We resume our review of the Bill of Rights with the Third Amendment: “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 prescribed by law.” This amendment recalled the practice of the British, which quartered soldiers in homes during the French and Indian War, and again in Boston in 1774. Six of the original 13 states also banned quartering of soldiers, and some of the Anti-Federalists insisted this amendment be included in the Bill of Rights, likely as a means to restrain the newly-formed central government and to establish the primacy of individual rights. If this amendment were not to be ratified now, it would be because of its irrelevancy, because today, there is no need to quarter soldiers in private homes, and no one wants to do so. Its significance is that it limits the power of the central government, as do all of the original ten amendments (the Bill of Rights) .
This amendment protects against “fishing expeditions,” whereby the authorities could go rifling through the property of a suspect (or a political opponent) in hopes of finding . . .something – anything! It requires authorities to have “probable cause” for a warrant, and thus gives us protection against the powers of government. While the original intent of the Founders may have been to defend political opponents or critics of the government, the Fourth Amendment also covers criminal cases, and, even though many an “obvious” criminal has gone free due to an improper search or seizure, and even though some judges seem to bend over backwards to protect the rights of the accused at the expense of the rights of the victim, this amendment almost certainly would be included in a modern Bill of Rights. It forces law enforcement to behave correctly, and restrains the government from harassing its opponents. It champions the rights of the individual.
The Fifth Amendment, like the Fourth, is often cited in court cases or when testimony is given: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, excepting 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.” Before delving into this one, let’s take note that the Fifth Amendment refers to a “capital crime,” which means one for which the death penalty may be imposed. We point this out for the benefit of those (including a few Supreme Court Justices) who believe that the death penalty is “unconstitutional.” If one disapproves of the death penalty, he is free to argue against it, or to favor laws that restrict or forbid its use; but how can it be said to be “unconstitutional” when the very Constitution refers to it – and in of all places, the Fifth Amendment, which protects defendants against self-incrimination, double jeopardy, etc. If the Founders had wanted to ban the death penalty, they could have done so. They did not.
Now, onto the rest of the Amendment. The Grand Jury Requirement was another constraint on the power of the government, and another protection for the individual. Although many of the amendments in the Bill of Rights affirmed rights that had been trampled on by the Crown, the double jeopardy provision was also a part of English Common Law, and each of the original states included this provision in its own Constitution. The prohibition of double jeopardy goes back in the law codes for centuries, and would certainly be included in any modern Bill of Rights. Similarly, protections against “self-incrimination” affirm that defendants have rights, and that the government has the obligation to protect those rights. The “due process” clause and the “takings” clause also secure the rights of the individual and limit the powers of government. In the Kelo decision of 2005, however, a 5-4 split of the Supreme Court decided that the “public use” provision, which had generally been restricted to government roads, bridges, highways, etc. could also be used for a “public benefit,” (in that case, a private housing development). The dissenters strongly argued against the taking of private property to benefit another private party, and we are certain that if the Bill of Rights were up for adoption today, conservatives would insist that “public use” be defined in a way to limit “eminent domain” to actual public use, and not private investment. Many also would contend that the protections in the takings clause should be strengthened, because governments have asserted control over quite a few things in recent decades that are far outside the scope of what government was likely to do in 1791. So although this part of the amendment might not be ratified today, it is not because the protections it affirms are too strong, but too weak. Of course, those who favor the majority in Kelo might well argue that government needs greater power, so this provision could be one that sparks a great deal of argument in a modern ratification campaign. There also is the chance that some would seek to increase the power of government in searches, seizures, and warrant cases, but most people would want to have those rights reaffirmed, and the Fifth Amendment, like the Fourth, would surely be part of any modern Bill of Rights. We do not believe that Americans would settle for anything less.
We will continue this series of columns next week.