The Bill of Rights

A Thought…

To you, I’m an atheist; to God, I’m the loyal opposition.

— Woody Allen

The Bill of Rights

Posted on 2022-Jun-08 at 08:50:00 by Phil

The Bill of Rights is a collection of the first ten amendments to the United States Constitution, passed immediately after ratification of the Constitution, in 1791. They enumerate certain rights of the people, and limitations on the powers of the government, in order to safeguard our liberties. These rights were added to the Constitution because it said nothing about fundamental rights of the people that many of our Founding Fathers thought should be basic law, to enable (and safeguard) their freedom. The entire Constitution’s very ratification was endangered when a number of States refused to pass it until a Bill of Rights was promised.

One thing that is very devisive is that no one can agree on how the Constitution, including the Bill of Rights, should be interpreted. There are those who believe we should stick very literally to the words as written, and others favor a more nuanced approach that may change over time. The latter group is of course, correct. These two documents were written over 230 years ago, and society has changed in many ways over that span of time. While we should strive to understand the Original Intent, we also need to judge whether the words, as written, are still relevant and reasonable to apply. In many cases, society has changed so much that to stick to the original meaning would be ridiculous, and while we should continue to try to honor the original fundamental intent and principles, the exact application may change over time. Further keep in mind that these specified rights were deliberately written in a somewhat vague and telgraphic manner, as they were intended to be general principles, flexibly applied as times changed. They were not written as specific, detailed legal statutes, with every t crossed and every i dotted.

The Bill of Rights can be divided into three major areas: Free speech, expression, and religion; freedom from judicial abuses; and the clarification of who has what rights.

Free speech, expression, and religion

Our Founding Fathers didn’t want the government suppressing reasonable and peaceful expression. They came up with a guarantee of free speech, as well as two further amendments to help safeguard it.

First Amendment

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.

This is the cornerstone of the Bill of Rights, and probably the most contentious amendment of the bunch.

Religion: the Constitution already has an Establishment Clause forbidding relgious requirements, restrictions, or tests for government officials, but our Founding Fathers felt that freedom of religion for all should be explicitly stated. They realized that there were many religions in the world, and that this new country already had many of them in practice. They did not want to see official state religion(s), such as the Anglican Church in England.

Unfortunately, religion tends to have a stranglehold on people’s minds, bringing out their worst behavior, and has often been exploited to sway political movements. This is particularly true of Fundamentalist Protestant denominations, who style themselves the only true “Christians”, and feel that they should control the nation. After all, God smiles upon them, and only them! Although not explicitly so written, until recently it has been assumed by all that there is a wall between Church and State: the government does not tell you how to worship, and religion stays the Hell out of what is supposed to be secular government. This has largely broken down in recent years, with supposed religions actively interfering with government. A good start in dealing with this would be to immediately revoke all tax exemptions for religions and churches, making them run as the businesses they are. They could deduct from their income money they spend on bona-fide charitable work (running shelters, food pantries, etc.).

How to rebuild the crumbled wall that is supposed to separate Church from State? At this point, it will take outright ruthlessness on government leaders’ part to destroy overly powerful religious institutions. Those who show that they are willing to stay in their own lane, and minister to the spiritual needs of their flock, without getting involved in politics, should be left alone. Those who desire to impose their beliefs on everyone else, whether by violence or by law, must be destroyed immediately, including the crucifixion of leaders and followers who think that God loves them and no-one else. Hey, at least they’re sure they have a guaranteed, non-cancelable, ticket to Paradise, right?
Speech: the freedom to responsibly speak your mind is the cornerstone of a democracy. People should be able to say that laws need to be changed or enacted without fear of retribution by the government. This was a real fear in Colonial times (and before), where people could be (and were) arrested and punished simply for criticizing the government.

However, our Founding Fathers must be spinning in their graves to see what nonsense has been put forward in the name of free speech. No one should have any problem with, say, “adult entertainment” (“obscentity” or “pornography” to those who disapprove of it), so long as it doesn’t involve children (who are innocent victims) and isn’t forced on the unwilling (either as participants or viewers). No one is forcing you to watch people enjoying sex — if you don’t “approve” of it, don’t buy or watch it!

