Early Constitutional Amendments

Since the Constitution of the United States was ratified on June 21, 1788, it has been amended just 27 times. That’s too much for a single post, so I’m splitting this primer in half. Up first: ratified amendments proposed before the Civil War.

Article V of the Constitution lays out the requirements for amendments. It’s a two-step process.

To be proposed, 2/3 of both Legislative chambers must approve the text, or a constitutional convention may be held at the behest of 2/3 of state legislatures.

To be ratified, 3/4 of state legislatures or specially-convened state conventions must concur with the proposal.

In addition to the 27 ratified amendments, six other amendments have been proposed. Two of them – the Equal Rights Amendment and the D.C. Voting Rights Amendment – had time limits for approval, and are now considered dead.

We’ll start with the Bill of Rights (the first ten amendments, passed as a package) and discuss three other amendments.

I’ll add citations and other links over the next few days.

The Bill of Rights

Anti-Federalists disliked the new Constitution because it failed to guarantee personal freedoms. Federalists promised that a Bill of Rights would follow, and on September 25, 1789, the first Congress proposed 12 amendments.

Ten of these were ratified on December 15, 1791, becoming the First through Tenth Amendments. Another was ratified later, and there are claims that the lone failure was technically passed after documentation was found in a drawer in Connecticut in 2011.

Had all 12 proposed amendments forming the Bill of Rights been passed together, what we now know as the First Amendment would actually be the Third Amendment, so any talk of its placement because of its chief importance is total bunk.

1st Amendment

Basic rights of expression.

More details: Establishes five main freedoms: religion, speech, press, assembly, and “to petition the Government for a redress of grievances.”

Why it was instituted: Backlash to treatment (state religion, punishment of dissension) under British rule.

Notable case: There are so many to choose from, but I’ll pick New York Times Company v. United States (1971), in which the Supreme Court said the national-security arguments against publishing the Pentagon Papers were too speculative.

Mnemonic: The government is unable to SPAR with its citizens over their petitions. (SPAR gives you the first letters of Speech, Press, Assembly, and Religion.)

2nd Amendment

The right to bear arms.

More details: Protects the right of citizens to keep and bear arms as part of a “well regulated militia”.

Why it was instituted: To ensure citizens can fight back with force against an oppressive government.

Notable case: Plenty here, too, but among recent cases is District of Columbia v. Heller (2008), which struck down a ban on handguns in Washington, D.C.

Mnemonic: Elmer Fudd slinking around with his double-barreled shotgun.

3rd Amendment

Relates to private quartering of soldiers.

More details: Prohibits the forced quartering of soldiers in times of peace, and places restrictions on the act in times of war.

Why it was instituted: A response to the British Quartering Acts of the 1760s and 1770s, which stipulated that colonists must provide support and housing to British soldiers whenever requested. These Acts were extremely unpopular and often ignored.

Notable case: This amendment has never been the subject of a Supreme Court decision.

Mnemonic: In the third quarter, the Justices are locked in a scoreless tie.

4th Amendment

Prohibits unreasonable search and seizure.

More details: A reaction to British writs of assistance, generic warrants that could be used in almost any situation without due cause.

Why it was instituted: A reaction to British writs of assistance, generic warrants that could be used in almost any situation without due cause.

Notable case: Katz v. United States (1967) found that non-physical searches, such as wiretapping, were unconstitutional without a warrant. This overturned a previous ruling.

Mnemonic: You wanna search under the floor? Don’t think so, number four!

5th Amendment

Protections relating to judicial proceedings.

More details:

• requires a grand jury indictment for “infamous crimes” (basically, felonies) before trial
• protects against self-incrimination
• protects a citizen from being tried twice for the same crime (double jeopardy)
• requires “just compensation” for property seized through eminent domain

Why it was instituted: Mainly, an attempt to prevent another Star Chamber, a secret English court where defendants were accorded few (if any) protections.

Notable case: In Salinas v. Texas (2013), the Roberts Court ruled that you have to invoke your right to remain silent by speaking; you can’t just remain silent. Yeah.

Mnemonic: Just watch this brilliant Chappelle’s Show clip, in which Dave Chappelle’s character, a drug dealer, pleads the “fif”. (Then watch it a second time – double jeopardy.)

6th Amendment

Rights for the criminally accused.

More details:

• gives accused a “speedy and public trial” conducted by an impartial jury
• guarantees right to an attorney and discovery/subpoena rights relating to evidence and witnesses

Why it was instituted: Similar to the 5th Amendment.

Notable case: Gideon v. Wainwright (1963) ruled that states must provide counsel in any criminal case where the defendant is unable to afford an attorney.

Mnemonic: I like number six like I like my sex: speedy and public.

7th Amendment

Jury for civil cases; courts cannot overturn jury decisions.

