Temecula Constitution Class
Wednesdays 6:00 pm
GOP HQ, 28120 Jefferson Ave.
Temecula, CA

Constitution Class Handout
Instructor: Douglas V. Gibbs
Lesson 15
The Legal Amendments

Warrants, Searches, and Seizures

The 4th Amendment to the
United States Constitution was added as part of the Bill of Rights on December
15, 1791.  It was written with the
purpose of protecting people from the government searching their homes and
private property without properly executed search
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
What this means is that the
federal government, in order to search a person’s home, business, papers, bank
accounts, computer or other personal items, in most cases, must obtain a search
warrant signed by the proper authority, which usually means by a judge.
The issuance of a warrant
must accompany reasonable belief that a crime has been committed and that by
searching the premises of a particular location, evidence will be found that
will verify the crime.  The government
officer does not have to be correct in his assumption, he just has to have a
reasonable belief that searching someone’s private property will yield evidence
of the crime.  The task of determining
whether or not the officer’s assumptions are a reasonable belief falls on the
judge who is considering issuing the search warrant.
The concept that citizens
must be protected from unreasonable searches and seizures goes back into
English history.  The British Crown was
known for performing searches and seizures that were unlawfully conducted.  Often, these searches were conducted by the
king’s representatives.
The British government saw
the American Colonies as a source of revenue. 
As a result, taxation against the American colonies was a continuous
practice, in the hopes of generating as much money from the colonists as
possible.  The colonists resented this
and engaged in substantial smuggling operations in order to get around the
customs taxes imposed by the British government.
The King responded to the
Colonist’s smuggling activities by using writs of assistance, which were
search warrants that were very broad and general in their scope.  British agents, once obtaining these writs,
could search any property they believed might contain contraband goods.  They could enter someone’s property with no
notice and without any reason given.  Tax
collectors could interrogate anyone about their use of goods and require the
cooperation of any citizen.  Searches and
seizures of private property based on very general warrants became an epidemic
in colonial America.
In 1756, the Massachusetts
legislature passed search and seizure laws outlawing the use of general
warrants.  The friction created between
the Royal Governor and the people of Massachusetts grew with each passing
In 1760 James Otis, a Boston
lawyer, strongly objected to these arbitrary searches and seizures of private
property and consequently resigned his position with the government, and then
became the lawyer for a group of over 50 merchants who sued the government
claiming that the writs of assistance
were unjust.
James Otis represented these
merchants for free.  His speech
condemning British policies, including writs of assistance and general search
warrants, was so powerful and eloquent, that it was heard of throughout the colonies
and catapulted him to a place of leadership in the swelling tide of
disillusionment toward Great Britain.
Twenty-five year old John
Adams, who would become the second president of the United States some time
later, was sitting in the courtroom and heard Otis’ famous speech that served
as a spark that led to igniting the American Revolution.
The 4th Amendment, a part of
The Bill of Rights, became law on December 15, 1791.
The 4th Amendment applies
only to the federal government.  State
constitutions are written similarly, and States also have laws that are
consistent with the intention of the 4th Amendment.  The 4th Amendment provides protection from
illegal search and seizure by federal government officials, but not by private
citizens.  So, if an employer
unreasonably searched your possessions at work, the 4th Amendment would not
have been violated, but local laws may have been.
In recent history The
PATRIOT Act was seen as a breach of the 4th Amendment because it allowed the
federal government to pursue a number of strategies in their search for
terrorists that includes warrantless phone taps, access to phone logs, and
monitoring of online communications such as email.  The debate still goes on regarding the
constitutionality of The PATRIOT Act, with both sides presenting reasonable
arguments, ranging from the constitutional necessity of the law for the purpose
of “providing for the common defense,” to the argument that the authorities
offered by the law allows the federal government to unconstitutionally intrude
on the right to privacy of all Americans.
The National Defense
Authorization Act (NDAA) of 2014 builds on the powers seized by the federal
government through the PATRIOT Act, allowing unrestricted analysis and research
of captured records pertaining to any organization or individual “now or once
hostile to the United States.”  The
definition of “hostile to the United States” is broad, and can include
political opposition.  Under NDAA 2014
Sec. 1061(g)(1), an overly vague definition of captured records enhances government
power and guarantees indefinite surveillance.
The Internal Revenue Service is another arm of the
federal government that routinely violates the 4th Amendment, doing so under
the auspice of ensuring all taxes are paid.

