Ranking the Bill of Rights

Ranking the bill of rights

By Benjamin Zhang

Summary

For over 150 years after its ratification in 1791, the Bill of Rights played a very minor role in judicial proceedings, but beginning in the 20th century, it was thrust into the forefront as the basis for many Supreme Court decisions. Since then, the Bill of Rights has become a major talking point among scholars, politicians, and average citizens alike. Of the ten amendments in the Bill of Rights, certain ones are debated more frequently, while the merit of others is rarely questioned. The differences in the amendments give rise to the question – which ones are more important? While this is a subjective question without a clear answer, what follows is an attempt to answer it quantitatively.

The following is the table of the amendments, ranked in order of their average score.

Judicial Use / Relevance / Clarity / Average Score
1st Amendment / 10 / 10 / 6 / 9
5th Amendment / 7 / 9 / 8 / 8
6th Amendment / 5 / 9 / 8 / 7.333333333
4th Amendment / 7 / 8 / 6 / 7
7th Amendment / 1 / 9 / 10 / 6.666666667
9th Amendment / 5 / 7 / 7 / 6.333333333
2nd Amendment / 8 / 9 / 1 / 6
8th Amendment / 6 / 5 / 6 / 5.666666667
10th Amendment / 3 / 6 / 6 / 5
3rd Amendment / 1 / 1 / 10 / 4

The Bill of Rights is, without a doubt, one of the most influential and controversial documents in the history of the United States. Consisting of the first ten amendments to the United States constitution, the Bill of Rights arose as a result of a dispute between the Federalists and the Anti-Federalists, the latter of which opposed the creation of a strong federal government and refused to ratify the United States Constitution. The Bill of Rights was drawn up by James Madison to limit the power of the United States government and guarantee certain personal freedoms. Only after the Federalists promised to support it did the Anti-Federalists acquiesce and agree to ratify the Constitution (Labunski).

All of the amendments were assigned a number on a scale of 1-10 in the following categories: relevance (e.g. does the amendment still apply in today’s society, or is it outdated?), clarity (e.g. is the wording of the amendment clear, or does it spark debate?), and judicial use (e.g. is the amendment cited often in court decisions, or is it rarely mentioned?). The three ratings for each amendment were then averaged, and the amendments were ranked in order of their averages. While some may claim that this rating system is still rather subjective, it is, at the very least, more quantitative than a simplersystem that ranks the amendments solely qualitatively. Still, one must be aware that the inclusion of numbers does not fully remove all subjectivity from the ranking, and therefore, these rankings are by no means absolute definitions of the relative importance of the amendments.

The following is the table of the amendments, ranked in order of their average score. Following the table are justifications of the rankings of the amendments presented in the table.

Judicial Use / Relevance / Clarity / Average Score
1st Amendment / 10 / 10 / 6 / 9
5thAmendment / 7 / 9 / 8 / 8
6thAmendment / 5 / 9 / 8 / 7.333333333
4thAmendment / 7 / 8 / 6 / 7
7thAmendment / 1 / 9 / 10 / 6.666666667
9thAmendment / 5 / 7 / 7 / 6.333333333
2ndAmendment / 8 / 9 / 1 / 6
8thAmendment / 6 / 5 / 6 / 5.666666667
10thAmendment / 3 / 6 / 6 / 5
3rdAmendment / 1 / 1 / 10 / 4

The First Amendment states that “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” (US Const. amend. I). Throughout the 20th and 21st centuries, the First Amendment appeared time and time again as the primary basis of court decisions. This fact can be attributed to the broad scope of the amendment. The “freedom of speech” doctrine alone has played a role in a variety of Supreme Court cases. Justices have used the doctrine to uphold a conviction for speaking out against the draft during World War I (Schenck), strike down a Los Angeles law that criminalized the distribution of anonymous pamphlets (Talley), and invalidate prohibitions on desecrating the American Flag (Texas).

