The Sixth Amendment is the lengthiest of the original Ten: “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.”
One reason why it is so lengthy is that it is so important. Most of the clauses in this amendment were long-standing pillars of English law, and the Founders naturally wanted them continued under the Bill of Rights. It was a tenet of English law for the accused to have a timely hearing, and the Founders made sure that such provision was protected under the Constitution. After all, without this guarantee, a defendant could be jailed for an inordinately lengthy period prior to his trial, a condition that has prevailed in many dictatorships and authoritarian countries as an easy way to keep opponents out of circulation without actually bringing them to trial.
The public trail provision of this Amendment is to assure that defendants are not tried in secret courts but in open, public courts. This is another protection against unfair legal proceedings, and public trials also help to prevent untruthful testimony – as is often said, “sunshine is a good disinfectant.”
Although each of these clauses have been widely accepted for centuries, each have raised a few controversies in recent decades, especially with the “incorporation” of these protections into State courts as well as federal courts by the Fourteenth Amendment. However, we are certain that each provision of the Sixth Amendment would surely be included in any Bill of Rights that would be considered today.
The Seventh Amendment: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined by any Court of the United States, than according to the rules of the common law.” This doesn’t sound controversial today, but because of the difficulty in finding wording that would cover the various laws of the individual states, the original Constitutional Convention defeated a provision guaranteeing the right of trial by jury in civil cases. According to “The Heritage Guide to the Constitution, this “was a costly oversight, for the omission of a guarantee of civil juries occasioned the greatest opposition to the Constitution in the ratifying conventions.” This absence actually kept two of the most famous Founding Fathers, George Mason and Elbridge Gerry, from signing the Constitution. Thus it was a certainty that this amendment would be included in any Bill of Rights. The Reexamination Clause countered fears that juries could be abolished under the Constitutional provision (Article III, Section 2) that the Supreme Court had appellate power “both as to Law and Fact.” Both these clauses surely would be included in a modern Bill of Rights.
The Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted,” is one of the shortest Amendments, but its protections are vital. The excessive bail clause kept courts from setting high bails to keep defendants in prison unfairly. And defendants, through Bail Hearings, also may contest to level of bail. Excessive fines were prohibited by the constitutions of several of the states at the time of ratification, and, this provision is similar to the excessive bail provision, in that it helps to prevent the government from treating its opponents in an unfair manner. One practice that the Founders did not foresee was “punitive damages,” which in certain modern cases, amount to tens of millions of dollars. It would seem that these awards would be contrary to protections against excessive fines, but since they are almost exclusively in civil and not criminal cases, government courts are not likely to make punitive judgments against political opponents. Although the provisions against excessive bail and excessive fines would easily be approved in a modern Bill of Rights, there may be some sentiment also to include a provision against excessive punitive awards. One’s opinion of such a provision likely depends on if one sees an excessive court award as a protection against the power of the state.
The “cruel and unusual punishment” clause is not without controversy. Modern jurisprudence frequently assumes that the death penalty itself is cruel and unusual, even though the Constitution refers to capital crimes. If applied at all in recent years, the death penalty is only applied in cases in which lives are taken. Previously, convictions for kidnapping and /or rape could result in death sentences. As to other, lesser punishments, the original “cruel and unusual punishments” referred to anything not authorized by legislation, or torture, or disproportionate punishments. Gilbert and Sullivan wrote “let the punishment fit the crime,” and that seems to be a pretty common-sense way of looking at things.
Some states have outlawed capital punishment, but several more (including Pennsylvania and California) have governors who refuse to sign death warrants. It is not hard to argue that keeping a convicted criminal in jail for forty years or more is much “crueler” than executing him, thus favoring the carrying out of death sentences, but the fear of executing an innocent person (as has happened) is cited as a major justification of opponents of the death penalty.
The Eighth Amendment surely would be included in a modern Bill of Rights, but, just as there might be efforts to stop excessive punitive damages or court awards, there likely would be efforts to ban the death penalty as well. It is conceivable that the latter effort could result in major opposition to a new Bill of Rights.
We will conclude this series next week.