The Bill of Rights: The First Ten Amendments

Where the Bill of Rights came from

What an amendment is

An amendment is a change or an addition to a document. When people say "the First Amendment," they mean the first addition that was made to the United States Constitution after it was written. The Constitution itself, in Article V, explains how it can be amended. Most often, two-thirds of both houses of Congress vote to propose an amendment, and then three-fourths of the states must ratify it, which means formally approve it. Only after the states ratify it does an amendment become part of the Constitution. The Constitution has been amended twenty-seven times. The first ten amendments, all approved together, are the Bill of Rights.

The argument over ratifying the Constitution

The Constitution was written in Philadelphia in the summer of 1787. Before it could take effect, nine of the thirteen states had to ratify it. A long public argument followed in every state.

The people who supported the new Constitution were called Federalists. The people who opposed it, or who would accept it only with changes, were called Anti-Federalists. The Anti-Federalists feared that the new national government would be too strong, and that it could someday take away the liberties Americans had just fought a war to protect. One of their strongest complaints was that the Constitution had no list of the people's rights. Nothing in it said, in plain terms, that the government could not shut down a newspaper, force people to follow one church, or search a home whenever it liked.

Many Federalists at first said such a list was not needed. Their argument was that the national government could use only the powers the Constitution gave it, and the Constitution gave it no power over speech or religion. Some also warned that a list could be dangerous: if some rights were written down, people might later claim that any right left off the list was not protected. Thomas Jefferson, who was in France at the time, disagreed with them. In a letter to James Madison in December 1787, he wrote that "a bill of rights is what the people are entitled to against every government on earth."

The argument was settled by a promise. In several states, including Massachusetts, Virginia, and New York, supporters of the Constitution won the vote to ratify only after agreeing that amendments protecting rights would be added once the new government began. Several of those states sent lists of the amendments they wanted along with their ratification.

Madison writes the amendments

James Madison of Virginia had done more than almost anyone to write the Constitution, and at first he did not think a bill of rights was necessary. He changed his mind, partly because he had promised the voters of his district that he would work for one. In 1789, in the First Congress, Madison gathered the ideas from the states' lists and drafted a set of amendments. Congress debated and revised them. On September 25, 1789, Congress approved twelve amendments and sent them to the states.

The states ratified ten of the twelve. When Virginia ratified them on December 15, 1791, three-fourths of the states had approved, and those ten amendments became part of the Constitution. December 15 is still marked as Bill of Rights Day. (One of the two that failed in 1791, about the pay of members of Congress, was finally ratified more than two hundred years later, in 1992, as the Twenty-seventh Amendment.)

Older sources Madison drew on

Madison did not invent these rights. He borrowed from older documents that Americans already knew well.

• The English Bill of Rights of 1689. This act of the English Parliament limited the power of the king. It protected the right to petition, and it banned "excessive bail," "excessive fines," and "cruel and unusual punishments." Those words went almost unchanged into the Eighth Amendment. (Chapter 1 tells more of this story.)
• The Virginia Declaration of Rights of 1776. Written mainly by George Mason and adopted in June 1776, it protected freedom of the press, the free exercise of religion, trial by jury, and protection against general search warrants. Several other states wrote similar declarations of rights into their own state constitutions. Mason later refused to sign the U.S. Constitution, in part because it had no bill of rights.

The First Amendment: religion, speech, press, assembly, and petition

In plain words: The government may not set up an official religion or favor one religion. The government may not stop people from practicing their religion. The government may not cut back people's freedom to speak or to publish. ("Abridging" means cutting short or reducing.) The government may not stop people from gathering peacefully, and it may not stop them from asking the government to fix a wrong. ("Redress of grievances" means correcting complaints.)

This one sentence holds five freedoms: religion, speech, press, assembly, and petition. The first part, about religion, has two halves, and the test often asks about each one by name.

• The establishment clause is the part that says Congress shall make no law "respecting an establishment of religion." (A clause is one part of a sentence or a document.) It means the government may not create an official church, may not favor one religion over others, and may not favor religion over no religion. People often call this idea the separation of church and state.
• The free exercise clause is the part that says the government may not prohibit "the free exercise thereof," meaning the free practice of religion. It protects people's right to worship as they choose, or not to worship at all.

