Amendments That Never Made The Cut

The United States Constitution has been amended 27 times since it was enacted in 1789. The first ten amendments, known as the Bill of Rights, were ratified in 1791. Since then, 17 more amendments have been added, while 6 have been proposed but not ratified. For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states (38 since 1959). In the absence of a deadline, an amendment can be pending indefinitely and ratified long after being proposed.

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The Bill of Rights

The first two articles of the 12 proposed amendments were never ratified. Article 2 was ratified in 1992 as the 27th Amendment, and Article 1 was never ratified. The Bill of Rights includes the following amendments:

First Amendment

The First Amendment guarantees freedom of religion, speech, and the press, as well as the right to assemble and petition the government.

Second Amendment

The Second Amendment protects the right of the people to keep and bear arms.

Third Amendment

The Third Amendment prohibits the quartering of soldiers in civilian homes during peacetime without consent and outside of regulations.

Fourth Amendment

The Fourth Amendment protects citizens against unreasonable searches and seizures, requiring warrants based on probable cause.

Fifth Amendment

The Fifth Amendment protects against self-incrimination and double jeopardy, and guarantees due process of law and just compensation for eminent domain.

Sixth Amendment

The Sixth Amendment guarantees the right to a speedy trial, a public trial by an impartial jury, and the right to confront accusers and obtain witnesses.

Seventh Amendment

The Seventh Amendment guarantees the right to a trial by jury in certain civil cases.

Eighth Amendment

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

Ninth Amendment

The Ninth Amendment states that the rights not specifically enumerated in the Constitution are retained by the people.

Tenth Amendment

The Tenth Amendment clarifies that powers not delegated to the federal government by the Constitution are reserved for the states or the people.

These amendments form the foundation of individual liberties and federalism in the United States, setting clear limits on the government's power and guaranteeing certain fundamental rights for all citizens.

Freedom of speech

> "Congress shall make no law...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."

The First Amendment was one of 12 amendments proposed by the First Congress of the United States on September 25, 1789. Ten of these proposed amendments were ratified and came into force on December 15, 1791, forming what is known as the Bill of Rights.

The US Supreme Court has often struggled to determine what exactly constitutes protected speech under the First Amendment. For example, in Tinker v. Des Moines (1969), the Court ruled that students wearing black armbands to school to protest a war was protected speech, stating that "students do not shed their constitutional rights at the schoolhouse gate". Similarly, in Cohen v. California (1971), the Court found that the use of certain offensive words and phrases to convey political messages was protected by the First Amendment.

However, it is important to note that the right to freedom of speech is not absolute. For instance, in West Virginia Board of Education v. Barnette (1943), the Court upheld the right not to salute the flag, recognising that compelled speech is incompatible with the First Amendment.

Separation of powers

The US Constitution establishes three separate but equal branches of government: the legislative branch, which makes the law; the executive branch, which enforces the law; and the judicial branch, which interprets the law. Each branch has its own powers and responsibilities, and this separation of powers is a fundamental way of balancing power so that one part of the government does not overpower another.

The Framers' experience with the British monarchy informed their belief that concentrating distinct governmental powers in a single entity would subject the nation's people to arbitrary and oppressive government action. James Madison, in Federalist No. 48, wrote that the accumulation of all powers, legislative, executive, and judiciary, in the same hands, "may justly be pronounced the very definition of tyranny".

To preserve individual liberty, the Framers ensured that a separate and independent branch of the Federal Government would exercise each of the three basic functions. The Legislative Power of the Federal Government is vested in Congress; the Executive Power in the President; and the Judicial Power in the Supreme Court and any lower courts created by Congress.

To address concerns that one branch might attempt to exercise powers assigned to another, the Framers incorporated various checks that each branch could exercise against the actions of the other two. James Madison, in Federalist No. 51, wrote that the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.

The separation of powers has been described by federal judges as creating healthy tensions among the branches that have a stabilizing effect on democracy. An example of this in action is the Supreme Court in Marbury v. Madison, where the Court interpreted Article VI’s establishment of the Constitution as being superior to other federal law to forbid Congress from exercising its legislative power in a manner inconsistent with the Nation’s Founding document.

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State vs federal powers

The Tenth Amendment to the United States Constitution, ratified in 1791, addresses the balance of power between the federal government and the states. It states that any powers not specifically delegated to the federal government are reserved for the states or the people. This amendment was designed to limit the scope of the federal government and prevent potential infringements on the liberties of the people.

The Tenth Amendment has been interpreted as a clarification of the federal government's limited and enumerated powers. It reinforces the principle of federalism, where each state retains its sovereignty, freedom, and independence. The amendment has been invoked in several Supreme Court decisions to determine if the federal government has overstepped its authority. For example, in United States v. Alfonso D. Lopez, Jr. (1995), the Court ruled that federal laws establishing "gun-free zones" on school campuses were unconstitutional, as the Constitution did not authorize them.

On the other hand, there have been instances where the Supreme Court has interpreted the Tenth Amendment to limit the power of the states. For example, in Garcia v. San Antonio Metropolitan Transit Authority (1985), the Court held that a city was required to comply with federal labor laws, protecting state sovereignty interests through the national political process rather than judicial enforcement of federalism.

The Tenth Amendment has also been used by states and local governments to assert exemption from federal regulations, particularly in areas like labor and environmental controls. However, the amendment has not been invoked by the Court to protect individual citizens against the exercise of federal power. The interpretation and application of the Tenth Amendment continue to evolve, impacting the dynamic between federal and state powers.

In summary, the Tenth Amendment to the Constitution of the United States is a crucial component of the Bill of Rights, delineating the powers of the federal government and reserving all other powers to the states or the people. It serves as a reminder of the importance of states' rights and the foundational role of the people in the nation's governance. The amendment has been a subject of ongoing debate and interpretation, influencing the balance of power between the federal government and the states.

Citizenship

The Fourteenth Amendment to the United States Constitution, adopted on July 9, 1868, addresses citizenship and the rights of citizens. The Citizenship Clause, which is the first sentence of the Fourteenth Amendment, states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

This clause reversed the Dred Scott v. Sandford decision, which declared that African Americans were not and could not become citizens of the United States and had no right to the privileges and immunities of citizenship. The Fourteenth Amendment repudiated this decision and affirmed that all persons born or naturalized in the United States are citizens, regardless of race.

The Citizenship Clause also addresses the issue of birthright citizenship. It states that anyone born in the United States under the American flag is a citizen, even if their parents are not citizens or are not legally in the country. This idea of birth equality condemns any racial caste system based on birth and affirms that citizenship is based on the law of the soil, not the law of blood.

However, there are some exceptions to the Citizenship Clause. It does not apply to children born to foreign diplomats, children of alien enemies in hostile occupation, or children of members of Indian tribes subject to tribal laws. Additionally, the citizenship of children born on vessels in United States territorial waters or on the high seas is determined by the citizenship of their parents.

The Fourteenth Amendment also includes the Privileges or Immunities Clause, which states that no state shall make or enforce any law that abridges the privileges or immunities of citizens of the United States. This clause has been used to protect various civil rights and has been the basis for landmark Supreme Court decisions, such as Brown v. Board of Education, which prohibited racial segregation in public schools, and Loving v. Virginia, which ended interracial marriage bans.

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