Posted on 04/28/2013 7:06:31 AM PDT by harpu
This article is on the Bill of Rights in the United States Constitution. My purpose in posting this exposé is to do my part in calling Americans back to their spawning grounds of liberty. Based on recent trends, I fear that if we don’t frequent our founding principles then Ronald Reagan’s warning could be realized, that “Freedom is never more than one generation away from extinction.”
The primary motivation for constructing a Bill of Rights was citizen apprehension over the formation of a centralized federal government. The United States existed as a sovereign nation beginning with the signing of the Declaration of Independence from England. Each of the 13 original states owned a distinct culture and set of values, sharing the common priority captured succinctly in Thomas Paine’s pamphlet, Common Sense: “But where says some is the King of America? I'll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain... that in America THE LAW IS KING.”
A full eleven years passed before the colonies ratified the United States Constitution. This formalizing of the union was a hard sell, as every state valued their freshly earned sovereignty. Founding Fathers Alexander Hamilton, James Madison and John Jay wrote 85 essays, now known as the Federalist Papers, to promote the idea of uniting the union under a common constitution.
The greatest fear of committing to a constitution was what mathematicians may refer to as an Axiom of Abstraction; that codifying a set of rights could be interpreted as the complete set of rights. So while the Constitution grants the federal government its powers, many felt it necessary to augment this framework with a minimal set of rights preserved for the citizens.
From his post as the American Minister to France, Thomas Jefferson wrote, “I am glad to learn that the new Constitution will undoubtedly be received by a sufficiency of the States to set it a going. Were I in America, I would advocate it warmly until nine should have adopted it, and then as warmly take the other side to convince the remaining four that they ought not to come into it until the declaration of rights is annexed to it. By this means we should secure all the good of it and procure as respectable an opposition as would induce the accepting States to offer a bill of rights.”
Twelve amendments to the constitution made it through Congress and were proposed to the states all at once in 1789, just two years after ratification of the original Constitution. The two amendments that did not receive sufficient acceptance from the states addressed the number of constituents for each representative and compensation for Congressmen. The colonies were far more interested in establishing for themselves those guaranties of individual freedoms. The first ten amendments to the Constitution were ratified as The Bill of Rights, having been proposed to the states as follows:
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.
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.
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.
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.
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.
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.
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 defence.
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.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
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. The First Amendment to the Constitution was reserved for the position of highest priority of human rights in the minds of the British rebels who had founded the United States of America just thirteen years earlier. They had just settled into something of a routine with the rebuilding of the states and the resumption of commerce. But their perspective was as fresh as the war that won their freedom from King George III.
The First of our Bill of Rights reads, “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.” Four distinct rights are identified here. This article will address the foremost; religion.
For 300 years, the expatriation of Europeans to the new world was driven by discovery, commerce, and religious freedom. When the Colonies opted to “dissolve the political bands” with Great Britain, one of the “causes which impel[ed] them to the separation” was the King’s ancillary titles of Supreme Governor of the Church of England and Defender of the Faith. The freedoms for which the Founding Fathers pledged their lives, fortunes and sacred honor permeated their perspective, and nowhere more personal than this first named right of all the amendments.
Excerpts from Thomas Jefferson’s prolific writings, below, convey the advanced convictions of religious freedom that today struggles to show itself in a culture that seems to have slipped back into government centralism fit for a king.
“Had not the Roman government permitted free inquiry, Christianity could never have been introduced. Had not free inquiry been indulged at the era of the Reformation, the corruptions of Christianity could not have been purged away. If it be restrained now, the present corruptions will be protected, and new ones encouraged.”
“Galileo was sent to the Inquisition for affirming that the earth was a sphere; the government had declared it to be as flat as a trencher, and Galileo was obliged to abjure his error. This error, however, at length prevailed, the earth became a globe, and Descartes declared it was whirled round its axis by a vortex. The government in which he lived was wise enough to see that this was no question of civil jurisdiction, or we should all have been involved by authority in vortices. In fact, the vortices have been exploded, and the Newtonian principle of gravitation is now more firmly established, on the basis of reason, than it would be were the government to step in, and to make it an article of necessary faith.”
