Suddenly Seeking Values - Part V
The entire Bill of Rights was written, and amended to the Constitution, because the principles espoused by the Constitution were written in rather open language and were subject to the broadest of interpretations by less principles men. In our effort to further understand and appreciate the fundamental and essential values for all Americans, we will explore each Amendment of the Bill of Rights.
"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."
The first principle that is clear in this statement is that our laws are not to be driven by religious thinking. Our founders recognized the tyranny of theocratic thinking and having a government ruled by religious ideology. It is clear that the framers wanted to eliminate the religious doctrinal debates in government while preserving the individual right to worship. While almost each and every one of the framers was a practitioner of Christianity (except perhaps Benjamin Franklin who is reportedly a "deist"), none of them wanted the government to be Christian in nature or action. The reason for this is clear when we examine history. The time of the Constitution was the tail-end of the Age of Reason. Science, politics, and sovereignty had been subject to approval by religious leaders, many of whom were erroneous in their understanding of Christianity, were in conflict over dogma and doctrines of the Church, and were playing their own brand of politics by using religious office as a lever to put king against king, country against country. The religious institutions of the time were corrupt in the minds of many Christian believers, which is why there were so many religious sects and denominations forming. Many of these religious groups came to the Americas to avoid persecution from their respective governments. Theocratic governments in Europe used the Church to justify their office, sovereignty and oppression of those who thought differently than the ruling powers of the day.
Just as it was important to not establish an official state religion, the framers saw it fit to prevent the government from prohibiting the free exercise of religion in good conscience by the people. It is an important point that the framers made clear. The government can neither establish an official religion, nor can they prohibit the practice of ANY religion. There is much criticism against the courts these days for prohibiting school prayer. However, a careful examination of the rulings "against" school prayer reveals that the Supreme Court rulings do not prohibit prayer in schools, only those prayers that compel students to pray in public ceremony. Students and teachers are free to pray as individuals during times that are not occupied by the official school schedule. Students can (and have at many schools) form their own groups for religious purposes. However, they cannot be sponsored by the school in any manner. A way for schools to avoid these restrictions on school prayer is to refuse to accept any federal or state support. In such a case the school is deemed private and not subject to such rulings.
The First Amendment continues to outline rights that cannot be infringed upon by the government, including free speech and free press. The free speech issue was a clear response to the many oppressions suffered under British rule where the Parliament and King attempted to squash the grievances expressed by American colonists. The issue was clearly stated in the Declaration of Independence, outlined in the body of the Constitution, but made perfectly clear in this Amendment. However, we are seeing this right eroded in this day. Many recent rulings have placed a chilling effect upon bloggers, indicating that blogs are not forms of the press and therefore not subject to constitutional protection. If we examine the text, the phrasing of the free speech and the protection of the press clauses are separate and not inclusive. Since the issue of free speech precedes the issue of a free press, in separate sentence clauses, there is only a topical reference to one another, not a specific or inclusive reference. Adding to the phrasing of this amendment the principle that all rights are reserved to the people, the right to free speech is absolute.
The form of that free speech, as has been established in court, is restricted from infringing upon the rights of others. One cannot commit libel or slander as such speech has a criminal or harmful intent. One cannot yell "fire" in a crowded establishment as that would infringe upon the rights of others to freely associate and cause harm, or even terror. But one can criticize, critique or condemn the actions of the government, of persons placing themselves in the public's view, or of agencies or businesses operating in public commerce. Through a series of precedents we have established parameters for the right to free speech, but we may be unaware of how this right is being eroded.
The First Amendment also delineates the right to a "free press." Here we must examine what the framers viewed as the "press." Our founding fathers could not have imagined the various forms of media that have come to exist in our society. In their view and experience, pamphlets and leaflets that offered a summary of events and/or a criticism of the government was a press. Newspaper journalism had not evolved to the level of academic discipline that we have today. There were no colleges offering courses or curricula in journalism or broadcasting. In fact, the entire idea of writing, printing and offering ideas publicly was a relative new experience. Thomas Paine's "Common Sense," and Franklin's "Poor Richard's Almanac," as well as a newsletter announcing community events and activities were all considered elements of the "press" because they were printed and distributed. Today the courts have narrowed the definition of the "press" and given more rights to the corporate press than to the individual citizen. While there is a need to offer protections to the press (i.e. "shield laws"), the fundamental right to express ideas into public distribution remains a constitutional right of every person. Court rulings (such as those restricting "blogger rights") are erroneous and in violation of the Constitution and the Bill of Rights. Indeed, many of the court rulings against media in the courtroom, or so-called "gag orders" may be unconstitutional on a prima facie basis. It is incumbent upon the court to prove that prohibiting media coverage or the right of the accused to speak to the media is based upon a compelling interest. Oddly enough, the government has no such right to free expression. Indeed, one could argue that before a government official speaks to the press there must be a hearing on the compelling interest to discuss their "case" in a public forum. Governmental speaking in a public forum may infringe upon the rights of the individual.