On the other hand, hate speech, where people and identifiable groups of people, are targeted for abuse and harm, was not the intent of the First. Nor was the inciting of violence, including the violent overthrow of the Constitution. Libel and slander laws were some of the first passed, as were the Alien and Sedition Acts. This shows that the intent was not absolutely unbridled speech (although the Acts did go so far over the line that they were quickly struck down). You can’t shout Fire! in a crowded theater, unless there actually is a fire. Where can we strike a fair balance between being able to state our minds, and not harming others in the process? (“your right to swing your fist ends at the tip of my nose…”) The publishing of books with ideas or language (see Huckleberry Finn, for instance) that some people don’t like is protected speech; the advocacy of violence was never intended to be. Peaceful petition for changes to laws is always protected.
Press: our Founding Fathers wanted a free, yet responsible press. Defining “The Press” as anyone who claims to be delivering factual news and information, in the age of the World Wide Web that could cover just about anyone. I don’t think it unreasonable for you, if you claim to be delivering facts, to be required to be truthful, fair, and as honest as reasonably possible. Fox Faux News definitely does not pass this test. Remember, libel and slander laws, which were primarily intended to be applied to the Press, were among the first order of business in the new nation. The Press was always intended to be kept on a short leash!

If your station is broadcasting news about a spaceflight, it should not be allowed to tell lies attacking well-established science, but at the same time, should not be required to broadcast an opposting opinion from nut job Flat Earthers.
Assembly: the Riot Act (a real thing) could and was often misapplied by the Crown, so our Founding Fathers wanted to protect citizens from harassment for simply gathering together to discuss laws and other matters — peacefully. It was never intended to protect any right to actually riot. Note that the First says, “right of the people peacefully to assemble.” So long as a demonstration or other assembly remains peaceful, it must be left alone, no matter how much the government disagrees with the message. However, the moment it crosses the line into violence, all involved must be treated harshly.

Second Amendment

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.

This amendment was an adjunct to the First, and meant to deny the government the ability to sidestep the First’s protection of Free Speech. That is its primary purpose (the other being to augment a small Federal army in protecting against invasion), by encouraging and protecting State militias made up of volunteer citizens, in contrast to the professional Army made up (as was the custom of the time) largely of foreign mercenaries, who would not hesitate to crush the citizens’ right to express themselves.

See The True Story of the Second Amendment for a more in-depth look at this amendment and its meaning and intent. It was never meant to be blanket permission for citizens to have all the firepower they desire — something not even practical at the time — it was primarily meant to counter the power of a professional army and its potential use to violently suppress legal dissent.

This Amendment is definitely obsolete and should be repealed. State militias keep their powerful weapons locked away in armories — no longer do citizens provide their own muskets, shot, and powder; thus explicitly needing a right to bear arms. The Federal Army is not made up of foreign mercenaries; our soldiers are citizens too, and would mostly be unwilling to suppress the legitimate free speech rights of others. As the continuing bloodbath in our schools, churches, stores, theaters, hospitals, and workplaces shows, we need sensible, reasonable controls on guns, and the Second is abused to stand in the way.

Third Amendment

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

This amendment was also an adjunct to the First, and meant to deny the government the ability to sidestep the First’s protection of Free Speech. Its purpose is to protect citizens from having professional soldiers (most likely foreign mercenaries, who would not hesitate to turn on citizens expressing any dissension), forcibly quartered in their homes (except under dire wartime circumstances).

See The True Story of the Second Amendment for a more in-depth look at this amendment and its meaning and intent. Note that it explicitly says “house” and “owner”, but presumably any reasonable court would extend this to rental units (apartments or houses), and landlords could not be forced to move soldiers in with their tenants nor voluntarily force their tenants to take in unwelcome houseguests. But, you never know, these days…

Curbing of judicial abuses

Our Founding Fathers knew of many abuses committed by courts and law officers in England against the common man, and wished to avoid having such practices take root in the new country. They listed a number of these abuses and suggested ways to avoid them.

Fourth Amendment

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.

Some of the judicial abuses practiced by the Crown, including against Colonial Americans, included arbitrary searches of people, their homes, and businesses; and seizure of evidence. The net effect was to harass people and leave them living in fear that The Man would pay a visit, especially if they were in the habit of speaking their minds. The Fourth says that the authorities need to show Probable Cause that a crime has been committed, and a judge to issue a warrant for specific places and persons that are to be searched for specific evidence regarding an actual crime. The police are not supposed to engage in “fishing expeditions” to see if they can find anything interesting, although in practice that has happened all too often.

