The Bill of Rights
The Bill of Rights

When a new President of the United States is inaugurated, he or she swears an oath to “preserve, protect, and defend the Constitution of the United States.” So when we evaluate candidates for that office, one of the key questions we should ask is this: If elected, will they keep their oath?

In this essay, I propose a method for scoring political candidates according to their level of support for the specific provisions of the Bill of Rights. I plan to apply this proposed scoring system to the 2016 presidential candidates in the near future, and to continue improving and using the system in future election cycles.

While a candidate’s level of support the Bill of Rights is not the only thing we should consider when we go to the polls, it is becoming more and more important. Many politicians now govern in a manner that is openly hostile to the text and intent of the Bill of Rights, and contrary to the rights of the people they wish to represent.

It is up to us to start paying more attention, and demand that our elected officials do what they swore to do.

Background

The Constitution of the United States, adopted in 1789, establishes the framework of our system of governance. It lays out the separation of powers between the executive, legislative, and judicial branches, and describes a shared sovereignty between the state and national governments—one where the national government is granted certain specific powers by the consent of the people (with all other powers reserved to the states or the people).

It also includes twenty-seven amendments, which were added at various times through the constitutionally-defined process to modify the constitution. The first ten of these amendments, which were adopted only two years after the constitution itself, are known as the Bill of Rights. They lay out some of the most fundamental human rights and civil liberties, and explicitly restrict the government from encroaching upon them.

You might consider the Bill of Rights to be a reflection of the ‘soul’ of the constitution and the American political philosophy as a whole . . . a philosophy in which the people are the sovereigns, and the government is their subject. The Bill of Rights is not a comprehensive enumeration of rights. Indeed, it says so itself (cf. Ninth and Tenth Amendments). But it is a good list, and it forms a baseline that we should all agree upon as the non-negotiable law of the land with regard to our rights as free citizens.

Many politicians have shown outright hostility toward the human rights and civil liberties laid-out in the Bill of Rights. Instead of proposing that they be amended, which would be ill-advised but legitimate, they instead simply ignore them when they are inconvenient. Sometimes they attempt to justify this with ahistorical reinterpretations of the text, but increasingly they simply assert—either explicitly or implicitly—that the constitution and its Bill of Rights are outdated and therefore just need not be obeyed.

I have developed the following candidate scoring system to evaluate candidates’ apparent support for the various provisions of the Bill of Rights. This is not a comprehensive measure of a candidate’s constitutionalism, since there is a lot more to the U.S. Constitution than just the Bill of Rights. But if a candidate can’t get these ten items right, it is probably a safe assumption that they won’t get the rest of the constitution right either.

Scoring System

Several questions are asked about each of the ten amendments that make up the Bill of Rights. The correct answer to each question is “yes.” Each question is weighted with a point value. Each candidate’s presumed answers are determined by the evaluator based on their public campaign statements and their voting record (if they have one). If there have been no campaign statements and no voting record on a particular issue, a candidate’s position will be inferred from the platform of that candidate’s political party, or from the most common position taken by other members of their party.

Unambiguously wrong answers are awarded zero points. Unambiguously right answers are awarded the full point allotment for the particular question. Ambiguous answers or inconsistent voting records may result in a candidate being awarded a partial score.

A perfect score results in ten points per amendment, for a total of one hundred points. A candidate’s total score, or their individual per-amendment scores, may be converted to the American ten-point letter grade system as shown below. Given that compliance with the Bill of Rights is not optional for our elected officials, any score less than perfect (A+) should be considered unacceptable.

Score Grade
100% A+
90-99% A
80-89% B
70-79% C
60-69% D
0-59% F

Questions

First Amendment (10 Points)

“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.”

  • Religious Establishment (2 Points): Does the candidate oppose the explicit or de-facto establishment of any state religion, including any legislation benefiting any religion (or irreligion) at the expense of other religions (or irreligion)?
  • Religious Free Exercise (2 Points): Does the candidate acknowledge the individual and collective right to freely exercise religion (or irreligion), including the rights of conscience and the right to operate in the public sphere in accordance with individual or shared beliefs?
  • Free Speech (2 Points): Does the candidate support the individual and collective right of free speech and expression, including the unfettered right of political expression and the right to pool money and other resources so as to amplify speech?
  • Free Press (2 Points): Does the candidate support the individual and collective rights of the free press, including opposition to all content restrictions in all media (including broadcast) and support for the right of the press to protect confidential sources?
  • Peaceable Assembly (2 Points): Does the candidate respect the right of people to gather into groups, both real and virtual, and to act as a group to advance a cause, including the collective forms of the rights of free religious exercise, free speech, and free press?