It is also important to note that the First Amendment does not give the press any additional protection or rights. It is therefore improper to provide rights and protections to members of the media that are not equally offered to an individual. The effect of a free press is that government is examined in an open forum. The individual has the very same right to examine the processes, proceedings and actions of government. Giving "established" media rights and privileges that exceed those offered to the individual citizen or resident is contrary to the Constitution as a whole. If an individual citizen wants to conduct an investigation and report it in any form of media, he or she should have the same protection and rights afforded to the New York Times, ABC News, CNN or the Village Voice.
The First Amendment also offers protection to peaceably assemble and petition the government for redress of grievances. Many will think of protests as the basis for free assembly. While gathering for the purposes of protesting should certainly be protected under this Amendment, the right to peaceably assemble also applies to attending church, joining the Elks, being a member of the Communist Party, attending a meeting of the Red Hat Society, or going to a movie. So, when a group of citizens gather to prevent another entity to establish themselves within a community, the government cannot favor one group over another without first establishing a constitutionally sound compelling interest. It is incumbent upon the government to show cause as to why any assembly is being restricted or prohibited in any manner.
The issue of redressing grievances is an essential right of the people. Fundamentally, not only does the government have to allow the redress of grievances, but in most cases it must provide the means to do so. Grievances must be heard and decided upon under constitutional principles. Government may not act freely without scrutiny or restriction. The purpose of this provision and protection is not to merely say the people have the right to complain, but they have a right to have wrongs corrected and behaviors of the government changed to reflect the principles of the Constitution. Our country has failed on far too many occasions in regard to this provision.
The Second Amendment is one that is hotly debated. Liberals often attempt to infringe upon the right to keep and bear arms on the basis that there is too much violence involving the use of firearm in our society. Unfortunately for those making this argument, there is no provision in the Constitution that allows for such action. Restricting the possession and use of firearms can only be restricted in accordance with the Constitution. So let us look at the Constitution for guidance:
"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."
Again, we must look at what the framers considered to be a "militia." In colonial and post-revolutionary times, the militia consisted of every able-bodied male between the ages of 15 and 50. It was expected that every citizen knew how to use a firearm for hunting. Our society depended upon hunting for subsistence well into the 1900s. While we consider hunting to be a luxury sport, hunting was a form of subsistence living for many Americans until the 1950s. But the expectation of our framers included having a modern enough weapon that it could be used in a national crisis to control insurrections, invasions, conflicts between settlers and Native Americans. Muskets were not only used by farmers, but were indeed used by the regular armed forces of most nations. Then, too, towns and rural communities often had cannon for use by the militia. The other expectation was that all those bearing arms, except those exempt by religious principles or personal conscience, were a part of the local militia. So, the fact that a citizen has the right to keep and bear arms is subject to them being a part of a well-regulated militia. While there may other lawful purposes of owning a firearm, those are subject to regulation. The right to keep and bear arms for the purposes of subsistence, defense of home and property, and as a member of a well-regulated militia is constitutionally protected.
Since most of us do not go to the local woods to shoot game for the evening meal, the right to keep and bear arms under this particular intent of the framers may be a moot point for that vast majority of us living in the United States. However, keeping firearms at home to protect home and property is absolute. Given that reason is a requirement of constitutional thinking, it is reasonable that such ownership of firearms be restricted to weapons useful and effective for that purpose. However, if a person is a member of a well-regulated militia, then reason would allow such a person to own and use any firearm commonly used by the military forces of the United States, so long as it is used for the defense of home, community, town or city, state, and nation. In fact, we have a statute that defines what a militia is in our current state of existence as a nation:United States Code, Title X, Subtitle A, Part I, Chapter 13, Section 311 defines the militia as:
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
The Second Amendment will continue to be hotly debated, but the courts and the congress have defined the conditions under which firearms can be kept. We cannot possess weapons indiscriminantly. We must adhere to the Constitution and the laws that are in keeping with it.