Fifth Amendment

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 authorities are supposed to be restrained from harassing people by charging them with major crimes (for no legitimate reason). A Grand Jury is to be presented with the evidence that shows someone should be charged, and OK the charges (“issue an indictment”) if they think the evidence is sufficient, reasonable, and accurate. In practice, Grand Juries have all too often been a rubber stamp for prosecutors, but at least in theory they are a circuit-breaker to prevent frivolous prosecutions (for the purpose of harassing and silencing people, such as critics of the government). There is an exemption for military justice during wartime.

Double jeopardy is being tried more than once for a crime. It used to be common to try a defendant repeatedly, sometimes with the same jury, until the jury finally got the message that they had to convict this guy if they ever wanted to go home! The Fifth says that the prosecutor gets one chance to prove their case, although if new evidence shows up, apparently they get a do-over.
Self incrimination is being forced to testify against yourself. In the Good Olde Days, a defendant might actually be tortured until they confessed to the crime, to stop the pain. There are now more subtle ways of extracting a false confession (and it still happens), but the idea is that no-one is forced to confess. Thus, “I plead the Fifth Amendment.”
Due process of law must be followed in any trial — the prosecutor (and judge) cannot simply bypass or declare irrelevant any laws or procedures that inconveniently get in the way of convicting a defendant. The rules must be followed, even if sometimes it causes a criminal to go free.
Just compensation must be paid for any property taken for the common good (e.g., building a highway across your land). One tool that the state had was threatening to seize your property if you didn’t go along with what they wanted, such as falsely confessing to a crime, or even if they just didn’t like the cut of your jib.

Sixth Amendment

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

The history of English justice is filled with secret trials, distant venues, the inability to defend oneself, and other practices intended to stack the deck in favor of the state. There were even cases where people were tried in absentia and were never informed that there had been a trial until they were arrested so that the sentence could be carried out! Trials shall not be unduly delayed, especially if one is waiting in jail for their trial. Trials shall be open to the public so everyone can see what’s going on, and that the defendants are not being railroaded. After all, some day they might be the one in the docket, and they would want a fair trial!

Trials should be reasonably “close to home” so that the defense is not unduly burdened with transporting witnesses and attorneys long distances (especially across the ocean, as often done in Colonial times!). The defendant is to know all the charges and evidence ahead of the trial, so that they can prepare a proper defense. Witnesses cannot be hidden to the extent that their testimony cannot reasonably be challenged. and the defense is entitled to bring forward witnesses helpful to them. Finally, everyone is entitled to have a lawyer, to help them with their defense and to know the law and their guaranteed rights, which should not be violated.

Unfortunately, all aspects listed above have been abused by one side or the other throughout our history. It takes constant vigilance by the public (all of whom are potential defendants in a criminal case, even if they are sure they’ll never be tried for anything!) to ensure that their listed legal rights are not eroded in the name of being tough on crime. On the other hand, too many defense lawyers have no interest in justice, preferring to put another notch in their briefcase by “beating the system”.

There is a bona-fide tension in some trials between state secrets that really need to be concealed for the general good (note: often the government will make overly broad claims), and the right of a defendant to see such information and present a rebuttal to it. There is also tension between witnesses having to show their faces in court (and their names be made public), and often genuine fears of retribution by someone who didn’t like what they said in public.

Seventh Amendment

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.

OK, twenty dollars ($20) was a lot of money back then (perhaps on the order of a year’s pay for a laborer). Today, much larger amounts are kept in a Small Claims Court, to avoid the expense of a jury trial, but perhaps you could still demand a jury trial for a small amount.

The second part of the Seventh is of more significance, to ensure that proper, established, procedures are followed in appeals by either side in a case. You cannot jump straight to the Supreme Court from the local traffic court, nor may the government decide to bypass the established levels of trial and appeal courts.

Eighth Amendment

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

The idea here is that the punishment should fit the crime, and scale accordingly with the severity of the crime. In Jolly Olde England, if you were out hunting and unwittingly crossed over into the King’s land, you might lose an ear (or worse!) for poaching the King’s deer. The Founding Fathers wanted a reset or level-setting of punishments, so that huge punishments were not meted out for minor crimes (e.g., 20 years for possessing an ounce of weed) while more serious crimes (e.g., willfully killing hundreds through defective products) got a slap on the wrist. We don’t do things that way, right?

