Why do we need a Constitutional Convention? Honor the One We Have!
Tags: Politics, Constitutional Reform, Freedom, Bill Of Rights, Constitution

Honoring the Bill of Rights

Freedom and liberty cannot exist in a climate of excessive government and corporate power. We are on the road toward an authoritarian capitalism that minimizes individual liberty. In the beginning of our republic, there was a clear belief in liberty as the guiding ideology. The Founding Fathers provided us a framework from which to progress, adapt, and evolve over the years, not burdened by divisive, preconceived notions of ideology. Then, the guiding vision was that the individual’s freedom and liberty comes before the needs of the State…most of the time. The focus truly was on the individual and their freedom and not what was best for the State, for business, or the oft cited, public safety.

No doubt, things have changed a lot since the 18th century, but they have not changed as much as the politicians and ideologues would have us believe. The Constitution and the Bill of Rights are still our best weapons. Like the wielding of any weapon though, it requires courage. It requires the courage to embrace and demand the rights that individuals are guaranteed by our Constitution. Unfortunately, individuals have been tempted to turn over too many of their freedoms to authorities under the influence of the siren song of safety. The Bill of Rights empowers the individual citizen to effect change, but citizens must act and be engaged. Freedom and individual rights are the real defense against those that would loot our nation’s treasury and run our country into a ditch.

Let us look at each of the first ten amendments to the Constitution and show how they have been watered down or practically repealed in today’s America. America is struggling, and we must return to our roots to save ourselves. We must uphold the constitutional rights of our citizens if we are going to be free and return to greatness. Freedom is messy, but it also brings vitality and security in ways that often are not immediately clear.

We now know that unconstitutional wire-tapping was expanded by the Bush administration almost immediately upon seizing the mantle of power in January 2001, but only expanded. It is important to understand that this was an “expansion” of what the Clintons had already put into place. In any case, these new extra-constitutional powers failed to provide sufficient warning for the same administration to detect and prevent the terrorism of September 11, 2001.

Again and again, we must return to 9/11 as the “Day the World Changed”, because the extra-constitutionalists called it that almost immediately to justify all manner of authoritarian actions by the state. It is the “Day the World Changed”, since it is the day that the Bill of Rights was repealed at airports and other public areas. Unfortunately, as the Founding Fathers clearly understood, extra-constitutional powers will eventually be used by those in power, to preserve their power, not protect free citizens. Power corrupts, and without the proper checks and balances, our government can do as it pleases — which it often does.

Here it is, the most progressive AND radical of all American documents, the Bill of Rights. If you cannot stomach this stuff, well you really cannot call yourself an American.

First Amendment — Establishment Clause, Free Exercise Clause; freedom of speech, of the press, and of assembly; right to petition. 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.

There has been a chilling effect on this amendment, and it is hard to know where to start. The Supreme Court ruling, giving more and more “person” rights to corporations has been one of the reasons for this. As corporations have gained personal rights, corporations have been able to suppress speech by using their deep pockets to sue individuals for speaking out. Additionally, freedom of the press has all but disappeared with the aggregation of media in all forms by large corporations. Large corporations are not truly interested in protecting citizen rights, muckraking, or other such altruistic motives, but rather corporations are motivated by preserving and increasing profit margins, not the objective reporting of events. Once it was impossible to own most, if not all, media outlets in one media market, let alone the entire country, but corporate-written legislation has erased these restrictions.

Television journalism has degraded seriously over the years to become more of an entertainment outlet. We as a people truly have a stake in National Public Radio and the Corporation for Public Broadcasting. These journalistic arms of the people have been seriously curtailed by a lack of funding. We must restore funding to the Vox Populi outlets to prevent all investigative reporting being subject to whims of corporate power. The decline of print media has made it even more essential for journalism to receive public funding to keep politicians in check. Freedom of the Press is not a bad thing, though many conservatives have demonized it since the days of Watergate.

First Amendment abridgements do not stop there either. Again and again, the government has also reduced free assembly and speech rights to quell dissent on the street. The 1st Amendment no longer seems to be as strongly embraced by the government or the people, but it is a keystone in our republic.

Second Amendment — Right to keep and bear arms. 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.

The second amendment seems rather straightforward. People have the right to keep and bear arms for their personal protection as well as for the maintenance of an independent militia not tied to the federal government. This amendment is the one most intact as the the NRA works hard to prevent it from ending up like the rest of the Bill of Rights

Third Amendment — Protection from quartering of troops. 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.