The other freedoms work the same way. Freedom of speech protects what people say and many other ways of expressing ideas, such as signs, clothing, and art. Freedom of the press protects newspapers, magazines, books, and today news websites, and it means the government generally may not stop a story from being published. Assembly means a gathering of people, such as a rally, a march, or a meeting. A petition is a formal request to the government, and the right to petition covers signing a written petition, writing to an elected official, and filing a lawsuit against the government.

These freedoms have limits that the courts have recognized. Speech that is meant to start immediate violence and is likely to do so is not protected. Neither are true threats, nor false statements of fact that damage someone's reputation, under rules the courts have set. The government may also set reasonable rules about the time, place, and manner of a gathering, for example by requiring a permit for a large march that will close a street. But it may not refuse a permit because it dislikes the marchers' message.

Landmark cases

Engel v. Vitale (1962). New York State officials wrote a short prayer and recommended that public schools have students say it each morning. Parents in New Hyde Park, on Long Island, challenged it. The Supreme Court ruled that a government-written prayer in public schools violated the establishment clause, even though students were allowed to stay silent. Students may still pray on their own at school.

New York Times v. Sullivan (1964). A city official in Montgomery, Alabama, sued the New York Times over an advertisement supporting the civil rights movement that contained some errors. The Supreme Court ruled that a public official cannot win such a lawsuit just by showing a statement was false. The official must show the newspaper knew the statement was false or showed reckless disregard for whether it was true. This is called the actual malice rule. Here malice does not mean hatred: in this rule it means knowing a statement is false, or not caring whether it is true (reckless disregard). This rule protects the press when it reports on people in power.

Tinker v. Des Moines (1969). In Des Moines, Iowa, a group of students wore black armbands to school to protest the Vietnam War, and the school suspended them. The Supreme Court ruled for the students. It said students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." A school may limit student speech only if it would seriously disrupt the school.

New York Times Co. v. United States (1971). This is called the Pentagon Papers case. The Pentagon, the headquarters of the Department of Defense, near Washington, had ordered a secret study of how the United States became involved in the war in Vietnam. The study filled 47 volumes. It told how decisions about the war had been made over more than twenty years, under several presidents, including much that the public had never been told. Daniel Ellsberg, a military analyst who had worked on the study, gave copies to reporters. The New York Times, a New York City newspaper, began printing stories about it on June 13, 1971. The government went to the federal court in Manhattan and got an order that stopped the Times for a time, and when the Washington Post began printing the study too, the government went to court against the Post. The government said that publishing the study would harm national security. What it was asking for is called prior restraint: stopping something from being published or said before it comes out, instead of punishing it afterward. On June 30, 1971, the Supreme Court ruled 6 to 3 for the newspapers. It repeated an earlier rule: "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." In other words, the Court begins by assuming that an order stopping publication is unconstitutional, and the government must prove a very strong reason for it. Here, the Court said, the government had not done so. Justice Hugo Black, who agreed with the decision, wrote: "The press was to serve the governed, not the governors." The three justices who dissented believed the case had been rushed and that the courts needed more time to weigh the danger to national security. The two newspapers went back to printing the study.

Texas v. Johnson (1989). In 1984, while the Republican National Convention was meeting in Dallas, Texas, a man named Gregory Lee Johnson joined a march to protest the policies of President Ronald Reagan's administration. When the march ended in front of Dallas City Hall, Johnson poured kerosene on an American flag and set it on fire. No one was hurt. Texas convicted him under a state law against desecrating a flag (damaging or mistreating it in a way the person knows will seriously offend people who see it), and he was sentenced to one year in prison and fined $2,000. The question was whether burning a flag is a kind of speech. The courts have long held that the First Amendment protects symbolic speech: an action, rather than words, that expresses an idea, such as the black armbands in the Tinker case. On June 21, 1989, the Supreme Court ruled 5 to 4 that Johnson's flag burning was symbolic speech protected by the First Amendment. Justice William Brennan wrote: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." (A bedrock principle is a basic rule that other rules rest on.) Four justices dissented. Chief Justice William Rehnquist, writing for three of them, argued that the flag is the nation's one unique symbol and that a state may protect it. He wrote that "one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people." (To legislate against something is to pass laws forbidding it.) Congress then passed a national law against flag burning, the Flag Protection Act of 1989. In 1990, in United States v. Eichman, the Court struck that law down too, by the same vote of 5 to 4.

Drills for this part: III.01 The five freedoms of the First Amendment: which one is it? · III.02 The two religion clauses: no established church, and free exercise (Engel v. Vitale) · III.03 Speech and press cases: Tinker, New York Times v. Sullivan, the Pentagon Papers, Texas v. Johnson. All the drills are on the Social Studies Drills page.