“Reason and experiment have been indulged, and error has fled before them. It is error alone which needs the support of government. Truth can stand by itself. Subject opinion to coercion: whom will you make your inquisitors? Fallible men; men governed by bad passions, by private as well as public reasons. And why subject it to coercion? To produce uniformity. … Difference of opinion is advantageous to religion.” “Religion is well supported to preserve peace and order; or if a sect arises, whose tenets should subvert morals, good sense has fair play; and reasons and laughs it out of doors, without suffering the state to be troubled with it.”
Statists have fought the purity of the First Amendment for decades. The ACLU has managed to inculcate a popular belief in American culture and court systems that asserts the oppression that Thomas Jefferson railed against. And amazingly, they have used Jefferson’s words to accomplish their deceitful deed. In a letter of assurance to the Danbury Baptists Association of Connecticut, Jefferson wrote, “Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State.”
Without a Congressional debate, nor vote in the Senate, or ratification of the states, the ACLU has managed to establish “separation between church and state” as constitutional dictum. This, from a letter that Jefferson closed with, “I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious association, assurances of my high respect and esteem.”
Unfortunately for 21st Century America, the throwbacks of monarchial centralism have successfully argued a reversal of the magnetic poles. This amendment intended for our liberty has instead been boorishly coined as “The Separation Clause.” Governments at all levels are fearful of acknowledging God while feeling obligated to advance the theories of evolution and global warming as articles of necessary faith.
But I am in awe of the concise and deliberate wording, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” No matter the sentiment, whether supportive or restrictive, governments do not have the authority to pass any laws regarding religion - period. But the United States was not founded on agnosticism. And if the courts were to examine the whole of Jefferson’s writings they would find that it is wholly proper for governments to avow the existence of the God who was acknowledged at the signing of the declaration that begat the nation. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Implied herein is that this Creator (1) is God of the laws of nature, (2) is the creator of humans, (3) intended for humans to share equal status among themselves, and (4) endowed all humans with unalienable rights which include life, liberty, and the pursuit of happiness. Not every god fits this description; Sorry.
Specific theology about God are not to be advanced by governments beyond what is implied in the Declaration. So it is arguable that governments may not fund a nativity scene. But the acknowledgment of the existence and authority of God by government entities is no way in conflict with the First Amendment. Otherwise, the Declaration of Independence, believed by many in 1789 to be the original Bill of Rights, would itself be categorically unconstitutional.
A citizen is incapable of violating the First Amendment. As is evident with every one of the Bill of Rights, the First Amendment was never intended as a restriction on citizen behavior. It is a restriction on government alone. A valedictorian does not violate the First Amendment by proclaiming to her fellow graduates that she believes in Jesus Christ as her savior. But a school district that establishes a rule prohibiting her statement is in direct violation of the First Amendment. During the period that Thomas Jefferson served as President, the largest church in the United States held their services in the U.S. Capitol building. And the man who wrote the words, “wall of separation between church and State” attended those services every Sunday that he was in Washington. And in that great city, carved in the marble of the Thomas Jefferson Memorial are from a quote that conveys the wisdom that the Founding Fathers attempted to reflect in the beginning words of the Bill of Rights, “…the holy author of our religion, who being lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do, but to extend it by its influence on reason alone.”
On matters of religion, government is to remain reverent and meek as a reflection of the noble manner that the Creator invites His followers while gracing them with free will.
The First of our Bill of Rights reads, “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.” Four distinct rights are identified here. This article addresses speech, the press, and assembling.
The last of the four rights listed in the First Amendment is the only one that comes with a condition; peaceably. Otherwise, this named right is pretty straightforward. We can collect en masse for parades, in front of the school board, before our state legislatures, and even in droves on the National Mall to express our preferences or outright displeasure with government actions. You just can’t throw a brick. The use of the word “petition” here is intended as an appeal or a demand, rather than a list of signatures. The Founding Fathers very evidently valued the opportunity for a gathering of citizens to convey their displeasures directly to the authorities. The Declaration of Independence that they signed listed twenty-seven grievances against King George III. And at the end of their list are the words, “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms.”
