This is Part 2 of a five part series about political literacy – What your rights really are and what is really at stake.
Part One is available as an introduction to these concepts and an explanation as to why I felt compelled to write it.
In a world where political strategists are using focus groups to research what word would work best to convince people to vote against their own interest or what word could be used to convince someone of a truth that does not exist, it is important to know some things about government. It is especially important to understand what the law says, what it is supposed to do, and what precedents have been set regarding law.
Let’s talk about the constitution, specifically the Bill of Rights, since these amendments to the constitution seem to get the most spotlight and are the ones that are most often bastardized to mean something that was never intended.
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.
RELIGION This one is difficult for most people, because they have a tendency to read into this a little too much. Let’s talk about not establishing religion. There seems to be a misunderstanding about this plainly worded segment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” I’ve heard someone say, whilst staring me dead in the eye, that this was intended to be about sects of Christianity, not all of the religions of the world. Hmmm…I think that the plainly worded document that is the United States Constitution would have included that little piece of information, as it seems to be of the highest importance.
It seems strange that the party that screams about the constitution the most (Tea Party) would be the ones to blatantly charge against the first Amendment in the Bill of Rights by trying to establish a state religion in North Carolina. This happened in March of 2013 and I am still disheartened by the fact that this was not cause for harsh rebuke by the entirety of the population. On the flip side, my atheist comrades also add words that do not exist in this amendment. Nowhere does it state that we will be free from having to witness others exercise their religion. It does not imply that we would be Jesus-free in the public square. In fact, to the contrary, it establishes in plain English, that there should be no law prohibiting the FREE EXERCISE of religion. There is no freedom FROM religion implied, only freedom from an ESTABLISHED state religion.
SPEECH Also intertwined in this amendment is the idea that congress shall make no law abridging the freedom of speech, press, peaceful assembly, or to petition the government. In this country, you are allowed to say whatever it is you feel compelled to say without fear of incarceration or fine. This, of course, does not include death threats or inciting a riot by, let’s say, screaming “fire” in a movie theater at a time when there is not a fire. However, even these obvious exclusions from freedom of speech had to be hashed out in the courts before they became part of our law precedent. These are common sense exclusions, as there are few, if any, people who would disagree with their exclusion from protected free speech.
This amendment says nothing about saying something in public that may incense the public to hate you, therefore possibly ending your career or your standing in the public square. Those are consequences of free speech, from which the constitution does not protect you. Some people have felt that those consequences paled in comparison to living a life of silence, so they said what they had to say, consequences be damned. These are people who have this thing called CONVICTION, and even when I disagree with it, I respect it. However, that does not mean that I think people should expect to be protected against any rebuke for anything that they say.
PRESS Freedom of the press does not say anything about a reporter’s right to protect their sources. That too, was hashed out in the courts in reasoned debates, arguing that if sources are to be revealed at the request of the courts, those sources would be not be inclined to report their knowledge to the press for fear of punishment. Still, not all states have laws on the books that protect sources in a news story. The free press operates without fear of incarceration because of the content of their stories, however if other law is broken in the pursuit of those stories, the players are not protected from punishment for those crimes.
PEACEFUL ASSEMBLY AND PETITIONING THE GOVERNMENT While people have the right to peacefully assemble, many cities and states require permits for such assembly, seriously reducing the places and times in which such assembly is allowed. Many demonstrations are time-sensitive and if you assemble PEACEFULLY to protest without proper permission, you can be arrested – a clear violation of this amendment. Nobody seems too upset by this. However, many people became criminals in the sixties for merely protesting against the government, and doing so peacefully. Very few people ever bother to show any disgust that this has happened.
Petitioning the government has equally become an exercise in futility. The mere size and scope of the government makes it difficult for representatives to give the time and energy necessary to address the concerns of their citizenry. Top that off with gerrymandering of districts that keep few people in fear of losing their seat. If there is no fear of losing votes for ignoring the concerns of the constituency, then what is the point in expending the time and energy to read and consider their petitions? Voters are not stupid, nor are they crazy. On the flip side, why waste your time and energy petitioning a representative that has more to lose by considering your argument that is contrary to his party’s platform than if he ignores you altogether?
