Thursday, December 15, 2011

The Bill Of (mmmhmm. Yeah,) Rights

On this date in 1791, The Bill Of Rights was ratified.
Let's take a closer look at this.

The 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.”

Unfortunately, freedom of religion has not developed into freedom from religion. I say believe what you want, be it Yahweh, Allah, Buddha, Jesus, Flying Spaghetti Monster, but don't expect me to believe the same, or at the same level as you do. Religion can be like a sunset: some of them can be beautiful and have great qualities, but if you stare at them too long you will go blind, and some people have seen better sunsets.

Freedom of speech applies only as long as you don't shout fire in a crowded theater, say the dreaded seven words on the radio, or use a reasoned answer on Fox News. Probably more than any other right, this one has been walked over the most. To borrow a quote from Voltaire “I do not agree with what you say, but I'll defend to the death your right to say it.”

The right to peaceably assemble and petition the Government for a redress of grievances...unless you are in Zucotti Park, in front of the White House, live on a Reservation, are Japanese during World War II, named Eugene Debs, are accused of being a communist in the 1950s, etc.

The 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 is the fun one. “Well-regulated militia” is pronounced “Domestic terrorist” today. The First Amendment was refined by the courts to decide what it meant, this one probably should be too. When this was written, the best shot in the world could squeeze off three shots in a minute, and even with as good as the minutemen were, the likelihood that they would hit their target was fairly nil. Today's weapons are much more rapid and precise. I'm not against hunters owning guns. I'm not even against an average citizen owning one. However, there needs to be a smarter approach to this. If we can not come up with a well-reasoned and logical solution, I say we just regulate the bullets. They can;t form the National Bullet Association because the acronym is already taken.

The 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.”

Citizens cannot be forced to share their house with someone in the military during peacetime. Good idea.
..or during wartime unless prescribed by law. BAD IDEA! The U.S. is currently involved in a few wars (thankfully our objectives in Iraq have been achieved, and we are out of there as of today. Those objectives'll have to get back to you on that. Nevertheless, there are still active wars we are involved in. They are not as grand as the World Wars, or anything like the Civil War (by the way, people in the South, you lost. Get over it and stop bringing it up). Military bases are closing. The Federal budget is a greater wreck than I am. All it would take is one crackpot leader to make the leap in logic and say “to save the operational costs of military housing, the soldiers are moving in with you.” (with that I would like to announce my intent to run for President).

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.”

Kind of a double-pronged one on this. Yeah, a lot pf people get upset when a lawyer gets a client out of a jam by pointing out to the judge that the warrant issued was for the house next door. The system isn't perfect by a long shot. Something to consider: the Fourth Amendment is one of the Amendments that tries to protect a individuals right to privacy (even though most of us can guess what you keep under your bed, in the pillowcase, or in the sock drawer). The right to privacy is also something that is being forfeited by individuals very quickly. Ironically, the web has led to a number of people broadcasting deeds to the world that they should keep to themselves.

The 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 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.”

There is a lot in this one. Double jeopardy (not like Trebek), right to remain silent, due process, and compensation. If you think double jeopardy does not exist, think of O.J. Simpson. A jury found him NOT criminally guilty for the murder of his wife and her friend, the public found otherwise. Furthermore, he was found civilly responsible which requires a lower level of proof. Then he screwed up again, and had the book thrown at him (after he threw a lot of other things around the hotel room). Do you really think that there was not a level of retribution going on?

We also need to work on our prejudice against anyone that takes the Fifth. It is widely assumed that any pleading the Fifth has something to hide. Common sense says that this makes sense. Strategically, in a courtroom, common sense does not apply. It is better to remain silent and be thought a fool, than to open your mouth and remove all doubt.

Now for a personal favorite, “nor shall private property be taken for public use without just compensation.” Manhattan was sold for a bag of beads. The rest of the country has not been paid for.

The 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 defense.”

The right to a trial as quickly as possible so that you are not sitting in a cell for longer than necessary waiting for the State to make their case. Good idea, but it doesn't happen. Neither does the public trial part. I am a fan of recording devices and cameras in ALL courtrooms. A lot of courts disagree (including that big one in D.C.). The decision (since courts don't have to argue) usually hinges on phrases such as: “We don't want the world looking over our shoulder,” “It protects the sanctity of the court,” and “We need to ensure jury anonymity.” The sanctity of the court comes from upholding the laws, and the only way that we can be certain that the court is doing this, is by looking over their shoulder. As far as protecting the jury, people in the courtroom can see them (put up a screen in the courtroom if this is really a concern).

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

Aside from giving us a starting point for the actual value of a human life ($20, which in some cases is too much I think), this gives us our right to trial by jury. Twelve people who could not think of a way to get out of jury duty will decide your fate. A jury that is not allowed to ask questions, and is supposed to come in to the proceedings as completely impartial.

I've only been called for jury duty once. I went without trying to get out of it. I like the idea. I also brought a book with me because I knew there was going to be time to kill while I waited to be voir dired. The book I was reading at the time was The Runaway Jury by John Grisham. I tried to conceal it when I was called to the jury box. The first question I was hit with during voir dire was “What are your views on drug use?” I didn't miss a step. “Legalize them, regulate them, make them safe, tax them, and balance the budget. That being said, I am aware of what the law currently has to say on the matter and can follow that.” I was dismissed immediately.

The Eighth Amendment

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

Such broad language. Excessive bail and fines cannot be imposed. How are you going to define excessive? By an individual's resources? Let's imagine that the same crime has been committed by two different people. Jaywalking. One person owns a multi-trillion dollar corporation, the other person sleeps in their car and hasn't eaten in three days. The rich man gets a $50. fine, and pays the drop in the bucket. What do you fine the homeless person who has nothing?

Creul and unusual punishment (sounds like Reality TV to me, but I don't think that was what is meant). Again, this is very subjective. Let's look at this under the extreme (because that is what I do). The death penalty. Almost everyone has an opinion on it. Ask yourself this question: Is it more humane to put someone to death for a crime that they have committed, or to keep them locked in a 5'x10' cell for the rest of their life?

Ninth Amendment

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

What did that say? Most people have no idea. A lot of judges have no idea. In a very vague way, the Ninth is saying that there are probably other rights that exist that might be violated, but are not necessarily protected by the Bill Of Rights or the Constitution. In other words, “We are not perfect folk. This is just an outline. Use your heads. Sincerely, T.J.”

The 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.”

States rights. You can vote with your feet. If you don;t like the laws in a state that you live in, but like the laws of another state, you can go there and be ruled by that state's laws. The federal government knew that it could not, and probably should not, decree every law of the land. States, and local municipalities, were going to have to step up and be the real driving force. Governmental influence should have operate under the reverse model that it does now. Your local mayors and councilmen, are the people who should be most directly affecting your lives, followed by State Senators, Representatives and Governors, and then finally the guys and gals in D.C. Now, name your councilman or your mayor. Congratulations if you were able to. Most can't.

So there you are. Our Bill Of Rights. It isn't perfect, but it's a start.