The Second Amendment: the right to keep and bear arms

In plain words: Because a well-organized militia is needed to keep a free state safe, the government may not violate the people's right to own and carry weapons. (A militia is a military force made up of ordinary citizens rather than full-time soldiers. "To bear arms" means to carry weapons. "Infringed" means violated or broken.)

In 1791, many Americans distrusted a permanent national army, which they called a standing army. They had seen British soldiers stationed in colonial cities, and they believed that citizen militias, made up of local men who kept their own guns at home, were a safer way to defend a free country.

For most of American history, people argued about how to read this sentence. Some said the right belonged to the people only as members of a militia. Others said it belonged to each person individually, whether or not he or she served in a militia. The Supreme Court settled that question in 2008.

Landmark cases

District of Columbia v. Heller (2008). Washington, D.C., had banned nearly all handguns in the home. The Supreme Court struck the ban down. It ruled that the Second Amendment protects an individual's right to keep a gun, such as a handgun in the home for self-defense, separate from service in a militia. The Court also said the right is not unlimited, and that some gun laws, such as bans on gun ownership by people convicted of felonies, could remain.

New York State Rifle & Pistol Association v. Bruen (2022). New York required a person to show a special need, which the law called "proper cause," to get a license to carry a handgun in public. The Supreme Court struck down that requirement. It ruled that the Second Amendment protects a right to carry a handgun in public for self-defense, and that gun laws must fit the nation's historical tradition of regulating guns.

Drills for this part: III.04 Which amendment protects this right? The Second through the Tenth. All the drills are on the Social Studies Drills page.

The Third Amendment: no soldiers in your home

In plain words: In peacetime, the government may not make a homeowner give soldiers a place to live unless the owner agrees. In wartime, it may do so only in the way a law sets out. ("Quartered" means given a place to live and sleep. "Prescribed" means set down as a rule.)

This amendment comes straight out of the years before the American Revolution. Under laws that Parliament passed, called the Quartering Acts, colonists could be required to provide housing and supplies for British soldiers. In 1776 the Declaration of Independence listed among its complaints against the king "Quartering large bodies of armed troops among us." The Third Amendment was written so that the new American government could never do the same.

In the courts

The Third Amendment is the least used part of the Bill of Rights. The Supreme Court has never decided a case that turned mainly on it. It has been mentioned, along with other amendments, in cases about the right to privacy. One federal appeals court case is often noted. In Engblom v. Carey (1982), the case came out of a 1979 strike by prison officers in New York State, when the state housed National Guard soldiers in the officers' living quarters at a prison. The appeals court said the Third Amendment could apply in a case like that. On the GED test, what matters is what the amendment says and why the founders wanted it.

Drills for this part: III.04 Which amendment protects this right? The Second through the Tenth. All the drills are on the Social Studies Drills page.

The Fourth Amendment: searches, seizures, and warrants

In plain words: People have the right to be safe from unreasonable searches and seizures of their bodies, their homes, their papers, and their belongings. ("Effects" means belongings. A "seizure" is when the government takes something, or takes hold of a person, as in an arrest.) A judge may issue a warrant only when there is probable cause, only when someone swears that the facts are true, and only when the warrant names exactly what place will be searched and what people or things will be taken.

Three terms in this amendment come up again and again on the test.

• A warrant is a written order signed by a judge that gives the police permission to search a specific place or to arrest a specific person.
• Probable cause means a reasonable basis, built on facts, for believing that a crime has been committed or that evidence of a crime will be found in a certain place. A hunch is not enough.
• "Particularly describing" means the warrant must be specific. Before the Revolution, British officials used what were called general warrants, or writs of assistance, which let officers search almost any place they chose for smuggled goods. The Fourth Amendment forbids that kind of open-ended search.

The amendment does not forbid every search without a warrant. It forbids unreasonable ones. Over the years the courts have recognized situations in which police may search without a warrant, such as when a person freely agrees to the search, when evidence is in plain view, during a real emergency, or when searching a person who has just been lawfully arrested.

Landmark cases

Mapp v. Ohio (1961). Police in Cleveland, Ohio, forced their way into the home of Dollree Mapp while looking for a suspect, without showing a valid warrant. They found other material and used it to convict her. The Supreme Court ruled that evidence taken in an illegal search cannot be used against a person in a state court. This is called the exclusionary rule, because the evidence is excluded, meaning kept out of the trial. The rule gives police a strong reason to follow the Fourth Amendment.