The Third Amendment states:
"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."
While the original intent of this Amendment may seem moot today, the Third Amendment helps us form the fundamental principle and right to privacy. The government has no right to quarter its agents or military in our homes BECAUSE to do so would infringe upon property rights and the right to privacy in one's own home. Our current approach to military forces is that we have bases, forts and installations where service members are stationed, and housing is either supplied on station or through supplemental pay for off-station residences.
The Fourth Amendment furthers the issue of privacy by stating:
"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 right to be secure in person establishes a zone of privacy that incorporates what a person may have in possession, but not in plain view. The right to be secure in houses is a furtherance of the rights made clear in the Third Amendment. The government may not come into a home without a compelling reason, which must be, as is stated in this Amendment, supported by oath or affirmation, based on evidence. The fundamental right of privacy extends to our papers (writings and instruments) and effects (personal property). The Fourth Amendment asserts that any investigation that requires a search or seizure is to be properly warranted, that warrant issued by a court of competent authority, and that the warrant be based upon evidence of compelling interest.
The Fifth Amendment provides for evidence of serious crimes to be presented before a grand jury in order to obtain an indictment (except under martial law), the prohibition of double jeopardy, the freedom against self-incrimination, the fundamental right to due process of law, as well as the right to private property (or fair compensation if property is taken under eminent domain).
"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."
The recent rulings of the courts that allow a municipal government to take private property from private citizens and sell or grant this property to larger corporations on the basis of public interest is an erroneous reading and application of the "eminent domain" principle. The Constitution requires that private property can be taken only for PUBLIC USE. The transfer of property from one private entity to another, using the government as a "middle man," is not only a violation of this Amendment, but also a violation of the fundamental principles delineated in the body of the text. The irony in these court decisions is that the majority opinion represents the views of justices that have publicly stated that they are against judicial activism. These justices have written, in academic and governmental service, that the duty of a judge is to adhere to the intent of the framers as written in the Constitution. It is clear that the majority of nine Supreme Court Justices did not have their copy of the Constitution available when they ruled on these issues.
The issue of double jeopardy is in question as well. These days the state and federal governments are playing jurisdictional games. It could be argued that the framers meant that once tried in one court, the charges may not be brought in another court. The jurisdictional games may be fundamentally undermining and eroding the rights guaranteed in this Amendment.
The Sixth Amendment provides for the fundamental right to a speedy and open trial, impartial juries, trial in the district where the alleged crime was committed, the presumption of innocence, the right to be informed of the alleged charges, the right to confront all accusers, and the right to counsel.
It is interesting that the right to counsel has come to mean representation by a lawyer. It does not say that the counsel has to be a lawyer, but that is what is often required in court. It is also interesting that the right to the presumption of innocence is attributed to the Sixth Amendment, but such a right is not specifically mentioned in the text. The presumption of innocence is, like the right to privacy, is a derivative of the text and the original intent of the framer. Combined with the right against self-incrimination in the Fifth Amendment, the right to the presumption of innocence evolves out of the Constitution without ever being spelled out in specific words. It causes us to wonder how this right, a long-standing tradition of American jurisprudence, can exist, be upheld by the courts on numerous precedents, and the right to privacy is often debated as non-existent.
"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."
It is clear that the framers had some experience with governmental police forces that were out of control, ignored the basic freedoms, and courts that were not open and expeditious.
The Seventh Amendment states:
"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."
It is kind of weird that our founding fathers saw twenty dollars as a lot of money: enough to warrant a court that guaranteed a jury trial. It is also strange that they would not put the same requirements for a speedy trial on civil matters. But, it is clear that they intended for the jury process to be an absolute right and that no court could reconsider the findings of a jury except by rules of common law. It is important to note that common law in the eyes of the framers meant precedents already established in British jurisprudence and precedents established in American courts from the ratification of these Amendments. Did the framers intend to include British law as the foundation for American law? No, what they intended was that the process of precedent (stare decisis) be incorporated into American law and court procedures.
