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权利法案(Bill of Rights)

作者: 阮一峰

日期: 2006年6月18日

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1

1787年9月17日,制宪会议(Constitutional Convention)签署通过美国宪法草案。

1788年,各州批准宪法,但是几个重要的大州(New York,Massachusetts,Virginia)觉得宪法草案给予联邦政府的权力太多,给予个人的权利太少。它们要求宪法必须附加关于人民权利的修正案,否则将拒绝这个宪法。

1789年4月6日,美国第一届国会开幕,立即开始动手起草关于人民权利的修正案。

1789年9月,国会批准了宪法的第一至第十修正案,总称为《权利法案》(Bill of Rights)。

1791年末,《权利法案》得到美国11个州的认可,正式生效。

200多年过去了,《权利法案》没有被修改过一个字。从生效的第一天起,它们就是美国宪法(supreme law of the land)中最重要的部分之一,是美国立国的基石。

2

第一修正案保障宗教、言论和出版自由,保障和平集会和向政府请愿的权利。

第二修正案保障公民携带武器的自由。

第三修正案规定没有主人的同意,军队不得驻扎民宅。

第四修正案禁止非法的搜查、逮捕和扣押公民财产。

第五修正案规定审判犯有重罪的犯人,必须先由大陪审团提出起诉;不得对同一罪行进行重复审判;未经正当的司法程序,不得实施惩罚;不得强迫被告提供对自己不利的证据。

第六修正案要求对刑事犯罪必须有一个快速的公开审判,必须有一个公正的陪审团,保证被告有获得律师帮助的权利,审判中证人必须当场与被告当面对质。

第七修正案规定民事诉讼中,其争执涉及价值超过20美元的,当事人有权要求陪审团审理。

第八修正案规定不得要求过高的保释金或罚款,不得施与残酷的或超常的刑罚。

第九修正案宣布公民的权利不止于宪法中所列出的,宪法没有专门提及的权利属于人民。

第十修正案宣布政府的权力止于宪法中所列出的,宪法没有专门提及或禁止的权力均留给各州政府和人民。

3.

Amendment I

  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.

  译文:国会不得制定关于下列事项的法律:确立国教或禁止信教自由;剥夺言论自由或出版自由;或剥夺人民和平集会和向政府请愿伸冤的权利。

Comment: The First Amendment guarantees freedom of speech, freedom of the press, and freedom of association and assembly. It also protects the rights of citizens to worship as they please and the right not to be forced to support someone else's religion. The First Amendment also provides for the right to demand a change in government policies.

Amendment II

  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.

  译文:纪律严明的民兵是保障自由州的安全所必需的,人民持有和携带武器的权利不可侵犯。

Comment: Legal scholars disagree about what right is protected by the Second Amendment. Some scholars have concluded that this amendment affirms a broad individual right to gun ownership. Others interpret the amendment as protecting only a narrow right to possess firearms as members of a militia. Supreme Court decisions have not resolved the debate. However, the courts have held that the Second Amendment does not preclude certain government regulations on gun ownership, such as laws prohibiting ownership of firearms by felons.

Amendment III

  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.

  译文:未经房主同意,士兵平时不得驻扎在任何住宅;除依法律规定的方式,战时也不得驻扎。

Comment: The Third Amendment forbids the government from quartering soldiers in private residences during peacetime without the resident's permission, and during wartime only according to law. Under British rule, American colonists were forced to feed and house British soldiers deployed to help enforce colonial tax laws. The colonists resented this practice, and so banned it with this amendment. This amendment has been basically irrelevant since the end of the American Revolution (1775-1783).

Amendment IV

  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.

  译文:人民的人身、住宅、文件和财产不受无理搜查和扣押的权利,不得侵犯。除依据可能成立的理由,以宣誓或代誓宣言保证,并详细说明搜查地点和扣押的人或物,不得发出搜查和扣押状。

Comment: The Fourth Amendment prohibits the police and other government officials from searching people's homes or offices or seizing their property without reasonable grounds to believe that a crime has been committed. In most cases, police can conduct a search of a person's home or office only after they get a written search warrant from a judge, detailing where they will search and what they expect to find.

Amendment V

  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.