Terry v. Ohio (1968). A police officer in Cleveland watched three men who seemed to be preparing to rob a store. He stopped them and patted down the outside of their clothing, and he found guns. The Supreme Court ruled that police may briefly stop a person and pat down the outside of the person's clothing for weapons if the officer has reasonable suspicion, meaning specific facts that suggest the person is involved in a crime and may be armed. Reasonable suspicion is a lower standard than probable cause, but it must still rest on facts. This kind of stop is often called a "stop and frisk."

Drills for this part: III.05 Rights of a person accused of a crime: which amendment is at stake? · III.06 Cases on the rights of the accused: Mapp, Gideon, Miranda · III.04 Which amendment protects this right? The Second through the Tenth. All the drills are on the Social Studies Drills page.

The Fifth Amendment: rights of a person accused, and the taking of property

In plain words: This is the longest amendment in the Bill of Rights, and it holds five separate protections. It is easiest to read one piece at a time.

1. The grand jury

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." A capital crime is one that can be punished by death, and an "infamous crime" here means a serious crime. A grand jury is a group of ordinary citizens who hear the government's evidence and decide whether there is enough of it to charge a person with a crime and hold a trial. Their formal charge is called an indictment. So in federal court, a person cannot be put on trial for a serious crime unless a grand jury first agrees that the charge should go forward. Members of the armed forces are tried under military rules instead.

2. No double jeopardy

"Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." Jeopardy means danger, here the danger of being punished. Double jeopardy means being tried twice for the same crime. Once a jury finds a person not guilty, the government may not try that person again for the same crime, even if new evidence turns up later. (The courts have ruled that the national government and a state government are separate governments, so in some cases each may bring its own charges for the same act.)

3. No forced self-incrimination

"Nor shall be compelled in any criminal case to be a witness against himself." To incriminate someone is to show that he or she is guilty of a crime. Self-incrimination means giving evidence of your own guilt. The government may not force a person to testify against himself or herself. This is why a person can decline to answer questions that might help convict them, which is called "taking the Fifth" or "pleading the Fifth." A jury is not supposed to treat that silence as proof of guilt.

4. Due process of law

"Nor be deprived of life, liberty, or property, without due process of law." Due process means the fair procedures the law requires before the government can take away a person's life, freedom, or property. At a minimum, it means a person must be told what the government is accusing them of, and must have a fair chance to be heard by a neutral judge before a decision is made. The Fifth Amendment's due process clause limits the national government. In 1868 the Fourteenth Amendment added the same words to limit the state governments (see Part 12).

5. Taking property: eminent domain and just compensation

"Nor shall private property be taken for public use, without just compensation." Eminent domain is the power of the government to take private property for public use, such as a road, a school, or a subway line, even if the owner does not want to sell. This part of the amendment, often called the takings clause, sets two conditions. The property must be taken for a public use, and the owner must receive just compensation, meaning a fair price, usually the property's market value.

This protection covers every "person," as the amendment says, and not only citizens. The same is true of much of the Bill of Rights: many of its protections cover everyone in the United States.

Landmark cases

Miranda v. Arizona (1966). Ernesto Miranda was arrested in Phoenix, Arizona, and questioned by police for about two hours. He was not told that he had the right to stay silent or to have a lawyer, and he signed a confession. The Supreme Court overturned his conviction. It ruled that before police question a person who is in custody, they must tell the person of the right to remain silent and the right to a lawyer. If they do not, the person's statements generally cannot be used to prove guilt at trial. This case protects the Fifth Amendment right against self-incrimination.

Kelo v. City of New London (2005). The city of New London, Connecticut, took homes to make way for a private development plan that it said would bring jobs and taxes. The Supreme Court ruled, five votes to four, that economic development counted as a "public use" under the Fifth Amendment. The decision was unpopular with many Americans, and afterward many states passed laws to limit when their governments may take property this way.

Drills for this part: III.05 Rights of a person accused of a crime: which amendment is at stake? · III.06 Cases on the rights of the accused: Mapp, Gideon, Miranda · III.04 Which amendment protects this right? The Second through the Tenth. All the drills are on the Social Studies Drills page.

The Sixth Amendment: a fair trial and a lawyer

In plain words: When a person is put on trial for a crime, that person has these rights. (A prosecution is the government's case against a person accused of a crime. The accused is the person charged.)