– The Search Warrant specifically requires that the
government demonstrate to a judge the existence of probable cause of criminal
activity on the part of the person whose property the government wishes to
search.  The Fourth Amendment commands
that only a judge can authorize a search warrant.
Writs of
– British search warrants that were very broad and
general in their scope.  British agents,
once obtaining these writs, could search any property they believed might
contain contraband goods.
for Discussion:

1.  What actions
by the British prior to the American Revolutionary War inspired the Founding
Fathers to include this amendment in the Bill of Rights?
2.  How would
our legal system act if Search Warrants were not considered necessary?
3.  How does the Fourth Amendment influence
today’s thinking regarding government actions, such as with The PATRIOT Act?
Congress Has Assaulted Our Freedoms in the Patriot Act by
Andrew P. Napolitano, Lew
Rockwell.com: http://www.lewrockwell.com/orig6/napolitano2.html
Andrews, A Guide for Learning and
Teaching The Declaration of
Independence and The U.S. Constitution – Learning from the Original
Texts Using Classical Learning Methods of the Founders
; San
Marcos: The Center for Teaching the Constitution (2010).
Paul A.
Ibbetson, Living Under the PATRIOT Act:
Educating a Society
Bloomington, IN: Author House (2007)
Philip B.
Kurland and Ralph Lerner, The Founder’s
Constitution –
Five – Amendments I-XII
; Indianapolis: Liberty Fund (1987).

Process and Eminent Domain
            Due Process
The majority of the Fifth
Amendment provides additional reinforcement to the concept of due process.  The language of this Amendment was designed
to assure those who feared the potential tyranny of a new centralized
government created by the United States Constitution that the federal
government would be restrained in such a way as to ensure that the government
did not perpetrate bloodshed against its citizens.
The first part of the 5th
Amendment reads: “No person shall be held to answer for a capital crime,
or otherwise infamous crime, unless on a presentment or indictment of a Grand
. . .
The 5th Amendment attests to
the Founding Father’s understanding that this is a nation of property
owners.  As a republic of property
owners, when in jeopardy of legal trouble, our rights and properties must be
safeguarded.  Therefore, an American Citizen
in the American legal system has a right to a jury, as well as a right to the
presentation of evidence.  Conviction is
not reached with a majority vote, either. 
Conviction requires a unanimous agreement among all of the members of
the jury.  These concepts reinforce the
concept that one is innocent until proven guilty (A concept found in the Book
of Deuteronomy, Chapter 19, Verse 15), and that the United States of America is
a Republic.  Mob rule
is not allowed, for as the amendment provides, a person cannot be held until
given the opportunity of due process.
Not all persons, however, are
awarded this opportunity.  The next part
of the amendment reads: “. . . except in cases arising in the land or naval
forces, or in the militia, when in actual service in time of War or public
danger. . .
The military does not fall
under the U.S. Constitution.  Personnel
serving in the armed forces are governed by the Uniform Code of Military
Justice (UCMJ).  Instead of a civilian
trial, a military service member is normally afforded a court martial.  If a civilian trial is deemed appropriate by
the U.S. Military, a service member can still stand trial in a civilian court,
but the military has the authority to decide whether or not the member shall
stand such a trial.
Having a sense of
independence, individuals must be protected, then, from the tyrannical
trappings of a governmental system that may try to use the judiciary against
them (as the King of England had done often). 
The protective mechanism, or the rule of law, would be the U.S.
Constitution and clauses like the 5th Amendment, which were designed to provide
protection to the populace from unfair legal practices. 
One such protection is
provided in the next part of this amendment: “. . . nor shall any person be
subject for the same offence to be twice put in jeopardy of life and limb
. .”
Protection against Double
enables us not to be continuously tried for the same offense,
which was a technique often used in some parts of Europe during the eighteenth
century.  The idea was that if a person
was prosecuted enough, either they would weary of the process and break down,
or the defendant would become unable to financially continue, hence unable to
defend themselves.
The next part of the
amendment serves as a large influence on today’s Miranda Rights.  The section reads: “. . . nor shall be
compelled in any criminal case to be a witness against himself, nor be deprived
of life, liberty, or property
named after the U.S. Supreme Court case, Miranda v. Arizona (1966).  Miranda Rights are a warning given advising
the accused of their right to remain silent, their right to an attorney, and
the right to an appointed attorney if they are unable to afford counsel – prior
to conducting a custodial interrogation. From the 5th Amendment: “. .
.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
.”  Miranda Rights exist to secure the 5th
Amendment’s privilege against self-incrimination, and to make the individual in
custody aware not only of the privilege, but also of the consequences of
forgoing it.  The judicial opinion from
the Miranda v. Arizona case also indicated that in order to protect the
person’s life, liberty or property with the due process of law, the individual
must have the right to an attorney.  With
a lawyer present the likelihood that the police will practice coercion is
reduced, and if coercion is nevertheless exercised the lawyer can testify to it
in court.  The presence of a lawyer can
also help to guarantee that the accused gives a fully accurate statement to the
police and that the statement is rightly reported by the prosecution at trial.
The words of the Founders
continues to resonate today as the majority of the American people seem to
firmly agree with the Founding Father’s insistence that no one should be
deprived of life, liberty, or property without due process of law.  We can take satisfaction that most of our
fellow citizens in our republic still hold these truths to be self-evident.
            Eminent Domain
The provisions of the 5th
Amendment are there to keep our courts honest, and the powers of the government
constrained.  The last phrase of the 5th
Amendment, however, is considered too general by many, and it has been used in
a manner by the federal government that is extremely troublesome, because it
gives the government the right to take property if there is just
How is just compensation
determined?  Is it based on the market
value of the property?  How does the
government officials involved in eminent domain calculate the
non-intrinsic value?  How do they
compensate for the value on which nobody can put a price?
Just compensation was intended to be based on what the
property owner deemed to be just.  If the
property owner did not deem the offer to be just compensation, then the
government, from a constitutional viewpoint, is out of luck.