Of the ten amendments first added to the Constitution, this is the one that seems the most archaic, when I wrote about it. This amendment was a direct result of the British government quartering soldiers within the homes of colonists before and during the Revolutionary War. This seems to be a far cry from today, but it is not. There have been several lawsuits in California about police stakeouts using private homes. When these stakeouts extend over many hours or days, there is real hardship to the citizen residents. These things are returning today. Police forces across the nation are utilizing military equipment and tactics against the citizenry. The Federal government continues to use the military or paramilitary tactics AND personnel within the borders of the US in direct violation of the Posse Comitatus Act.

Fourth Amendment — Protection from unreasonable search and seizure. 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.

The fourth amendment has been largely repealed through fear. More and more people believe that the government has the right to protect us from ourselves. The security theater that has been instituted in our airports is in direct violation of this amendment. There has been no proof that this has made anyone safer. Sobriety checkpoints backed by MADD and other protect-us-from-ourselves groups broke this ground. Perhaps, just perhaps, there were public safety issues that allowed the sobriety checkpoints, but the checkpoints opened the door to all kinds of other types of checkpoints that definitely are unconstitutional. The checkpoints have been widely expanded to include seat belt checkpoints, registration checkpoints, and baby car seat checkpoints. Of course, if any illegal activity is turned up, it can be used against an individual. The courts used to rule this as the fruit of a poisoned tree and disallow the usage of such evidence.

The War on Drugs justified all kinds of constitutional abuses. Once these abridgements to the fourth amendment were forced through, they were broadened widely in the name of the War on Terror, and the fourth amendment seems to be just a memory. The amendment’s reference to “effects” could easily be interpreted to include one’s “digital effects”. Not surprisingly, judges and courts have not pinned this down, as they should have by now. Without a fourth amendment, the central government has quite a bit more power than the Founding Fathers intended.

Fifth Amendment — Due process, double jeopardy, self-incrimination, eminent domain. 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 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.

The Fifth Amendment has been largely repealed as well. The federal government’s prosecution of the LAPD officers in the Rodney King case appeared to violate the double jeopardy clause of this amendment. However, that is the least of the violations of this amendment. Asset forfeiture laws in this nation have gone completely out of control since they were first used to prosecute drug dealers in the 1980s. Constitutionally, assets cannot be seized without due process in this amendment, yet the government regularly does so in a whole host of situations nowadays. The original basis for such asset forfeiture laws is shaky. Originally, it was to prevent drug dealers from paying for good lawyers.

However, criminals having their ill-gotten gains to pay for lawyers are the consequences of a free society. Due process means the state must have evidence of crimes, except in the most extraordinary circumstances, with that evidence one would expect a conviction to be obtained without stripping the citizen of assets BEFORE due process. Asset forfeiture is now being used to further fund law enforcement entities in a clear conflict of interest. None of these forfeitures of assets ever requires due process. Law enforcement personnel determine whether assets are to be seized at the moment of arrest, and this is not what the Founding Fathers meant by due process.

Many governments, even our neighbor Canada, now advise their citizens to not carry cash in the United States. This advice is not based upon the lawlessness of America, but rather on the documented actions of police in the USA. Time and again, people have cash confiscated from them under the guise that the person must be involved in criminal activity to have a large amount of cash. Nothing seems more un-American than depriving individuals of their hard-earned cash on the whim of police officers.

Sixth Amendment — Trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel. 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.

When faced with a trial, to have one’s assets seized would seriously hinder one’s ability to secure Assistance of Counsel. Having a jury pool that is so scarce also makes it quite difficult for the accused to really be tried by peers, but rather only by people with sufficient assets already to be able to afford to sit in judgment. The state has now begun to introduce things like “secret evidence” and use testimony of paid informants to convict individuals.

The idea that the U.S. can indefinitely detain citizens without charge, without trial, and torture them is sickening. Torturing people and throwing them in prison forever is not what the good guys do. Of course, these are not American citizens, so a case has been made that the Constitution does not apply. However,America once was a place where basic human dignity was respected through due process of law regardless of citizenship.

Americans need to understand the consequences of allowing our government to treat non-citizens poorly. There are several lines of argument today that assert the President somehow has the power to label an American citizen as an enemy combatant, and therefore, that person loses all Constitutional protections. Citizens need to wake up to the incredible danger of such power; it gives the President the powers of a dictator or a king. Beware of offending a person with such power, because you can become a non-person, non-citizen and prisoner at the stroke of a pen.

