III. CONSTITUTIONAL PROTECTION OF INDIVIDUAL RIGHTS

A. Original Textual Provisions

The original text of the Constitution contained very few provisions protecting individual rights. This probably occurred for two reasons. First, some of the framers believed that they had created a central government with limited powers that would not have the authority to violate individual rights. Others of the framers feared that any list of enumerated rights might be incomplete and might later be interpreted to deny rights not listed.

Those few provisions protecting individual rights include Article I, Section 9, which provides that “the privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion, the public safety may require it.” The writ of habeas corpus was a common law procedure that allowed the courts to order the release of persons unlawfully imprisoned or detained. Although it has been an important protection in some cases, the courts have given Congress great leeway in limiting the use of the writ.

Article I, Sections 9 and 10, prohibit ex post facto laws (punishing conduct that was not illegal at the time it was performed) and bills of attainder (singling out individuals or groups for punishment). Article III, Section 2, provides for the right to trial by jury in all criminal cases, and requires that the trial be held in the state where the crime was committed.

The “privileges and immunities clause” contained in Article IV, Section 2, provides, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of several states.” This limits the ability of states to favor their own citizens and discriminate against out-of-state citizens with respect to certain fundamental rights.

Although these provisions, and a few others can be important in some cases, the main protections of individual liberties comes not in the Constitution itself, but the first ten amendments, known as the Bill of Rights.

B. The Bill of Rights

During the ratification process, several state legislatures expressed concern over the lack of protection of individual liberties. In response, the first Congress passed twelve amendments to the Constitution, ten of these which were ratified by the states and became known collectively as the Bill of Rights.

Before describing the protections of the Bill of Rights, it is important to note that they originally were interpreted as restrictions only on the power of the federal government, and not the power of the states. It was not until the twentieth century that the Supreme Court began to hold some of these rights enforceable against the states.

1. A Brief Summary of the Bill of Rights

The First Amendment protects freedom of religion and freedom of speech and of the press. It also protects the right of peaceful assembly and to petition the government.

The Second Amendment protects the right to keep and bear arms, for the purpose of maintaining a militia. Although there has been debate as to whether this protects an individual’s right to own firearms, the Supreme Court has held that it applies only to the states’ right to have an armed militia.

The Third Amendment prohibits the quartering of troops in any house during peacetime and allows it in times of war only in a lawful manner.

The Fourth Amendment protects against unreasonable searches and seizure and requires a search warrant before a search can take place.

The Fifth Amendment requires indictment by a grand jury before a person can be charged with a serious crime. It also prohibits a person from being tried twice for the same crime (double jeopardy) or from being forced to be a witness against himself (self-incrimination). It protects against deprivation of life liberty or property without due process of law (due process clause). It also prohibits the taking of private property without just compensation.

The Sixth Amendment provides important rights for criminal defendants, including the right to a speedy and public trial, to a trial by an impartial and local jury, to be informed of the charges against him, to be confronted by witnesses against him, to compulsory process for obtaining witnesses, and to have a lawyer.

The Seventh Amendment preserves the right to a trial by jury in most civil cases.

The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments.

The Ninth Amendment makes clear that the enumeration of some rights shall not be interpreted to deny other rights retained by the people (although it does not indicate what those rights may be).

The Tenth Amendment reserves all powers not given to the federal government, or prohibited to the states by the Constitution, to the states or to the people.

2. Application of the Bill of Rights

The rights contained in the Bill of Rights were originally construed to apply only against the federal government and not against state or local governments. The rights of individuals were protected from state intrusion only by the state constitutions themselves.

This changed after the American Civil War, with the passage of three amendments intended to protect the rights of the newly feed slaves. The Thirteenth Amendment prohibited slavery, and the Fifteenth Amendment protected the right to vote from discrimination based on race. The Fourteenth Amendment contained a number of important provisions.

Section one of the Fourteenth Amendment first made clear that all persons born or naturalized in the United States are citizens both of the United States and the States where they reside. Then it provided three restrictions on the states. The states may not (1) “abridge the privileges or immunities of citizens of the United States,” nor (2) “deprive any person of life liberty or property without due process of law,” nor (3) deny any person “the equal protection of the laws.”

The first attempt to apply the Bill of Rights to the States relied on using the “privileges and immunities” clause. It was claimed that the protections of the Bill of Rights were the most basic privileges and immunities of citizenship. The Supreme Court rejected this view in the Slaughterhouse Cases of 1873, giving a very narrow interpretation of this clause that has never been overruled.

Instead, the court has adopted a “selective incorporation” approach under the due process clause. Starting in 1897 the Court has held that certain protections of the Bill of Rights are so fundamental, that when a state denies them it denies “due process of law” guaranteed by the Fourteenth Amendment. Although some justices have taken the position that the entire Bill of Rights should be deemed incorporated, the Court has consistently held that each right must be examined separately to see if it so fundamental that it should be incorporated.

Nonetheless, most of the important rights contained in the Bill of Rights have been incorporated under this theory. Only a few have been held not to apply, such as the right to bear arms, the right to a grand jury indictment, and the right to a jury trial in civil cases. It was not until the 1960’s, however, that some important rights were incorporated, such as the right to an attorney in a criminal case and the protection against self-incrimination.

3. The State Action Doctrine

Although the coverage of most of the Bill of Rights has been expanded to the actions of state and local governments, it does not generally apply to private conduct. With some exceptions, private persons and organizations do not have to comply with the Constitution. For example, while a public university cannot unduly restrict the free speech rights of its students, private universities are not subject to this rule. This “state action” doctrine applies not only to the Bill of Rights, but also to the due process and equal protection clauses of the Fourteenth Amendment. The Supreme Court held in 1883 in the Civil Rights Cases, that the language of the Fourteenth Amendment which begins “no state shall…,” requires this result. Although the doctrine is called the “state action” doctrine, it actually refers to any governmental conduct. Local governments are considered arms of the states for this purpose.

There are a few situations in which the Constitution does apply to private conduct, such as situations in which a private entity exercises powers usually exercised by the State, for example, holding a primary election, or running a prison or a city. The law also applies to private parties when they conspire with public officials to violate constitutional rights, or when they otherwise form a joint enterprise with the government. Private conduct usually is not held to constitute state action when the government merely licenses, regulates, or partially funds a private organization.

Congress does have the power, under other constitutional provisions, to pass statutes that apply constitutional standards to private conduct. Under the Thirteenth Amendment, which abolished slavery, Congress has the power to prohibit private racial discrimination (using its power to abolish “all badges and incidences of slavery”). Congress also has used its power to regulate interstate commerce to prohibit discrimination in employment on the basis of race, sex, religion, national origin, age and handicap.