocence carries with it a preservation of rights of the accused and even of the convict.

 

Ninth Amendment – Protection of rights not specifically enumerated in the Constitution.

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

 

Tenth Amendment – Powers of States and people.

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 Ninth and Tenth Amendments emphasize that the rights of the people are superior to the rights of government except where the people, through elected representatives, have ceded those rights to the government.

 

Later amendments to the Constitution made rights under federal law applicable in the States.  These documents are a tribute to the wisdom of the founding fathers.  The Constitution is the longest continually operating body of law in history. (Paul Rodgers (2011). United States Constitutional Law: An Introduction. McFarland. p. 109.)

 

There is a balancing act struck by the founding fathers with respect to the citizenry and what rights they cede to the government to preserve and just and orderly society.  The criminal justice professional is “on the point of the spear” when it comes to the relationship between government and the citizen.  While the rights of the accused must be preserved during the criminal and incarceration periods, the rights of the victims to be free to enjoy their rights under Natural law in that just and orderly society is of equal weight in that balance.

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