Freedom of speech and freedom of the press are close cousins, and listed here together – not separated by a semicolon. They can be read as, “Congress shall make no law abridging the freedom of speech” and, “Congress shall make no law abridging the freedom of the press.” The word “abridge” means to reduce or diminish. It is important to appreciate that these are specific restrictions on government alone. They are intended as assurances of freedom to both citizens and journalists. No matter the considerations, governments do not have the authority to craft any law that diminishes citizens’ freedom to speak or journalists’ freedom to report.
And as with the freedom of religion, citizens are incapable of violating these First Amendment rights. Even the term censorship only applies to government actors. When newspaper, television or radio strikes out words that they find unsuitable for their subscribers, that is editing. When government performs or compels the editing, that is censorship.
So what about obscenity, hate speech and yelling ‘Fire!’ in a crowded theater? The U.S. Supreme Court has, on occasion, taken up this sticky wicket. Perhaps the most definitive case was Chaplinsky v. New Hampshire in 1942. Chaplinsky was arrested for violating a New Hampshire statute that outlawed, "any offensive, derisive or annoying word to anyone who is lawfully in any street or public place ... or to call him by an offensive or derisive name." Supreme Court Justice Frank Murphy wrote in his majority opinion, "There are certain well-defined and limited classes of speech, the prevention and punishment of which have never been thought to raise a Constitutional problem. These include the lewd and obscene, the profane, the libelous and the insulting or ‘fighting’ words – those which by their very utterances inflict injury or tend to incite an immediate breach of the peace.”
To give this a contemporary vantage, I telephoned two law enforcement leaders in my own community, Commander John Anderson of the local city Police Department and Undersheriff Tony Spurlock of the local county Sheriff Department. They both answered my question in a similar manner; that if someone hollers “Fire!” in a crowded theater where there is no fire, they would be charged with reckless endangerment or disorderly conduct. There would be no arrest based on speech, but only on the effects of their deliberate action.
Commander Anderson added that they would react the same way to someone activating the fire alarm. Undersheriff Spurlock added that the attorney may attempt a First Amendment defense, but case law has been well established to dismiss that argument. We should worry about the sticks and stones and forget the words. With all due respect to the Supreme Court of 1942, I do not see an allowance for diminishing any speech, even in the case of “hate speech,” which seems to be a trendy enforcement of political correctness. Besides, if the charges were applied evenly, President Obama would be obliged to turn in the clergy of every church that he has attended in the past five years.
The only area here where I personally struggle with speech limitations is obscenity laws. I appreciate there being a filter on television broadcasts. But I trust that the free market will enforce community decorum without such laws.
Of course, the context of the First Amendment was one of ensuring that citizens could openly hold their political and bureaucratic representatives to account. The Founding Fathers did not intend to pledge their lives, fortunes and sacred honor to protect the publishing of photographs of a crucifix in urine. On the other hand, God will not be considering freedom of speech rights when condemning photographer Andres Serrano to an eternity burning in Hell (This is an example of me exercising my First Amendment freedoms of religion, speech and press).
The Founding Fathers gave a specific nod of protections for the American Press in the First Amendment. Journalists are merely the professional extensions of skeptical citizens. This is especially true in the 21st Century’s digitally connected world. And this is fortunate, because the Main Stream Media has become apologists for the Democratic Party, rather than the loyal opposition that the public should be able to count on. Benghazi is a far bigger scandal than Watergate ever was. But Woodward and Bernstein remain obediently silent on the topic.
And if the Left were as purist about the second half of the First Amendment as they are with the first half, they would oppose taxpayer funding for the Public Broadcasting Service (PBS).
The Second of our Bill of Rights reads, “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.” Some understanding of the Founding Father’s lexicon is called for to gain a full appreciation for this American birthright, better known as The Second Amendment.