The Eighth Amendment preserves the right to bail (and the presumption of innocence), the prohibition of excessive fines, and the prohibition of cruel and unusual punishment. Taken as a whole doctrine, the basic premise of the Eighth Amendment is that the judicial branch must apply fairness, equity and justice in its procedures, rulings and judgments. It is not clear that this has always been the case, which is why we have several layers of courts that try the case, allow for appeals, and allow for challenging the constitutionality of lower court rulings. The principles must also be applied in administrative processes. Again, this has not always been the case. If there is any weakness in our courts it is in regard to the fairness, equity and justice in our court systems. We have created so many rules and procedures that it now requires legal counsel to sort it all out. The Constitution does not require counsel, but guarantees the right to have such. The Constitution does not require all the rules, only that courts adhere to the principles of justice. There is no justice if a case takes ten to twenty years to be decided. There is no justice is money buys better representation in one case over another. There is no justice if lawyers get handsome awards for services while the aggrieved parties get to pay the lawyers most of the court awards. The recent cutbacks on funding for legal services to those that cannot afford "dream teams" is an attack on justice and an erosion of these rights.
The Ninth and Tenth Amendments are probably the most important, and least acknowledged, 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."( IX)
"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." (X)
The important principle in each of these Amendments is that rights and power are reserved to the people, and the state(s) and federal government are acting on authority delegated to them by the people. The federal government cannot take action for which it has not been given authority in the Constitution. States are allowed to exercise authority not given to the federal government by the Constitution. Neither the states nor the federal government can take actions against the rights of the people, as a whole or as individuals. While the Constitution mentions the authority of the states, it is the people that have the rights.
1. Government is derived from the people: rights, power and authority belong to the people.
2. Government must strive to be better, always seeking the highest possible principles and standards.
3. Justice is a mandated principle: our laws and processes must be just and equally applied.
4. Government exists to serve, protect and preserve the people: government cannot be self-serving.
5. Government has a duty to protect the people from all hazards and threats, regardless of cause.
6. Government must promote the welfare of the people: the rights of the people have first precedence.
7. Government must preserve liberty and focus on internal issues as a first priority.
8. Taxation must be equitable and equally born by all persons in the nation.
9. Governmental representation must be equitable and balanced.
10. Free political speech may not be hindered, impeded or prohibited in our political processes.
11. Governmental powers and authority must be separately exercised and practiced (checks).
12. Governmental processes are interdependent and require reasoned interaction (balances).
13. Principles of good government and the protection of the rights of the people are paramount.
14. Government, with very few exceptions, must operate in the open, under scrutiny of the people.
15. Government representatives and officials must act in faith and commitment to the Constitution.
16. Constitutional principles apply to all aspects of government.
17. Governmental action must comply with the Constitution in the absolute.
18. The laws and actions of the government are subject to review by the judiciary.
19. There are no specific rules or methods of judicial review delineated by the Constitution.
20. Citizen rights are universal and applicable in all US jurisdictions.
21. Governments, and its representatives, are required to always act in good faith.
22. Changes in law, process or government require careful thought and due process.
23. Changes in fundamental principles may not violate the Constitution as a whole.
24. Government must pay its debts and live up to its obligations.
25. Government shall not function on the basis of religious beliefs or standards.
26. Government cannot restrict, control or prohibit religious freedom.
27. Government cannot restrict, control or prohibit free speech.
28. Government cannot restrict, control or prohibit a free press in any form.
29. Government cannot restrict, control or prohibit peaceful assembly or association.
30. Government must provide a means for peaceful redress of grievances.
31. Government must correct unconstitutional or unjust actions.
32. Government may not improperly infringe upon the right to bear arms.
33. Government may not infringe upon property or privacy rights.
34. Government must demonstrate compelling interest and evidence to conduct searches and seizures.
35. Government must present evidence of serious crimes to a grand jury process.
36. Government cannot try a suspect twice for the same charges or offense.
37. Government cannot compel self-incrimination.
38. Government must follow a clearly delineated due process.
39. Government may not take private property without a compelling public use and fair compensation.
40. Government must conduct criminal trials in an open and expeditious manner.
41. Government must provide for the opportunity to confront accusers and call witnesses.
42. Government must assure that the right to counsel is not impeded.
43. Government must allow trial by jury in all cases of serious crimes or issues of equity over $20.00.
44. Government must observe and preserve the practice of precedent as a matter of common law.
45. Government courts must adhere to principles of fairness, equity and justice.
46. Government may not exceed its authority and recognize the rights belong to the people.
September 23, 2005
"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."