Now, let’s talk about the second amendment.
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.
You would think that with all of the hubbub surrounding this amendment that there would be more words to it. Alas, there are not many words at all. This amendment is in plain English with little to be left to the imagination. “The right of the people to keep and bear Arms, shall not be infringed.” It says nothing about regulation – oh wait, it actually does. We can argue about regulating the militia versus regulating the arms, but let us talk about what this amendment is intended to do. Is it intended for people to form their own militias? Is it intended for grandpa to amass an arsenal in his basement that could take out the neighborhood? Should people be able to procure nuclear weapons, as this amendment does not specifically discuss firearms alone? Should people be able to possess military weapons, with seemingly endless ammunition clips?
We have answered all of these questions to a certain degree in the courts. You are not allowed to form your own militia to take up arms against the government. The amendment states plainly “well-regulated militia.” You are not allowed to procure or create nuclear weapons. You are prohibited from owning a weapon-functioning tank. You are not permitted to own a fighter jet equipped with bombs. None of these things are of particular concern to gun nuts, but all of them should be protected under this amendment if we are to follow the logic of their constitutional arguments.
I own guns. I own them because I live in the middle of nowhere and the possibility of someone hearing a commotion and coming to my rescue, should a person of nefarious intent enter my house, is very low. I also like to shoot guns. There is a target practice range on the property. I take my .22 and .38 out there to shoot quite a bit in the warmer months. I find it invigorating and at the same time, relaxing. I like to hunt, though I do not have the time to dedicate to it and when I do have time, this is far down the list of activities in which I would most like to participate. Now that I have established that I am not one of those “guns are for meanieheads” anti-gun people, let us move on to what I mean about the logic of the arguments.
The logic is that the government was intended to have the right to regulate the militia but not the arms. By this logic, all people should be permitted to own any kind of arms, since there is nothing to specifically dictate what types of arms should be allowed. The logic states that if we allow them to regulate guns by requiring background checks, by excluding military weapons based on speed and range, and by limiting ammunition clip size, that we are then placing the very right to own guns in jeopardy. The “slippery-slope” argument is one that has plagued American politics, with little or no proof that this is even a real phenomenon. Take free speech into account; has the inability to threaten someone’s life led to further infringement upon this right? What about peaceful assembly; has the requirement of permission to assemble led to further erosion of this right?
The entire argument surrounding the regulation of guns is based on fear, not the constitution. There is no real threat to gun ownership in the United States. The specter of the slippery-slope is a red herring. The only real threat that exists in this argument is the threat to innocent people should we not have a reasonable debate surrounding this topic. That is not to say that gun regulation alone will properly address the issue at hand, but it must be allowed to be debated without screams of unconstitutionality – screams that are rooted in utter bullshit and purposefully manipulative language that continues to goad responsible and sane Americans to act like crazed lunatics with no regard for actual law or civil responsibility.
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.
You do not have to give up your house to the government to house troops, nor will you ever be compelled to house troops for the government in your home. This amendment is not debated in these modern times, in fact it is the only amendment that has not been the primary subject of a Supreme Court decision. Ever.
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.
People give up many things when they feel threatened. 9/11/2001 brought about a new age of fear here in America, and I watched as the majority of Americans freely gave up their rights, especially this one, in an effort to be more safe. If you watched the video from the first installment of this series of posts The Persuaders, you understand that “safety” was sold to the people of this country. The people neglect to understand that freedom is this amazing thing, but in a free world, we can never be completely safe. We can never be completely safe under ANY conditions. While people can be resourceful, ingenious, and insightful, they can also be cruel, dangerous, and vengeful. For every person who has the freedom to better themselves and beautify the world around them, another has the freedom to destroy themselves and threaten the world around them.
