Monday, December 15, 2008

Bill of Rights Day, for what it's worth

Happy Bill of Rights Day! Those ten amendments are a little time-worn and eroded in places ... well ... a lot of places. But they're still the best protection you have, aside from that rifle in your closet, against the predatory creatures we call government officials.

It's become de rigueur to read an elegy for constitutional protections for liberty every time government changes hands. To a certain extent, that's appropriate -- every new president and Congress seems to feel obliged to violate the American people anew in the name of necessity, or justice, or the emergency of the moment. But occasionally, we step back from the brink, and even the worst administration usually brings a little good with its bad.

So, as we prepare for the latest passing of the imperial whip, let's put on our gloves and give the aging Bill of Rights a bit of a finger-wag to see how it's doing.

United States Constitution

Bill of Rights

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.


The First Amendment always seems to be the healthiest of the bunch, even though it comes in for its share of abuse. I've always assumed that's because the amendment protecting freedom of the press has the best-heeled protectors in the form of large media companies holding the leashes of snarling packs of lawyers and access to the public space in which they can air their grievances.

That hasn't always been enough. Presidents like Lincoln and Wilson shut down publications that criticized their policies. And governments can sometimes bring backdoors pressure -- aside from auctioning off a Senate seat, Illinois Governor Rod Blagojevich is in trouble for offering the Chicago Tribune a massive government bribe in return for the dismissal of critical members of the editorial board.

In recent years, threats to the First Amendment have mostly come in the form of attacks on edgy sexual speech and assaults on political speech during campaigns and in electronic media -- both of which enjoy less protection than the words of the amendment would seem to guarantee.

Campaign finance reform restrictions, such as McCain-Feingold, have muzzled independent voices with the support of both Republicans and Democrats, so expect that to continue as President Bush gives way to President Obama. The new administration may well abandon the Bush administration's assault on "obscenity" -- including purely fictional erotica involving no real people or images. But many of Obama's allies in Congress are also champing at the bit to reimpose political censorship on broadcast media.

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.


Something of the black sheep of the Bill of Rights family through much of the 20th century, the Second Amendment got a shot in the arm when the U.S. Supreme Court belatedly recognized in D.C. v. Heller that the provision, like its fellows, protects individual rights. The right to bear arms is now recognized as an individual right protected by the Constitution.

But what does that mean in terms of permissible and impermissible restrictions? The courts will hash that out as a new president with a history of hostility to private ownership of firearms takes office, along with an attorney general who actively petitioned the Supreme Court to reach the opposite conclusion from the one it decided in Heller.

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.


Forcing private citizens to give up their homes to troops was big deal at the time of the revolution, but government officials haven't actively pressed up against the Third Amendment's restrictions since the 19th century. That's a good thing to the extent that it means there's been no erosion of the amendment by hostile court decisions and legislation. But it also leaves open the question as to how courts would apply the restrictions in the modern context.

I'm also a bit curious as to how closely the IRS's occasional habit of parking agents at your kitchen table to audit your lifestyle brushes up against the protections of this amendment.

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.


A battleground of active combat between the government and defenders of individual rights, the fourth Amendment has been declared dead time and again -- by me, among others. Actually, it's still breathing, though badly wounded and in need of reinforcements.

True, the government has carved out broad exceptions for searches of automobiles, and allowing for the serving of warrants simultaneous with knocking your door off its hinges. And the use of wiretaps and other forms of electronic surveillance often seems to function in a parallel universe where George Mason and James Madison decided to knock back a few beers rather than discuss searches and seizures (especially if somebody invokes the magic words "national security").

But the exclusionary rule continues to push illegitimately acquired evidence out of courtrooms, cops still chafe under warrant requirements, and knowing your Fourth Amendment rights, even if they're somewhat eroded, is key to passing relatively unscathed through an encounter with the authorities.

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 offense 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.


Ummm. Guantanamo.

Actually, the Fifth Amendment's due process protections are still alive and well for most Americans, but the Bush administration's construction of a system of prisons and courts outside the protections of the Fifth Amendment is a chilling example of what governments are willing to do in the name of "necessity" -- if the courts and the public let them get away with it. The courts, thankully, have pushed back pretty hard (PDF) (though it's an ongoing battle). How President Obama deals with the jailing and prosecution of terrorism suspects will be a key indicator for whether the due process protections of the Fifth Amendment will continue to shrink, as have those of the Fourth Amendment.

As for the Fifth Amendment's protections for private property ... Kelo v. City of New London made it clear that these protections are largely defunct. To the extent that your property rights are protected, it's at the state and local level.

And the double jeopardy rule, while still hanging on, has been bypassed by the expedient of allowing another jurisdiction -- say, the feds -- to have a second shot at a defendant acquitted in state court.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.


Speedy trial? Newspapers make a regular sport of publishing stories about the months and even years that elapse between arrests and the date when the state finally gets around to making its case. Lives are on hold, witnesses disappear, evidence grows stale...

Jury trials, though, remain a protection that is increasingly peculiar to the U.S. system of justice as other English-speaking nations largely abandon the practice, leaving the outcome of cases in the hands of government officials. Juries allow real people to have a say in the application the laws -- occasionally (or maybe frequently) monkeywrenching laws they don't like.

And defendants who don't bargain their rights away (most do) have access to a rather remarkable system of tools and guarantees for determining guilt or innocence.

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 reexamined in any court of the United States, than according to the rules of the common law.


Still alive and well, it seems.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.


I suppose "excessive" is in the eye of the beholder, as is "cruel and unusual." I would say the latter provision is easily violated by lengthy sentences in some of the more lawless and dangerous prisons in the developed world. As for excessive fines -- I guess we'll know what that means if and when the courts ever get around to addressing the issue. It's a slow process, you know.

Really, this is a neglected amendment, in many ways.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


Potentially the most powerful of the amendments in the Bill of Rights, because of its assurances that the sphere of liberty extended well beyond a few printed words, the Ninth Amendment has been largely declawed, defanged and otherwise rendered impotent.

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.


Alas, poor Tenth Amendment. We hardly knew ye. It still breathed in the 19th century, but has grown cold and still ever since.

So there's your Bill of Rights. Enjoy it so long as it's there to be enjoyed, however bruised and battered it may be.



Anonymous kyle said...

much of these rights, as your great analysis has demonstrated, have been swashed. Thank you for posting these - I think they're still very relevent. Actually, that many Americans believe they are outdated is perhaps the reason why they've been trampled.

I write from Northern Arizona too!

December 16, 2008 2:28 PM  

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