– A crime for which the punishment is death.  Punishment for a Capital Crime is called
Capital Punishment.
– The act of putting a person through a second trial
for an offense for which he or she has already been prosecuted or convicted.
– The essential elements of due process of law are
notice, an opportunity to be heard, the right to defend in an orderly proceed,
and an impartial judge.  It is founded
upon the basic principle that every man shall have his day in court, and the
benefit of the general law which proceeds only upon notice and which hears and
considers before judgment is rendered. 
In short, due process means fundamental fairness and substantial
– The power to take private property for public use by a State,
municipality, or private person or corporation authorized to exercise functions
of public character, following the payment of just compensation to the owner of
that property.
– A group of citizens convened in a criminal case to consider the
prosecutor’s evidence and determine whether probable cause exists to prosecute
a suspect for a felony.  At common law, a
group of persons consisting of not less than twelve nor more than twenty-four
who listen to evidence and determine whether or not they should charge the
accused with the commission of a crime by returning an indictment.  The number of members on a grand jury varies
in different States.
– A crime which works infamy in the person who commits it.  Infamous crimes tend to be classified as
treason, felonies, and any crime involving the element of deceit.
– The value of a property deemed to be just by the
property owner.
– A warning given advising the accused of their right to remain
silent, their right to an attorney, and the right to an appointed attorney if
they are unable to afford counsel – prior to conducting a custodial
Mob-Rule – A
government ruled by a mob or a mass of people; the intimidation of legitimate
authorities; the tyranny of the majority; pure democracy without due process.
Republic – Form
of government that uses the rule of law through a government system led by
representatives and officials voted in by a democratic process.  The United States enjoys a Constitutional
Rule of
– The restriction of the arbitrary exercise of power by subordinating
it to well-defined and established laws; Laws of Nature and of Nature’s God;
self-evident standard of conduct and law.
for Discussion:

1.  How is
property rights affected by Due Process?
2.  Why do
military members not fall under the protections of the U.S. Constitution?
3.  Why is
protection against Double Jeopardy important?
4.  What was the
inspiration for our Miranda Rights?
5.  Who
determines if compensation for one’s property is just?
6.  How is
Eminent Domain being used for environmental reasons?
7.  Is Eminent
Domain constitutionally in force if a property is rezoned for environmental
conservation, forcing the value of the property to be reduced due to the fact
that it can no longer be developed?
8.  Is it
constitutional for government to use Eminent Domain for the use of the land by
private development projects?

of Due Process, Family Rights Association:
Andrews, A Guide for Learning and
Teaching The Declaration of
Independence and The U.S. Constitution – Learning from the Original
Texts Using Classical Learning Methods of the Founders
; San
Marcos: The Center for Teaching the Constitution (2010).
Philip B.
Kurland and Ralph Lerner, The Founder’s
Constitution –
Volume Five – Amendments I-XII; Indianapolis: Liberty Fund (1987).
Supreme Court case, Miranda v. Arizona, 384 US 436 (1966)

