Diary: A Tour Through The Bill Of Rights

When the Constitution was written, many Founders opposed a Bill of Rights on the argument that if some rights were written down future generations would come to think that those in writing were all that existed. That has come to pass, especially on the political right, where rights of privacy, labor rights, a right to an abortion, right to marry whom we please are constantly denied by conservatives. If any of the conservative mindset were accepted we would have to refute Thomas Jefferson's statement in the Declaration of Independence that, "all men are created equal and they are endowed by their Creator with certain unalienable Rights, that among those are Life, Liberty and the pursuit of Happiness." None of those "certain unalienable Rights" are listed in the Constitution or Bill of Rights, so they don't exist according to right-wing thinking. And Jefferson purposely stated that those rights were included "among" other "certain unalienable Rights," indicating rights not mentioned do in fact exist. And there is nothing in the Bill of Rights suggesting that rights of gays or racial minorities are in any way different from the rights of straights or whites. There have been many polls or research over the years that indicate Americans don't know much about the Bill of Rights and would not accept it as part of the supreme law of the land if proposed today. Obviously, some of those would be many OpEdNews participants who argue constantly against the Constitution's priciples, history and meanings and often write articles reflecting lack of understanding. With that in mind we will take a brief tour of our most basic rights and explain some applications with the understanding that the Constitution recognizes differences in our rights, especially communal rights and individual rights. We have to accept the idea that all rights are not so sacred they are totally immune from some restrictions, such as freeedom of religion ~ an individual right ~ cannot be used to commit crimes. This is a light examination and doesn't pretend to cover all facets, but it does concentrate on areas that seem to confuse many OpEdNews readers, especially conservatives and "libertarians." ============================================= First Amendment 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. ------------------------------------------------------------------------------- Mostly a prohibition on government on the first three items mentioned ~ religion, speech and press ~ which can be construed to represent individual rights while the mention of "the people" indicates communal or societal rights for the final two. The freedom of religion clause is so misunderstood it will be discussed in a later article. The word "establishment" is so distorted that it leads to dire results. What can happen if that word isn't used correctly was discussed in: <click here And the right of freedom of speech isn't applicable only in "free-speech zones" as George W. Bush and his toadies thought, it is applicable in all areas except where government has power to regulate, such as commerce, crime, trials. The right to petition government is why convicted criminals are allowed to appeal their convictions, sometimes for what seems like eternity, but once settled an appeal cannot be reappealed at the same level, each new appeal must be to a higher court or based on new data. ========================================== Second Amendment 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. ------------------------------------------------------------------------------- This refers to rights of the people, or communal rights the Supreme Court missed in its recent gun-rights decision. It prevents a wholesale outlawing of firearms but does nothing to prevent gun-control on a limited basis. The reference to a "well regulated militia" is intended to refer us back to the body of the Constitution at Article I, Section 8, paragraph 16, that gives Congress the power to arm the state militias, gun control if you want to call it that. States and cities may not infringe of Congressional power over gun ownership. The Second is intended to facilitate national defense, not self-protection or resistance to a "tyrannical" federal government. James Madison, "Father of the Constitution," wrote this amendment and he had no intention to keep the populace armed to wage violent insurrection against the very central government he had championed his entire political life to create. In fact he made it clear what the amendmend was about when he said: "A well regulated militia, composed of the body of the people, trained in arms, is the best most natural defense of a free country." As for some widespread fear that gun control is intended to "take away our guns," that is addressed later by the Fifth Amendment. =========================================== Third Amendment 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. ------------------------------------------------------------------------------- Again, prohibition on government not a protection of individual rights, because it clearly states that private homes may be used during war for quartering of soldiers if a law says that. =========================================== Fourth Amendment 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. ------------------------------------------------------------------------------- Again protection of rights enjoyed communally, not individually, for it specifically says the "right of the people" and "their persons." This is a prohibition on government, a prohibition the recently replaced administration claimed it could ignore because we are engaged in a "war on terror." Nothing says the provisions can be ignored because of that "war." And it outlaws "unreasonable" searches and seizures, not "reasonable" ones, which require a warrant. It is not an individual right because it can be superceded by a mere warrant. =========================================== Fifth Amendment No person shall be held to answer for any 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 offense 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. ------------------------------------------------------------------------------- Here we consider individual rights when it says "no person" and adds that a person cannot be compelled to be a witness against himself. Incidentally, there are no pronouns in the Constitution referring to femininity. The masculine reference at the time the Constitution was written served for all mankind, not only the male. In later usage in amendments we started to use the neutral pronouns and got away from male-only references. If we surrender to "originalists" such as SCOTUS judge Antonin Scalia, and adhere to the specific words of the Founders to define their intent, no woman could serve in Congress or as vice president or president because the original constitutional words always referred to those positions with masculine pronouns. The judiciary was another matter, because it uses the gender-neutral term "judges" but that is moot since women couldn't be admitted to law schools until well into the 20th Century, so the intent of the Founders again appears to be "men only" in spite of the actual words used. Scalia is an idiot. But the real meaning of the Fifth is not well known; it is the "due process" amendment and must be read thusly: Read from the beginning to the first pause in thought, the semicolon. The subject matter Madison referred to was indictment. Read to the second pause in thought (second semicolon) and the subject matter is trial. The third pause in thought (the first comma following the last semicolon) brings us to conviction and the remainder after that comma touches on punishment, as limited as it is (From here see the Eighth Amendment.) Madison evidently had in mind the final sentence at Article I, Section 3, that says, "the Party convicted (in impeachment