The first principle that is clear in this statement is that our laws are not to be driven by religious thinking. Our founders recognized the tyranny of theocratic thinking and having a government ruled by religious ideology. It is clear that the framers wanted to eliminate the religious doctrinal debates in government while preserving the individual right to worship. While almost each and every one of the framers was a practitioner of Christianity (except perhaps Benjamin Franklin who is reportedly a "deist"), none of them wanted the government to be Christian in nature or action. The reason for this is clear when we examine history. The time of the Constitution was the tail-end of the Age of Reason. Science, politics, and sovereignty had been subject to approval by religious leaders, many of whom were erroneous in their understanding of Christianity, were in conflict over dogma and doctrines of the Church, and were playing their own brand of politics by using religious office as a lever to put king against king, country against country. The religious institutions of the time were corrupt in the minds of many Christian believers, which is why there were so many religious sects and denominations forming. Many of these religious groups came to the Americas to avoid persecution from their respective governments. Theocratic governments in Europe used the Church to justify their office, sovereignty and oppression of those who thought differently than the ruling powers of the day.
Just as it was important to not establish an official state religion, the framers saw it fit to prevent the government from prohibiting the free exercise of religion in good conscience by the people. It is an important point that the framers made clear. The government can neither establish an official religion, nor can they prohibit the practice of ANY religion. There is much criticism against the courts these days for prohibiting school prayer. However, a careful examination of the rulings "against" school prayer reveals that the Supreme Court rulings do not prohibit prayer in schools, only those prayers that compel students to pray in public ceremony. Students and teachers are free to pray as individuals during times that are not occupied by the official school schedule. Students can (and have at many schools) form their own groups for religious purposes. However, they cannot be sponsored by the school in any manner. A way for schools to avoid these restrictions on school prayer is to refuse to accept any federal or state support. In such a case the school is deemed private and not subject to such rulings.
The First Amendment continues to outline rights that cannot be infringed upon by the government, including free speech and free press. The free speech issue was a clear response to the many oppressions suffered under British rule where the Parliament and King attempted to squash the grievances expressed by American colonists. The issue was clearly stated in the Declaration of Independence, outlined in the body of the Constitution, but made perfectly clear in this Amendment. However, we are seeing this right eroded in this day. Many recent rulings have placed a chilling effect upon bloggers, indicating that blogs are not forms of the press and therefore not subject to constitutional protection. If we examine the text, the phrasing of the free speech and the protection of the press clauses are separate and not inclusive. Since the issue of free speech precedes the issue of a free press, in separate sentence clauses, there is only a topical reference to one another, not a specific or inclusive reference. Adding to the phrasing of this amendment the principle that all rights are reserved to the people, the right to free speech is absolute.
The form of that free speech, as has been established in court, is restricted from infringing upon the rights of others. One cannot commit libel or slander as such speech has a criminal or harmful intent. One cannot yell "fire" in a crowded establishment as that would infringe upon the rights of others to freely associate and cause harm, or even terror. But one can criticize, critique or condemn the actions of the government, of persons placing themselves in the public's view, or of agencies or businesses operating in public commerce. Through a series of precedents we have established parameters for the right to free speech, but we may be unaware of how this right is being eroded.
The First Amendment also delineates the right to a "free press." Here we must examine what the framers viewed as the "press." Our founding fathers could not have imagined the various forms of media that have come to exist in our society. In their view and experience, pamphlets and leaflets that offered a summary of events and/or a criticism of the government was a press. Newspaper journalism had not evolved to the level of academic discipline that we have today. There were no colleges offering courses or curricula in journalism or broadcasting. In fact, the entire idea of writing, printing and offering ideas publicly was a relative new experience. Thomas Paine's "Common Sense," and Franklin's "Poor Richard's Almanac," as well as a newsletter announcing community events and activities were all considered elements of the "press" because they were printed and distributed. Today the courts have narrowed the definition of the "press" and given more rights to the corporate press than to the individual citizen. While there is a need to offer protections to the press (i.e. "shield laws"), the fundamental right to express ideas into public distribution remains a constitutional right of every person. Court rulings (such as those restricting "blogger rights") are erroneous and in violation of the Constitution and the Bill of Rights. Indeed, many of the court rulings against media in the courtroom, or so-called "gag orders" may be unconstitutional on a prima facie basis. It is incumbent upon the court to prove that prohibiting media coverage or the right of the accused to speak to the media is based upon a compelling interest. Oddly enough, the government has no such right to free expression. Indeed, one could argue that before a government official speaks to the press there must be a hearing on the compelling interest to discuss their "case" in a public forum. Governmental speaking in a public forum may infringe upon the rights of the individual.