Second Amendment (10 Points)

“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.”

  • Keeping Arms (2 Points): Does the candidate acknowledge and support the individual right to own and possess (“keep”) firearms and other weapons, so that they might have access to the necessary tools to defend themselves, others, and the United States of America?
  • Bearing Arms (2 Points): Does the candidate acknowledge and support the individual right to transport and carry (“bear”) firearms and other weapons, openly or concealed, with only the minimal necessary legal restrictions (up to and including ‘shall-issue’ carry permits)?
  • Interstate Recognition (2 Points): Does the candidate support federal legislation to establish unrestricted interstate recognition of concealed carry rights, as implied by the ‘Full Faith and Credit’ clause (cf. Article IV, Section 1, Clause 1)?
  • Unnecessary Restrictions (2 Points): Does the candidate oppose unnecessary restrictions on firearms, such as ammunition capacity limits and restrictions based on cosmetic or accessory features?
  • Treaty Imposition (2 Points): Does the candidate oppose all treaties that purport to restrict the production and trade of small arms, or that purport to restrict the right of any people to keep and bear them?

Third Amendment (10 Points)

“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.”

  • Quartering (10 Points): Does the candidate acknowledge and support the right of every homeowner to be free from the quartering of soldiers in their home without consent, except in a time of war?

Fourth Amendment (10 Points)

“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.”

  • Search and Seizure (2 Points): Does the candidate acknowledge and support the individual right to be secure in their persons and effects and free from unreasonable searches and seizures?
  • Civil Forfeiture (2 Points): Does the candidate oppose the administrative seizure of property, commonly known as ‘civil forfeiture,’ unless authorized by warrant or court ruling?
  • Data Security (2 Points): Does the candidate oppose government actions that undermine the right to data security, such as efforts to undermine, break, or outlaw effective electronic encryption systems?
  • Domestic Surveillance (2 Points): Does the candidate oppose warrantless domestic surveillance programs, such as the NSA phone metadata program, except upon the suspension of the writ of habeus corpus in times of rebellion or invasion (cf. Article I, Section 9, Clause 2)?
  • Implied Consent (2 Points): Does the candidate oppose ‘implied consent’ warrantless searches that lack probable cause, such as roadside searches of vehicles and persons and unnecessarily invasive airport security scans?

Fifth Amendment (10 Points)

“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 offence 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.”

  • Due Process (2 Points): Does the candidate acknowledge the right of every person not to be deprived of life, liberty, or property without due process of law, such as a finding by a jury or a defined legal process subject to appeal?
  • Grand Jury and Jeopardy (2 Points): Does the candidate support the grand jury system and the right to not be twice placed in jeopardy for the same offense?
  • Self Incrimination (2 Points): Does the candidate support the individual right not to serve as a witness against oneself, including the right to decline to testify before either the courts or the legislature, and the right not to be compelled to produce evidence that may be used against oneself?
  • Eminent Domain Abuse (2 Points): Does the candidate oppose the seizure of private property via ‘eminent domain’ for non-public uses, such as stadiums and neighborhood revitalization?
  • Compelled Incrimination (2 Points): Does the candidate oppose efforts by law enforcement agencies and the courts, in violation of the right not to self-incriminate, to compel suspects to provide decryption codes for their devices?

Sixth Amendment (10 Points)

“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 defence.”

  • Criminal Trial by Jury (2 Points): Does the candidate acknowledge the right of all persons criminally accused, including juveniles, to a speedy and public trial by jury?
  • Right to Counsel (2 Points): Does the candidate acknowledge the right of all persons criminally accused to have competent counsel acting on their behalf, and support the sufficient public funding to provide such counsel for those who cannot afford it?
  • Presumption of Innocence (2 Points): Does the candidate acknowledge and support the presumption of innocence in all criminal cases, and oppose all laws and regulations (including the administrative seizure of property, commonly known as ‘civil forfeiture’) that presume guilt before it has been affirmed by a jury?
  • Usurpation by Misclassification (2 Points): Does the candidate oppose the classification of certain infractions, such as traffic infractions, as civil matters for the purpose of usurping the right to a trial by jury and the presumption of innocence?
  • Public Trials (2 Points): Does the candidate affirm the public nature of all court proceedings, including those of the United States Supreme Court, and support unrestricted access to the courts by the press and public, including their use of recording devices, except in special cases?