More details:

• uses the terms of English common law
• civil cases relating to property over $20 may be subject to a jury
• “no fact tried by a jury, shall be otherwise re-examined” by another court, except by the normal appeals process

Why it was instituted: More protections for the accused, and a prevention of government abuse of civil decisions.

Notable case: None, really; considered self-explanatory. $20 in 1791 is worth more than $500 today, but the $20 minimum still stands.

Mnemonic: After winning his jury trial, OJ Simpson was in Seventh Heaven, because the verdict couldn’t be overturned. (This is not the same as double jeopardy, covered by the 6th Amendment; “double” = 2, and 2 is a factor of 6.)

8th Amendment

Prohibits cruel and unusual punishment.

Full text: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Why it was instituted: Nearly identical to a clause in the 1689 English Bill of Rights, adopted after a convict was sentenced to an annual ordeal by whipping.

Notable case: Furman v. Georgia (1972) established four principles of punishments considered “cruel and unusual,” including being “patently unnecessary.”

Mnemonic: Taking a blowtorch to Frosty the Snowman? That’s cruel and unusual. (Snowman is slang for the number 8)

9th Amendment

Protects rights not specifically mentioned in the Constitution.

Full text: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Why it was instituted: Federalists, who supported the Constitution, were against the Bill of Rights, claiming it would unnecessarily broaden the powers of the government. Anti-Federalists suggested this amendment as a compromise.

Notable case: Roe v. Wade (1973): a ruling in Texas District Court cited the 9th Amendment in upholding a woman’s right to an abortion. Supreme Court relied on the 14th Amendment but made note of the previous ruling.

Mnemonic: S&M isn’t mentioned in the Constitution, so bring out that cat-o-nine-tails!

10th Amendment

Federal government’s power is derived only from the Constitution.

Full text: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Why it was instituted: Basically, the amendment affirms the federal structure of the United States.

It’s pointless: The Supreme Court ruled in United States v. Sprague (1931) that the amendment “added nothing to the document as originally ratified.”

Mnemonic: Federalism is the perfect system! I give it a 10.

11th Amendment

Ensures sovereign immunity of states.

Proposed: March 4, 1794
Ratified: February 7, 1795

More details: Prohibits “Citizens of another State” or “of any Foreign State” from suing a state, unless the state consents to be sued.

Why it was instituted: To supersede the decision in Chisholm v. Georgia (1793), in which a resident of South Carolina won a suit in the Supreme Court against the state of Georgia.

Notable case: In Alden v. Maine (1999), the Supreme Court extended the amendment to protect a state from lawsuits from its own citizens.

Mnemonic: As soon as the Bill of Rights was out of the way, the states started protecting themselves.

12th Amendment

Addressed issues with the process of Presidential election.

Proposed: December 9, 1803
Ratified: June 15, 1804

More details:

• Each Elector receives one vote for President and one for Vice President.
• An Elector may not cast both votes for candidates from his own state.
• If no candidate receives a majority of votes for either office, the election is decided by a particular chamber of Congress:
  • President: the House, with each state getting one vote. The top 3 are eligible.
  • Vice President: the Senate, with each Senator getting one vote. The top 2 are eligible.

Why it was instituted:

Originally, each Elector received two votes. The candidate with the most Electoral Votes would be President, and second place would be Vice President.

This caused issues in 1796 and 1800. In the latter election, Democrat-Republican Thomas Jefferson and running mate Aaron Burr received the same number of Electoral Votes. The tiebreaker was the House, which finally elected Jefferson on the 36th ballot.

Irony alert: Alexander Hamilton saw Jefferson, a major rival, as “by far not so dangerous a man” as Burr, and convinced his fellow Federalists to swing their support. Burr, who became Vice President as a result of the House votes, killed Hamilton in a duel just three years later.

Of note: Dick Cheney, who had lived in Dallas for 5 years before running for Vice President in 2000, switched his residency to Wyoming so that he wouldn’t be from the same state as George W. Bush. Otherwise, it would have been impossible for Texas Electors to vote for both.

Mnemonic: In the 1800 election, Thomas Jefferson bribed Alexander Hamilton with a dozen donuts.

27th Amendment

Delays Congressional pay raises until after the following House election.

Proposed: September 25, 1789
Ratified: May 7, 1992

Surprise! This amendment was submitted along with the Bill of Rights, but didn’t pass until a campaign in the 1980s brought it back to life. There is one other amendment still outstanding; 11 states of the now-necessary 38 have passed it.

Full text: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”

Why it was instituted: To prevent legislators from increasing their own salaries without letting the people have a say as to their employment.

Notable case: Coleman v. Miller (1938) determined that amendments submitted without a deadline are forever eligible to be passed.

Mnemonic: The longest to be passed? Makes sense it would be last.