This article is the beginning of my largest project to date. I intend to present information about and my less than humble opinion relating to The Constitution of the United States of America. I am not a lawyer, but neither were most of those who created the Constitution. They were planters and farmers, soldiers, statesmen, printers, diplomats, teachers, inventors, … and a few lawyers. In the Preamble to the Constitution, they wrote:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
It was not by accident that the words “We the People” were written much larger than the rest of the text. There was to be no question that the United States was to be, as President Abraham Lincoln put it more than 80 years later in his Gettysburg Address, a “government of the people, by the people and for the people”.
Seven “Articles” follow the Preamble. The first three Articles define the structure of government of the United States including a description of our government’s three branches; the responsibilities, rules, and authority of each branch; and how the three branches inter-relate and interact. Article IV defines how the states relate to each other and to the Federal government. Articles V and VII explain how amendments will be proposed and ratified respectively. Article VI says that debts incurred by previous iterations of the government will be honored under the new Constitution; establishes national supremacy; and delineates the oaths of office.
I’ll talk about the Articles in more detail in another article, but this discussion is about our freedom and how the Constitution protects that freedom. For that, we’ll be looking at the Amendments.
The first 10 Amendments to the Constitution are collectively called the Bill of Rights. Near the end of the Constitutional Convention, George Mason of Virginia proposed the addition of a Bill of Rights. The proposal was unanimously rejected.
This lack of a Bill of Rights became a major source of contention in ratification debates. Anti-Federalists believed that a Bill of Rights was absolutely essential. Some states ratified the Constitution contingent upon the addition of a list of personal rights. Federalists thought such a list to be unnecessary or even dangerous. Alexander Hamilton suggested that a list of rights might actually limit personal freedom … arguing that anything not explicitly mentioned might be denied by an unscrupulous government.
On June 21, 1788, New Hampshire became the ninth state to ratify the Constitution. This satisfied the “3/4 of the states” requirement specified in Article VII. The Constitution became the law of the land. Shortly thereafter, James Madison began work on a Bill of Rights. On June 8, 1789, he proposed 19 amendments. The House cut the number to 17; the Senate further reduced the number to 12. These were approved and sent to the states on September 25, 1789. The first 10, the Bill of Rights, were ratified on December 15, 1791.
Bill of Rights
Congress of the United States
begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
It was the states … led by the Anti-Federalists … who convinced Congress to add the Bill of Rights. Let’s look at those Amendments.
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.
This Amendment establishes four freedoms that many of us learned in elementary school:
- Freedom of Religion
- Freedom of Speech
- Freedom of the Press
- Freedom of Assembly
Most of us are less aware of the Freedom “to petition the Government for a redress of grievances“. What does that mean? Basically, it’s the right to complain to the government or ask it for help without fearing that you will be punished or suffer retaliation. Various levels of our government have not always followed this part of the amendment. The “Sixties” were filled with examples.
- In 1965, Civil Rights marchers in Selma, Alabama were beaten by hastily deputized locals.
- In 1968, efforts to control crowds of Vietnam War protesters outside Democratic National Convention devolved into what was later described as a “Police Riot“.
- In 1970, 4 unarmed Kent State students were shot and killed by members of the Ohio National Guard. Some of the victims were protesting the war; some were bystanders.
Although we now try to hide it behind the term “police brutality“, there are similar examples in the early decades of the 21st Century.
- The Occupy Wall Street protests generated governmental excesses.
- Some Black Lives Matter protests ended in clashes with authorities.
- Some police actions against the people protesting the Dakota Access Pipeline at Standing Rock crossed the 1st Amendment line.
I do not blame the police and military exclusively. Sometimes, especially in recent times, the protesters were not entirely peaceful. I do blame the government for creating the environment. Sending military … or police armed like military … to handle a protest is not a recipe for peaceful resolution. One might also question how well cops and soldiers are trained in the methods of peace.
