Free Commentary: Other Rights in The Constitution

The First through Fifth Amendments have already been described in an earlier piece.

The Sixth through Ninth Amendments establish a number of rights: The Right to a speedy, impartial jury trial; the Right to be Informed of the Nature and Cause of the Accusation; the Right to Confront Witnesses; the Right to Subpoena Witnesses; the Right to Effective Assistance of Counsel; the Right to a Jury Trial for Suits at Common Law; the Right Against Excessive Bail; the Right Against Excessive Fines; the Right Against Cruel and Unusual Punishments; the Ninth Amendment Right that opens the door to all other rights “retained by the people”. This Ninth Amendment right is rarely litigated at the Supreme Court and is not a strong, independent basis for legal argument in court. If used, it’s best used in conjunction with other rights. The last of the rights in the Bill of Rights are stated in terms of State power and People’s power: Powers not delegated and not prohibited by the Constitution are reserved to the States and the People.

Of course, there are other important rights in the Constitution. Controversial but implied by some courts is the Right to Privacy. Sovereign Immunity, the Abolition of Slavery, Equal Protection, and Women’s Rights are all established by other amendments.

A quick review of the Supreme Court’s decisions from the 1980’s will show that the Court on many occasions lacked respect for parts of the Bill of Rights, particularly the Right against Unreasonable Searches and the rights of the accused. During the 1990’s, the majority led by Rhenquist earned the moniker “Gang of Five” because of this failure; at the same time, they were staunch protectors of property rights, gun rights, and states rights.

The private bar and the Court are often at odds. After any particular decision, the bar seems to be ready to ask, “What part of the text of the Constitution did you not understand?” The Court seems always ready to ask, “What part of our last decision did you not understand?” Such is the nature of a Constitutional Democracy.