Legal Liberties

The 6th Amendment affords
criminal defendants seven discrete personal liberties.  In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defence.
Rights afforded in all
criminal prosecutions are set forth in this amendment.  The word “all” at the beginning of this
amendment establishes a special characteristic regarding this article of the
Constitution.  The Constitution applies
only to the federal government, unless it states otherwise.  The 6th Amendment, by providing the word
“all” in the regard to cases, establishes that this amendment is not only to be
applied to the federal courts, but to the State, and lower, courts as well.
As for the rights afforded
to the accused:
            Speedy Trial
The concept of a speedy
trial was an English concept of justice. 
A speedy trial allows for conditions that disallow the powerful from
abusing the court system, forcing defendants to languish in jail for an
indefinite period while awaiting their trial. 
Ensuring a speedy trial minimizes the time in which a defendant’s life
is disrupted and burdened by a criminal proceeding, and reduces the likelihood
of a prolonged delay impairing the ability of the accused to prepare a defense.
Historically, when trials
are postponed or drag out for long periods of time, witnesses disappear, and
evidence is often lost or destroyed. 
Memories of the incident in question are also not as reliable as time
A person’s right to a speedy
trial arises after the arrest, indictment, or otherwise formal
accusation of a crime. 
            Public Trial
The right to a public trial
was inherited by the Americans from Anglo-Saxon jurisprudence.  Public criminal proceedings would operate as
a natural check against malevolent prosecutions, corrupt judges, and perjurious
witnesses.  A trial that is out in the
open also aids the fact-finding mission of the judiciary by encouraging
citizens to come forward with relevant information.
The right to a public trial
is not absolute.  Persons who may disrupt
proceedings may be banned from attending the trial because they present a
substantial risk of hindering a trial.  A
disallowance of the media attending falls under the concept of “potential
disruptions,” but otherwise, under normal circumstances, both the public and
media have a qualified First Amendment right to attend criminal
proceedings.  The right to a public trial
does not require the presence of media, and because courtrooms have limited
seating, judges may attempt to maintain decorum.  For media, with today’s technology, the media
does not have to be in the courtroom to see or hear the proceedings of the case.
            Right to Trial by an Impartial Jury
A part of the effort in
achieving an impartial jury is the process of determining who will serve on the
jury through a series of questions and observations, in an effort to eliminate
biased jurors.  The concept of protecting
the defendant from a biased jury can be traced back to the Magna Carta in
1215.  In the United States, the
requirement for a trial by an impartial jury does not apply to juvenile
delinquency proceedings, or to petty criminal offenses, which consist of crimes
punishable by imprisonment of six months or less.  In Great Britain, and Canada, a jury is not
required for cases with potential penalties of two years or less, and the
concept of an impartial jury is not entertained in the same way as in the
United States.  Canada and Britain choose
jurors randomly, and then in an open court the jurors for a specific case are
selected from the jury panel by ballot. 
A juror may be challenged once in the box for bias, but an extensive
process to eliminate possible biased jurors before selection through a series
of questions and observations is not normal practice.
The Sixth Amendment entitles
defendants to a jury that represents “a jury of the defendant’s peers,” which
means the jury should be a fair cross section of the community.  From the jury pool, the presiding judge, the
prosecution, and attorneys for the defense are allowed to ask members of the
jury pool a variety of questions intended to reveal any latent biases,
prejudices, or other influences that might affect their impartiality.  The presence of even one biased juror is not
permitted under the Sixth Amendment.
It is possible that the
potential bias of a juror may be affected by sources outside the courtroom, so
jurors are instructed to not consider newspaper, television, and radio coverage
before or during trial, and are instructed not to discuss the trial with even
family members, when evaluating the guilt or innocence of the defendant.
Jurors are not permitted to
begin deliberations until all of the evidence has been offered.  Deliberations do not begin until after the
attorneys have made their closing arguments, and the judge has read the
instructions.  Premature deliberations
have shown the potential, historically, to create early biases, or a juror may