Freedom of Assembly is closely aligned with Freedom to Petition the Government. Individual petitions for a redress of grievances seldom make the news. Group petitions for a redress of grievances do. They’re called protests. Protests require assembly … so do meetings.
People get together for all sorts of reasons … concerts, peaceful protests, meetings, sports, conferences, etc., etc., etc. You may not like those reasons; you may believe those reasons are wrong or frivolous or even dangerous, but that’s not enough. If those assembled are not breaking the law … like blocking traffic, preventing access to a clinic, interfering with voting, throwing things at others, destroying property, etc. …, they are allowed to assemble.
Freedom of Speech gives us wide latitude on what we can say. Even yelling fire in a crowded theater is allowed … if the theater is really on fire. Context matters. There are limits under the law. Expressing your disagreement with any particular law or ordinance is protected. Encouraging others to violate that law or ordinance may not be.
Freedom of the Press is closely aligned to Freedom of Speech. In colonial times, some British colonial governors tried to suppress political dissent by applying pressure, legal and otherwise, to newspapers and publishers who disseminated information criticizing the government. Many of the Founders had first-hand knowledge that a Free Press protected the people from governmental excess. The “Fourth Estate” is a watchdog protecting our freedom. It must remain independent of government interference.
Libel laws limit Freedom of Speech and Freedom of the Press. Publicly lying about another person for the purpose of defaming his character or inspiring contempt is not free speech. The more public your life is, the harder it is to win a libel case … and, the more dangerous a libel suit may be. The case draws more attention to the original slander. The publicity brought by the court proceedings often taints all parties involved. The court of public opinion isn’t always fair and doesn’t provide an appeals process. It’s unfortunate and wrong, but too often true. It’s the reason that celebrities generally ignore the “scandal sheets” and politicians get away with accusing each other of just about anything.
Freedom of Speech and Freedom of the Press require a responsibility that all of us must accept. We have to think. (I know that a lot of people don’t like doing that but, if you want to be free, it’s necessary.) In a world filled with “fake news“, you need to keep your “crap detector” turned on and set to high. If it sounds too good to be true or too bad to be true, it’s probably not true. Here are some web sites that will help you to check the veracity of what you see, hear, and read.
Be sure you distinguish between fact and opinion. If you believe and agree with everything you see and hear on the news, change the channel now and then. If you and all of your Facebook “friends” agree, add some “friends” who have differing views. Facts are slippery things. They require verification. Some facts, like a phone number, are easy to verify. If you dial the number and reach the party you expected, the number is verified. Verifying most facts takes a bit more effort. A fact does not require universal consensus to be true. If 999 out of 1000 climate scientists believe that the evidence shows that the planet is getting warmer and that we’re contributing to the warming, you might want to pay attention. 99.9% is a fairly high probability. If Donald Trump won more than 269 Electoral Votes, he’s the President … regardless of the Popular Vote (and regardless of whether or not you like it).
The first freedom guaranteed in the 1st Amendment (and, therefore, in the Bill of Rights) is Freedom of Religion. In the 17th and 18th Centuries, people came to North America for many reasons. Some came seeking economic opportunity; some came seeking adventure. Some came to escape the law; some came to escape religious persecution.
Establishmentarianism (state-sponsored religion) was the rule in England (and many other countries) during the 17th and into the 18th Century. Anyone who openly resisted the Church of England was not tolerated. The government passed laws against any who deviated from the state religion. Various religious “deviants” chose to escape to the colonies in North America where they were beyond the reach of such laws.
Ironically, many of those who sought freedom to practice their religion were unwilling to extend that right to any who disagreed with them. Roger Williams and his followers left the Massachusetts Bay Colony in order to adhere to a strict separation of state and church. Maryland, started as a refuge for Catholics. They quickly passed religious tolerance laws … that didn’t apply to Jews and other non-Christians. Pennsylvanian laws extended protection to any who believed in God … but, only Christians could be part of the government. In many ways, it’s remarkable that Freedom of Religion was considered important enough to be included in the Bill of Rights at all … much less in the first 10 words.
