6/30/13

Bill of Rights: Article 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 Tenth Amendment addresses powers, not rights. It is much like amending a bill dealing with healthcare, with money to build a bridge to nowhere in some Senators state, in order to get the bill passed. Passage of Article X also kept alive the states right debate. Why the “or to the people” option? After the federal government and states harvest all the powers, are there any left for the people other than the power of protest? Perhaps the Tenth is a haven for lobbyists such as the NRA and political activists such as the Tea Party. For sure, it is a stepchild of the Bill of Rights. For sure, it is like that bridge to nowhere.

6/29/13

Bill of Rights: Article IX

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

The Ninth Amendment of the Bill of Rights is a disclaimer for the Bill of Rights. The framers of this amendment wanted to make sure that there was no misunderstanding concerning the enumeration of rights in the Bill of Rights. The first eight amendments are not all inclusive concerning people's rights. For instance, we have the right to travel, the right to privacy, the right to procreate, the right to vote. How we exercise these rights however, is fodder for legislative debate and deliberations in court. In my opinion, intentionally or unintentionally, the Ninth Amendment guaranteed that the judicial branch of the federal government would be kept busy interpreting what rights are retained by the people and to what degree they can be regulated if at all. I believe this would have happened without the benefit of a Ninth Amendment. Still, emphasizing that there are rights retained by the people besides those enumerated in the Constitution can be a deterrent to the abuse of power by government.

6/27/13

Bill of Rights: Article VIII

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

As far as I’m concerned, the Eighth Amendment is all about capital punishment and torture. Beheading, hanging, lethal injection, water boarding, sad to say, may not be unusual, but they are cruel. Capital punishment is the height of hypocrisy for a civilized society.

The debate about capital punishment revolves around rhetoric as to the most humane way to take a life. An answer to the latter question has not been forthcoming and never will be - there is nothing humane about taking a life! The number of condemned “murderers” declared innocent by virtue of DNA testing have all served to highlight the pitfalls of the death penalty.

Torture in recent years has been justified as a means to get information vital to national security. Once again, we are asked to turn our heads the other way as the intelligence agencies compromise the Bill of Rights for our own good.

Fortunately, capital punishment and torture no longer get a free ride. The day will come when both will be found in violation of the Eighth Amendment.



6/25/13

Bill of Rights: Article 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.

The Founding Fathers were obsessed with the need to protect the people against injustices such as those imposed by the British monarchy and with the Seventh Amendment they made sure that “trial by jury” was the law of the land. The 7th re-emphasizes the right of the people to a trial by jury and protection against double jeopardy. In legal action involving the violation of someone‘s “private rights” (rights that exist between private citizens). The 7th Amendment makes sure that justice in cases involving common law will be in the hands of twelve jurors rather than a judge “with an ax to grind”. There is a catch. As I understand it, in the wisdom of the Supreme Court, the 7th is the only Bill of Rights amendments, which has never been ruled to apply to states as well as the federal government. I must admit that trying to understand the reasons for this was trying. The Fourteenth Amendment clearly states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. So how did the 7th end up not being applicable to states? Only the lawyers know and they are not going to put it into English.

6/22/13

Bill of Rights: Article 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.

I would call Article VI of the Bill of Rights a no nonsense amendment. Little if anything is left for interpretation but implementation does not always receive commendations. The wealthy can take full advantage of Article VI while the disadvantaged must sometimes be satisfied with table scraps. Then again, disparity in wealth is a factor in all of life’s events. Rich or poor, Article VI gives everyone a shot at a fair trial. Rich or poor , everyone accused of a crime is innocent until proven guilty beyond a reasonable doubt.

6/21/13

Bill of Rights: Article 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.

I should take the Fifth on this one but since the First Amendment protects me, I will chance some comments.

The first thing that pops into my mind is that the provision concerning double jeopardy turned out to be a screenwriter’s dream (1999 film Double Jeopardy). Having said that, dare I ask if there is any relief in this amendment for the Gitmo detainees? After all the Article starts out with “No person ---”, not “No citizen----”. It seems to me that it may be telling us that no person shall be deprived of liberty without due process of law be it civil or military. Just asking.

In a Supreme Court 1833 ruling (Barron v. Baltimore), Chief Justice John Marshall stated that the Fifth Amendment was intended "solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states." I must admit that this ruling confuses me. I guess that is why we have lawyers. I should have taken the Fifth.

