Sunday, January 17, 2010

The Justification of The Bill of Rights

It seems to me that whenever I pick up a magazine or a newspaper to read, I see such headlines as ‘Death to America, the Great Satan!’ or ‘America, the Place of Violence!’ From other sources, it seems that the impression of an American is the equivalent of the Anti Hero in “For a Fistful of Dollars”. We do not all walk around with Serapes on and a .44 Colt on our hip, ready to settle any argument with hot lead. And yes, we have a problem with crime and violence and the other ills of an urban society, but if the United States of America is such a bad place, why do we have to keep people out? Some of the same ones who will scream ‘Death to America!’ are only too glad to be here in this country. If that isn't enough, there are people that find the US Constitution even more confusing as they refer to the USA as a Democracy (Which it Isn't) versus a Republic (Which it is)As a small effort to allay the confusion and possibly change the conception of America, the following is an interpretation of the Bill of Rights with an attempt to relate these enumerated laws, via explanations, to injustices in the past. The United States of America is a Republic with many democratic and Commons Law traditions; it owes its existence to the concepts of Democracy, but it is more then that. No matter what rights the commons are given under Commons or Napoleonic law, they are nothing if they can be taken away at a whim. All American citizens have the protection of the enumerated rights our Constitution provides. It took over six years before the US Constitution was formally constructed, and it is a living document with relevance even to this day.

. (The first ten Amendments were ratified Dec. 15, 1791, and form what is known as the Bill of Rights.)

1. 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.

Explanation: At the time the Constitution was ratified, the wars of religion in Europe had only ended less then 150 years ago, and Spain was still under the aegis of its Inquisition. Many abuses of power stemmed from matters of a religious nature; it was decided to separate the two upon this nations founding. Without the government being involved in any specific religion, it provided an atmosphere of tolerance; on the flip side of things. religion would no longer be used to create and establish law, resulting in an atmosphere of freedom If you control what information the people receive, you by implication also control the people. A free press ensures that not even the rich and powerful will be able to hide their crimes or wrong doing. Instead of the government using its power to simply stop any protestation against its doings, peaceful assembly was allowed for the first time in history.

2. 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.

Explanation: Along with the First amendment, these words form what I feel is the backbone on which all of the other amendments rest. Regimes of the past would make it illegal for citizens of the regime to possess weapons that would threaten the regime; the usual end result was abuse of power, then a massive loss of life to restore the balance. This amendment was based on the fact that if citizens were allowed to responsibly own weapons, than the government would not be as likely to abuse its authority. This also largely came about as a result of the Revolutionary war, where at first ammunition was in short supply due in part to an edict restricting ownership of firearms. The founding fathers also had a healthy mistrust of government, stating that an overly large government starts to serve its own needs rather than the peoples. Though the core meaning of this amendment is still in force, it has been eroded in its authority in this present day.

3. 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.

Explanation: Another way of abuse of power in the old regimes was to forcibly quarter soldiers with the populace, consuming their food, confiscating their property, and posing a visible threat to liberty. This was a most effective way to enforce order, but also a way to inflict abuses upon those forced to quarter troops.

4. 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.

Explanation: If the King suspected a citizen of its kingdom to be doing wrong, they would just send in sufficient force to determine if this was the case, regardless of justification. This amendment was placed in this document as a protection from unlawful search and seizure, requiring a specific reason or warrants to conduct a search, and only for the items listed. Unfortunately, this right has also been eroded in the present day.

5. 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.

Explanation: This amendment addresses multiple grievances. With the exception of military forces or in time of war, you must have formal charges brought against you for a serious crime. You may not be tried for the same crime more than once. Due process of law must be used to confiscate any property of yours. You are not required to give testimony against yourself and the government may not take property from you unless compensation is granted. The judicial systems of the European monarchies spelled doom for the poor and crooked justice for the rich. If these governments needed your property, they usually just seized it without any warning or need to justify their actions. This right has also been eroded in the present day.

6. 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.

Explanation: The Pogroms, inquisitions, and the legal injustices throughout Europe in the past were notorious. Once you were arrested, you could easily be kept in a prison out of the public eye to be dealt with at a later time. If you are tried for a crime in the USA, the trial must be expedited at the soonest opportunity. You must be informed as to the nature of the crime; you have right to see all witnesses against you, and are guaranteed representation even if you can not afford it.

7. 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.

Explanation: This amendment limited the power of judges who were often appointed by those in power, essentially allowing citizens parity with the powerful. With the exception of a legal appeal, a judge or higher authority may not go against a decision of a jury.

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

Explanation: In the past, the rich could buy themselves free while the poor languished. Punishments such as Drawing and quartering and torture were also commonly used not only to punish, but to extract confessions under duress. This amendment guaranteed uniform treatment of the rich and poor in this respect.

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

Explanation: No law may be placed in constitution that would either conflict with current laws or negate them, a necessary protection regarding the Constitution itself.

10. 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 the people

Explanation: The founding fathers of the USA had a severe mistrust and fear of a powerful central government. This amendment was put into place to prevent the central government from usurping its authority. Unless a power is specifically delegated to the Federal Government, said power belongs to the respective state. This amendment is currently under contention at moment because some feel that the federal has already overstepped its bounds. If taken in its context, the Federal Government has no right to regulate Education, Gay Marriage, Abortion, or any state lands owned by the aforementioned entity past what it needs to fulfill its duties under the Constitution.

Though this is by no means an exhaustive analysis of the Bill of Rights, it is a basic understanding.

As I have shown, there is historical justification in all cases for the enactment of these original amendments.

The constitution was designed in a way as an open-ended document. This would allow it to grow as the country grew and times changed. There are 2 basic sorts of laws in the constitution. The first are the direct laws as written in the document. The second is what could be an “implied right”. An implied right is usually settled in the Supreme Court, and is itself open to modification as time passes.

Example: The statement “Congress shall make no law respecting an establishment of religion” is a direct right as written in the Constitution. The determination that this also prohibited prayer in the public schools was decided in the Supreme Court in 1964.

One other aspect of the Constitution is that an individual state may not adopt a state law that conflicts with any of the amendments. The Constitution preserves the right to bear arms. A state may require registration, permits, and deny ownership for good cause, but a state may not prohibit ownership by a law-abiding citizen. On the other hand, there is still a case pending regarding the State of Arizona who is suing over federal government firearm registration guidelines due to the fact that in the Arizona State Constitution, there is a law making registration of firearms illegal.

A Jaded Bard

Labels: , , ,