Third through Eighth Amendments: The First Cases on Homes, Searches, Trials and Punishment

These six amendments decide whether soldiers can move into your house, whether police need a warrant, whether you must answer questions that could incriminate you, whether you get a lawyer and a jury, and what punishment the government may impose. Many of their first cases were narrow federal disputes about customs duties, lottery tickets or railroad rebates. The cases that brought these rights into every county courthouse came later, through incorporation.

As Lesson 8 explained, Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833) held that the Bill of Rights was "not applicable to the legislation of the States." So for each amendment there is usually a first federal case and a later first state case.

The Third Amendment: Quartering Soldiers

"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" (National Archives transcription).

The Supreme Court has never directly interpreted this amendment. The Constitution Annotated notes that only two lower federal courts have examined it in depth, both in the same case, and that it has otherwise appeared in Supreme Court opinions mainly as an example of privacy or of resistance to military intrusion, as in Griswold v. Connecticut (1965) (Constitution Annotated, Amendment 3).

The Fourth Amendment: Searches and Seizures

Boyd v. United States (1886)

The government brought a forfeiture case against 35 cases of plate glass it said had been imported with fraudulent invoices to dodge customs duties. To prove its case, it got a court order under an 1874 customs law requiring the importers to produce an invoice for an earlier shipment. They produced it under protest, and it was used against them. Justice Bradley wrote for the Court that compelling a person to produce private papers for use in a forfeiture case falls within both the Fourth and Fifth Amendments: "In this regard, the Fourth and Fifth Amendments run almost into each other." See Boyd v. United States, 116 U.S. 616 (1886). The Constitution Annotated says the exclusion of evidence as a remedy "found its beginning in" Boyd (Constitution Annotated, Adoption of Exclusionary Rule).

Weeks v. United States (1914)

Police in Kansas City, Missouri, searched a man's home without a warrant, and a U.S. marshal later returned and took letters from a dresser drawer. The papers were used to convict him of a federal crime involving lottery tickets sent through the mail. Justice Day wrote for a unanimous Court that the federal court should have returned the letters the marshal seized, and that using them at trial was error. "This protection reaches all alike, whether accused of crime or not." See Weeks v. United States, 232 U.S. 383 (1914). The Constitution Annotated says the remedy of exclusion "found its beginning in" Boyd and that Weeks then "propounded" the exclusionary rule for federal courts; Weeks is generally cited as the first case to require federal courts to exclude evidence seized in violation of the Fourth Amendment.

Wolf v. Colorado (1949) and Mapp v. Ohio (1961)

In Wolf v. Colorado, 338 U.S. 25 (1949), Justice Frankfurter wrote that the core of the Fourth Amendment, protection against arbitrary police intrusion, is enforceable against the states through due process. But he declined to require states to exclude illegally seized evidence. That made Wolf the first case applying the Fourth Amendment to the states, without its main remedy.

Twelve years later, Cleveland police forced their way into Ms. Mapp's home looking for a bombing suspect and gambling materials. They had no warrant they could produce at trial. They found allegedly obscene materials, and she was convicted of possessing them. Justice Clark wrote that evidence obtained by unconstitutional searches is inadmissible in state courts, and overruled Wolf to the extent it had held otherwise (the syllabus puts it as overruled "insofar as it holds to the contrary"). He wrote: "The criminal goes free, if he must, but it is the law that sets him free." Six justices voted to reverse. Justice Harlan, joined by Justices Frankfurter and Whittaker, dissented. See Mapp v. Ohio, 367 U.S. 643 (1961).

The Fifth Amendment

Grand jury: Hurtado v. California (1884)

The amendment begins: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." California charged a man named Hurtado with murder by an "information," a charge filed by a prosecutor after a hearing before a magistrate, with no grand jury. Justice Matthews wrote that this did not violate the Fourteenth Amendment's Due Process Clause. Justice Harlan dissented, arguing that due process requires a grand jury indictment in capital cases. See Hurtado v. California, 110 U.S. 516 (1884). Hurtado is still the law.

Idaho has its own chapter here. Article I, Section 8 of the Idaho Constitution allows a felony to be charged by grand jury indictment or by a prosecutor's information after a magistrate has held the person for trial. In Davis v. Burke, 179 U.S. 399 (1900), an Idaho prisoner challenged his prosecution by information. Justice Brown, for the Court, held that the Idaho provision was self-executing, so the information was not void, and that the prisoner should have raised the issue in the Idaho courts first.