It seems likely that our definition of religion is much broader than that of our Founders. I tend to go farther than most. I define religion as any spiritual belief that cannot be proved empirically. (This includes those who believe there is nothing beyond the “reality” we normally experience. One cannot prove or disprove that something does not exist.)
The freedoms named and guaranteed by the 1st Amendment are those that are most under attack in the second decade of the 21st Century.
- Everyone who blames those of another religion for world-wide atrocities is violating the 1st Amendment. Together, the Abrahamic religions dominate formal spiritual life in the United States (73% of the population). All three are essentially religions of Peace; yet they’ve been hating and fighting each other for over 14 centuries. A small group of deranged sociopaths claim that their way is the only way; commit atrocities in the name of “the one true God”; and the rest of us show our ignorance and bigotry by believing their misidentification as representing one of these religions. Even the non-religious among us join the worst of the “isms” … religionism.
- In the 21st Century, the 1st Amendment isn’t the only force that guarantees free speech. A world-spanning communication system and ever-expanding social media make it virtually impossible to totally suppress ideas. The cry of freedom escapes even in some of the world’s most oppressed societies. Where the 1st Amendment does make us different from all other “voices crying in the wilderness” is that we cannot be punished for simply disagreeing with the government.
- In spite of what you may have heard, “fake news” is not “news that the government doesn’t like”. Fake news is lies masquerading as truth or opinion spoken as fact. When a news person or someone being interviewed says something like “most Americans agree” or “the American people want this or that”, I want to see the numbers. When the press uses absolutes like “Everybody” or “All”, you can be fairly certain sure it’s exaggeration rather than news. The Press must be free but it isn’t infallible. It is our responsibility to distinguish its inevitable errors. For a free Press to survive, thinking on the part of its consumers is required; not optional.
- Freedom of Assembly is a right that’s both easy to abuse and easy to deny. Gathering together for a specific purpose is protected; having obstruction and/or violence as that specific purpose is not. If an assemblage is violating a Constitutionally valid law, authorities may intervene; authorities may not intervene because the assemblage might violate a law.
- Petitions are everywhere. Before the Internet, you needed large numbers of volunteers to effectively petition the Federal Government. Now, petitions show up in e-mail, Facebook, Twitter, etc., etc., etc. The web site Change.org lets you view and, if you choose, sign lots of petitions … and, to create your own. The only price you pay for joining these petitions is receiving more petitions.
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.
In the 21st Century, no amendment has received more publicity than the second. The vast majority of the publicity revolves around what people perceive as the result of other people “keeping and bearing Arms”.
Some see only terrorists causing the death of innocents and the destruction of property to further their political and extremist, ultraconservative religious views … or mentally disturbed people using the same death and destruction to avenge personal attacks that exist only in their delusions.
Others see their rifles and guns as tools for hunting, procuring food, protecting their families and property, or because they provide a sense of personal security.
Still others harbor a paranoid suspicion that the government wants to “take their weapons, then impose dictatorial martial law“. (This group is probably related to those who wonder why our Founders were concerned with the appendages of carnivorous mammals of the family Ursidae.)
While I am not personally interested in “keeping and bearing Arms”, that part the text is rather straightforward. We might consider what the word “Arms” means. I would agree that rifles and pistols are “arms” … not to mention knives and swords … and longbows and crossbows. Is an AK-47 an “arm”? What about a cannon … or a tank? Would a strict Originalist limit the meaning of “arms” to flintlocks?
Some have suggested closing loopholes in background checks for the purchase of firearms. Others point out that background checks will not prevent criminals, terrorists, and mentally unstable people from obtaining weapons. On its face, this statement is absolutely correct. It won’t stop them, but it might slow them down.
I am more concerned about the word “Militia“. What does “well regulated” mean? Regulated by whom? 20th and 21st Century America has seen the rise of “private militias” … designed to protect their members from the government, a collapse of civilization, the Apocalypse, unfriendly extraterrestrials, zombies, and who knows what else. I wonder how many modern militias are “well regulated” by some of those criminals, terrorists, and mentally unstable people I mentioned above.