  译文:除非根据大陪审团的报告或起诉书,任何人不受死罪或其他重罪的审判,但发生在陆、海军中或发生在战时或出现公共危险时服役的民兵中的案件除外;任何人不得因同一犯罪行为而两次遭受生命或身体的危害;不得在任何刑事案件中被迫自证其罪;不经正当法律程序,不得被剥夺生命、自由或财产。不给予公平赔偿,私有财产不得充作公用。

Comment: The Fifth Amendment provides five important protections against arbitrary government actions. First, no one may be prosecuted for a federal crime without first being indicted (formally accused) by a grand jury. Second, a criminal suspect may be prosecuted only once for each crime. If a jury acquits the accused person, there can be no retrial. Third, a person cannot be forced to testify against himself or herself in any criminal case. This is the right against self-incrimination. Fourth, the due process clause bars the government from arbitrarily depriving anyone of life, liberty, or property. Fifth, the government may not take anyone's private property unless it is necessary for a public purpose and unless the government pays a fair price for it.

Amendment VI

  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.

  译文:在一切刑事诉讼中,被告有权由犯罪行为发生地的州和地区的公正陪审团予以迅速和公开的审判,该地区应事先已由法律确定;得知控告的性质和理由;同原告证人对质;以强制程序取得对其有利的证人;并取得律师帮助为其辩护。

Comment: The Sixth Amendment guarantees people accused of crimes the right to a speedy and public trial. Defendants in federal cases are entitled to be tried in the area in which the crime was committed, and both state and federal defendants have the right to have an impartial jury decide their guilt or innocence. The Sixth Amendment prohibits the government from prosecuting an accused person without first informing him or her of the nature of the charges against him or her. The accused has the right to "confront"--that is, to cross-examine witnesses who testify against him or her at trial. Those accused also have a right to subpoena (compel) supporting witnesses to testify in court and to have a lawyer assist in their legal defense.

Amendment VII

   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.

  译文:在习惯法的诉讼中,其争执价额超过二十美元,由陪审团审判的权利应受到保护。由陪审团裁决的事实,合众国的任何法院除非按照习惯法规则,不得重新审查。

Comment: The Seventh Amendment, which does not apply to the states, guarantees the right to a jury in some types of federal civil (noncriminal) trials.

Amendment VIII

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

  译文:不得要求过多的保释金,不得处以过重的罚金,不得施加残酷和非常的惩罚。

Comment: The courts must allow most criminal defendants out of jail before their trial if the defendants put up a reasonable bail--a financial guarantee that they will come to the trial. If a person is convicted of a crime, the government cannot impose unreasonable fines or inflict inhumane punishments. What is "cruel and unusual" has no fixed meaning, and so decisions interpreting the clause are sometimes controversial. The Supreme Court has generally held that a punishment that is wildly disproportionate to the crime committed is cruel and unusual. The Court has also upheld the death penalty against claims that putting someone to death, regardless of what that person did, is cruel and unusual.

Amendment IX

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

  译文: 本宪法对某些权利的列举,不得被解释为否定或轻视由人民保留的其他权利。

Comment: The Ninth Amendment declares that just because certain rights are not mentioned in the Constitution does not mean that they do not exist. Courts may not infer from the silence of the Constitution that an unlisted right is unavailable to protect individuals from the government.

Amendment X

  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.

  译文:宪法未授予合众国、也未禁止各州行使的权力,由各州各自保留,或由人民保留。

Comment: The Tenth Amendment restates a fundamental constitutional rule: If a particular power was not assigned to the federal government by the Constitution itself, then the states may exercise the power, unless the Constitution also prohibits the states from exercising it. The Tenth Amendment also states that people are free to act, without permission of the federal government, in areas outside the scope of the federal government's powers.

(评论文字摘自Microsoft Encarta Reference Library 2004)

4

《权利法案》的意义:

a) 规定人民有某些绝对的权力,任何政府都无权干涉,使得那些想要奴役人民的暴政难于成功。

b) 规定了人民获得权力的某些具体的保障措施。

c) 第一修正案尤其保障了民主制度,它规定人不能因为批评性言论或持有不受欢迎的信念而获罪。

d) 第十修正案尤其促进了科技和经济的发展,它鼓励人民去创新。《宪法》中没有规定的权利都属于人民,这使得创新的阻力大大减少,使得政府难于对新兴事物强加管制。

5.

美国强大的真正原因,不是它给予政府权力,而是它给予公民自由,并且命令政府竭尽全力保卫这种自由。


(完)

阮一峰的网络日志

留言(4条)

中国的小民哪一天能享受这些权利?

人类移民火星那一天

从历史的角度看民主,这样也许是比较客观和现实的……

谢谢~明天得考商业法,你的这篇博客帮了大忙了!

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