Double jeopardy: United States v. Perez (1824) and Benton v. Maryland (1969)

Josef Perez was tried in federal court for a capital crime. The jury could not agree, and the judge discharged it without the consent of Perez or the prosecutor. Perez argued he could not be tried again. Justice Story wrote that he could: courts may discharge a jury without a verdict when "there is a manifest necessity for the act or the ends of public justice would otherwise be defeated," though the power should be used with great caution. See United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824). This is the earliest Supreme Court double jeopardy case we found, and the "manifest necessity" rule for mistrials is still used.

The clause reached the states in Benton v. Maryland, 395 U.S. 784 (1969). Justice Thurgood Marshall wrote that the Double Jeopardy Clause applies to the states and overruled Palko v. Connecticut (1937) to the extent it held otherwise.

Self-incrimination: Counselman v. Hitchcock (1892) and Malloy v. Hogan (1964)

Charles Counselman, a Chicago grain merchant, was called before a federal grand jury investigating railroad rebates under the Interstate Commerce Act. He refused to answer questions on the ground that his answers might incriminate him. He was held in contempt and jailed. Justice Blatchford wrote for the Court that the privilege applies in grand jury proceedings, and that a federal statute barring use of his testimony against him was not enough, because it did not stop prosecutors from using his answers to find other evidence. A substitute for the privilege had to "afford absolute immunity against future prosecution for the offense to which the question relates." Counselman was ordered released. See Counselman v. Hitchcock, 142 U.S. 547 (1892). It is generally cited as the first major Supreme Court case on the privilege.

In Malloy v. Hogan, 378 U.S. 1 (1964), Justice Brennan wrote that the Fourteenth Amendment protects the privilege against state infringement under the same standards that apply to the federal government. Justices Harlan, Clark, White and Stewart dissented.

Due process: Murray's Lessee v. Hoboken Land and Improvement Co. (1856)

Samuel Swartwout, the former customs collector for the port of New York, was found by a Treasury audit to owe the government about $1.37 million. The Treasury used a summary "distress warrant," without a court trial, to seize and sell his land. Rival buyers later fought over the land, and one side argued that the distress warrant violated due process. Justice Curtis wrote that the warrant was valid, but laid down a lasting principle: due process is measured by the Constitution itself and by the settled usages of English law that suited American conditions, and "it was not left to the legislative power to enact any process which might be devised." See Murray's Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272 (1856). It is generally cited as the Court's first major interpretation of the Fifth Amendment's Due Process Clause.

Takings: Barron (1833) and Chicago, Burlington and Quincy Railroad v. Chicago (1897)

The last clause reads: "nor shall private property be taken for public use, without just compensation." Barron held that it did not bind Baltimore. In 1897, Chicago condemned part of a railroad's right of way to widen Rockwell Street, and a jury awarded the railroad one dollar. Justice Harlan wrote that the Fourteenth Amendment's Due Process Clause requires that compensation be made or secured when a state takes private property for public use. The Court still affirmed the one dollar award, reasoning that the railroad lost only limited value. Justice Brewer dissented. See Chicago, Burlington and Quincy Railroad Co. v. Chicago, 166 U.S. 226 (1897). It is the earliest case we found applying the substance of a Bill of Rights guarantee against a state.

The Sixth Amendment: Counsel and Jury

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." The amendment goes on to guarantee notice of the charges, confrontation of witnesses and compulsory process, and ends: "and to have the Assistance of Counsel for his defence."

Powell v. Alabama (1932)

In March 1931, after an incident on a freight train in Alabama, nine Black youths were accused of raping two white women. They were taken to Scottsboro, where a hostile crowd gathered, and the state's military guard surrounded them. They were tried within days, without any real chance to consult lawyers before trial, and the defendants whose cases reached the Supreme Court had been sentenced to death. Justice George Sutherland wrote for the Court that, in a capital case, a defendant who cannot afford a lawyer and cannot adequately defend himself must be assigned counsel, as a matter of Fourteenth Amendment due process: "the right to the aid of counsel is of this fundamental character." Justice Butler, joined by Justice McReynolds, dissented. See Powell v. Alabama, 287 U.S. 45 (1932). Powell is the earliest Supreme Court case we found requiring appointed counsel in a state prosecution.

