The Origin of the U.S. Bill The Origin of the U.S. Bill of Rightsof RightsPart IIPart II

Dr. donna Bair-Mundy

Bill of Rights debate: Mason, Jefferson, et al.

When assigning powers to the government must also limit those powers

General warrants and writs of assistance

Objections to Bill of Rights

Bill of Rights is stipulation a king gives to his subjects, granting a few exceptions to rights of the monarch

Bill of Rights dangerous—implies government has powers not

Could later be misconstrued as all-inclusive not granted

(Alexander Hamilton, Federalist paper no. 84, etc.)

The compromise

Amendment IX

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

First Amendment

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.

Privacy an old concern

Halakhah (Jewish law)Proscriptions on:

Physical intrusionVisual surveillanceAural surveillance

TalmudWalls between houses to be a certain heightCreditor may not enter person’s house

Ancient Roman law (Justinian’s Pandects)Prohibition against going into a home and dragging out the person

Hippocratic oathNo disclosure of what in practice seen or heard that “ought never be published abroad”

Reinterpreting the Magna Carta

Sir Edward Coke1642

“…for Justices of Peace to make warrants upon surmises, for breaking the houses of any subjects to search for felons, or stoln [sic] goods, is against Magna Carta.”

Coke, Edward. 1642. The fourth part of the institutes of the laws of England. London: M. Flesher.

General warrants (1)• No specific individual

• No specific crime

• No specific place to be searched

• No specific items to be sought

• Illegal according to Sir Edward Coke’s Institutes of the Lawes of England (first published 1642 and 1644)

• Illegality confirmed by Sir Matthew Hale

• Illegality confirmed by Sir William Blackstone

General warrants (2)• Suspicion of crime related to

government revenue

• Used against anyone who dared to challenge or limit the authority of Parliament or the crown

• John Wilkes (member of Parliament)

• Anonymously wrote critical essay published in North Briton

• General warrant leads to massive arrests, Wilkes ► Tower of London

Writs of assistance• Any customs official could enter “any

House, shop, Cellar, Warehouse or Room or other Place...”

• Seize unaccustomed goods

• Lasted for the life of the sovereign under which it was issued plus six months

• According to John Adams, major factor in seeking American Independence

Fourth Amendment

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.

Ex parte Jackson

“The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized...” Justice Field 96 U.S. 727, 732

Ex parte Jackson

“The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized...”

Justice Field 96 U.S. 727, 732

Mail(often a form

of speech)

Right to

Privacy

Penumbra1965

Griswold v. Connecticut381 U.S. 479

Estelle Griswold – Executive Director of Planned Parenthood in Connecticut

Defendants:

C. Lee Buxton – Physician serving as medical director of Planned Parenthood in New Haven

Crime:

Giving “information, instruction, and medical advice” on preventing conception and for prescribing a method of contraception to a married couple, in violation of Connecticut law.

Penumbra1965

Griswold v. Connecticut381 U.S. 479

Justice William O. Douglas (majority opinion)

“The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

…

“In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.”

FirstAmendment

Freedom of Speech

Right to

Privacy

No warrantless wiretapping in No warrantless wiretapping in criminal casescriminal cases

1967Katz v. United States

389 U.S. 347

Person placing a call “is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”

Phone call(a form of speech)

Right to

Privacy

Electronic mail

1993ECPA

Electronic Communications

Privacy Act

Addressed the need to protect e-mail sent and e-mail received.

E-mail(a form of speech)

Right to

Privacy

First & Fourth Amendments

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.

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.

First Amendment

Fourth Amendment

First & Fourth Amendments

First AmendmentFreedom of Speech

Fourth AmendmentRight of Privacy

What might this connection mean for us?

Assaults on Bill of RightsAssaults on Bill of Rights

Round-up of Pennsylvania Quakers (1777)

Why the Quakers?

Friends Peace Testimony"We utterly deny all outward wars and strife and fightings with outward weapons, for any end or under any pretence whatsoever. And this is our testimony to the whole world." From "A Declaration to Charles II," 1661. Full text at: http://www.quaker.org/peaceweb/pdecla07.html

Actual title: A Declaration from the harmless and innocent people of God, called Quakers

Assaults on Bill of RightsAssaults on Bill of Rights

Round-up of Pennsylvania Quakers (1777)

Sedition Act of 1798 • Fears of war used as an excuse• Passed by the Federalist Party• Anyone who printed, uttered, or published false,

scandalous, or malicious writings against the government of the U.S., the Congress, or the President, could be fined $2,000 and imprisoned for up to two years

• Members of the opposition party (Republicans) were prosecuted

• Expired 1801

Assaults on Bill of RightsAssaults on Bill of Rights

Round-up of Pennsylvania Quakers (1777)

Sedition Act of 1798

Espionage Act of 1917 – 1918 amend.

Internment of persons of Japanese ancestry—WW II

Used against Hungarians, Czechs, Slovaks, Croats, Poles, Jews, Russians, Lithuanians, Finns, Irish, Catholics, Amish, Mennonites, Jehovah’s Witnesses (then called Russelites), Roma (then called gypsies), African Americans.