It is also important to note that the First Amendment does not give the press any additional protection or rights. It is therefore improper to provide rights and protections to members of the media that are not equally offered to an individual. The effect of a free press is that government is examined in an open forum. The individual has the very same right to examine the processes, proceedings and actions of government. Giving "established" media rights and privileges that exceed those offered to the individual citizen or resident is contrary to the Constitution as a whole. If an individual citizen wants to conduct an investigation and report it in any form of media, he or she should have the same protection and rights afforded to the New York Times, ABC News, CNN or the Village Voice.
The First Amendment also offers protection to peaceably assemble and petition the government for redress of grievances. Many will think of protests as the basis for free assembly. While gathering for the purposes of protesting should certainly be protected under this Amendment, the right to peaceably assemble also applies to attending church, joining the Elks, being a member of the Communist Party, attending a meeting of the Red Hat Society, or going to a movie. So, when a group of citizens gather to prevent another entity to establish themselves within a community, the government cannot favor one group over another without first establishing a constitutionally sound compelling interest. It is incumbent upon the government to show cause as to why any assembly is being restricted or prohibited in any manner.
The issue of redressing grievances is an essential right of the people. Fundamentally, not only does the government have to allow the redress of grievances, but in most cases it must provide the means to do so. Grievances must be heard and decided upon under constitutional principles. Government may not act freely without scrutiny or restriction. The purpose of this provision and protection is not to merely say the people have the right to complain, but they have a right to have wrongs corrected and behaviors of the government changed to reflect the principles of the Constitution. Our country has failed on far too many occasions in regard to this provision.
The Second Amendment is one that is hotly debated. Liberals often attempt to infringe upon the right to keep and bear arms on the basis that there is too much violence involving the use of firearm in our society. Unfortunately for those making this argument, there is no provision in the Constitution that allows for such action. Restricting the possession and use of firearms can only be restricted in accordance with the Constitution. So let us look at the Constitution for guidance:
"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."
Again, we must look at what the framers considered to be a "militia." In colonial and post-revolutionary times, the militia consisted of every able-bodied male between the ages of 15 and 50. It was expected that every citizen knew how to use a firearm for hunting. Our society depended upon hunting for subsistence well into the 1900s. While we consider hunting to be a luxury sport, hunting was a form of subsistence living for many Americans until the 1950s. But the expectation of our framers included having a modern enough weapon that it could be used in a national crisis to control insurrections, invasions, conflicts between settlers and Native Americans. Muskets were not only used by farmers, but were indeed used by the regular armed forces of most nations. Then, too, towns and rural communities often had cannon for use by the militia. The other expectation was that all those bearing arms, except those exempt by religious principles or personal conscience, were a part of the local militia. So, the fact that a citizen has the right to keep and bear arms is subject to them being a part of a well-regulated militia. While there may other lawful purposes of owning a firearm, those are subject to regulation. The right to keep and bear arms for the purposes of subsistence, defense of home and property, and as a member of a well-regulated militia is constitutionally protected.
Since most of us do not go to the local woods to shoot game for the evening meal, the right to keep and bear arms under this particular intent of the framers may be a moot point for that vast majority of us living in the United States. However, keeping firearms at home to protect home and property is absolute. Given that reason is a requirement of constitutional thinking, it is reasonable that such ownership of firearms be restricted to weapons useful and effective for that purpose. However, if a person is a member of a well-regulated militia, then reason would allow such a person to own and use any firearm commonly used by the military forces of the United States, so long as it is used for the defense of home, community, town or city, state, and nation. In fact, we have a statute that defines what a militia is in our current state of existence as a nation:United States Code, Title X, Subtitle A, Part I, Chapter 13, Section 311 defines the militia as:
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
The Second Amendment will continue to be hotly debated, but the courts and the congress have defined the conditions under which firearms can be kept. We cannot possess weapons indiscriminantly. We must adhere to the Constitution and the laws that are in keeping with it.