We cannot control the actions of people, with or without a bill of rights. We can, however, control our reactions to the actions of others. If people decide to break the law, we can address how we deal with that breach. There is little that can be done to prevent people from breaking the law, outside of addressing WHY people break the law and WHAT we will do once the law is broken. For instance, rather than having a sex offender registry, why do we not address the variety of sexually-based offenses and decide which ones are heinous enough for life-sentences? If someone is so dangerous that we need to flag their residence, should they not be in jail? Should a drunk guy who took a piss in public really be placed on the same list as a man who raped a woman? Should a twenty-year-old guy who had sex with his sixteen-year-old girlfriend be placed on the same list as a forty-year-old man who raped a five-year-old child?
Is it prudent to stop and frisk any person that fits some arbitrary profile that you could easily attribute to any citizen that you intend to target? Is it sound policy to stop a person for merely walking down the street in clothing that suggests some sort of affiliation with criminals? Is it okay for a police officer to pull you over, search your vehicle and detain you during this process without any reasonable suspicion or probable cause? Does it make sense to pull over every car driving down a particular road at a particular time of night simply because drunk people may use this road as a way to get home? Does this make us more safe?
The “War on Drugs” seriously eroded the our individual rights against unreasonable search and seizure. We concocted “RICO” in 1970 to combat organized crime, a statute that has been loosely interpreted to include not only organized crime as we understand it , but also Major League Baseball, Police Departments, and political organizations. This act broadened the authorities ability to confiscate your property and wealth. This act loosened restrictions on acquiring warrants and redefined what “probable cause” actually meant. Citizens did not care, so long as it was saving their teenagers from drug abuse. Guess what – it didn’t.
Drunk driving statutes dictate that police officers can pull over anybody, search their person, and their vehicle without having any probable cause to do so – as long as they pull EVERYBODY over on that street, thus making it “random.” Random searches do not seem to be allowed by the plain English used in this amendment. In fact, random searches would seem to be at the top of the list of the many things that are NOT allowed by our government by this amendment. Could you imagine the police picking a neighborhood at random and searching every property? What is the difference with a car?
Of all of the amendments included in the bill of rights, this one has been under attack the most. It is also the one that has been clearly dismantled by this “law and order” era. Just about nobody is arguing this case on cable news. Why? Jimmy who is a twenty-year-old quadriplegic because of some asshole’s fourth DUI is a powerful witness for the public. Everybody wants to stand up for Jimmy. The same cannot be said for kid who was arrested for a having a joint on him simply because he was wearing his pants the wrong way. Even when the discussion turns to the revelation of what the NSA has been doing in their data mining, nobody seems to be that up in arms about it, unless they are interested in throwing mud at a politician they do not like. Very little argument is heard about how incredibly unconstitutional all of this behavior really is.
“If you are not committing a crime, then what’s the harm?” is a question I hear far too often. For one, sometimes laws are stupid, cruel, or wrong. We all test the boundaries of law at some point in our lives. What if I had been caught with marijuana on me when I was a teenager? I would have never been able to go to college because I would have been ineligible for federal loans as a result of a drug arrest. What if I had been caught because I was wearing a “suspicious” jacket and not because I was doing something wrong? It is just stupid.
As a second point, why should I be subjected to someone’s hands on me because of the look on my face? I do not like to be touched. Why should I have to be held aside while someone searches my person and property when I have done nothing wrong? It is not about what they will find, it is about their right to do it. I have been left sitting in a car for forty-five minutes while some yokel local cop runs my license and tags, making me late for my grandmother’s birthday party simply because I have out-of-state plates. This amendment protects me from that kind of inconvenience, but it really does not, because nobody seems to give a damn about this amendment. Search my property??? Sure, but do not try to regulate my owning a hundred-round clip for which I have ZERO legitimate use.
Lastly, it creeps me out that somebody could be listening to my every conversation, watching my every keystroke, and thumbing through my things with no reason to do so, except for the fact that they CAN. My words are harsh at times and could be misconstrued if taken out of context, sometimes I go to websites that may be considered hateful or perverted, and I own things that I would like to keep private. It is not about whether or not I am committing crimes because I am not. However, that does not mean I want anyone to have the right to sift through my private life.
Does any of this make us more safe? Maybe in some ways, but not in ways that could not be achieved without infringing upon the rights of Americans. Also, any safety we achieve by stomping on this amendment creates another security issue, one that is far more important, and that is our freedom to move about in this country without living in a police state. I am not talking about a slippery-slope of what “could” happen. I am talking about things that are actually happening, things that are happening often, and things that happen with no substantial argument against it happening.
