Americans claim to love the Constitution. Politicians, judges and public office holders swear an oath to "protect and defend it", and loudly declare their great admiration of it and its drafters.
Well. . . .baloney. Americans absolutely despise the Constitution and particularly the Bill of Rights. They loath it. Sound too strong? Well, consider each article of the Bill of Rights and what you really hear.
The Bill of Rights are the first ten amendments to the Constitution. They came about because, after having given up on the Articles of Confederation, Congress grew worried that it had created a system in which the new Federal government would be so dominant that it could override the primacy of the states. To address that concern, therefore, they came back and added the first ten amendments. At first, they only restricted what the Federal government could do, not the states at all, but through a doctrine entitled "incorporation", which arises via the 14th Amendment, the first ten amendments have slowly come to be regarded as restricting both the Federal government and the state governments. Early on, Congress just couldn't imagine a state abusing its citizens, as democracy was regarded as so direct at the time, but time proved the opposite, hence the doctrine of incorporation, which arose both due to amendment and interpretation of the Constitution.
Congress of the United States
begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their
adopting the Constitution, expressed a desire, in order to prevent misconstruction
or abuse of its powers, that further declaratory and restrictive clauses should
be added: And as extending the ground of public confidence in the Government,
will best ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States
of America, in Congress assembled, two thirds of both Houses concurring, that
the following Articles be proposed to the Legislatures of the several States,
as amendments to the Constitution of the United States, all, or any of which
Articles, when ratified by three fourths of the said Legislatures, to be valid
to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United
States of America, proposed by Congress, and ratified by the Legislatures of
the several States, pursuant to the fifth Article of the original Constitution.
Amendment I
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.
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.
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.
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.
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.
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.
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.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the 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.
Americans really dislike these provisions. Each and every one of them, in spite of what they think they believe. Politicians, who have sworn an oath to uphold them, will rail against some of them on occasion. Let's take a look at each one.
Amendment I
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 first amendment was designed, in part, to prohibit the establishment of a Church of the United States, the way that England had the Church of England. This was recently discussed on this
comment at the Ramblings of a Teacher blog, including some commentary by yours truly, so I'll just refer the history, etc., of that out to there. But, basically, being aware of the titanic series of struggles that had resulted from Henry VIII's declaration that he was head of the Church in England, followed by years of struggle between those who conceived of that as a mere separation and nothing else, and those who were true Protestants, and those who sought a reversal of Henry's VIII's actions in separating London from Rome, and the suppression of competing Protestant groups by the whoever was in power, and the suppression of Catholics by everyone, the new American nation wanted no part of it. So, in order to avoid that, it prohibited Congress from declaring an official state religion, and it prohibited Congress from suppressing any other religion. It didn't say that religion would have no role in publish life. . . the founders were French revolutionist.
We love that, right? No we don't, or it sure doesn't seem that way if you listen to public discourse. There's plenty of people who would gladly suppress another religion if they could, or even create a state one if they were allowed to. Anti religious folks, for their part, would gladly prohibit any governmental interaction with any religion, no matter what the nature of the association would be. So the Freedom of Religion clause is constantly under the gun from both sides and hardly ever looked upon rationally.
Did the founders expect religion out of the public discourse? No, of course they didn't. Did they feel it inappropriate for a Bishop, for example, to comment on, and try to influence the law? No, they didn't expect that. They just didn't want there to be a Church of the United States, or a Church of Virginia, basically. And wise they were indeed. State churches, such as found in Europe, have not done well recently.
Well what about the Freedom of Speech. Everyone can agree on that surely?
Well, apparently not. Even from day one in the country we've seen folks who would be happy to run over the top of the right to speak freely. Anti Sedition laws came in under John Adams, one of the founders. And we've revived them from time to time. Even now we'll occasionally take a run at restricting speech if we can figure out a way.
But we'll also pretend that it applies to speech in a civil context that the founders would have regarded as libelous. The provision, really, is to allow political speech, not to speak vile things about member of the public or the public at large no matter what civil libertarians may wish to pretend.
Same thing with Freedom of the Press. The Press is super zealous in protecting this right, and they should be, even where they use that freedom to argue that other freedoms ought to be stamped out. But lots of folks despise the press and figure it ought to just shut up. And they'd legislate it into shutting up if they could. The Press doesn't help it cause much here either, as the Press is often pretty loud about wanting to wipe out some other freedom, as if Freedom of the Press was the only freedom there was.
Okay, well there's no dispute over peaceably assembling, surely. Wrong again. This basically amounts to protesting. People don't like that much, unless they're protesting. And lots of governmental entities regulate it to the extent they can.
Basically, people like their own faiths and faiths like them, like what they have to say themselves, and figure any gathering they go to is legitimate. As to everyone else. . . well they're not so sure.
Amendment II
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.
The Second Amendment is no doubt the most debated amendment to the Constitution and the one about which the oddest things are said. People often treat it like its reading the Rosetta Stone and full of mystery. It isn't, if you understand the times it was written in. Just like those times informed the drafting of the First Amendment's Establishment Clause, they informed the Second Amendment. A little history, therefore, is needed.