In 2008, the United States Supreme Court issued a landmark decision after reviewing the challenge to a set of gun control laws in the District of Columbia. I greatly appreciate this ruling and most of the accompanying majority opinion, known as District of Columbia versus Heller. This opinion provides a rich resource for understanding the 18th Century intent of the Second Amendment and how it is holding up to 21st Century challenges. For the full opinion of the court, see http://www.nraila.org/media/PDFs/HellerOpinion.pdf. Justice Antonin Scalia authored the five-to-four majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas and Alito. The Heller opinion wisely explored the original meanings of the anachronistic terms: “... the most natural reading of ‘keep Arms’ in the Second Amendment is to ‘have weapons.’” Also, “At the time of the founding, as now, to ‘bear’ meant to ‘carry.’”
While the opinion did not attempt to clarify the word “infringe,” Merriam-Webster defines it as meaning to encroach upon, defeat or frustrate. A modern restating of the second half of this amendment to the United States Constitution might be, “the right of people to have and carry weapons shall not be encroached upon.”
Gun control advocates frequently emphasize the first half of the Second Amendment in an attempt to get a foothold for their intentions. By interpreting “A well regulated Militia, being necessary” as a conditional statement, such apologists argue that citizens only have a constitutionally guaranteed right to possess a weapon if they are a member of the military (which is their interpretation of the term militia). The District of Columbia, in defense of its strict gun control laws being challenged, specifically argued that the Second Amendment right to bear arms only applies to a militia context. This contention was neatly settled by the Heller decision:
“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. ... The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”
The opinion adds that, “the adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training.” Also,“The phrase ‘security of a free state’ meant ‘security of a free polity.’”
But the “prefatory clause” is not to be dismissed. As revealed by the court’s historical study, the Founding Fathers intended to preserve this right in the context of defending against an imperious federal government. The very framers of the Bill of Rights had recently defeated the uniformed military of Great Britain with an “irregular army” comprised of everyday Americans; farmers, lawyers, preachers and the like. This was the militia; a reserve unit in each state defined as every capable male between the ages of 18 and 45. They were required to maintain their own personal equipment, including “a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges.”
Citizens were nervous about allowing their newly formed federal government to maintain a standing army, frequently citing the history of domestic oppressions within Europe and the Roman Empire. Siding with this concern in Federalist Paper Number 8, Alexander Hamilton warned of, “disciplined armies, distinct from the body of the citizens, inseparable companions of frequent hostility.”
The new Americans accepted the necessity of maintaining a military capable of immediate responses to foreign threats. The recently ratified Constitution authorized a standing Army and Navy, naming the President as Commander in Chief. But the ultimate force was to come from the citizens themselves; a militia that was to remain prepared and in reserve, ready to leave their personal lives and respond en masse to a persistent threat. The Constitution placed the President in charge “of the Militia of the several States, when called into the actual Service of the United States.” The Heller ruling confirms that the first half of the Second Amendment, “was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. … the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right … was codified in a written Constitution.”
So, a modern translation of the entire amendment may read, “Disciplined, trained, and well-armed citizens being necessary to maintain freedom, the right of people to have and carry weapons shall not be encroached upon.” The court also made specific decisions in the Heller case that imply constructive guidance for state and local lawmakers. The court warned that prohibitions on classes of weapons such as handguns “would fail constitutional muster.” They further ruled that “the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.” The court ordered that the District of Columbia not withhold issuing a license to carry for someone who is not otherwise disqualified, as a felon for instance. The majority opinion allowed for justifiable restrictions on certain individuals following due process of law: “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, ...”
The opinion then takes an unfortunate turn mid-sentence: “... or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [United States v.] Miller’sholding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”
It is unfortunate that the court left such a broad opening for ambitious legislators to impose their preferred definition of “dangerous and unusual weapons.” These might include magazine capacities and hollow-point bullets. The straightforwardness of “shall not be infringed” allows no wiggle room for political correctness and I wish that Scalia would have included that assertion.
It is understandable that America is engaged in a season of nationwide soul-searching in light of several recent incidents of mass killings with the use of guns. We owe it to ourselves to ask why this behavior has arisen and how it can be curtailed. Several societal factors may be contributing to this dreadful phenomenon; violent first-person video games, perhaps? The emergence of a jihad culture? The expulsion of prayer and Biblical principles from the public square? The hands-off policy for the mentally ill?
