HAVE AMERICANS LOST
ALL OF OUR CONSTITUTIONAL RIGHTS?
Posted on January 5, 2014 by WashingtonsBlog.com
HOW MANY CONSTITUTIONAL FREEDOMS HAVE WE LOST?
This post explains the liberties
guaranteed in the Bill of Rights – the first 10 amendments to the United States
Constitution – and provides a scorecard on the extent of the loss of each
right. (This is an updated version of an essay we wrote in February.
Since then, it has become apparent that the few rights we thought we had left
are largely illusory.)
First Amendment
The 1st Amendment protects speech, religion, assembly and
the press:
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.
The Supreme Court has also
interpreted the First Amendment as protecting freedom of association.
However, the government is arresting those speaking out … and violently
crushing peaceful assemblies which attempt to petition the government for
redress. A federal judge found that the law allowing indefinite detention
of Americans without due process has a “chilling effect” on
free speech. And see this and this. There are also enacted laws allowing the secret
service to arrest
anyone protesting near the president or other designated folks (that
might explain incidents like this).
Mass spying by the NSA violates our freedom of association,
chilling our willingness to associate with people who are not firmly in the
mainstream. The threat of being labeled a terrorist
for exercising our First Amendment rights certainly violates the First
Amendment. The government is using laws to crush dissent, and it’s
gotten so bad that even U.S. Supreme Court justices are
saying that we are descending into tyranny. For example, the following
actions may get an American citizen living on U.S. soil labeled as a “suspected
terrorist” today:
- Having an almanac
- Complaining about the taste of your tap water
- Being young (if you live near a battle zone, you are fair game; and see this)
- Reporting or doing journalism (and here and here)
- Having “strange odors” or “bright colored stains on clothes” (what if you eat mustard or ketchup?)
- Protesting anything (such as participating in the “Occupy” or “Tea Party” movements)
- Questioning war (even though war reduces our national security; and see this)
- Criticizing the government’s targeting of innocent civilians with drones (although killing innocent civilians with drones is one of the main things which increases terrorism. And see this)
- Stocking up on more than 7 days of food (even though all Mormons are taught to stockpile food, and most Hawaiians store up on extra food)
- (Not having a Facebook account may soon be added)
And holding the following beliefs may also be
considered grounds for suspected terrorism:
- Liking the Founding Fathers
- Being a Christian
- Being “anti-nuclear”
- Being “anti-abortion”
- Being “anti-Catholic”
- Being “anti-global”
Of course, Muslims are more or less subject to a
separate system of justice in America. And 1st Amendment rights are especially
chilled when power has become so concentrated that the same agency which spies on all Americans also
decideswho should be assassinated.
Second Amendment
The 2nd Amendment states:
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.
Gun control and gun rights advocates
obviously have very different views about whether guns are a force for violence
or for good. But even a top liberal Constitutional law expert reluctantly
admits that the right to own a gun is as
important a Constitutional right as freedom of speech or religion:
Like many academics, I was happy to
blissfully ignore the Second Amendment. It did not fit neatly into my socially
liberal agenda. *** It is hard to read the Second
Amendment and not honestly conclude that the Framers intended gun ownership to
be an individual right. It is true that the amendment begins with a reference
to militias: “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.” Accordingly, it is argued, this amendment protects the right of the
militia to bear arms, not the individual. Yet, if true, the Second Amendment
would be effectively declared a defunct provision. The National Guard is not a
true militia in the sense of the Second Amendment and, since the District and
others believe governments can ban guns entirely, the Second Amendment would be
read out of existence. *** More important, the mere reference to a purpose
of the Second Amendment does not alter the fact that an individual right is
created. The right of the people to keep and bear arms is stated in the same
way as the right to free speech or free press. The statement of a purpose
was intended to reaffirm the power of the states and the people against the
central government. At the time, many feared the federal government and its
national army. Gun ownership was viewed as a deterrent against abuse by the
government, which would be less likely to mess with a well-armed populace.
Considering the Framers and their own traditions of hunting and self-defense, it
is clear that they would have viewed such ownership as an individual right —
consistent with the plain meaning of the amendment. None of this is easy
for someone raised to believe that the Second Amendment was the dividing line
between the enlightenment and the dark ages of American culture. Yet, it is
time to honestly reconsider this amendment and admit that … here’s the really
hard part … the NRA may have been right.