• A speedy trial. The government may not hold a charge over a person for an unreasonably long time before trial.
• A public trial. Trials may not be held in secret, so the public can see that they are fair.
• An impartial jury from the place where the crime happened. "Impartial" means not taking sides in advance.
• To be told the charges. The accused must be informed of what he or she is accused of and why.
• To confront the witnesses. The accused has the right to face the witnesses against him or her in court and, through a lawyer, to question them.
• To call witnesses. "Compulsory process" means the court can order witnesses to come and testify for the accused.
• The assistance of counsel. Counsel means a lawyer. The accused has the right to a lawyer for his or her defense. ("Defence" is the older spelling of defense.)

Landmark case

Gideon v. Wainwright (1963). Clarence Earl Gideon was charged in Florida with breaking into a pool hall. He could not afford a lawyer and asked the court to appoint one. The judge refused, because Florida at that time appointed lawyers only in cases that could bring the death penalty. Gideon defended himself and was convicted. From prison, he wrote his own petition to the Supreme Court by hand, in pencil. The Court ruled unanimously that a state must provide a lawyer to a person accused of a serious crime who cannot afford one. Gideon was tried again, this time with a lawyer, and the jury found him not guilty. Public defender systems across the country grew out of this decision.

Drills for this part: III.05 Rights of a person accused of a crime: which amendment is at stake? · III.06 Cases on the rights of the accused: Mapp, Gideon, Miranda · III.04 Which amendment protects this right? The Second through the Tenth. All the drills are on the Social Studies Drills page.

The Seventh Amendment: juries in civil cases

In plain words: In a lawsuit over more than twenty dollars, the people involved have the right to a trial by jury. Once a jury has decided the facts of the case, a federal court may not simply set those facts aside, except under the long-established rules of the law. ("Suits" means lawsuits. "The value in controversy" means the amount of money being fought over. "Common law" means the body of law built up over centuries from judges' decisions, which Americans inherited from England.)

To understand this amendment, it helps to know the difference between two kinds of cases.

• A criminal case is brought by the government against a person accused of a crime. The government is trying to punish the person, for example with jail or a fine. The Sixth Amendment covers juries in criminal cases.
• A civil case is a dispute between people or organizations, usually about money, property, or a broken agreement. One side, the plaintiff, sues the other side, the defendant. Nobody goes to jail for losing a civil case. The Seventh Amendment covers juries in civil cases.

Twenty dollars was a meaningful sum in 1791. The amount has never been changed, so today nearly any civil lawsuit in federal court meets it.

In the courts

There is no single famous case that the GED test connects to the Seventh Amendment. The points to know are what it covers: civil cases, not criminal ones; the twenty-dollar amount; and that it applies in federal courts.

Drills for this part: III.04 Which amendment protects this right? The Second through the Tenth. All the drills are on the Social Studies Drills page.

The Eighth Amendment: bail, fines, and punishment

In plain words: Courts may not set bail too high, may not impose fines that are too large, and may not use cruel and unusual punishments. ("Excessive" means too much, more than is reasonable. "Inflicted" means forced on someone.)

This amendment has three parts.

• Bail is money that an accused person pays to the court so that he or she can be released from jail while waiting for trial. The money is returned if the person comes back to court as required. Bail is meant to make sure the person returns. It may not be set higher than what is reasonably needed for that purpose.
• A fine is money paid as punishment. A fine may not be far out of proportion to the offense.
• Cruel and unusual punishments are not allowed. The amendment does not list them. The Supreme Court has said that what counts as cruel and unusual depends on what the Court has called "the evolving standards of decency that mark the progress of a maturing society." In other words, the meaning can change as a society's standards change. Torture is forbidden, and so is a punishment that is grossly out of proportion to the crime.

The words of this amendment were copied almost exactly from the English Bill of Rights of 1689, which said "excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Landmark cases

Furman v. Georgia (1972) and Gregg v. Georgia (1976). In Furman, the Supreme Court ruled that the death penalty, as states were then using it, was cruel and unusual, because it was applied in an arbitrary and inconsistent way. Executions stopped across the country. In Gregg, four years later, the Court ruled that the death penalty itself is not always cruel and unusual, and it allowed states with new, more careful procedures to use it again.

Roper v. Simmons (2005). The Supreme Court ruled that executing a person for a crime committed before the age of eighteen is cruel and unusual punishment.