form a preconceived notion that they will then compare all evidence to, which
they may have entertained as a result of premature deliberations.
            Notice of Pending Criminal Charges
The 6th Amendment guarantees
defendants the right to be informed of the nature and cause of the accusation
against them.  Defendants must receive
notice of any criminal accusations that the government has lodged against them
through an indictment, information, complaint, or other formal charge.  Defendants may not be tried, convicted, or
sentenced for a crime that materially varies from the crime set forth in the
formal charge.
The requirement by the 6th
Amendment to inform a defendant of the nature and cause of the accusation is an
attempt by the Founding Fathers to create fundamental fairness that was not necessarily
present in civil and criminal proceedings in England and the American colonies
under English common law.  Receiving
notice of pending criminal charges in advance of trial permits defendants to
prepare a defense in accordance with the specific nature of the
accusation.  In tyrannies, defendants are
all too often incarcerated without being apprised of pending charges until the
trial begins.  Requiring notice of the
nature and cause of the accusation against a defendant eliminates confusion
regarding the basis of a particular verdict, which in turn decreases the
chances that a defendant will be tried later for the same offense.
            Confrontation of Witnesses Against
The 6th Amendment requires
that defendants have the right to be confronted by witnesses who offer
testimony or evidence against them, as well as the opportunity to subject them
to cross-examination. 
Today’s courts have
established rules that are enforced at the discretion of the judge who forbids
questioning that pursues areas that are irrelevant, collateral, confusing,
repetitive, or prejudicial.  Defendants
are also forbidden to pursue a line of questioning solely for the purpose of
            Compulsory Process for Obtaining
Witnesses In His Favor
The 6th Amendment recognizes
a defendant’s right to use the compulsory process of the judiciary to subpoena
witnesses that may be favorable to the defense. 
Courts may not take actions to undermine the testimony of a witness who
has been subpoenaed by the defense.  Any
law that attempts to establish particular persons as being incompetent to
testify on behalf of a defendant is not allowed.
Defendants can also testify
on their own behalf, a right not afforded in the American Colonies, or Great
Britain, prior to the United States dissolving the political bands connecting
them to the Crown.  Common law presumed
all defendants to be incompetent to give reliable or credible testimony on
their own behalf.  The vested interest in
the outcome of the trial, it was believed, would taint the testimony of the
defendant.  The 6th Amendment does not
require, a defendant to testify on his own behalf, but does not prohibit it, either.
            Right to Counsel
The 6th Amendment states
that criminal defendants have a Right to Counsel.  A defendant’s right to counsel does not
become an issue until the government files formal charges.  However, in the 5th Amendment a person has
the right not to be compelled to be a witness against himself, allowing him to
remain silent until he has counsel present.
In many instances,
defendants have the inability to obtain counsel be it because of financial or
other reasons.  The 6th Amendment, by
listing that assistance of counsel for his defense is a right, has compelled
the government to institute a program where counsel can be assigned to a
defendant if the person is unable to afford counsel, or obtain counsel for any
other reason.  In the occurrence of a
defendant unable to afford counsel, the trial judge appoints one on his behalf.  If it turns out that the defendant has financial
resources previously unknown to the court, he may be required to reimburse the
government for a portion of the fees paid to the court-appointed lawyer.
Defendants are not required to have counsel.  Defendants have a right to
counsel.  Defendants also have the right
to decline the representation of counsel and proceed on their own behalf.  Defendants who represent themselves must
present a waiver of the 6th Amendment right to counsel before a court will allow
them to do so.  The waiver must reveal
that the defendant is knowingly making the decision, and understands the
potential consequences.
for Discussion:
1. Why is having a speedy trial so important in a free
2.  How does a
public trial better enable the fact-finding mission of the trial?
3.  How is the
concept of an impartial jury different in the United States than it is in other
4.  Why is it
important for a defendant to be able to confront the witnesses against him?
5.  How is a
defendant’s right to counsel enabled in today’s court system?