This does not mean that Charlton Heston is the new Rosa Parks or that no
restrictions can be placed on gun ownership. But it does appear that gun ownership
was made a protected right by the Framers and, while we might not celebrate it,
it is time that we recognize it.
The gun control debate – including
which weapons and magazines are banned – is still in flux …
Third Amendment
The 3rd Amendment prohibits the
government forcing people to house soldiers:
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.
While a recent lawsuit by a Nevada
family – covered by (Mother Jones, Fox News and Courthouse News – alleges bodily violation of the
Third Amendment, such literal violation is virtually non-existent today.
However, the NSA is stationing
“digital troops” within our homes, taking over our computers and phones, and
interfering with the quiet use and enjoyment of our houses. As such, the
NSA is arguably violating our Third Amendment rights every single day.
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.
But the government is spying on everything we do … without any real benefit or justification. Indeed, experts say that the type of spying being carried out by the NSA and other agencies is exactly the kind of thing which King George imposed on the American colonists … which led to the Revolutionary War. And many Constitutional experts – such as Jonathan Turley – think that the police went too far in Boston with lockdowns and involuntary door-to-door searches.
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.”
But the American government has shredded the 5th Amendment by subjecting us to indefinite detention and taking away our due process rights. The government claims the right to assassinate or indefinitely detain any American citizen on U.S. citizen without any due process. And see this. As such, the government is certainly depriving people of life, liberty, or property, without due process of law. There are additional corruptions of 5th Amendment rights – such as property being taken for private purposes. And the right to remain silent is gone. The percentage of prosecutions in which a defendant is denied a grand jury is difficult to gauge, as there is so much secrecy surrounding many terrorism trials.
Sixth Amendment
The 6th Amendment guarantees the right to hear the criminal
charges levied against us and to be able to confront the witnesses who have
testified against us, as well as speedy criminal trials,
and a public defender for those who cannot hire an attorney:
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.
Subjecting people to indefinite
detention or assassination obviously violates the 6th Amendment
right to a jury trial. In both cases, the defendants is “disposed of” without
ever receiving a trial … and often without ever hearing the charges against
them. More and more commonly, the government prosecutes cases based upon “secret evidence” that they
don’t show to the defendant … or sometimes even the judge hearing the case. The
government uses “secret evidence” to spy on Americans, prosecute leaking or terrorism charges (even against U.S. soldiers) and even assassinate people. And see this and this. Secret witnesses are being used in
some cases. And sometimes lawyers are not even allowed to read
their own briefs. Indeed, even the laws themselves
are now starting to be kept secret. And it’s about to get a lot worse.
Seventh Amendment
The 7th Amendment guarantees trial by jury in federal court
for 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.
Technically, this right is still
being respected. However, financial sheninagins have made it very
difficult for most Americans to be able to enjoy this right. Specifically, the austerity caused by redistribution of wealth to
the super-elite is causing severe budget cuts to the courts and legal
assistance institutions. Moreover, there are two systems of justice in America
… one for the big banks and other fatcats, and one for everyone else. The
government made it official policy not to prosecute fraud, even
though fraud is the main
business model adopted by Wall Street. Indeed, the biggest
financial crime in world history, the largest insider trading
scandal of all time, illegal raiding of customer accounts and blatant financing of
drug cartels and terrorists have all been committed recently without any
real criminal prosecution or jail time. On the other hand, government
prosecutors are using the legal system to crush dissent and to silence whistleblowers. And some of the
nation’s most powerful judges have lost their independence … and are in bed with the powers-that-be.
Eighth Amendment
The 8th Amendment prohibits cruel and unusual punishment:
Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.
Indefinite
detention and assassination are obviously cruel and unusual
punishment. The widespread system of torture carried out in the last 10 years –
with the help of other countries – violates the 8th Amendment. Many want to
bring it back … or at least justify its past use. While Justice Scalia disingenuously argues that torture does not
constitute cruel and unusual punishment because it is meant to produce
information – not punish – he’s wrong. It’s not only cruel and unusual … it is technically
a form of terrorism. And government
whistleblowers are being cruelly and unusually punished with unduly harsh
sentences meant to intimidate anyone else from speaking out.