Statists will leverage the deaths of innocent victims to advance the strongest expression of their agenda; that citizens should fear the government rather than the preferred opposite condition. The giveaway to their plan is that weapon restrictions are only proposed against citizens (the militia) and never offered as an equal restriction on domestic government troops.
Every mass murder is horrific and unacceptable. But for every Aurora Theater, there is a Kent State. And for every Newtown, Connecticut there is a Waco, Texas. Some rogue citizens have inexcusably and cruelly slaughtered dozens of innocent people. But the top ten massacres in history, from thousands to millions, were committed by governments against unarmed citizens. There is neither righteousness nor sagacity in encroaching upon the natural rights of three hundred million honorable Americans in order to prevent those with mental health challenges from possibly acting up.
The debate over gun control has necessarily become the line in the sand in America’s flirtation with fascism. And yes, this quandary is difficult -- which is why the founding fathers settled it for us a-priori. Perhaps the most resonant statement from the Heller opinion is this: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”
Amendments Three through Eight in the United States Constitution address a variety of legal matters that seek to protect citizens in their commonplace interactions with government. Most of these rights reflect lessons learned from the ancient Kingdom of Great Britain. Many are borrowed directly from the British Parliament. Others were crafted by the framers in deliberate contrast to their experiences as subjects to the Crown.
An unfortunate complication is inherent in the whole of the first ten amendments to the United States Constitution. Because the Bill of Rights was designed to codify certain limitations on the newly formed federal government, the framers did not specify whether these enumerated limitations were also to be mandated to the states. The Fifth Amendment provides the example of a requirement for the federal government to form a grand jury to prosecute a crime. However, the thirteen original states did not seem to have intended for this to be a requirement on themselves. States and local districts can charge an individual with a crime without the involvement of a grand jury.
The notion of “Incorporation of the Bill of Rights” to the states has been a frequent consideration of the courts since ratification in 1789. The due process clause of the Fourteenth Amendment, ratified 89 years later in 1868, is normally cited in Supreme Court decisions for incorporating portions of the Bill of Rights to the states, which includes county, city and other such local government entities. Most of the first eight amendments have been incorporated to the states, but there are some exceptions.
Amendments Three through Eight are discussed below, with notations for each on the status of state incorporation:
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.
This is by far the most obscure of the Bill of Rights and it has rarely been the basis of arguments before the Supreme Court. But it held a prominent position as the Third Amendment to the Constitution in order to address the fresh torment of living under the dictates of the King. Within a dozen years before the colonists’ revolt against British rule, the English Parliament had passed two Quartering Acts that authorized British troops to house themselves in private homes as they saw fit. Human nature being what it is under absolute power, the troops at times took callous and selfish liberties. This unwelcome intrusion was included in the list of grievances against King George III detailed in the Declaration of Independence, “For quartering large bodies of armed troops among us:For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States.” Incorporated to the states in Engblom v. Carey.
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.
Without the Fourth Amendment, everyday life in the United States would be very different from our current experience. In practice, American police officers are typically very respectful and are allowed to pull you over while driving a car only on suspicion of your having violated a traffic law. Likewise, they can neither inspect the trunk of your car nor intrude into your home based on their impulse. A very specific warrant, signed by a court is required for such an encroachment.
The other edge of this sword is that it furnishes the frustrating technicalities that defense counsels use to obtain dismissals for truly harmful criminals. Convicting evidence is sometimes excluded from a criminal trial because it was not properly obtained within the rails of the Fourth Amendment. Computer, communications, and surveillance technologies present new tests for this natural right. And the Fourth Amendment is the primary challenge to the constitutionality of the Patriot Act, which is intended to capture terrorist communications within the United States.
Incorporated to the states in Wolf v. Colorado, Mapp v. Ohio,Aguilar v. Texas, and Ker v. California.
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. A “capital crime” is one for which a conviction would include a death penalty sentence. An “infamous crime” is one where a conviction would include a sentence ranging from a fine to a penalty of death.
