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Rights strong, but threatened -- Editor's Notebook
In the two weeks, leading up to our nation's Independence Day last week, I'd been looking at how well the Bill of Rights has stood the test of time, especially in light of polls that show many Americans would either modify or ignore them in certain circumstances.
This week we look at the final five of the vital first ten amendments to the Constitution:
Amendment 5 -- Trial and Punishment, Compensation for Takings.
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.
Once again, here's a case where the Patriot and FISA Acts have chipped away at this basic right.
There are literally hundreds of cases where American citizens, in a few cases entire families including minors, have been arrested and locked up without being charged, sometimes as long as two years, because one or more members of those families were "suspected" of being involved in supporting terrorists in some way. They weren't allowed to even speak to attorneys during the months or years they were held in jail. The exact number isn't known because the government tries to keep such cases a secret. Eventually, all but a handful of those arrested were released. Of the 14 cases I know of that went to trial, only six resulted in convictions.
This is clearly a case of being deprived of liberty without due process of law.
There have been several times in our nation's history, almost always in time of war, when the rules of habeas corpus have been suspended. Lincoln did it during the Civil War. Roosevelt did it during WWII with the incarceration of Japanese-Americans.
It seems that this is a right that works only when the nation is not under stress. Otherwise, it tends to be set aside, with surprisingly little complaint by the rest of us who aren't affected. If this right were a wild animal, it would be on the endangered species list.
Amendment 6 -- Right to Speedy Trial, Confrontation of Witnesses.
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 current administration actually has attempted to put together some "terrorist" trials in which the defendants would not be allowed to confront the witnesses against them (nor would the defense be allowed to examine or even know about who those witnesses were). These cases are currently winding their way through the court system, and in general, the courts have tended to rule against the administration (thank God for the separation of powers). But the fact that they've even tried is a scarey statement about how this administration actually cares about constitutional principles when it is inconvenient to do so.
This also is the famous "Miranda" amendment. Frankly, anybody who's owned a TV in the last 30 years should be able to recite the Miranda warning by heart. That section is much stronger than it was 50 years ago.
This amendment has been primarily known, through most of U.S. history, as the "speedy trial" amendment. It prevents the government from arresting someone and then conveniently forgetting about them, in effect sentencing them to prison without ever having been convicted (although I'm aware of several "illegal alien" cases where it has taken years to even formally charge the person).
But the ironic thing about this amendment is how little defense attorneys use it. In most "high profile" cases, both defense and prosecuting attorneys constantly seek delays in order to put their cases together. That's why trials can drag on for years. The right to a speedy trial is there, but it's surprisingly not invoked very often.
For all practical purposes, this is an amendment that is simply ignored when it's inconvenient, but when the issues are referred to our judicial system, are almost always upheld. So despite the efforts to ignore it at times, I'd say it remains strong, even if the government often finds it inconvenient.
Amendment 7 -- Trial by Jury in Civil Cases.
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.
This amendment is so fundamental to the concept of the American judicial system that it has never been seriously challenged. In fact, in a lot of civil trials, the defendants waive this right and let a judge decide. Still, it stands as one of the least-challenged or threatened rights in the Bill of Rights. It remains very strong.
Amendment 8 -- Cruel and Unusual Punishment.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
This amendment is actually, a little vague, and as a result its interpretation over the years has changed as society has changed. At one time, for example, hanging someone who committed murder was considered normal and appropriate. Today, it's considered cruel. There's a lot of people who think we're too soft on vicious killers these days, and maybe we are, but no matter how you execute them, they're still dead.
The current interpretation clearly reflects the "gentler" society we have today, and it's probably a good idea to keep the government from being too vicious in determining its punishments (no matter how appropriate they might be). Governments, after all, have a tendency to push toward the authoritarian side, something the Constitution is designed primarily to prevent.
In lesser cases, this amendment is often challenged when judges get a little too "creative" in trying to find punishments that fit the crime.
Throughout U.S. history, the courts have tended to err on the liberal side of how this amendment is interpreted, but overall, this amendment is alive and kicking -- thank God.
Amendment 9 -- Construction of Constitution.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
This is one of the more interesting amendments in the entire Bill of Rights. In effect, it says that the rights of Americans are open ended, not restricted solely to those contained in the Constitution. It's under this provision, for example, that privacy rights are often derived.
This is one of the best amendments, in my opinion, in the entire Constitution, because it allows for adjustments in society and provides a foundation for the development and exploration of additional "rights." It says that the people are more important than the government when it comes down to defining what liberties we really enjoy.
It can be subject to significant interpretation, often with the changing winds of society, but it was a brilliant addition to the Constitution by the founding fathers, and if anything, has grown in strength and stature over the years.
Amendment 10 -- Powers of the States and People.
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.
There are two parts to this amendment. The second part, like the Ninth Amendment, provides for additional rights for the people.
The first part provides, however, for the rights of states, and this amendment is usually known as the "state's rights" amendment.
At the time the Constitution was ratified in 1791, state's rights were extremely important. For at least the first half century of our Republic, the states had far more power than the central government, and being a citizen of a state was often considered more important than being a citizen of the nation. Arising from well before the Revolution, the individual states had been the basic unit of political organization in this country and were expected to remain dominant.
But the Civil War and Reconstruction drove a stake through the heart of the state's rights part of this amendment. Slavery may have been the "hot button" issue, but the underlying argument involved state's rights. The Union victory was a serious defeat for this amendment.
When FDR managed to push through a bunch of Hoover administration proposals the Tenth was officially buried, and LBJ put the gravestone monument up with his "Great Society" programs.
When state's wouldn't (or couldn't, due to finances) respond to solve problems or "redress grievances," (such as social security, minimum wage and work condition laws, as well as the Jim Crow segregation laws) Americans turned to the more powerful federal government to solve the problems.
Governments never give up a power they've been given, and Americans had not only asked for, but demanded that it take more and more responsibility, and therefore more power.
So Congress, using primarily the "power of the purse," constantly forces its way around this amendment today by threatening to withhold critical federal funds from states that don't comply with legislation that probably would have been considered blatantly unconstitutional 150 years ago.
Times change, and so has the interpretation of the Constitution, by both the courts and society.
As a result, today, the Tenth Amendment's state's rights provision might as well not exist.
* * *
So, overall, as we've seen in the last few weeks, the Bill of Rights still remains fundamental to our concept of American rights and government, but don't ever kid yourself that some of those rights haven't either disappeared, been ignored, or are otherwise in serious jeopardy today.
The fact than any have survived is due solely to the vigilance of Americans who stand on those rights, and who fight for them. For example, no matter how much the ACLU may get in our craw sometimes, it clearly is a group that is willing to battle for our rights even when the circumstances around which those rights are invoked is unpopular or distasteful.
The Bill of Rights has been chipped away at over the years, because Americans have been too complacent, too concerned with personal security and success, to stand up and fight for the security and supremacy of the document that protects them from the boots of bureaucracy and the always present tendency of governments to seek more and more authoritarian control.
The Bill of Rights gives us a form of liberty envied by most of the world and unprecedented in the planet's history.
Our founding fathers fought for these rights with "their lives, fortunes and sacred honor." We owe them no less than to do so as well, and as passionately, for ourselves and our posterity.
But to stay free, we must stay vigilant.