As these cases demonstrate, the ideas in the First Amendment are perennial. As long as speech, religion, the press, etc. exist, they will continue to evolve. As time passes, new disputesinvolving them that have never been encountered before will appear and be challenged in the courts.The continual evolution of the ideas of the First Amendment, in addition to guaranteeing its current judicial use, seems to also sustain its relevance. First Amendment court cases usually prompt plenty of discussion and action from the American people. A recent case that overturned the Stolen Valor Act, which criminalized false statements about the ownership of a military medal (United States v. Alvarez) prompted outrage from several veterans’ organizations.

The First Amendment is also notable because of the ambiguity of several of its phrases. No consensus, for example, has ever been reached on the definition of the word “religion”. It has been suggested that the multitude of religions present in the United States has blurred the concepts of “religion” and “religious beliefs”. Attempts to create a simple, all-encompassing definition by scholars have all failed (Choper). Other ideas in the First Amendment are also not as clear-cut as it may seem at first blush. The United States Copyright Act of 1976 can be interpreted as a law made by Congress that abridges the freedom of speech and the freedom of the press – thus making it unconstitutional (Nimmer). Does that mean that copyright laws in the United States are invalid and should be repealed? One can certainly not be faulted for taking this point of view.

All of this leads to the inevitable question – how can you regulate an idea or concept if there is no real consensus on what it actually means? The Bill of Rights has managed to survive for over two hundred years on a couple of these ambiguous ideas. As will soon be demonstrated, many of the other amendments that comprise the Bill of Rights are share the First Amendment’s ambiguity. There exist, however, certain over-arching definitions that are generally accepted by the American people. While no one person may be able to accurately define “religion”, for example, people as a whole generally have an idea of what it means –and that idea is enough to apply to most situations. The courts are waiting for the gray-area situations in which the commonly agreed-upon definition do not apply. Inevitably, the imperfectness of the courts when dealing with these exceptions means that the American people may just have to deal with imperfections like the Copyright Act – they have to be willing to give up some of the freedoms of the Bill of Rights in exchange for security, order, and other conveniences. Although this exchange would have displeased the Anti-Federalists of old, it has so far escaped any major problems.

While the First Amendment is not particularly clear in its meaning, the Second Amendment is an absolute free-for-all when it comes to understanding what it is trying to state. It says that “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” (US Const. amend. II). The wording of the amendment (specifically, the inclusion of the second comma) has sparked endless debate. Americans are divided into two groups: the “exclusively state’s right” group, which claims that the amendment only protects the rights of states to maintain organized militias, and the “individual right” group, which claims that the amendment guarantees the rights of individuals themselves to own arms. While most legal scholars side with the former view, the latter can be justified, which has led to “The Great American Gun War” (Kates).

The Supreme Court has heard many involving the right to bear arms, and its view on the Second Amendment’s meaning has changed over time. At one point in time, it ruled that the amendment only applied to the federal government (United States v. Cruikshank). However, it has recently decided that the Second Amendment protects the individual right to possess and carry firearms (District of Columbia). It is unlikely that any real consensus will be made in the near future on this issue. The conflict between the two sides of the American Gun War is increased by special-interest groups such as the National Rifle Association.And as long as Americans continue to own guns, there will continue to be high-profile incidents like the Sandy Hook shooting that propagate discussion of the Second Amendment and what it really means. Surprisingly, there still does not exist any useful body of law based on the Second Amendment (Van Alstyne). It remains to be seen whether or not this will change in the years to come. Certainly, the debate over the Second Amendment will continue.

The Third Amendment states that “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”(US Const. amend. III). No Supreme Court case has ever directly interpreted the Third Amendment, although it has been invoked in some cases as an indicator of an individual’s right to privacy (Griswold). At the time of the writing of the Constitution, the ideas enumerated in the amendment were relevant. Plenty of involuntary quartering of British soldiers took place in the colonies before and during the Revolutionary War. The damage to persons and property that ensued caused much grief among the colonists and led to the creation of the Third Amendment (Fields and Hardy). Since that time, however, the issue of quartering has not been very prevalent, due to the lack of any modern conflicts on American soil.Today, the Third Amendment appears to merely serve as a deterrent to expanding military power and another tool used to guarantee and protect the individual rights of man (Rogers). It can be seen as a relic of the past and one of the main indicators that the United States Constitution is outdated and needs to be revamped. There does exist a minority of people in the United States that promotes this viewpoint.