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.
Before you are to answer for capital crimes as a private citizen, a grand jury must decide that there is probable cause for you to stand for trial for said capital crimes. This is designed to protect citizens, who may be seen as disruptive by the powers that be, from malicious prosecution for crimes that bear serious consequence.
Also, this amendment protects against double jeopardy which again is a protection against malicious prosecution. If we are to talk about blatant disregard for the constitution, we can talk about cases that were lost in State Courts which were then brought before the Federal Courts. While we all want to see the bastards who killed civil rights activists pay for their crimes, this tactic is clearly in violation of this amendment. Again, few people have a problem with this perversion of our Bill of Rights, because it is “for a good cause.”
The last portion of this amendment is a protection against being compelled to testify against yourself and the protection against being deprived of life, liberty, or property without due process of law nor shall private property be taken for public use without just compensation. You can see my arguments above regarding RICO. People simply do not care about these provisions because most of us will never face the consequences of ignoring these rights as they are written.
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 defense.
This is an amendment of which we are all familiar, especially if we have watched a few police procedurals in our lifetime. Coupled with the fifth amendment, you get “You have the right to remain silent, etc.” Today, the most violated part of this amendment would be regarding the length of time it takes for a case to go to trial and the right to defend yourself utilizing your own witnesses with competent counsel. Most cases never go before a jury in this “let’s make a deal” era of criminal prosecution. People plead out, sometimes for crimes of which they are not guilty, because the consequences of losing in a trial are too great to risk.
Cases that do go before a jury carry on for months and years before they actually go to trial. The cost of these cases is prohibitive for most citizens, so if you are to take a case to trial, you will likely be stuck with an over-worked, under-paid public defender that will not give your case the time and dedication it would take to provide a robust defense. Again, this does not affect most citizens, but for those who have been accused of a crime they did not commit, if you have the money for a proper defense, you are far less likely to be convicted than if you were left with a public defender. If you are found “not guilty” you are likely to end up guilty by public indictment and you are left with a life in shambles with no job, fragmented family, and very little prospects for the future. These are just the scenarios from which this amendment was intended to protect us. Again, there is little outcry from the public, but try to take away the right to own an assault weapon and we are LOUD!
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 re-examined in any Court of the United States, than according to the rules of the common law.
While this law has not been adopted by every state, nearly every state affords a trial by jury in civil cases. The last time this law was ruled upon by the courts was in 1931 when it was decided that the states did not have to provide a jury trial in civil cases, however they were required to do so in cases decided under federal law. This amendment is rarely argued in the courts and is it almost never addressed in the public square.
Amendment VIII – Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
We have trampled all over this amendment. Two million dollars bail? What about $200,000? What about $25,000? What is excessive? Probably anything over two grand is excessive to somebody who does not make that in a month. Is there a number that will ensure someone’s appearance at trial? Large bail amounts keep more poor people in jail than rich people from running. Our continued acceptance of ridiculous fines that keep poor people in jail during their long trial is a continued nod of approval to the disparities that exist between socioeconomic groups. In contrast, keeping someone remanded because of their access to funds that could assist them in running is equally in violation of the spirit of this amendment.
Excessive fines? What constitutes an excessive fine? Pharmaceutical companies, doctors, hospitals, and hospital staff have paid billions of dollars in fines for dubious claims against their drugs, treatment, and care. “Big Pharma” has been subject to a lot of brow-beating over the years. They test their drugs under some pretty serious scrutiny. Every time you take a drug that alters the body’s response, you take the risk of unintended and unforeseen consequences. I am not talking about side effects that were purposefully overlooked and data that was intentionally altered. I’m talking about normal, realistic risks that we all incur when we seek medical care, take medicine, and undergo surgery.
Just because you have had a bad reaction to a drug does not mean that the drug company owes you money. Just because you had a bad reaction to the anesthesia does not mean that you should be able to sue the doctor, nurse, and the makers of the anesthesia. Just because a doctor did not do a CAT scan for your headache does not make him liable for the fact that you have a giant tumor in your head. CAT scans emit dangerous radiation, if we scanned everybody’s head for every headache, we would all have cancer and then these guys would be sued for all of that.