Andrews, A Guide for Learning and
Teaching The Declaration of
Independence and The U.S. Constitution – Learning from the Original
Texts Using Classical Learning Methods of the Founders
; San
Marcos: The Center for Teaching the Constitution (2010).
Philip B.
Kurland and Ralph Lerner, The Founder’s
Constitution –
Volume Five – Amendments I-XII; Indianapolis: Liberty Fund (1987).

Right of
Trial by Jury in Civil Suits
“In suits at Common Law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury, shall be otherwise reexamined in any
court of the United States, than according to the rules of the common law.”
The 7th Amendment guarantees
the right to a jury trial in most civil suits heard in federal court.  Remember, the Constitution, and the Bill
of Rights,
apply only to the federal government unless the document states
otherwise.  The 7th Amendment serves to
preserve the historic line separating the province of the jury from that of the
judge in civil cases by separating cases that should have a jury in federal
court, from those that are smaller cases, and may not require a jury.  During the time the amendment was ratified, a
case requiring a jury was one where “the value in controversy” exceeded twenty
dollars.  The cutoff in the court system
today is $75,000.  Any disputes that
involve amounts less than $75,000, in fact, will not even be handled in a
federal court.
State courts don’t have to
honor this provision in the 7th Amendment, and often don’t.  People bringing a suit do not have to have a
jury trial.  Individuals can waive their
right to a jury trial if they so choose.
The 7th Amendment also
expressly forbids federal judges to re-examine any “fact tried by a
jury” except as allowed by the common law. 
This means that no court, trial or appellate, may overturn a jury
verdict that is reasonably supported by the evidence.
Prior to the Declaration
of Rights
in 1689, English judges served the King of England.  These judges showed bias towards the King,
resulting in unfair rulings.  Judges in
the American colonies were also biased towards the king, and when King George
III got rid of trials by juries in the Colonies, the colonists viewed the
decision as more kindling for the fire of independence that had been blazing in
the pubs, churches and meeting halls of the Colonies.  The Bill of Rights applied what the Framers
learned under the rule of Britain to the American System.  In the American courts the Framers believed
it was important to have a fair court system, so the right to have a trial by
jury is mentioned a number of times, and is a fundamental part of the United
States legal system.
Together with the due process clause of the 5th
Amendment and the right to an impartial jury enumerated in the 6th Amendment,
the 7th Amendment guarantees civil litigants the right to not just a jury, but
to a jury who is not biased for any reason.


Bill of
– The first ten amendments of the U.S. Constitution; a formal summary
of those rights and liberties considered essential to a people or group of
of Rights
– Enacted in 1689, the English Bill of Rights is one
of the fundamental documents of English constitutional law, marking a
fundamental milestone in the progression of English society from a nation of
subjects to a nation of free citizens with God-given rights.  The evolution began with the Magna Carta in
for Discussion:
1.  What historic
line does the 7th Amendment preserve?
2.  Must the
States abide by the 7th Amendment?
3.  Can a person
bringing suit waive the right to a jury trial?

Bail, Cruel and Unusual Punishment
8th Amendment reads, “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.”
As a nation founded on
honorable Judeo-Christian principles, the United States legal system is
expected to be fair and just.  This means
that Americans should insist upon a due process that protects individuals from
excesses and abuses by the judicial system. 
Such expectations include that no individual should be singled out, or
treated differently, in the eyes of the courts. 
A fair and equitable judicial system includes no excessive bails or
fines, or cruel and unusual punishment, for one person while others guilty of
similar crimes do not receive similar treatment.
Today’s definitions attempt to set a limit on where
“excessive” or “unusual” lies.  When a
harsh penalty is applied for a crime, even when it is similar to the punishment
received by others for the same crime, challenges are launched regarding if the
penalty matches the crime.  These
challenges are fine, and an important part of the American judicial system
seeking to adjust itself in regards to its fairness, but the debates during the
Federal Convention and State ratification conventions did not focus so much on
where the line between excessive and not excessive, or unusual as opposed to
usual, exists as much as are the bails, fines and punishment consistent with
the bails, fines and punishment consistent with others guilty of the same.

for Discussion:

1.  In the
context of the time period during which the 8th Amendment was written, what was
meant by “cruel and unusual punishment?”
2.  How has the
original definition of “cruel and unusual punishment” changed since the
founding of the United States?
3.  How does the
8th Amendment apply the concept of uniformity to cases?
4.  Why would the
Founding Fathers see the need to enumerate the right of an individual to be
protected from cruel and unusual punishment?


Andrews, A Guide for Learning and
Teaching The Declaration of
Independence and The U.S. Constitution – Learning from the Original
Texts Using Classical Learning Methods of the Founders
; San
Marcos: The Center for Teaching the Constitution (2010).
Philip B.
Kurland and Ralph Lerner, The Founder’s
Constitution –
Volume Five – Amendments I-XII; Indianapolis: Liberty Fund (1987).
2015 Douglas V. Gibbs

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