Timbs v. Indiana (2019). Indiana took a man's $42,000 car after he pleaded guilty to selling a small amount of drugs; the largest fine the law allowed for his crime was $10,000. The Supreme Court ruled that the ban on excessive fines applies to the states as well as to the national government.

Drills for this part: III.05 Rights of a person accused of a crime: which amendment is at stake? · III.04 Which amendment protects this right? The Second through the Tenth. All the drills are on the Social Studies Drills page.

The Ninth Amendment: rights that are not listed

In plain words: The fact that the Constitution lists certain rights does not mean that the people have no other rights. ("Enumeration" means a list, or the act of listing. "Construed" means understood or interpreted. "Disparage" means to treat as less important. "Retained" means kept.)

Part 1 of this chapter described a worry some Federalists had: if a bill of rights listed some rights, people might later argue that any right left off the list did not exist. Madison wrote the Ninth Amendment to answer that worry. It says the list in the Bill of Rights is not complete. The people keep other rights too, even though they are not written down.

The Ninth Amendment does not name those other rights, and judges have long disagreed about how much they should rely on it. In practice, when the Supreme Court has recognized a right that is not written word for word in the Constitution, it has usually found that right in other parts of the Constitution, such as the due process clauses of the Fifth and Fourteenth Amendments. The Ninth Amendment stands behind the general idea that such rights can exist.

Landmark case

Griswold v. Connecticut (1965). Connecticut had a law that made it a crime for anyone, including married couples, to use birth control. The Supreme Court struck the law down and recognized a right to privacy in marriage. The Court's main opinion said this right came from several parts of the Bill of Rights taken together, and it mentioned the Ninth Amendment among them. Another opinion, written by Justice Arthur Goldberg, relied heavily on the Ninth Amendment, arguing that the people keep fundamental rights that are not listed.

Drills for this part: III.04 Which amendment protects this right? The Second through the Tenth. All the drills are on the Social Studies Drills page.

The Tenth Amendment: powers reserved to the states and the people

In plain words: Any power that the Constitution does not give to the national government, and does not forbid to the states, belongs to the states or to the people. ("Delegated" means handed over or assigned. "Reserved" means kept back. "Respectively" here means each state for itself.)

The Ninth Amendment is about rights. The Tenth is about powers. It states in writing the idea at the center of federalism, which is the division of power between the national government and the state governments. (Chapter 6 covers federalism in detail.) The Constitution lists the powers of the national government, such as declaring war, printing money, and regulating trade between the states. These are called delegated powers. The powers that are left over, and not given to the national government, are called reserved powers. They stay with the states or with the people.

Landmark case

New York v. United States (1992). A federal law tried to make states deal with low-level radioactive waste produced within their borders, and one part of the law said that a state that failed to do so would have to take ownership of the waste. New York State challenged the law. The Supreme Court ruled that this part of the law went too far. Congress may encourage the states in many ways, but it may not simply order a state government to carry out a federal program. The Court relied on the Tenth Amendment and the structure of federalism.

Drills for this part: III.04 Which amendment protects this right? The Second through the Tenth. All the drills are on the Social Studies Drills page.

How the Bill of Rights came to cover the states

Look again at the first words of the First Amendment: "Congress shall make no law." The Bill of Rights was written to limit the national government, the government the Anti-Federalists feared. In 1791, the states had their own constitutions, and many of those had their own lists of rights. But the U.S. Bill of Rights itself did not stop a state government from taking away a person's freedom of speech or searching a person's home.

Barron v. Baltimore (1833)

John Barron owned a wharf, a landing place for ships, in the harbor of Baltimore, Maryland. When the city paved streets and changed the flow of streams, sand and dirt washed into the harbor, and the water at his wharf became too shallow for ships to use. Barron said the city had taken the value of his property without paying him, which the Fifth Amendment forbids. The Supreme Court, under Chief Justice John Marshall, ruled against him. The Court said the Bill of Rights limited only the national government, not the states or the cities. For the next several decades, that was the rule.

The Fourteenth Amendment (1868)

After the Civil War, three amendments were added to the Constitution to end slavery and to protect the rights of the people who had been freed. The Fourteenth Amendment, ratified in 1868, was written to limit the states. Its first section says:

In plain words: No state may take away the rights of American citizens. No state may take away any person's life, freedom, or property without fair legal procedures. And no state may deny any person the equal protection of the law. Notice the words "No State," and notice the same phrase from the Fifth Amendment: "due process of law."