Seventh Amendment (10 Points)

“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 re-examined in any court of the United States, than according to the rules of the common law.”

  • Civil Trial by Jury (6 Points): Does the candidate acknowledge the right of all parties in civil cases to a trial by jury in cases where the value of the case is more than twenty dollars?
  • Reexamination of Facts (4 Points): Does the candidate acknowledge that no fact tried by a jury may be reexamined by the courts except as permitted under common law?

Eighth Amendment (10 Points)

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

  • Excessive or Cruel Punishment (3 Points): Does the candidate acknowledge that the government may not require excessive bail, impose excessive fines, or inflict cruel and unusual punishments?
  • Torture (3 Points): Does the candidate oppose torture, including torture such as ‘waterboarding’ that does not inflict permanent physical harm?
  • Death Penalty (2 Points): Does the candidate oppose the death penalty, also known as capital punishment, except perhaps in the most extreme of cases?
  • Humane Treatment (2 Points): Does the candidate acknowledge that prisoners, including prisoners of war and captive enemy combatants, are entitled to humane treatment, including food, water, shelter, and competent medical care?

Ninth Amendment (10 Points)

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

  • Existence of Other Rights (2 Points): Does the candidate acknowledge that the Bill of Rights is not a comprehensive list of all rights retained by the people?
  • The Source of Rights (2 Points): Does the candidate acknowledge that all human rights spring either from the creator or from our human nature, and that they are not established by law, but only affirmed by it?
  • Inalienable and Predicate Rights (2 Points): Does the candidate acknowledge the fundamental, inalienable human rights upon which the Bill of Rights is predicated, including the rights to life (from conception to natural death), liberty, property, and the pursuit of happiness?
  • Presumption of Liberty (2 Points): Does the candidate acknowledge that the Bill of Rights includes, in the Ninth Amendment, a ‘presumption of liberty’ and an affirmation of all natural rights, and that individual and collective rights may not be usurped except to the least extent necessary to protect the liberties of others?
  • Right to Privacy (2 Points): Does the candidate acknowledge the right to privacy, as understood in the case law of the United States, except in cases where it conflicts with the higher rights of others?

Tenth Amendment (10 Points)

“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.”

  • Enumerated Powers (2 Points): Does the candidate acknowledge that the powers of the federal government are limited to those expressly enumerated in the U.S. Constitution, and that all other powers are reserved to the states or the people?
  • Interstate Commerce (2 Points): Does the candidate oppose laws that misapply federal authority over interstate commerce (cf. Article I, Section 8, Clause 3) to include all activity with economic effects, even if that activity is conducted entirely within the borders of a state?
  • Areas of No Authority (2 Points): Does the candidate oppose all federal laws, regulations, and coercive funding offers on matters not enumerated (cf. Article I, Section 8), including those relating to health care, food, medicine, recreational drugs, the environment, marriage, firearms, research, education, and employment, except insofar as they directly intersect with an enumerated power?
  • Presumption of Standing (2 Points): Does the candidate acknowledge that all states, and all individuals, have standing to challenge federal laws and regulations that they believe exceed the enumerated powers and usurp the reserved authorities of the states and the people?
  • Federalism and Subsidiarity (2 Points): Does the candidate acknowledge that the principles of federalism and subsidiarity demand that government action be executed at the smallest and narrowest level possible without rendering it ineffective?
Scott Bradford has been building web sites and using them to say what he thinks since 1995, which tended to get him in trouble with power-tripping assistant principals at the time. He holds a bachelor’s degree in Public Administration from George Mason University, but has spent most of his career (so far) working on public- and private-sector web sites. He is not a member of any political party, and brands himself an ‘independent constitutional conservative.’ In addition to holding down a day job and blogging about challenging subjects like politics, religion, and technology, Scott is also a devout Catholic, gun-owner, bike rider, and music lover with a wife, two cats, and a dog.