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December 15, 2020

A reminder of how the Bill of Rights is mostly about limiting and regulating the police power on Bill of Rights Day

December 15, 1791, is the day when the new United States of America ratified the Bill of Rights, the first ten amendments to the U.S. Constitution, and so today is called Bill of Rights Day.  The National Constitution Center has this webpage honoring the day, though US Courts website rightly declares here that "Bill of Rights Day is Every Day."  Though I do not want to diminish or deprive civil lawyers from celebrating this day, I cannot miss the chance to reiterate a point I made in prior writings about the criminal justice tilt of the Bill of Rights:

Criminal justice power is an extreme form of government power and mass incarceration is an oppressive form of big government.  The Framers fully understood this when they enacted a Bill of Rights that is almost exclusively focused on limiting and regulating the exercise of police power.[FN]  Nine of the first ten Amendments to the Constitution set forth formal or informal safeguards against different possible forms of extreme uses of the police power.

FN  Though the Fourth, Fifth, Sixth and Eighth Amendments are most commonly mentioned (and litigated) when considering limits on the operation of modern criminal justice systems, one might readily view every Amendment of the Bill of Rights save the Seventh as articulating a restriction on the operation of the police power.  See generally LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 207 (3d ed. 2005) (noting that the “leaders of the Revolution . . . felt that the British had abused criminal justice” and that the “Bill of Rights . . . contained a minicode of criminal procedure”).  

So Happy Bill of Rights Day, everyone!

December 15, 2020 at 07:10 PM | Permalink

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