The Fourth Amendment states that “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” (US Const. amend. IV). Like the first amendment, the Fourth Amendment suffers from a lack of clarity, as it contains plenty of ambiguous verbiage. The main problem is that, over time, the Supreme Court appears to have broadened its scope in a way that the Framers of the Constitution had not intended it to be. At the time of the writing of the Constitution, there were two main legal doctrines: common law, which dealt with criminal arrests and searches, and legislation, which dealt with customs and excise revenue searches. The Fourth Amendment was created primarily for use in situations involving the latter. It is unlikely that it was ever supposed to be applied to criminal searches – that was the expected job of the “due process of law” clause of the Fifth Amendment (Davies). This expansion of power has caused much of the confusion and chaos surrounding the Fourth Amendment today.

The Fourth Amendment, like the First Amendment, derives its longevity from the fact that its primary ideas are continuously evolving. The “unreasonable searches and seizures” phrase has been involved in a wide variety of cases over the years, ranging from one that upheld the constitutionality on searches by public school officials (New Jersey) to one that held that a strip search (a more modern phenomenon) by school officials was unconstitutional (Safford Unified School District). These two cases also demonstrate one of the main problem plaguing the Fourth Amendment over the years: often, different courts will reverse or partially reverse the decisions of former courts, making it difficult for the amendment to certain one clear meaning. For example, the court enforced the exclusionary rule, which states that evidence obtained through a violation of the Fourth Amendment is inadmissible, during the years of the Warren Court (Mapp). However, the subsequent Burger Court handed down a multitude of Fourth Amendment decisions that gave more power to the police and lessened the power of the exclusionary rule (Wasserstrom). While the amendment remains relevant, due to the continuing presence of searches and seizures in everyday life, the contradictions of the Supreme Court in various legal cases centered on ithave made its text rather murky as a whole.

The Fifth Amendment begins a series of series amendments that relate to the operation of trials and other legal affairs. These amendments are all very much relevant today. The United States has a rather abstruse legal system that does not always produce results that are popular among the persons involved in the case and the American people in general. The recent George Zimmerman trial is an example of a case that sparked an intense debate over the American justice system. Due to the status and structure of the system, it is extremely imperative to guarantee the rights of an individual in court. The ultimate goal of the justice system to is to produce a fair and just resolution to any case. While the amendments do not necessarily assure that this goal is met, they help to defend against results that could be deemed outrageous forms of justice. The Fifth Amendment enumerates some important protections afford to individuals during trials. It states that “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”(US Const. amend. V). These protections have more or less stood the test of time, with the Miranda warning – given to a suspect by the police to inform him of his rights to remain silent and obtain an attorney – being the most famous result of a Supreme Court decision regarding one of these protections, namely the privilege against self-incrimination (Miranda).

The scope of the Fifth Amendment is surprising. For example, while its due process clause might only seem to serve a function in the courtroom, it was actually relied upon by the Supreme Court to overturn part of the Defense of Marriage Act (United States v. Windsor). The takings clause of the amendment, which expounds upon the ideas of eminent domain and “just compensation” is another indicator of the evolution of the ideas of the Fifth Amendment and the variety of situations in which it can be applied. Originally, the clause was devised by James Madison as a simple safeguard for rights in general. In the eighteenth century, it was not unusual for colonial legislatures to take private property without offering its corresponding owner any form of compensation. At the time, land was taken primarily for use in building public roads (Treanor). Today, the same takings clause created by Madison over two hundred years ago may play a factor in future court cases involving net neutrality. The Federal Communication Commission’s recent attempts to regulate the content of the Internet can be interpreted as a permanent occupation of private broadband networks and a taking of the providers of these networks’ property without “just compensation”(Lyons). No arguments along these lines have yet found their way into courtrooms, but they may in the near future, thanks to the power and eternal presence of the Fifth Amendment.