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.
Within 21 years after this amendment was ratified, Congress ignored it. 49 years later, they did it again. In both the War of 1812 and the Civil War, our military used the homes of citizens without providing any “manner prescribed by law” to control such occupation. It’s fortunate that no war since then has seen any combat within the borders of the United States. Apparently, most of our Congress doesn’t read the Bill of Rights very often … if at all.
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.
This amendment is one of the most easily and commonly violated in modern times. Several 4th Amendment cases have reached the Supreme Court … with surprisingly varying outcomes. Most often, 4th Amendment cases revolve around the definitions of “unreasonable searches and seizures” and “probable cause“.
I’m not going to go into detail. Quite frankly, I’m not sure I understand well enough to do so. If you want to pursue the distinctions in depth, some of the links in this section should help. I can provide some suggestions about what you can do to protect yourself when dealing with authorities:
- You are required to identify yourself.
- Being polite can’t hurt, but being belligerent can. (Being disagreeable can lead to “probable cause”.)
- Answer questions, but don’t volunteer information. (This too can lead to “probable cause”.)
- If the authority asks to search you, your car, your home, etc., you can refuse. (Searches without warrants are like vampires. They can’t enter unless they’re invited.) Refusing permission cannot be held against you.
- Authorities may try to intimidate and trick you. Know your rights and politely defend them.
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.
Unless you’ve been living in a cave for several decades (in which case, you probably wouldn’t be reading this), you’ve heard some member of a TV police force utter the words:
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
This is known as the Miranda warning created in accordance with the Supreme Court’s decision in the case Miranda v. Arizona. The decision was based, at least in part, on the 5th Amendment phrase “nor shall be compelled in any criminal case to be a witness against himself”. You have to know that you’re not required to answer questions (beyond identifying yourself) because you might say something self-incriminating. Unless you keep your mouth shut, all bets are off.
The same rules apply if you are a witness in court. TV and movie courtroom scenes are fond of having a witness say, “I refuse to answer on the grounds that it may incriminate me”. (I’m not sure whether that exact phrase is ever used in a real court. If you’re going to be a witness in court, ask a lawyer.) The 5th Amendment protects us from being forced into self-incrimination.
The 5th Amendment protects us against double jeopardy as well. Basically, retrial after an acquittal, retrial after a conviction, retrial after certain mistrials, and multiple punishments for the same crime are forbidden.
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 defence.
Part of this amendment … “to have the Assistance of Counsel for his defence” … is referenced in the Miranda warning. Our legal system has that part of the amendment covered. Barring meddling by unethical authorities, our system of justice adheres to the language of the 6th Amendment … except for one important part … “the accused shall enjoy the right to a speedy and public trial”. We haven’t been following the spirit of the word speedy too well.
“In many jurisdictions, the prosecution generally has 60 to 120 days to bring an imprisoned defendant to trial unless the defendant waives the right to a speedy trial.” I don’t know about you, but I wouldn’t want to wait 2 to 4 months for my trial … especially if denied bail and being forced to languish in some local jail. Of course, you and I would never be accused of a crime that requires a jury trial, would we?
If you believe that, you have more faith in the intelligence of the average voter … and the officials they elect … than I do.
- During Congress’ early 2017 effort to repeal and replace “Obamacare”, one poll showed that 17% of those surveyed didn’t know that “Obamacare” and the “Affordable Care Act” are the same thing. Another 18% weren’t sure. (In fact, the full name of the law nicknamed “Obamacare” is “The Patient Protection and Affordable Care Act“.) Sadly, the confusion was most pronounced among those surveyed who were most likely to benefit from the act.