Johnson v. Zerbst (1938) and Gideon v. Wainwright (1963)

In Johnson v. Zerbst, 304 U.S. 458 (1938), Justice Black wrote that a person charged with a federal crime has a Sixth Amendment right to counsel that can be waived only knowingly and intelligently. That rule covered federal courts only.

Clarence Earl Gideon was charged in Florida with breaking and entering a poolroom in Panama City. He asked for a lawyer. The judge refused, because Florida provided appointed counsel only in capital cases. Gideon defended himself, was convicted and got five years. He then filed a petition he apparently prepared himself. Justice Black, writing for a unanimous Court, held that the right to counsel is "a fundamental right essential to a fair trial" and applies to the states, overruling Betts v. Brady (1942). See Gideon v. Wainwright, 372 U.S. 335 (1963). Public defense in Idaho, as in every state, exists to meet the requirement of Gideon.

Jury trial: Duncan v. Louisiana (1968) and Ramos v. Louisiana (2020)

Gary Duncan, a 19 year old Black man in Plaquemines Parish, Louisiana, was charged with simple battery after an encounter between his cousins and a group of white boys. The crime carried up to two years in prison, but Louisiana gave jury trials only in cases punishable by death or hard labor. He was convicted by a judge and sentenced to 60 days. Justice White wrote for a 7 to 2 majority that the Fourteenth Amendment guarantees a jury in state criminal cases that would require one in federal court, except for petty offenses. Justices Harlan and Stewart dissented. See Duncan v. Louisiana, 391 U.S. 145 (1968).

In Ramos v. Louisiana, 590 U.S. ___ (2020), the Court held 6 to 3, in an opinion by Justice Gorsuch, that the jury right requires a unanimous verdict to convict of a serious offense in state court, overruling Apodaca v. Oregon (1972). Louisiana and Oregon had been the only states allowing 10 to 2 verdicts.

The Seventh Amendment: Civil Jury

Parsons v. Bedford, Breedlove and Robeson (1830)

Louisiana merchants sued Parsons, a Massachusetts citizen, for tobacco sold to his agent. The case was removed to federal court in Louisiana, which followed the state's civil law based procedure. A jury found for the merchants. Parsons asked the judge to have the witnesses' testimony written down, as Louisiana practice allowed, so an appeals court could review the facts. The judge refused. Justice Story wrote that the Seventh Amendment's "suits at common law" means all suits that determine legal rights, as opposed to suits in equity or admiralty: "By 'common law' they meant what the Constitution denominated in the third article 'law'." Facts found by such a jury cannot be reexamined except as the common law allows, such as by ordering a new trial. Justice John McLean dissented. See Parsons v. Bedford, 28 U.S. (3 Pet.) 433 (1830). It is generally cited as the first Supreme Court interpretation of the amendment.

Bombolis (1916) and a recent signal

Bombolis, discussed in the myth box, held that the amendment does not bind state courts. On October 14, 2025, the Court declined to hear Thomas v. Humboldt County, a case asking it to reconsider Bombolis. Justice Gorsuch agreed with the denial because of problems with that particular case, but wrote separately that Bombolis deserves a second look (Statement of Gorsuch, J., in Thomas v. Humboldt County). For now, Bombolis remains the law.

The Eighth Amendment: Bail, Fines and Punishment

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

Wilkerson v. Utah (1879)

A man convicted of murder in Utah Territory was sentenced to be publicly shot. He argued that death by firing squad was cruel and unusual. Justice Clifford wrote that shooting was not, since military and common law practice had long allowed it, but that "punishments of torture ... and all others in the same line of unnecessary cruelty, are forbidden by that amendment." See Wilkerson v. Utah, 99 U.S. 130, decided March 17, 1879 (GovInfo U.S. Reports record). It is generally cited as the first Supreme Court interpretation of the Cruel and Unusual Punishments Clause.

