Thesis: This paper will described the evolution of the rights of the accused and show how the concept changed from its initial inception in early America to its current conception in the 21st century. Introduction

The rights of the accused in the modern West stem from the rights of man, propagated by Thomas Paine in 1791 shortly after the War for American Independence was won. It was Paine’s assertion that rights stemmed from nature, rather than from any one human authority. This concept was born out of the Enlightenment philosophy of the day, which was itself a radical response to the Old World concepts of human order, society, hierarchy, and human nature. Whereas the Old World accepted the idea that all rights were given according to the will of the authority of the realm, the New World was much more approving of Paine’s dictum that rights came from God or nature and that no man had the right to take them away. This served as the basis of the American Declaration of Independence in 1776, and as the basis of Thomas Jefferson’s assertion that “a free people claim their rights as derived from the laws of nature, and not as the gift of their chief magistrate” (Jefferson, 1774). This concept fed into the way in which the Founding Fathers formulated the rights of American citizens in the following years, which in turn informed their position on the rights of the accused. Since that time the rights of the accused have evolved along with the changes in social and cultural inputs in the West. This paper will described the evolution of the rights of the accused and show how the concept changed from its initial inception in early America to its current conception in the 21st century.

Early America

Few of the rights that exist today were held by all in early American history. Women could not vote. Slavery was not yet abolished. Property owners were entitled to more rights than non-property owners. Early America was a place in which there were clear class, race, and gender barriers: it was a place in which an Old World hierarchy was still somewhat being propped up under the guise of New World doctrines. This would all change gradually as the modern era began to define itself more assertively, through social, economic and political advances. The Industrial Revolution would usher in these changes more abruptly throughout the 19th century, and in the 20th century, large changes would be seen.

But in early America, a simple approach to law could be seen. Based primarily on British law, the rights of the accused protected the person accused of a crime from an unfair or hostile trial. In Britain, law was not viewed with much love. Writers from Shakespeare (in Hamlet) to Dickens (in most of his works) expressed their scorn for it—whether highlighting its slowness, its injustice, or its practitioners’ lack of ethics. For that reason, the American Revolutionaries resolved to address the issues that their British brethren had failed to rectify. Thus, the Framers of the U.S. Constitution sought to limit the abuse that the state could inflict upon a person accused of a crime. They wanted to guarantee that everyone would have a fair trial, the trial itself dictated by facts and evidence rather than by personal invective. The Bill of Rights was written to this very specific end and codified in the Constitution along with a number of other future Amendments designed to protect the rights of the accused in various other ways that were needed as well.

Black (1960) wrote that the Bill of Rights was the set of rights that first iterated the rights of the accused in America in a way that was clear and exact and upheld by the whole of the new nation: the rights it described included “those which safeguard the right of habeas corpus, forbid bills off attainder and ex post facto laws, guarantee trial by jury, and strictly define treason and limit the way it can be tried” (p. 865). Habeas corpus was viewed as one of the most important rights of the accused. Defined as an order that requires the accused to be brought before a judge or before a court, unless lawful grounds are shown for their detention, habeas corpus was especially critical to the formation of the rights of the accused in early America because it ensured that no one could be held, detained or imprisoned indefinitely without trial or without coming before a judge. Yet,...

Indeed, the Great Emancipator himself Abraham Lincoln suspended habeas corpus during the Civil War (Halbert, 1958).
That which was “hailed as the highest safeguard of liberty” for those accused (Oaks 1965) was denied by Lincoln during the War in an act that resembled the kind of tyranny of office feared by Anti-Federalists a century earlier: yet as Oaks (1965) notes, the context in which Lincoln suspended the writ was much different from the context in which it was originally formulated: “Early forms of the writ were used to transfer custody of persons held on civil process from one court to another to aid the administration of justice” (Oaks, 1965, p. 243). Lincoln’s suspension of this right of the accused was dictated by his perception of the War and the needs of the Union. The proper and normal administration of justice was, in other words, put on hold as Lincoln dealt firstly with putting down what the North believed to be the rebellion of the South. Still, in defense of the Secessionists, they were not afforded the basic rights of the accused that the Constitution appeared to give them. Even Jefferson Davis believed that the southern states, accused of treason, had the right to a fair trial—a right to be heard—a right to put their case before an impartial court. He even expected and hoped to be arrested on his final day in the U.S. Congress specifically so that he could make use of these rights to put forward the arguments of the South and thus avoid a war. No one, however, was bold enough to test that idea. The rights of the accused were set aside in favor of war (Foote, 1958). Lincoln pushed them aside even more when he suspended habeas corpus. The Great Emancipator would go on to be remembered for ending slavery, but he helped resurrect an old form of tyranny that the Founding Fathers and Framers of the Constitution had hoped to avoid with their Bill of Rights and subsequent Amendments.

Following the Civil War, habeas corpus was restored and the rights of the accused were once more respected according to the Constitution. However, society itself was now changing as a result of new ideas circulating among the public. The question of the rights of blacks, former slaves, was one that had to be answered. Were they to be protected by the same Constitution and afforded the same rights as free men, as property owning white men? And what about women? What were their rights within this limited context?

The Fourth Amendment

The Fourth Amendment was meant to protect citizens from undue searches and seizures and may be included into a discussion on the rights of the accused, because those who are detained, searched, and have their property seized are essentially being accused of some criminal act and are thus treated by the state. However, there is a protocol that must be in place in order for police or the state to act in this manner. They cannot simply stop whomever they wish or conduct searches in a meaningless manner, as Constitutional law forbids it.

With the rise of the Digital Age, this question of searching and seizing the personal property of people has been questioned in a number of court cases, especially those involving wiretapping, confiscating hard drives, or surveillance via FISA courts. Though these activities are conducted in order to obtain evidence so that the target might then be aptly accused of a crime, the Fourth Amendment is clear about persons being accused, first, and then detained or searched—not the other way around. Over time, this concept has been inverted and the necessity to prevent crime for going undetected or from letting criminals escape without being caught has allowed this inversion to take place.

For example, the Electronic Privacy Control Act (ECPA) was passed in 1986 and consisted of a bundling of the Wiretap Act, the Stored Communications Act and the Pen Register Act. A quarter century later, in the wake of 9-11, this act was updated with the Patriot Act and then in 2008 by the FISA Amendments Act, which allowed the state to assert even more invasion into the lives of target people. All of this appears to go against the spirit of the Fourth Amendment, which protects: “The right of the people to be secure in their persons, houses, papers, and effects,…