One right at a time

Over the following century, the Supreme Court used the Fourteenth Amendment's due process clause to apply most parts of the Bill of Rights to the states. The Court's reasoning was that some rights in the Bill of Rights are so basic to liberty that a state which took them away would be denying "due process of law." This process is called incorporation, because the rights were incorporated, or brought into, the Fourteenth Amendment's protection against the states.

It did not happen all at once. The Court applied the rights one at a time, case by case, as people brought cases against state governments. This is sometimes called selective incorporation. Here are some of the steps:

Today almost all of the Bill of Rights applies to the states and cities as well as to the national government. A few parts never have been applied to the states, such as the Fifth Amendment's requirement of a grand jury and the Seventh Amendment's right to a jury in civil cases. The Supreme Court has never decided whether the Third Amendment applies to the states.

This matters for daily life, because most people's dealings with police, courts, and schools are with state and city governments, not with the national government. When an NYPD officer stops someone, or a New York State court tries a case, the Bill of Rights applies there because of incorporation.

The readings handout on this site, Rights on Paper, tells the stories of several of these cases and the people who brought them.

Drills for this part: III.09 How the Bill of Rights came to limit the states. All the drills are on the Social Studies Drills page.

Rights on paper and rights in practice

Writing a right into the Constitution does not by itself make sure that every person can use it. Throughout American history, the rights in the Bill of Rights have often been denied to some people, sometimes by the government's own laws. Just as often, people have used the courts, organizing, and public protest to make those rights real for themselves and for others. The GED test expects you to know both parts of this history.

Early limits on speech

In 1798, only seven years after the First Amendment was ratified, Congress passed the Sedition Act. It made it a crime to publish "false, scandalous and malicious" writing against the government, Congress, or the president. Newspaper editors who criticized President John Adams were arrested and jailed under it. The law expired in 1801. Many Americans saw it as a violation of the First Amendment, and the argument over it shaped later understandings of free speech.

Black Americans under slavery and Jim Crow

When the Bill of Rights was ratified, slavery was legal, and its protections did not reach enslaved people. After the Civil War and the end of slavery, Southern states passed laws known as Jim Crow laws, which enforced racial segregation, the separation of people by race. For nearly a century, Black Americans in the South were often denied rights the Bill of Rights promised. Peaceful meetings were broken up and protesters were arrested. Black defendants were tried by all-white juries, often without a real chance to defend themselves.

People fought back through the courts and through organizing, and the Supreme Court sometimes sided with them.

• In Powell v. Alabama (1932), nine Black teenagers known as the Scottsboro Boys had been rushed to trial in Alabama without a real chance to have a lawyer prepare their defense. The Supreme Court overturned their convictions, ruling that in a case that could bring the death penalty, denying them a real chance at a lawyer violated due process.
• In NAACP v. Alabama (1958), the state of Alabama tried to force the National Association for the Advancement of Colored People to hand over the names and addresses of its members. The Supreme Court ruled that this violated the members' freedom to associate, which it found in the First Amendment, because members could face threats and loss of their jobs if their names were known.
• In Edwards v. South Carolina (1963), about two hundred Black students had been arrested after a peaceful march at the South Carolina State House to protest segregation. The Supreme Court overturned their convictions, ruling that the state had violated their rights to free speech, assembly, and petition.

Japanese American incarceration

In February 1942, soon after Japan attacked Pearl Harbor, President Franklin D. Roosevelt signed Executive Order 9066. Under it, about 120,000 people of Japanese ancestry living on the West Coast, about two-thirds of them American citizens, were forced from their homes and held in camps for much of the war. They were not charged with any crime and had no hearing. In Korematsu v. United States (1944), the Supreme Court upheld the removal order, saying it was justified by wartime needs.

Decades later, the country reached a different judgment. In the Civil Liberties Act of 1988, Congress formally apologized and paid $20,000 to each surviving person who had been held. In 2018, the Supreme Court said that Korematsu "was gravely wrong the day it was decided." This history shows that the courts can fail to protect rights, especially in times of fear, and that later generations can correct those failures.

A New York example

In New York City in the 2000s and early 2010s, police stopped and frisked hundreds of thousands of people a year, most of them Black and Latino. Residents who had been stopped sued the city. In 2013, in Floyd v. City of New York, a federal judge ruled that the way the city had carried out these stops violated the Fourth Amendment, because many stops lacked reasonable suspicion, and violated the Fourteenth Amendment's guarantee of equal protection. The judge ordered changes to the program and appointed an outside monitor to oversee them.