The Third Amendment states:
"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."
While the original intent of this Amendment may seem moot today, the Third Amendment helps us form the fundamental principle and right to privacy. The government has no right to quarter its agents or military in our homes BECAUSE to do so would infringe upon property rights and the right to privacy in one's own home. Our current approach to military forces is that we have bases, forts and installations where service members are stationed, and housing is either supplied on station or through supplemental pay for off-station residences.
The Fourth Amendment furthers the issue of privacy by stating:
"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 right to be secure in person establishes a zone of privacy that incorporates what a person may have in possession, but not in plain view. The right to be secure in houses is a furtherance of the rights made clear in the Third Amendment. The government may not come into a home without a compelling reason, which must be, as is stated in this Amendment, supported by oath or affirmation, based on evidence. The fundamental right of privacy extends to our papers (writings and instruments) and effects (personal property). The Fourth Amendment asserts that any investigation that requires a search or seizure is to be properly warranted, that warrant issued by a court of competent authority, and that the warrant be based upon evidence of compelling interest.
The Fifth Amendment provides for evidence of serious crimes to be presented before a grand jury in order to obtain an indictment (except under martial law), the prohibition of double jeopardy, the freedom against self-incrimination, the fundamental right to due process of law, as well as the right to private property (or fair compensation if property is taken under eminent domain).
"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."
The recent rulings of the courts that allow a municipal government to take private property from private citizens and sell or grant this property to larger corporations on the basis of public interest is an erroneous reading and application of the "eminent domain" principle. The Constitution requires that private property can be taken only for PUBLIC USE. The transfer of property from one private entity to another, using the government as a "middle man," is not only a violation of this Amendment, but also a violation of the fundamental principles delineated in the body of the text. The irony in these court decisions is that the majority opinion represents the views of justices that have publicly stated that they are against judicial activism. These justices have written, in academic and governmental service, that the duty of a judge is to adhere to the intent of the framers as written in the Constitution. It is clear that the majority of nine Supreme Court Justices did not have their copy of the Constitution available when they ruled on these issues.
The issue of double jeopardy is in question as well. These days the state and federal governments are playing jurisdictional games. It could be argued that the framers meant that once tried in one court, the charges may not be brought in another court. The jurisdictional games may be fundamentally undermining and eroding the rights guaranteed in this Amendment.
The Sixth Amendment provides for the fundamental right to a speedy and open trial, impartial juries, trial in the district where the alleged crime was committed, the presumption of innocence, the right to be informed of the alleged charges, the right to confront all accusers, and the right to counsel.
It is interesting that the right to counsel has come to mean representation by a lawyer. It does not say that the counsel has to be a lawyer, but that is what is often required in court. It is also interesting that the right to the presumption of innocence is attributed to the Sixth Amendment, but such a right is not specifically mentioned in the text. The presumption of innocence is, like the right to privacy, is a derivative of the text and the original intent of the framer. Combined with the right against self-incrimination in the Fifth Amendment, the right to the presumption of innocence evolves out of the Constitution without ever being spelled out in specific words. It causes us to wonder how this right, a long-standing tradition of American jurisprudence, can exist, be upheld by the courts on numerous precedents, and the right to privacy is often debated as non-existent.
"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."
It is clear that the framers had some experience with governmental police forces that were out of control, ignored the basic freedoms, and courts that were not open and expeditious.
The Seventh Amendment states:
"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."
It is kind of weird that our founding fathers saw twenty dollars as a lot of money: enough to warrant a court that guaranteed a jury trial. It is also strange that they would not put the same requirements for a speedy trial on civil matters. But, it is clear that they intended for the jury process to be an absolute right and that no court could reconsider the findings of a jury except by rules of common law. It is important to note that common law in the eyes of the framers meant precedents already established in British jurisprudence and precedents established in American courts from the ratification of these Amendments. Did the framers intend to include British law as the foundation for American law? No, what they intended was that the process of precedent (stare decisis) be incorporated into American law and court procedures.