proceedings) shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment according to Law." Now, anything in the Constitution, whether the body or any subsequent amendment, that touches on these four principles constitutes parts of due process and must be honored by all in the law-enforcement and judicial systems, even though many police, prosecutors or judges do take shortcuts. This should also lay bare the lie pro-gun groups have been voicing for decades that gun-control advocates want to disarm America and confiscate all guns. Guns are property and can not be taken from anyone who obtained them legally except through due process of law and that requires a criminal conviction with all the constitutional protections in play. And the final concept about a prohibition against taking private property without just compensation lays bare the hypocrisy of the political right. Conservatives will howl at the top of their lungs if a person who buys several acres of agricultural land isn't allowed to build houses and condominiums on that land. That, conservatives claim, amounts to taking private property. But if a political protester burns a flag in protest that is the private property of the protester, the right has no problem jailing the protester while ignoring that would also be "taking" of private property because the owner wasn't allowed to use the flag as he or she wished. =========================================== Sixth Amendment 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 where in 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 defense. ------------------------------------------------------------------------------- Again specifies individual rights with words such as "the accused" and "his" even though as stated above "his" shall also mean "hers." We cannot be so strict on the exact words of the original Constitution to conclude that if "the accused" were female she wouldn't be entitled to be informed of charges, to be confronted by the witnesses against her, have compulsory process to gain favorable witnesses or to be represented by legal council. On this matter, people like Scalia, who insists we stick specifically to the exact words of the original Constitution and ignore the Founders's intent that there be "implied powers" in the Constitution, must themselves be ignored. Scalia may be well educated but he still is an idiot. =========================================== Seventh Amendment - 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. ------------------------------------------------------------------------------- Doesn't specifically state whether this pertains to individual rights or communal rights, but really doesn't matter. But we go to trial as individuals, so one can infer that an individual right was the intent. What it does say though is that any decision cannot be overturned in court under any legislative act but any punishment is not immune from being eliminated or reduced. The Supreme Court did just that in the recent case involving the Valdez, Alaska, oil spill of many years ago, reducing the punitive judgment of a civil court while not questioning the guilt of the oil company and its tanker crew in the disaster. =========================================== Eighth Amendment Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. ------------------------------------------------------------------------------- This is an extension of the Fifth, Sixth and Seventh Amendments which all deal with trials, both criminal and civil, and which none establish restrictions or guidance for the type of punishment allowed or prevented (outside of the Fifth implying that people can be deprived of life, liberty or property with due process of law). The Eighth wraps up that loose end and doesn't apply in situations in which criminal convictions or adverse civil judgments are not involved. The court found the punitive damages in the Valdez oil spill to be "excessive." Again we must ignore Scalia by questioning what the meaning of "excessive" may be. When the Bill of Rights was proposed in 1787 bail or punishment of $10,000 may have been considered excessive. Do we still subscribe to such a low figure or do we let a modern definition of "excessive" rule? We get a clue in the Seventh Amendment when $20 is the amount needed to assure a jury trial in civil suits. Scalia hasn't improved his thinking one bit when he says meanings don't change and the Constitution is a static document, not the "living Constitution" it must be to endure over centuries of changing deportment. Has this article not made a value judgment about Justice Scalia? =========================================== Ninth Amendment The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. ------------------------------------------------------------------------------- We shift from individual rights back to communal rights where the Bill of Rights started. This was put into the Bill of Rights as a reminder to government to watch its actions and not run wild with legislation to trample on unspecified rights. The original Constitution didn't contain a Bill of Rights because many Founders, led by Alexander Hamilton, feared that a list of specific rights would lead future generations (of morons) to think those were the only rights in existence. Modern Americans prove his fear was well founded because political righties often claim that if a right isn't specifically named in the Constitution it doesn't exist. Notable right-wingers who have expressed this distorted view are judges Robert Bork and Scalia. They are wrong and Madison wrote this amendment to tell them they are wrong. This amendment would include the rights Jefferson cited in the Declaration of Independnce as well as those rights of privacy, travel, labor rights, a right to an abortion, right to marry whom we please or uncountable other rights. =========================================== Tenth Amendment . 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. ------------------------------------------------------------------------------- This again refers specifically to the people and refers to communal powers. This is not a "state's rights" amendment as commonly thought because the Bill of Rights establishes a relationship between the US government and the citizens and residents of the nation, not a federal-state relationship and the Tenth doesn't apply to rights of any sort, it specifies powers. Powers of states are found in state constitutions and it is those state constitutions states must rely on, not the Tenth Amendment. A state can use any power in its state constitution that is not compromised by anything in the national Constitution; says that with "nor prohibited by it to the states" (as in Article I, Section 10, and in Article IV, Section 3). The Tenth doesn't allow states powers beyond what is in their constitutions nor does it allow states to intrude into what is federal territory. It does not allow states to ignore prohibitions on state power nor define their power as they politically see fit. It has nothing to do with additional state powers. And it has nothing to so with "states rights" because states don't have rights, they have powers; only people have rights. The significance of the Tenth is that power is given to governments by the people governed by those governments. In that it only restates what the Constitution's Preamble says, what the Federalist Papers say, what the Declaration of Independence stated and what James Madison, John Marshall, John Jay, Thomas Jefferson and the rest of the Founding Fathers said more than 200 years ago. Why modern Americans can't understand the plain simple statement is problematic. Those people who whine that they are being "punished" by taxation or that their money is being stolen or taken by force by government are fools because it is they who give power to government to tax them. They, like the majority of Americans, need to learn the Bill of Rights.