Seventh Amendment — Civil trial by jury. 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.

The rules of common law, so often denigrated today are really the basis of everything in our justice system today! The U.S. is a common law country. In all states, except Louisiana (which is based on the French civil code), the common law of England was adopted as the general law of the state, except when a statute provides otherwise. Common law has no statutory basis; judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction. Broad areas of the law, most notably relating to property, contracts, and torts are traditionally part of the common law. These areas of the law are mostly within the jurisdiction of the states, and thus, state courts are the primary source of common law. Common law is used to fill in gaps.

Common law changes over time, and at this time, each state has its own common law on many topics. The only quibble I can see with this amendment is the twenty dollar threshold seems rather low. It would have been nice had the amendment been written in such a way as to index it in some way. Interestingly, the Founding Fathers did consider prescribing the rates of expansion within these amendments, but more about that later.

In any case, the area of federal common law is primarily limited to federal issues that have not been addressed by a statute. This amendment is meant to support the idea of Jury Nullification. Unfortunately, such voting of conscience is no longer permitted in America.

Eighth Amendment — Prohibition of excessive bail and cruel and unusual punishment. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The current state of our prison system now constitutes cruel and unusual punishment. Prison overcrowding is a serious issue nationwide. These issues are real and not to be diminished. To force individuals into cramped quarters where they are often subjected to all manner of sexual abuse is clearly cruel and unusual. Yet, our fearful society continues to pass laws and resist reform to reduce prison overcrowding. We imprison a greater number and percentage of our population than any Western nation. Imagine the potential of so many of these people thrown on the scrap heap by our overzealous law-and-order mentality.

Ninth Amendment — Protection of rights not specifically enumerated in the Bill of Rights. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Some would argue that judicial activism is rooted in this amendment, but I believe it is meant to protect the rights of individuals. Our crazy “make a new law” society has largely sprung up with our desire to curtail the broader rights of individuals that should be protected here. Each time we make a new law, we put the power to “decide” into a judge’s hands through law enforcement instead of an individual citizen. We need to step back from this and reevaluate whether it is wise to give so much power to the police by making so much illegal.

With so many laws that criminalize “crimes against ourselves” such as drugs, not wearing seat belts, etc; we no longer allow citizens to decide. We have lost the tolerance required to allow individuals to decide. Liberty will always return to tolerance has a requirement for success.

Tenth Amendment — Powers of states and people.

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.

Again, this amendment clearly means to preserve the rights of individuals, but our fearful society cannot seem to embrace these ideals. We spend far too much time making laws to abridge individual’s rights, and therefore, we constrain free citizens from their constitutionally protected right to pursue life, liberty, and the pursuit of happiness.

Ten!

And so there we are a breakdown of the Bill of Rights for the progressive thinker. Do you still think the Bill of Rights is in effect? Think about that for a moment, to stop the sale of previously legal alcohol in America, an amendment to the Constitution was passed that started Prohibition. Years later, yet another amendment was required to repeal Prohibition. Strangely, though, shortly after this repeal, Prohibition was restarted without any bothersome constitutional amendments. The banning of the legal sale and use of marijuana did not require an amendment to the Constitution just a few years after Prohibition had been repealed. Why? What changed? The Bill of Rights is a guiding light for our government and our citizens AND our judges, but we seem to have lost our way.

But wait! Before we go down that rabbit hole. There were actually twelve articles in the first draft of the Bill of Rights, and only articles 3 through 12 were ratified. Here is the text of the missing amendments that were to make up the original Bill of Rights:

Article II — On Congressional pay. No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.

This provided protection against congressional pay hikes, preventing a sitting Congress from giving itself a raise. Any increase in pay would not go into effect until the following House election. This proposal was resurrected 203 years later when it became the 27th amendment to the Constitution in 1992! Again, the Founding Fathers predicted situations and provided a statutory basis to address the situation — such foresight!

Article I — Providing for a truly representative republican democracy. After the first enumeration required by the first article of the Constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall be not less than two hundred representatives, nor more than one representative for every fifty thousand persons.

The explosive growth of our population outstripped these visionary representation numbers. This was followed on by the abolition of slavery and women’s suffrage, which changed the demographic electoral equations dramatically. Nonetheless, the Founding Fathers expected the House of Representatives to continue to grow with the growth of the electorate. Inexplicably, for a century we have been stuck at a little more than 400 representatives!

Hmmm…