The Origin of the U.S. Bill of Rights Part II

1. The Origin of the U.S. Bill of RightsPart II Dr. donna Bair-Mundy

2. 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

3. 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.)

4. 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.

5. 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.

6. Privacy an old concern Halakhah (Jewish law) Proscriptions on: Physical intrusion Visual surveillance Aural surveillance Talmud Walls between houses to be a certain height Creditor may not enter person’s house Ancient Roman law (Justinian’s Pandects) Prohibition against going into a home and dragging out the person Hippocratic oath No disclosure of what in practice seen or heard that “ought never be published abroad”

7. Reinterpreting the Magna Carta Sir Edward Coke 1642 “…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.

8. 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

9. 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

10. 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

11. 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.

12. 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

13. 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

14. Penumbra 1965 Griswold v. Connecticut 381 U.S. 479 Defendants: Estelle Griswold – Executive Director of Planned Parenthood in Connecticut 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.

15. Penumbra 1965 Griswold v. Connecticut 381 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.” First Amendment Freedom of Speech Right to Privacy

16. No warrantless wiretapping in criminal cases 1967 Katz 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

17. Electronic mail 1993 ECPA 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

18. First & Fourth Amendments 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. 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.

19. First & Fourth Amendments First Amendment Freedom of Speech Fourth Amendment Right of Privacy What might this connection mean for us?

20. Assaults 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

21. Assaults 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

22. Assaults 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.