Weems v. United States (1910) and Robinson v. California (1962)

Paul Weems, a disbursing officer for a bureau of the Philippine government, was convicted of falsifying a public document by recording wages as paid that had not been paid. He was sentenced to 15 years of cadena temporal, with a fine and accessory penalties that included wearing chains, loss of civil rights and lifelong surveillance. Justice Joseph McKenna, for a 4 to 2 Court, held the punishment cruel and unusual, stating that punishment for crime "should be graduated and proportioned to offense." Justices White and Holmes dissented. See Weems v. United States, 217 U.S. 349 (1910). Technically, the case applied the Philippine Bill of Rights, which the Court read to mean the same as the Eighth Amendment. It is the earliest Supreme Court case we found striking down a sentence on proportionality grounds.

The clause reached the states in Robinson v. California, 370 U.S. 660 (1962), where Justice Stewart wrote for a 6 to 2 Court that a California law making narcotics addiction itself a crime inflicted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

Bail: Stack v. Boyle (1951)

Twelve people charged with conspiring to violate the Smith Act had bail set at $50,000 each, with no individual evidence about whether any of them might flee. Chief Justice Vinson wrote that bail set higher than an amount reasonably calculated to assure the defendant's appearance at trial is excessive, and that bail must be based on standards relevant to each defendant. See Stack v. Boyle, 342 U.S. 1 (1951).

Excessive fines: Bajakajian (1998) and Timbs v. Indiana (2019)

Hosep Bajakajian was caught at Los Angeles International Airport in 1994 carrying $357,144 in cash out of the country without reporting it. The government sought to forfeit all of it. Justice Thomas, for a 5 to 4 Court, held that forfeiting the entire amount would be grossly disproportional to the reporting offense. The majority noted that the Court had "never actually applied" the clause before, and Justice Kennedy's dissent said the Court was striking down a fine as excessive "for the first time in its history." See United States v. Bajakajian, 524 U.S. 321 (1998).

In Timbs v. Indiana, 586 U.S. ___ (2019), Indiana sought to forfeit Tyson Timbs's Land Rover, bought for about $42,000 with life insurance money after his father's death, because he had used it to transport heroin. Justice Ginsburg wrote that the Excessive Fines Clause applies to the states. No justice dissented; Justices Gorsuch and Thomas wrote separately on whether the Privileges or Immunities Clause would be the better route.

Summary table

Clause	First case	Year	What kind of first
Third Amendment	Engblom v. Carey (2d Cir.)	1982	First federal appeals ruling on peacetime quartering; no Supreme Court case
Fourth: searches, papers	Boyd v. United States	1886	Beginning of exclusion as a remedy
Fourth: exclusionary rule (federal)	Weeks v. United States	1914	Generally cited as the first exclusionary rule binding federal courts
Fourth (states)	Wolf v. Colorado; Mapp v. Ohio	1949; 1961	Applied to states; exclusion required in 1961
Fifth: grand jury	Hurtado v. California	1884	Held not binding on the states
Fifth: double jeopardy	United States v. Perez	1824	Earliest Supreme Court case we found
Fifth: double jeopardy (states)	Benton v. Maryland	1969	Applied to the states
Fifth: self-incrimination	Counselman v. Hitchcock	1892	Generally cited as first major case
Fifth: self-incrimination (states)	Malloy v. Hogan	1964	Applied to the states
Fifth: due process	Murray's Lessee	1856	Generally cited as first major interpretation
Fifth: takings	Barron v. Baltimore; Chicago, B. and Q. R.R. v. Chicago	1833; 1897	Held federal only; then first applied to states
Sixth: counsel	Powell v. Alabama; Gideon v. Wainwright	1932; 1963	Earliest appointed counsel ruling we found (capital); applied to all felonies
Sixth: jury (states)	Duncan v. Louisiana	1968	Applied to the states
Seventh: civil jury	Parsons v. Bedford	1830	Generally cited as first interpretation
Seventh (states)	Minneapolis and St. Louis R.R. v. Bombolis	1916	Held not binding on the states
Eighth: cruel and unusual	Wilkerson v. Utah	1879	Generally cited as first interpretation
Eighth: proportionality	Weems v. United States	1910	Earliest sentence struck we found (Philippine Bill of Rights)
Eighth: bail	Stack v. Boyle	1951	Leading case on excessive bail
Eighth: fines	United States v. Bajakajian; Timbs v. Indiana	1998; 2019	First fine held excessive; applied to the states