As far as I know, unless a contract/compact states otherwise, or a provision was added at a different point of time, every provision in the contract carries the same priority. The bill of rights was added to the constitution all at once and so each amendment carries the same priority and so when there is a conflict least restrictive means has to be applied.
asked Mar 26, 2018 at 18:38
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The summary in the body of your question seems fairly sound until the end, where it assumes that "when there is a conflict least restrictive means has to be applied." Where did that come from, and why would it be applicable to a conflict in the Bill of Rights?– phoogCommented Mar 26, 2018 at 20:08
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Contracts. Generally if there is no evidence as to difference in priority, least restrictive means is used, though it's of course up to the arbiter at the end of the day.– Daniel GoldmanCommented Mar 27, 2018 at 10:06
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The constitution is not a contract, nor is the bill of rights.– phoogCommented Mar 27, 2018 at 12:25
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Note that I try to use "contract/compact." While it is not a contract, because that would imply some super-federal legal body, it is indeed a compact. It is an agreement between the states, who act as agents of the people. If we could arbitrarily select which provisions dominate, then there are any problems.– Daniel GoldmanCommented Mar 27, 2018 at 15:33
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1 Answer
Sometimes rights conflict with each other, and the courts decide which right takes priority.
The Sixth Amendment provides that a defendant is entitled to "compulsory process for obtaining witnesses in his favor". The Fifth Amendment says "No person... shall be compelled in any criminal case to be a witness against himself". And the First Amendment gives the right to free speech, which includes the right to not be compelled to speak.
If you're on trial and try to get someone else to confess on the stand, his Fifth Amendment right against self-incrimination trumps your Sixth Amendment right to have him testify. But if he couldn't take the fifth (for example, if he had already been acquitted), your Sixth Amendment right would override his First Amendment right to free speech.