In the recent example of the Boston Marathon bombing, the State of Massachusetts has not allowed itself the option of imposing the death penalty. However, the Federal Government may bring a charge of a capital crime where the suspect could be sentenced to death. This will require an indictment by a grand jury, composed of 16 to 23 citizens who will decide whether there is sufficient evidence to exact the capital charges. Two common expressions arise from the Fifth Amendment; “double jeopardy,” which means not having to stand trial twice for the same accusation and “plea the fifth,” meaning to not answer a question. Also, the well-known reading of Miranda Rights requirement is based on this amendment.
The Fifth Amendment addresses property that is seized by eminent domain for highways, utilities, railways and other public uses. It requires that the fair market price be paid to the owner from which that property is taken.
Perhaps the most important protection in the whole of the Bill of Rights is the Fifth Amendment decree of natural law that citizens not be deprived of their life, their liberty nor their property without the due process of law. These words have provided the debates of conscience for both slavery and abortion.
The first component of the Fifth Amendment has NOT been incorporated to the states. That is, a grand jury is not constitutionally required for a capital or infamous crime to be charged by a state (See Hurtado v. California). However, the remainder of this amendment has been incorporated to the states in Benton v. Maryland, Malloy v. Hogan, and Chicago, Burlington & Quincy Railroad Co. v. City of Chicago.
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 defence.
The Sixth Amendment provides specific guidelines for an individual defense against a criminal accusation. While there is both precedence and room for interpretation in defining “speedy,” prosecutors handle this right with respect, as the typical remedy is dismissal of the charges. Nearly every trial is indeed public. Anyone can walk into a courtroom and observe. Exceptions are sometimes permitted for the sake of the defendant.
The federal government is required to select jurors from within the state (and presumably the Congressional district) where the crime is believed to have been committed. The accusation cannot be ambiguous and the accused has the specific right under this amendment to confront the accusers in court.
A defendant has the right to be represented by the attorney(s) of his or her choosing. The famous words from the reading of Miranda Rightsrequirement are based on the Sixth Amendment, “You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.” The Sixth Amendment in general has been incorporated to the states (See Klopfer v. North Carolina, Oliver, Duncan v. Louisiana, Pointer v. Texas, Washington v. Texas,and Gideon v. Wainwright). However, the right to a jury selected from residents of the state and district where the crime occurred has NOT been incorporated to the states (See Caudill v. Scott, Cook v. Morrill, and Zicarelli v. Dietz).
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. As the judges of the pre-revolution court served at the pleasure of the King, the colonists valued the impartiality of a jury of peers to determine the outcome of a trial. It was further important, based on recent memory, that a dispute could not be retried multiple times until the desired outcome was realized.
At the time of the adoption of the Seventh Amendment, Thomas Jefferson wrote in a letter to L’Abbe Arnoux, “[w]e all know that permanent judges acquire an esprit de corps; that, being known, they are liable to be tempted by bribery; that they are misled by favor, by relationship, by a spirit of party, by a devotion to the executive or legislative; that it is better to leave a cause to the decision of cross and pile than to that of a judge biased to one side; and that the opinion of twelve honest jurymen gives still a better hope of right than cross and pile does.”
The Seventh Amendment in general has NOT been incorporated to the states (See Minneapolis & St. Louis R. Co. v. Bobolis). However, the re-examination clause HAS been incorporated to the states (See The Justices v. Murray).
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
This critical amendment remains straightforward in its 18th Century language. This set of rights is, however, particularly startling in its implications. The framers held a mistrust of centralized power that was based in disturbing British history under the monarchy. On considering this amendment some ninety years later inWilkerson v. Utah, the Supreme Court determined that drawing & quartering, public dissecting, burning alive, and disemboweling would all fall within the definition of cruel and unusual punishment.
The first and third components of the Eighth Amendment (excessive bail and cruel punishment) have been incorporated to the states. See Baze v. Rees and Robinson v. California. However, the second component (excessive fines) has NOT been incorporated to the states. SeeMcDonald v. City of Chicago.