The Eighth Amendment preserves the right to bail (and the presumption of innocence), the prohibition of excessive fines, and the prohibition of cruel and unusual punishment. Taken as a whole doctrine, the basic premise of the Eighth Amendment is that the judicial branch must apply fairness, equity and justice in its procedures, rulings and judgments. It is not clear that this has always been the case, which is why we have several layers of courts that try the case, allow for appeals, and allow for challenging the constitutionality of lower court rulings. The principles must also be applied in administrative processes. Again, this has not always been the case. If there is any weakness in our courts it is in regard to the fairness, equity and justice in our court systems. We have created so many rules and procedures that it now requires legal counsel to sort it all out. The Constitution does not require counsel, but guarantees the right to have such. The Constitution does not require all the rules, only that courts adhere to the principles of justice. There is no justice if a case takes ten to twenty years to be decided. There is no justice is money buys better representation in one case over another. There is no justice if lawyers get handsome awards for services while the aggrieved parties get to pay the lawyers most of the court awards. The recent cutbacks on funding for legal services to those that cannot afford "dream teams" is an attack on justice and an erosion of these rights.
The Ninth and Tenth Amendments are probably the most important, and least acknowledged, 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."( IX)
"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." (X)
The important principle in each of these Amendments is that rights and power are reserved to the people, and the state(s) and federal government are acting on authority delegated to them by the people. The federal government cannot take action for which it has not been given authority in the Constitution. States are allowed to exercise authority not given to the federal government by the Constitution. Neither the states nor the federal government can take actions against the rights of the people, as a whole or as individuals. While the Constitution mentions the authority of the states, it is the people that have the rights.
1. Government is derived from the people: rights, power and authority belong to the people.
2. Government must strive to be better, always seeking the highest possible principles and standards.
3. Justice is a mandated principle: our laws and processes must be just and equally applied.
4. Government exists to serve, protect and preserve the people: government cannot be self-serving.
5. Government has a duty to protect the people from all hazards and threats, regardless of cause.
6. Government must promote the welfare of the people: the rights of the people have first precedence.
7. Government must preserve liberty and focus on internal issues as a first priority.
8. Taxation must be equitable and equally born by all persons in the nation.
9. Governmental representation must be equitable and balanced.
10. Free political speech may not be hindered, impeded or prohibited in our political processes.
11. Governmental powers and authority must be separately exercised and practiced (checks).
12. Governmental processes are interdependent and require reasoned interaction (balances).
13. Principles of good government and the protection of the rights of the people are paramount.
14. Government, with very few exceptions, must operate in the open, under scrutiny of the people.
15. Government representatives and officials must act in faith and commitment to the Constitution.
16. Constitutional principles apply to all aspects of government.
17. Governmental action must comply with the Constitution in the absolute.
18. The laws and actions of the government are subject to review by the judiciary.
19. There are no specific rules or methods of judicial review delineated by the Constitution.
20. Citizen rights are universal and applicable in all US jurisdictions.
21. Governments, and its representatives, are required to always act in good faith.
22. Changes in law, process or government require careful thought and due process.
23. Changes in fundamental principles may not violate the Constitution as a whole.
24. Government must pay its debts and live up to its obligations.
25. Government shall not function on the basis of religious beliefs or standards.
26. Government cannot restrict, control or prohibit religious freedom.
27. Government cannot restrict, control or prohibit free speech.
28. Government cannot restrict, control or prohibit a free press in any form.
29. Government cannot restrict, control or prohibit peaceful assembly or association.
30. Government must provide a means for peaceful redress of grievances.
31. Government must correct unconstitutional or unjust actions.
32. Government may not improperly infringe upon the right to bear arms.
33. Government may not infringe upon property or privacy rights.
34. Government must demonstrate compelling interest and evidence to conduct searches and seizures.
35. Government must present evidence of serious crimes to a grand jury process.
36. Government cannot try a suspect twice for the same charges or offense.
37. Government cannot compel self-incrimination.
38. Government must follow a clearly delineated due process.
39. Government may not take private property without a compelling public use and fair compensation.
40. Government must conduct criminal trials in an open and expeditious manner.
41. Government must provide for the opportunity to confront accusers and call witnesses.
42. Government must assure that the right to counsel is not impeded.
43. Government must allow trial by jury in all cases of serious crimes or issues of equity over $20.00.
44. Government must observe and preserve the practice of precedent as a matter of common law.
45. Government courts must adhere to principles of fairness, equity and justice.
46. Government may not exceed its authority and recognize the rights belong to the people.
September 23, 2005
posted by Jim Downey at 10:55 AM
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