It is hard to look at the woman, who underwent an appendectomy surgery who had a reaction to the anesthesia and is now drooling on herself for the rest of her life, and not want to help her. However, excessive fines placed on companies who “can afford it” leads to an overall sharp increase in what we all pay for life-saving, positively life-altering drugs and interventions. It causes good drugs to be removed from the market because of a fluke and rare response. Frivolous lawsuits must be met with frivolous responses lest we end up with dangerous precedence.
Cruel and unusual punishment is a difficult one. We all want to do cruel and unusual things to people who have brought great harm on others. There is a fairness that rests inside all of us that wants to make the man who murdered a little girl pay a most awful price for what he has done. It is primal. It is even just. However, there is too much room for error. There are too many people who have been exonerated for crimes they did not commit. There are too many factors including intellect (a person’s ability to understand what they have done) and sanity (a person’s ability to understand and appreciate the difference between right and wrong) that mitigate the wrongs that have been committed. That is the very reason for this amendment.
I have heard people say, “Well, they just need to take one for the team.” I have to say that that little sentiment may be the most disgusting thing I have ever heard. I highly doubt that if they were the one “taking one for the team,” or their parent, or their child, that they would feel the same way. I have been told that “They are probably guilty of something. You don’t end up accused of something like this being totally innocent.” The naivety of that statement is profound. The sheer ignorance of all of this nonsense is far too much for me to take.
This amendment, like so many others, has been stomped on, pissed upon, chewed up and spit out so many times that it is hardly recognizable that this amendment actually sits in our bill of rights, along with nine other amendments meant to preserve our right to live a full and just life. Again, there are so many people who are fine with this right falling to the wayside, but if some backwoods redneck stands to lose his job for saying that the era of Jim Crow was not bad for black people and equating homosexuals with people who fuck goats, we will gladly misinterpret the first amendment to come to his defense.
Amendment IX – The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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.
These last two amendments were put in place to appease those who feared that the federal government would hold all of the power and that it would erode the rights of states and the individual that were not enumerated in the constitution. It was feared that the enumeration of rights in the constitution would imply that other rights would not or could not be enjoyed by the states or by the people, thus the last two Amendments were to be included in the Bill of Rights.
These amendments have been cited in serious controversy including Roe vs. Wade, firearms legislation, marijuana legislation, and Real ID laws. The amendments have been used as stand-alone constitutional challenges, but they are usually used in conjunction with other amendments in the arguments.
There it is. A brief summary of the first ten amendments to the constitution that we all know as our bill of rights. It is important to have a basic understanding of these rights and how they have been interpreted and employed over the years. There is an exhaustive pool of resources from which to choose. There is Wikipedia, which is always a good place to start. There is the official government archive page that has copies of the documents available for viewing and summaries of how these articles and amendments have been used over the years.
One should know their rights before they go off the rails about someone infringing upon them. All too often we are quite reactionary about those that have the least impact on our lives while we ignore those that are of serious consequence. This is the direct result of being persuaded to care about bullshit while you ignore real shit. Tell me, which of these rights does health care legislation attack? Which right does homosexual marriage attack? Think about all of the things that you so vehemently stand against and please explain to me, how does it pertain to your rights? Does it state anywhere here that your children should not be subjected to areas of intellect in which you have no expertise, to ideas in which you do not understand, and to people you find distasteful? Does it state anywhere in these rights that you should have the right to dictate the rights of others or to take those rights away? READ dammit, you all sound like a bunch of blithering idiots to people who have taken the time to do so. It is not like it was written in the King’s English whilst dancing around ideas with flowery language written in the style of an Irish Limerick. The constitution is written in PLAIN FUCKING ENGLISH so that any idiot could understand it, yet here we are arguing back and forth about shit that is OBVIOUS and I am racing toward a stroke!
Now that you have been schooled about rights, let all of this soak in before the next segment is posted. Prepare yourself for some real education.