Amendments to the Constitution

Bill of Rights: First Ten Amendments

The Bill of rights were ten out of an initial package of twelve proposed amendments to the Constitution. Two of the twelve were not ratified in 1791 when the other ten—the Bill of Rights—were ratified. One of those two, relating to the compensation of members of Congress, was finally ratified in 1992, and it is now the Twenty-seventh Article of Amendment.*

The first eight relate to particular individual liberties and to procedures that the government must follow in criminal cases. Nine and ten are constitutional principles. The Ninth Amendment is a sort of anti-expressio unius** clause: just because the Constitution expresses or enumerates certain rights, it does not exclude other unexpressed rights. The Tenth Amendment is the constitution’s residual clause*** stating that any powers not expressly granted to the national government are retained by the states and the people.

*The only amendment out of the first twelve proposed in 1789 that was never ratified was the following:

Article I. After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

**Expressio unius est exclusio alterius, a Latin phrase meaning “the expression of one thing is the exclusion of another;” maybe the Ninth Amendment can be called an expressio unum non excludere alios clause.

***Contrast this to the Canadian constitution where any governmental powers not enumerated or delegated to either the central or the provincial governments are reserved or retained by the national government, the exact opposite of the United States constitution.

The rest of the ratified amendments:

11^th. Providing state immunity from suits by non-citizens; prompted by the United States Supreme Court case of Chisholm v. Georgia (1793). Ratified 1795.

12^th. Amending Article III. Fixing the Electoral College after the Election of 1800. Ratified 1804.

13^th. First of the three post-Civil War amendments. Outlawed slavery. Note the Enabling Clause in Section 2, the first of many. Ratified 1865.

14^th. Powerful and far-reaching amendment limiting state powers. Ratified 1868.

15^th. Guaranteed the right to vote against discrimination by “race, color, or previous condition of servitude. Ratified 1870.

16^th. The dreaded income tax amendment, making national income taxes constitutional. Ratified 1913.

17^th. Direct or popular election of senators. Ratified 1913.

18^th. The also much-dreaded Prohibition Amendment. Ratified 1919.

19^th. The Women’s Suffrage amendment, guaranteeing women the right to vote. Ratified 1920.

20^th. Amending Constitution Article III, regarding the Executive Branch. Ratified 1933.

21^st. Repealed the Eighteenth (Prohibition) Amendment. Happy Days were here again. Ratified 1933.

22d. Further amending Constitution Article III, limiting a president to two terms; prompted by FDR’s elections to four terms. Ratified 1951.

23d. Extending the right to vote to the District of Columbia. Ratified in 1961.

24^th. Outlawing poll-taxes, prompted by the Civil Rights Movement. Ratified 1964.

25^th. Further amending Constitution Article III, providing for presidential succession. Ratified 1967.

26^th. Extending the right to vote to eighteen-year-olds, prompted by the Vietnam War. Ratified 1971.

27^th. Limiting members of Congress from voting themselves immediate raises. Proposed 1789, ratified 1992.

Barron v. Baltimore, 32 (7 Pet.) 243, 8 L.Ed. 672 (1833). Applicability of Bill of Rights to states.

Slaughter-House Cases, 83 U.S. 36, 21 L.Ed. 394 (1872). Edited Version. 14^th Amendment Privileges and Immunities.

Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). Edited Version. Thirteenth and Fourteenth Amendments. State Action requirement.

Gitlow v. People of New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925).

Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). Articulating the Incorporation Doctrine: the rights “implicit in the concept of ordered liberty.”

Adamson v. California, 332 U.S. 46, 51-53, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947). Famous debate between justices on the Incorporation Doctrine.

Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). “Fundamental to the American scheme of justice.”

“Incorporation doctrine” refers to the “incorporating” into the “liberty” component of the Fourteenth Amendment Due Process Clause the rights, or some of them, guaranteed to Americans against the federal government. If the rights are so incorporated, they apply also to the several states. The existing doctrine is called “selective incorporation” because not all of the rights in the first eight amendments have been incorporated.