Akil Amar, The Bill of Rights and our Posterity

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The Criminal Procedure Amendments

The Fifth, Sixth, Seventh, and Eighth Amendments all deal chiefly with courtroom procedure. The Fifth, Sixth and Eighth focus mainly on procedures before and during a criminal trial; while the Seventh focuses on civil (that is, noncriminal) trials--contract cases, property disputes between neighbors, and so on. The most important unifying theme of these amendments is the importance of juries.

The Fifth Amendment protects an institution known as a "grand jury" which decides whether a criminal defendant should be forced to stand trial. If the grand jury decides "yes" (by issuing documents known as "indictments" or "presentments"), then the Sixth Amendment is triggered, guaranteeing that the defendant will be tried by a smaller, "petit" jury of 12 persons (in contrast to the nearly two dozen persons who typically serve on a "grand" jury).

If the defendant is tried and found not guilty by the Sixth Amendment petit jury, the Fifth Amendment again comes into play: the government may not evade the petit jury's verdict through a second prosecution of the same defendant for the same crime. (This is the rule against double "jeopardy.")

The Seventh Amendment contains a similar guarantee of trial by jury in civil cases; and even the Eighth Amendment--though it does not mention juries by name--reflects the high value placed on juries. When judges set "bail" (deciding what conditions must be imposed on a criminal defendant to ensure that the defendant will show up at his trial) and impose "fines" and "punishments" after trial, these judges are typically acting alone--without juries. In part because these actions occur without a jury, the Eighth Amendment imposes special restrictions: fines and bail shall not be "excessive," and punishments shall not be "cruel and unusual."

Why did the Bill of Rights emphasize juries so strongly, featuring the jury in so many provisions? In part because the jury perfectly embodied the original vision of the Anti-Federalist supporters of a Bill of Rights. Like the militia celebrated by the Second Amendment, juries were local, democratic bodies, composed of ordinary citizens not on the government payroll. These citizens would thwart any oppressive policies that paid officials of central government might attempt.

If, for example, the central government tried to trump up charges against citizens who spoke out against the government, a grand jury would refuse to indict, or a petit jury would refuse to convict. If the central government ordered its henchmen to conduct unreasonable searches, the victims of these searches could bring civil suits for damages against these henchmen, and a civil jury would decide the case.

But juries were important not only to protect citizens who were parties to lawsuits; jury service would also benefit the jurors themselves. Juries would give ordinary citizens a chance to participate in government, and to learn about their rights and duties under the laws. One famous observer of American democracy, Alexis de Tocqueville, likened juries to free public schools, always open: through jury service, Americans would learn democracy by doing democracy.

Beyond the jury, Amendments Five through Eight also protect several other rights. The Fifth Amendment prevents government from depriving persons of life, liberty, or property "without due process of law." This phrase has generated considerable controversy. Some lawyers try to limit the clause to procedural issues; the government can punish persons so long as fair courtroom procedures (like jury trials) are followed. Under this "procedural due process" approach, for example, the government, if it so decided, could punish doctors for prescribing birth control pills, so long as the doctors had proper trials.

Other lawyers, however, believe in the more controversial doctrine of "substantive due process"; they would argue, for example, that the legislature should not be allowed to criminalize birth control, and that any law that tried to do so was not really "due process". Precisely because many courts have followed a "substantive due process" approach over the last 200 years, this clause is today much more important than it was in 1789.

Another substantive provision of the Fifth Amendment requires that when a government takes a person's property, the government must provide "just compensation." Under this rule, the government may, for example, require a landowner to give her land to the government so that a public road may be built over it; but the government must pay her a fair price (determined by a court) for the land. This power is also known as "eminent domain".

The Sixth Amendment provides those accused of a crime with various procedural protections above and beyond a jury. Perhaps the most important is the right to "have the assistance of counsel"--that is, a defense lawyer. If the defendant cannot afford a lawyer, courts have ruled that the government must provide one free of charge. Other Sixth Amendment rights of a criminal defendant include the rights to a speedy trial; to a public trial (the government may not conduct secret trials); to a local trial; to cross-examine ("confront") witnesses called by the government; and to call (through "compulsory process") witnesses who will testify for the defense. With the exception of grand juries and civil juries, all of the rights of Amendments Five through Eight now apply against state and local governments via the Fourteenth Amendment as well as against the federal government under the original Bill of Rights.