 

6/19/13

Bill of Rights: Article IV

The right of 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.

When it comes to differentiating between a democratic and a totalitarian state, the rights afforded us by the Fourth Amendment separate “the men from the boys”. The government busting through my front door to see what I’m up to is a no-no in a democracy but routine in a dictatorship. Unfortunately, technology has given governments sophisticated tools, which make intrusions into our privacy almost indiscernible. The meaning of unreasonable searches, even in a democracy, is being challenged like never before. The latest is the surveillance by the National Security Agency of  telephone and internet activity, all in the name of national security. The NSA would have us believe that in order to protect our democracy, we have to look the other way as far as the Fourth Amendment goes. We have to trust that the government will bend our rights a little and not bust through our front door. They would also have us believe that when it comes to security, you can’t have your cake and eat it too. Personal view? Either we have a right to privacy or we do not. Circumventing the Fourth Amendment is not acceptable. There is no ambiguity in the Fourth Amendment. Surveillance can be accomplished within the bounds of the Constitution. There is no need for subterfuge.  


Any way you spin it, we are all screwed no matter how the Fourth Amendment is massaged by intelligence agencies. Rape is rape, regardless of the degree of sexual penetration.

ed note: BREAKING NEWS - FBI using Drones in surveillance of persons of interest!!! Little did I know when I posted "About Drones".

6/17/13

Bill of Rights: Article III

No Soldier shall, in time of peace be quartered in any house, without consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

 
I’m sure that in the eighteenth century this was a coveted right. Nowadays only lawyers find it useful. Although a stretch, I imagine it can be cited in cases of unlawful entry into a home or defense of a home to protect an owner’s privacy.

Historically, the government has never attempted to quarter troops in a private home since the American Revolution. It did happen in the Civil War but I suppose it was rightly reasoned that the rebels were the enemy and therefore not entitled to the protection of the Third Amendment.

Why is Article III still around gathering dust? Nostalgia might be one reason. So many rights these days are going down the toilet, that there is little appetite to mess around with the Bill of Rights. I would venture to guess that if it were repealed, the neocons would attempt to put an army tank in my garage.


 
 

6/14/13

Bill of Rights: Article 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.

The National Rifle Association owns the Second Amendment lock stock and barrel. It will take many more massacres before Congress has the guts to bring interpretation of this amendment into the twenty-first century. In my 1/17/13 post, “We should not be intimidated by the Second Amendment”, I referred to Walter Shapiro's article "Repeal The Second Amendment", which appeared in Salon after the Virginia Tech massacre in 2007. His words are as appropriate now as they were then.

Looking at the Bill of Rights with more than two centuries’ hindsight, it is simply irrational that firearms have a protected position on par with freedom of speech and religion. Were Americans — liberal or conservative — writing a Constitution completely from scratch today, they probably would agree that something akin to “freedom to drive” was more far important than the “right to bear arms.” The rights of state militias (which many liberal legal theorists argue is the essence of the Second Amendment) are as much a throwback to an 18th century mind-set as restrictions on quartering soldiers in private homes during peacetime (the little-remembered Third Amendment).”

A majority of Americans favor legislation that provides more gun control. Too bad their elected representatives are ignoring their wishes.


ed note: More on the Second Amendment - Cherry Picking Constitutional Rights.



 

 

6/10/13

Bill of Rights: Article 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.
 
Article I is perhaps the most important of the Bill of Rights. It bundles a number of rights which makes me wonder if this was a tactic to insure its passage. In my humble opinion, these are the rights which have made the United States great. They are constantly challenged but fighting off those challenges make the country stronger.

With the growth of Islam in this country there have been cries to declare the United States a Christian country. Muslims, Jews, Buddhists as well as liberal Christians are justified in viewing this as a gross violation of the First Amendment.

 There are already practices which have chipped away at the concept of the separation of church and state such as the  revision to the Pledge of Allegiance which tells the world we are one nation under God (the implication is that this is a Christian God). If we testify in court we promise to  tell the whole truth with the help of God. Our coins proclaim that in God we trust; as the value of a coin diminishes, does it mean that God is not to be trusted? God exists for the personal affairs of people of all colors and nations, not for the affairs or agenda  of a government entity.

If the movement to declare the United Sates a Christian nation gains strength, I am glad that the we have the right to peaceably assemble and  to petition the government for a redress of grievances. The key word is peaceably. Carrying weapons to a demonstration is not a right! Petitioning the government for protection against religious zealots is a right!

