Monday, May 11, 2009

Examining the American Bill of Rights Using the Ethic of Justice

Examining the American Bill of Rights Using the Ethic of Justice

Michael Lorenzen

The law can be a two edged sword. While it protects society as a whole, it can also be used to coerce and erode the rights of the individual. Sometimes, the only way for individual rights to be assured is to make changes to the law. This can be difficult and it may require a struggle. This is true of the American people in the 18th Century and an examination of the Bill of Rights can reveal what was believed about justice.

The American Revolution had many causes. Probably the biggest reason for the war was the desire of many British subjects in North America to be free of British law. In addition to taxation, many rights that the Americans felt they were entitled too were taken from them by British law. When the United States finally won independence and wrote a constitution, there was quick movement to enshrine certain rights into the document. The result was the Bill of Rights. Examining these rights helps to understand how Americans viewed the law.

This is also worth looking at by using the Ethic of Justice that was described by Starratt (1991). He wrote that community teaches individuals how to think about their own behavior in terms of the larger common good of the community. One of the ways that this can be expressed is through the law. In most of western culture, the law is a source of justice and social cohesion that helps to protect both the community and the individual.

This was true in America before the Revolutionary War as well. British law made efforts to protect the rights of the Crown as well as the rights of individual citizens. Following the law could be seen as an ethical choice that was just. However, as time went by, many of the colonists began to see the laws as unjust. The law appeared to be repressive and this led them to fight for independence. However, the end result of the rebellion was not an elimination of law. Instead, it was an effort to replace the laws with new laws that were seen as more just.

Looking at the ten amendments that make up the Bill of Rights, it is easy to see what the Americans valued enough to enshrine as central principles in the law of the land. Each demonstrates what the founders of the American nation believed each citizen was due under the law. Each of the ten will be examined below. All of these are expressing ethical concerns by expressing what is just.

Amendment One: 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.

Freedom of religion and freedom of speech were so important to the founders that rights to both are placed first in the Bill of Rights. This is a direct result of religious persecution which resulted from having a state sponsored church in the British Empire. It also is a response to censorship that was used to silence dissent in during colonial times. These freedoms have remained to the present and even non-mainstream religions (like the Wiccans) and fringe political groups (like the communists) are protected under the law.

Amendment Two: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Although controversial today, the founders firmly believed that everyone was entitled to own a gun. Not only was this important for hunting and defense against
hostile natives, it assured that the people would have a means of offering resistance to the government if it became unjust. This is not surprising considering that the new nation had just used guns to overthrow British rule. The very idea that resistance to unjust laws is morally correct is demonstrated by the inclusion of gun ownership as a basic right.

Amendment Three: No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

The British had often required that colonists house soldiers. This reduced costs for the British army but placed a burden on locals who had to give up space and food to the soldiers. This was seen as unfair and wrong and this amendment was included to make sure this would never happen again.

Amendment Four: 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.

In colonial times, the government did not always respect the privacy rights of the citizens. Soldiers often would throw people in jail and search private property without legal warrants. This amendment grants the government the right to imprison people and search their belongings but only if the due process of law is followed. This is an important legal point that requires the process of law to be followed ethically so that it is just and not oppressive.

Amendment Five: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, 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; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; 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; nor shall private property be taken for public use, without just compensation.

Many important restraints on the law are embedded in this amendment. It assures citizens that they must be indicted before they are arrested. It protects them from being tried twice for the same offense. It also prevents a person from having to testify against themselves in court. It also means that a citizen can not be punished without proper legal authorization. This amendment is full of directions to the government on how the laws must be operated to maintain a just legal system.

Amendment Six: 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 defense.

This amendment is similar to the fifth one in that it further places constrains on the government. It requires public trials with fair defense and the right to call in witnesses to help in defending a case. This was a direct response to the British practice of secretly arresting people and trying them in private with the defendant having no right to a fair defense. Even though this was legal, it seemed unethical to the Americans and this amendment addresses this.

Amendment Seven: 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.

This gives people the right to have a jury decide their legal cases. This includes both civil and criminal cases. This was done to assure that citizens would have an impartial panel hearing their cases. This would prevent biased or corrupt judges from arbitrarily damaging a party in court.

Amendment Eight: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Since the law can imprison you, it would be easy for this to be abused. Under the British, people often were arrested for minor offenses and kept in jail until an inordinately large amount of money was paid. People were also given draconian penalties (like long prison sentences or huge fines) for these same minor offenses. If the government has the right to imprison you and punish you, it must do so justly.

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

This is an important amendment that says that citizens have other rights too. Just because they are not listed in the Bill of Rights does not mean they do not exist. As a government could use this list to curtail other rights unjustly, this amendment keeps other rights as possibilities under the law.

Amendment Ten: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

This amendment gives states powers which are not given to the federal government by the Constitution. This in essence protects the rights of citizens to have local meaningful governments separate from the national one. It was seen as just that people could rule themselves at all levels of government.

The law was important to the new American government in the late 18th Century. Yet, the experience of the Americans under British rule had shown them that the law could be unjust. As such, they wrote very detailed ethically driven rights into the Constitution via the Bill of Rights. As such, it is an excellent example of the Ethic of Justice being used.

References

Starratt, R. J. (1991). Building an ethical school: A Theory for practice in educational leadership. Educational administration quarterly, 27(2), 185-202.

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