- Many who consider themselves to be “educated” believe that science is the only source of absolute truth. Anyone who really understands science will tell you that this is one of many misconceptions. Science is not absolute. Newtonian physics was absolutely true … until Albert Einstein showed that it isn’t. Kurt Godel’s incompleteness theorems show that there are some truths that can’t be proved. (Alan Turing’s abstract machine demonstrated the validity of Godel’s theorems.)
21st Century politics aside, the 5th and 6th Amendments, manifested in the Miranda warning, and, in turn, spread through the public’s consciousness in police dramas clearly demonstrate the purpose of the Bill of Rights … to protect the governed from excesses in the government designed to serve them. How often do we remember that We are the Government? How many of us even know?
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.
There you have it. If someone owes you $20.01 or more, you don’t have to go before Judge Judy to get your money. You can take your case before a real jury … and, that jury has to be at least 6 people. (The decision of the Supreme Court case Colgrove v. Battin says so.) Of course, if you can’t prove your case without legal help, it might cost more than $20.01 to convince a jury. Maybe you should stick with Judge Judy or some other arbitrator.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
This amendment inspires several questions. What does excessive mean? Are excessive bail and excessive fines on the same or different scales? Who determines what’s cruel? If you apply a punishment regularly, is it no longer unusual … no matter how horrendous it may be? Who decides? According to the landmark Supreme Court case in 1803 known as Marbury v. Madison, the courts decide. When it comes to defining the meaning of Constitutional language, the buck stops, not with the President, but with the Supreme Court.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The 9th Amendment is intended to cover the concern voiced by Alexander Hamilton and other Federalists. It says that the Government can’t deny a right just because it isn’t spelled out in the Constitution and its Amendments. The Bill of Rights is not intended to limit the rights of the people, but to emphasize the most important ones. The Constitution didn’t create the rights; it acknowledges that those rights exist inherently. It limits the Government; not the People.
It hasn’t worked. The 9th Amendment implies that each of us has the right to do whatever does not inhibit the right of anyone else to do whatever she or he wants. It relates to the Harm Principle … “the actions of individuals should only be limited to prevent harm to other individuals”.
Too often, we have passed laws based not on protecting freedom, but on some twisted view of abstract morality. How does interracial marriage hurt anyone? Before Loving v. Virginia, that was called miscegeny and was illegal in many states. Before Obergefell v. Hodges, same sex marriage was illegal in most states. Some argued that any deviation from a “one man and one woman” legal union violated the sanctity of marriage. If marriage is sacred, does any level of government have any business meddling with it at all? Shouldn’t it be between the people being married and God? Isn’t Freedom of Religion the first right mentioned in the 1st Amendment? (If you don’t know, see “The First Amendment” above.)
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.
The 10th Amendment affirms the relationship between the Federal Government and the States. It is seldom sited by the Supreme Court. In the past several decades, Federal laws have been declared unconstitutional based on the 10th Amendment only when those laws have attempted to force the States to enforce Federal laws. The most recent example was the Supreme Court declaring as unconstitutional the part of the “Affordable Care Act” that required the States to expand Medicaid.
We may be seeing more such cases in the near future.
- Eight states and the District of Columbia have legalized recreational marijuana. (In some states, the laws won’t be effective until sometime in 2018.) Marijuana remains illegal at the Federal level. If the Federal Government insists that all States enforce the Federal Marijuana law, it could lead to a 10th Amendment case.
- Four states and the District of Columbia have declared themselves to be sanctuaries for undocumented residents. There have been reports of excesses by agents of Immigration and Customs Enforcement (ICE). Sanctuary states and ICE could be on a 10th Amendment collision course.
To Be Continued …
These first 10 Amendments … The Bill of Rights … were the first efforts of our elected officials to make it clear to We the People what our experiment in Freedom means. During the next 200+ years, seventeen more Amendments would follow these 10.
The Bill of Rights is concise. These first 10 Amendments say a great deal using relatively few words. Some of the remaining 17 are considerably longer. I’ll continue with the Eleventh Amendment in my next article, “Were You Using that Freedom? (Part II)”.