No matter what ones position is on the separation of church and state we are indebted to the founding fathers for making it clear that Congress shall make no law abridging the freedom of speech or of the press. The ability to peaceably debate an issue, without fear of incarceration, is a right we should cherish. It would of been astute if the crafters of Article I had somehow made it clear that these freedoms were not to be abridged by the executive branch of government. The thinking may have been that the judicial branch would be our safeguard against abuses of power by the President. A President using the dangers posed by terrorists as justification for the infringement of the freedom of speech and the press is in danger of violating the First Amendment. As more than one President has learned, Father does not always know best.

I must admit that there limitations on the freedom of speech. Freedom of speech is a questionable excuse for slander, libel, intimidation and lies. That is what keeps the Supreme Court busy.

 Now if only there was some way to take the politics out of Supreme Court appointments. Until then an informed citizenry remains as the best tool to protect our democracy. Freedom of speech and of the press are the best tools we have for an informed citizenry. Any encroachment of these rights should be viewed with alarm.
 
 

6/8/13

The Bill of Rights: My Take

Most unpopular actions of the executive branch of the Federal government stir up speeches on the floor of Congress, editorials in our newspapers and commentaries on TV, warning the American people that that their rights are being infringed. The rights referred to, are those framed in the Bill of Rights.

It has been a long time since I looked at the history of the Bill of Rights. Decades ago I read “MIRACLE AT PHILADEPHIA” by Catherine Drinker Bowen (I still treasure the book) which vividly took me through the debates which eventually led to our Constitution. One of the most contentious debates concerned whether or not the document should include articles defining the rights of the people. Remarkably, the Constitution as adopted did not include a Bill of Rights.

 Many delegates  at the convention believed that spelling out the rights of the people was unnecessary and redundant. As the debate raged on, it became apparent that passage of the Constitution would be in doubt if a Bill of Rights was included. The solution; compromise. The constitution was adopted with the understanding that it would be immediately amended with a Bill of Rights. Surprisingly the compromise held up (a feat which would be next to
impossible in today’s politics).

The Bill of Rights was born out of controversy (a good summary can be found in The Bill of Rights: Its History and Significance) and to this day fosters controversy. In some respects that may have been the intent of our founding fathers. James Madison viewed a Bill of Rights as a vehicle rallying people against a future oppressive government. Although not a delegate, Thomas Jefferson argued that a declaration of rights would make the judiciary the guardian of individual rights against the other branches of government. What they did not foresee was that a declaration of rights would promote the growth of powerful lobbies bent on usurping the powers of all branches of government.

I would like to take advantage of the right given to me by the first amendment to blog about it and the other nine amendments. It is a bit ambitious, but than again, blogging is not for sissies. One thing for sure: it will be fun and will keep my blog alive for awhile.

6/6/13

Back to Earth

 Let it be known that I picked a black cloud when I ventured out to the clouds to manipulate and store my files and I have hastily descended back to earth. It was a fun experiment, but as far as my files are concerned, my conclusion was that you can't make a silk purse out of a sow's ear. Lets face it: I could store my files in a thimble. I'll leave this cloud stuff to the high rollers. Now where in hell do I purchase a thimble?

I'm sure that anyone reading my latest posts has concluded that I have lost my marbles. Not true! They are safely stored in my Memorabilia box.

6/5/13

I'm in a cloud



Every time  I pick up the paper there is a notice of someone in my age group having ascended to the choir silent, the latest being Senator Lautenberg. The honorable Senator Lautenberg left a legacy but that is a luxury I do not have. Neither do I have the luxury of joining a choir. My 7th grade music teacher, Miss Hugo (no relationship to Victor), saw to that when she unceremoniously instructed me to stand in the back row of our choir but not to open my mouth. One might argue that in fact I joined the choir silent many, many, many years ago. Of course, considering my vital signs, that is debatable.

 Being eligible for the choir silent can be depressing but it is also a call for action. As they say, time is getting short - get your ass in gear.  So what did I do with this sudden burst of energy? I decided to go to the clouds before I'm dragged there. Yep, I claimed a cloud of my own. I've spent some time putting all my files in a cloud. Why? Just to prove to myself that I am not a Luddite.

 Before anyone ties this momentous event to the tragic tornadoes in Oklahoma, be aware that my files hardly made a dent in the cloud I stored them in. On the other hand, my blogs floating around in cyberspace may very well be unsettling to Mother Nature.