What these stories have in common

Many of the landmark cases in this chapter began with one ordinary person: a student wearing an armband, a man in prison writing to the Court in pencil, a woman who would not let police search her home without a warrant. Often an organization stood with them, such as a civil rights group, a union, or a legal aid office. The rights in the Bill of Rights became stronger in practice because people knew them, claimed them, and were willing to go to court and to organize to defend them.

All ten, side by side

Use this table to review. The third column is a short phrase to help you remember which amendment is which.

Another way to group them: the First and Second protect freedoms people use in public life; the Third and Fourth protect the home and private life; the Fifth, Sixth, Seventh, and Eighth set the rules for courts, trials, and punishment; and the Ninth and Tenth explain how the whole Constitution should be read.

Drills for this part: III.04 Which amendment protects this right? The Second through the Tenth. All the drills are on the Social Studies Drills page.

Words to know

Amendment

A change or addition to a document. The U.S. Constitution has twenty-seven amendments.

Bill of Rights

The first ten amendments to the Constitution, ratified in 1791.

Ratify

To formally approve. An amendment must be ratified by three-fourths of the states.

Federalists and Anti-Federalists

Federalists supported the new Constitution of 1787. Anti-Federalists opposed it or wanted it changed, and they demanded a bill of rights.

Clause

One part of a sentence or of a legal document.

Establishment clause

The part of the First Amendment that forbids the government to set up an official religion or to favor one religion.

Free exercise clause

The part of the First Amendment that protects the right to practice one's religion.

Abridge

To cut short or reduce.

Assembly

A gathering of people, such as a meeting, rally, or march.

Petition

A formal request to the government, such as a signed letter or a lawsuit.

Redress of grievances

The correction of complaints or wrongs.

Prior restraint

Stopping something from being published or said before it comes out, instead of punishing it afterward. The courts almost never allow it (New York Times Co. v. United States, 1971).

Symbolic speech

An action, rather than words, that expresses an idea, such as wearing an armband or burning a flag in protest. The First Amendment protects it (Texas v. Johnson, 1989).

Militia

A military force made up of ordinary citizens rather than full-time soldiers.

Quarter

To give soldiers a place to live and sleep.

Search and seizure

A search is the government looking through a person's body, home, or belongings. A seizure is the government taking property or taking hold of a person.

Warrant

A written order signed by a judge that allows police to search a specific place or arrest a specific person.

Probable cause

A reasonable basis, built on facts, for believing a crime was committed or that evidence will be found in a certain place.

Reasonable suspicion

Specific facts that suggest a person is involved in a crime. It is a lower standard than probable cause, and it allows only a brief stop.

Exclusionary rule

The rule that evidence taken in an illegal search cannot be used at trial.

Grand jury

A group of citizens who decide whether there is enough evidence to charge a person with a serious crime.

Indictment

A formal charge of a crime, made by a grand jury.

Self-incrimination

Giving evidence of your own guilt. The Fifth Amendment protects people from being forced to do it.

Double jeopardy

Being tried twice for the same crime. The Fifth Amendment forbids it.

Due process

The fair legal procedures the government must follow before taking away a person's life, liberty, or property.

Eminent domain

The government's power to take private property for public use.

Just compensation

A fair price, which the government must pay when it takes property.

Prosecution

The government's case against a person accused of a crime.

Impartial

Fair; not taking sides in advance.

Counsel

A lawyer.

Public defender

A lawyer paid by the government to represent people who cannot afford one.

Criminal case and civil case

A criminal case is brought by the government to punish a crime. A civil case is a dispute between people or organizations, usually about money or property.

Bail

Money paid to the court so an accused person can be released before trial, returned if the person comes back to court.

Cruel and unusual punishment

Punishment that is torturous or far out of proportion to the crime. The Eighth Amendment forbids it.

Enumeration

A list.

Delegated powers

Powers the Constitution gives to the national government.

Reserved powers

Powers kept by the states or the people because the Constitution does not give them to the national government.

Federalism

The division of power between the national government and the state governments.

Landmark case

A Supreme Court decision that set an important rule other courts must follow.

Incorporation

The process by which the Supreme Court used the Fourteenth Amendment to apply parts of the Bill of Rights to the states.