Ninth Amendment
The 9th Amendment provides that people have other rights,
even if they aren’t specifically listed in the Constitution:
The enumeration in the Constitution,
of certain rights, shall not be construed to deny or disparage others retained
by the people.
We can debate what our inherent
rights as human beings are. I believe they include the right to a level playing
field, and access to non-toxic food and water. You may disagree. But everyone
agrees that the government should not actively encourage fraud and manipulation.
However, the government – through its malignant,
symbiotic relation with big corporations – is interfering with our
aspirations for economic freedom, safe food and water (instead of arsenic-laden, genetically
engineered junk), freedom from undue health hazards such as irradiation due to government support of archaic nuclear power
designs, and a level playing field (as opposed to our crony capitalist system
in which the little guy has no shot due to redistribution of wealth from the middle
class to the super-elite, and government support of white collar criminals). By working hand-in-glove with giant
corporations to defraud us into paying for a lower quality of life, the
government is trampling our basic rights as human beings.
Tenth Amendment
The 10th Amendment provides that powers not specifically
given to the Federal government are reserved to the states or individual:
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.
Two of the central principles of
America’s Founding Fathers are:
(1) The government is created and
empowered with the consent of the people and (2) Separation of powers
Today, most Americans believe that the government
is threatening – rather than protecting – freedom. We’ve become more afraid of our government than of
terrorists, and believe that the government is no longer acting with the “consent of the governed“. And the federal
government is trampling the separation of powers by stepping on the toes of the
states and the people. For example, former head S&L prosecutor Bill Black –
now a professor of law and economics – notes:
The Federal Reserve Bank of New York
and the resident examiners and regional staff of the Office of the Comptroller
of the Currency [both] competed to weaken federal regulation and aggressively
used the preemption doctrine to try to prevent state investigations of and
actions against fraudulent mortgage lenders.
Indeed, the federal government is
doing everything it can to stick its nose into every aspect of our lives … and act like Big Brother. Edward Snowden showed us
that the NSA spying programs “were
never about terrorism: They’re about economic spying, social control, and
diplomatic manipulation. They’re about power.”
CONCLUSION:
While one or two
of the liberties enshrined in the Bill of Rights still exist, the vast majority
are under heavy assault.
Other Constitutional Provisions … and The Declaration of
Independence
In addition to the trampling of the
Bill of Rights, the government has also trashed the separation of powers
enshrined in the main body of the Constitution. For example, the NSA is spying on Congress. The government is also
engaging in activities which the Founding Fathers fought against, such as
taxation without representation (here and here), cronyism, deference to central banks, etc. As the
preamble to the Declaration of Independence
shows, the American government is still carrying out many of the acts the
Founding Fathers found most offensive:
He has kept among us, in times of
peace, Standing Armies without the Consent of our legislatures. [Background] He has affected to render the Military
independent of and superior to the Civil power. [Background here, here and here] *** He has combined with others to subject us to a
jurisdiction foreign to our constitution, and unacknowledged by our laws;
giving his Assent to their Acts of pretended Legislation: [Background] *** For transporting us beyond Seas to
be tried for pretended offences [Background] *** He is at this time transporting
large Armies of foreign Mercenaries to compleat the works of death,
desolation and tyranny, already begun with circumstances of Cruelty &
perfidy scarcely paralleled in the most barbarous ages, and totally unworthy
the Head of a civilized nation. [Background] *** He has abdicated Government here, by declaring
us out of his Protection and waging War against us. [Background here, here and here]
=============
RELATED ARTICLE:
HOW WE LOST OUR CONSTITUTION? Somewhere
in Iraq and came back without it to Try Manning.
By Juan Cole. Aug 5, 2013
On July 30, 1778, the
Continental Congress created the first whistleblower
protection law, stating “that it is the duty of all
persons in the service of the United States to give the earliest information to
Congress or other proper authority of any misconduct, frauds, or misdemeanors
committed by any officers or persons in the service of these states.”
Subtitles in this
article: The
Weapons of War Come Home. Welcome Home,
Soldier (Part I). Welcome Home, Soldier (Part II). Not Manning Alone. Post-Constitutional
America
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