The prohibition on “cruel and unusual punishments” has often been used to attack use of the death penalty. This is utter nonsense. Capital punishment was widely used in Colonial times (much more so than today), so the Founding Fathers definitely did not simply overlook placing an explicit ban on its use. In fact, the Fifth Amendment specifically mentions and permits capital punishment in two places: you can’t face capital charges without the OK of a Grand Jury, nor be deprived of (among other things) your life, without due process of law. Can it be any more clear than that?

This is not to say that capital punishment has always been applied evenly, fairly, and consistently. It certainly has not. Even today, if you’re not white, you’re much more likely to be sentenced to death for a given major crime, than a white person is. We need to work on that, but simply banning capital punishment for an infamous crime is not right for the victims of that crime. The biggest problem making capital punishment ineffective as a deterrent to serious crime is that frivolous appeals can drag out the process until the condemned literally dies of old age, and executions are not carried out in the light of day, but hidden away in the middle of the night. If you can’t see a mass murderer dangling at the end of a rope on Prime Time TV, and while memory of the crime is still reasonably fresh, how is it to act as a deterrent?

Finally, it is clear that what the Founding Fathers considered “cruel and unusual punishment’ was what you might call torture-style executions. These included burning at the stake, breaking on the wheel, being chained to a rock to drown on the rising tide, strangulation, being stoned to death, etc., where the idea was to make the condemned suffer for their crime. As the new nation was being formed in an age of Enlightenment, Reason, and Rationality, they decided that such practices of punishment should not take hold here. If the State needed to execute someone, it should be a swift and clean death, not a long, drawn-out ordeal. I have to wonder what they would think about the Electric Chair, the Gas Chamber, and Lethal Injection, all meant to be more “humane” than hanging or a firing squad, even though they often result in a long, drawn-out death.

Clarification of unenumerated rights

Ninth Amendment

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

That the Constitution (and its Amendments) lists certain rights of the people, doesn’t mean that the people don’t have other rights that are not specifically listed. Some of these rights can be implied rights, such as to privacy, to control your physical body, or to be left alone.

Tenth Amendment

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.

By default, any powers not specifically given to the national government by the Constitution, belong to the States (unless prohibited to them). Any powers not reserved to the national government nor prohibited to the States, belong to the people. The idea here is to give, by default, as much power to the people (and then to the States) as possible, rather than concentrating it at the national level.

Keep in mind that originally the United States was a collection of semi-autonomous republics (States), that jealously guarded their powers and perogatives. The central Federal government was to be deliberately kept weak, and the States relatively powerful (explaining the Electoral College), and the people most powerful of all. Over time, the Federal government has needed to take on more and more powers, at the expense of the States, to ensure the rights of the People (as well as simply to function in a more complex and fast-changing world). This is an increasingly contentious matter, as those who speak of weakening the Federal government and returning power to the States, simply want to roll back many protections granted by the Federal government (e.g., virtually all civil rights).

A good point can be made, at this time, for simply getting rid of the States (as semi-autonomous republics), and governing from Washington, D.C. For many States, it’s always been a race to the bottom, to attract businesses with lax standards in all areas, and to keep the privileged (i.e., White Men) in power. We would still need geographical divisions to separate all the cities and towns of the same name from each other, but the trend to more concentration of power is heading in that direction. Is that entirely a bad thing? Many States spend much time and effort in taking away protections from their citizens, meaning that the Federal government then has to step in and try to restore rights.

…And Two More?

Two more amendments were proposed in 1789, making a total of twelve (12), but the first two failed ratification.

After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

This amendment was actually proposed as the original First, but failed to be ratified. Maybe people couldn’t figure out what it was trying to do? Anyway, by the early 20^th century, the growth of the nation to a size unforeseen by the framers of the Constitution (and the authors of this amendment) led to a freeze on the size of the House of Representatives (at 435 members) and the adoption of a somewhat convoluted method of apportioning House seats that leaves no-one happy. See Updating the House of Representatives for some of my thoughts on more fairly apportioning the House. Also see Electoral College refom and Congressional districts determined by computer for some issues related to the number of Representatives.

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

This amendment was actually proposed as the original Second, but failed to be ratified at the time. Actually it was later ratified, in 1992, as the Twenty-Seventh Amendment! The idea is that lawmakers can’t vote themselves an immediate raise — it has to wait for the next (even-yeared) election to take effect, so the voters can toss out the miscreants who voted for it (and who therefore won’t benefit from it!). Who knows if it’s worked.