Among the many thoughtful details that the founders bequeathed to the rest of us is the purposeful naming of our nation; The United States of America. A single moniker like “America” would have neglected the composure of independence and cooperative defiance necessary to earn the crucial signatures on the Declaration of Independence and, soon afterward, the Articles of Confederation wherein the new country’s name was made official. The basic tenet behind the name is captured plainly in the Ninth and Tenth Amendments. The Ninth of our Bill of Rights reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Tenth and final component to our Bill of Rights reads, “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.”
Together, Amendments Nine and Ten cover all liberties not specifically addressed in Amendments One through Eight. Herein lies the answer to that question you asked yourself back in Algebra II, “When would I ever use axiomatic set theory in real life?”
First, let’s clarify two terms; “enumeration” as used in the Ninth Amendment and “the United States” as used in the Tenth Amendment. To enumerate means to establish or to specify. In the Tenth Amendment, the United States means the federal government. Both amendments are intending to institute restrictions on government by axiomatic set theory.
The Ninth Amendment calls out two sets of rights; those that are specifically named in the United States Constitution and those that are not. The theorem being advanced here is that the Constitution does not “constitute” the citizens’ complete set of rights. The Founding Fathers had always held the concern that documenting a finite set of rights might imply that those not mentioned would be considered nonexistent. Note the careful wording in the Declaration of Independence that people “are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” [emphasis added].
Founding father Alexander Hamilton was highly skeptical of even adding a bill of rights to the United States Constitution. This signer of the Constitution went so far as to “affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous.”
Using an example of the First Amendment, Alexander Hamilton asks, “Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?” Hamilton believed the push for these first ten amendments to be the “indulgence of an injudicious zeal for bills of rights.”
But the people wanted a bill of rights in order to keep Congress in check. They felt it worth the risk that ratifying the first Ten Amendments might insinuate that people derive their powers from the consent of the government, rather than opposite truth that was proclaimed as self-evident in the Declaration of Independence.
The Tenth Amendment implies two sets of powers; those that are delegated to the federal government and those that are prohibited from the States. The point here is that the federal government is designed to be a minimal entity that endeavors for nothing outside of the responsibilities and authorities detailed in the Constitution. States, on the other hand, are permitted to take on whatever authorities are assigned to them by their respective residents, with some exceptions that are detailed in the U.S. Constitution.
Article I gives the United States the power to “coin money.” It simultaneously prohibits the states from coining money. So, our money always reads, “United States of America” and never, for example, “State of Arizona.”
The list of powers given to the federal government is not exhaustive and the list of restrictions on the states is short. The theorem here is that the citizens sit on the top of the food chain, having received their rights from God Himself. They may consent to some burdens of state government, but should never find themselves subjugated by an ambitious federal government. Any American with a nominal capacity for critical thinking will realize that the majority of our elected representatives have broken loose from the moorings of the Ninth and Tenth Amendments. Their faith in altruism has betrayed the wisdom of the Founding Fathers and government is many times larger than was ever envisioned by Bill of Rights author James Madison.
Our nation has sadly given custody of elected office to people who seek contrived utopia over natural law. Alexander Hamilton’s cautions are realized, that “They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”
America’s path to restoring freedom is to remember the laws of nature and of nature’s God. The Founding Fathers gave us the outline in the succinct and eloquent words of the Bill of Rights. They also gave us countless quotes of caution. “How strangely will the Tools of a Tyrant pervert the plain Meaning of Words!” - Samuel Adams in a letter to John Pitts, 1776
mark
They should be viewed as less than friendly foreign agents, and treated as such!
[[Michael Bllloominbeg and other large urban area despots have declared the Constitution optional,]]
It’s much worse than that- He is now sayign governemnt has an OBLIGATION TO DENY constitutional rights ‘for the safety of society’- What we are seeign with him is a dictator in the making- we are witnessing a rise of a narcicistic tyrant right before our eyes
our govenrment irhgt now is meetign behind closed doors and hammering out a closed door middle of the night agreement to deny peopel their second amendment rights- and apparently, accordign ot connecticut’s senator, even the republicans arem ostly onboard and just need only a little bit more ‘pursuading’ to Judas we the people
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.