In Colonial America, and up until the 1880s, every American male was in a colonial militia or state militia. Everyone. We often read that the United States had no draft until the Civil War. That's just baloney. The United States had universal conscription, into state militias, up until about 1880. Every American male bore arms. Basically, if you were 16 years old, you were in the state militia where you remained until you were about 60. As many men didn't make it to 60, that meant that most of them were in the militia for life.
The way militia's worked, for the most part, in both Colonial times, and up until the 1840s or so, and later in many places, is that they mustered annually. That was it. Basically, the militia mustered and drank a lot of beer. Truly. That's about as "well regulated" as they were. Some states provided arms, some uniforms, but quite a few militiamen, ie., all men, showed up in their workaday clothing with their rifle or fowling piece. They "drilled" a bit on the courthouse lawn, i.e., formed up into a military formation and marched a wee bit, and dismissed to drink beer. Truly.
Now, as the militia existed to protect the state against attacks by Indians, the British, or the French, that worked pretty well actually. People like to make fun of the old militias now, but some of them gave French, British, or Indian combatants terribly bruisings. For that matter, Canadian militia really kicked US forces in the teeth during the War of 1812, and they were no different in nature. The British held some American militia in contempt for poor performance, but thought that other militia units were a bunch of unfair baddies due to their effective use of rifles and unconventional warfare.
The reason for the Second Amendment is that the states feared that the Federal government would take away the right to own firearms in times of stress and leave the states defenseless. As its now been determined that the Second Amendment has been incorporated, that now applies to the Federal government as well, although at least one court case from the 1930s had long ago forecast that. And what that case from the 30s makes plain is that the Second Amendment specifically applies to the type of weapons that a state would use to defend itself, i.e., military weapons.
But people don't like to believe that in some instances. For example, New York's Mario Caumo was railing the other day that "you don't need ten bullets to kill a deer," his point being that he wasn't going to act to ban deer rifles, but "assault rifles."
Well, the Second Amendment actually wasn't drafted to apply to deer rifles, although it would apply. It actually was designed to apply to military weapons, or at least weapons that could be used that way. All the talk about protecting weapons that only have a sporting purpose is completely missing the point. A person could argue that we need not fear an attack from the British anymore, or even if Prince Harry does show up with a raiding party we're not going to repel him with a militia muster (the paparazzi would probably do), or it could be argued that the republic has withstood the test of time and the citizenry no longer needs military arms to potentially take action against a tyrant, but that's arguing that the Second Amendment should be repealed, not that it doesn't exist. Folks who take an oath to defend the Constitution should be honest about that.
Amendment III
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.
Okay, we all like this one, right?
Well, we probably do, but the Army hasn't tried to quarter soldiers in homes, ever. The Supreme Court did find the government could condemn property for big box stores, so you do have to wonder what we really think here.
We may actually get to find out. A very rare case is presently pending in the Federal system on this very topic, in which he presents a case arguing that a police occupation of his home fits the bill here. My guess is that the Courts will say the police aren't the military. Still, it's interesting to ponder.
Amendment IV
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.
We really hate this one, which is why we're testing it all the time.
More than any other amendment, there's constantly an effort to run roughshod over the Fourth Amendment, and generally the courts are regarded as a bunch of namby pamby do gooders when they uphold this amendment and strike down some law. That doesn't stop people from trying to figure out a way around it.
People who aren't breaking the law are really pretty comfortable with the idea that the police should be able to stop you and search you, your car, or whatever, because you look pretty darned suspicious. And they ought to b able to enter your house too. They should only be stopped form searching the houses of honest people. That's basically the way most people view this. If you listen to discourse on this topic, nine times out of ten, that's how people see it.
But the flip side is also true. People feel free to feel that legitimate police actions should be controlled by mob rule, no matter how legitimate and procedurally correct they may be in some instances. Whole communities will riot over legitimate due process, just because it doesn't equate with their notions of what the result should be.
Amendment V
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.
Okay, now surely we're all in agreement on this one, right? We love this, it's a hallmark of American culture.
Nope, we don't care for it either.
For starters people are actually pretty comfortable with the idea of people being accused of "infamous crimes" and being hauled off to court for them with as little effort as possible. Indeed, people whine and cry that actions which might be civil offenses at best, but which are more likely simply bad political or business decisions, or just good luck some times, should be felonies. After every Presidential Administration goes out of office, if there's a party switch, there's howls of protests that one politician or bureaucrat or another should be prosecuted. And big economic events, like the banking collapse, or the earlier Enron type events, result in the cry of 1798 France; "off with their heads."
This amendment was designed to prevent torture and to keep the accused safe from the mob. Right now, however, Americans are getting pretty comfortable with the mob as the arbiter of justice, and governments are pretty comfortable with even outlawing good luck. Insider trading provides us with an example. Why is it illegal? A person with inside information who wasn't inclined to use it would be stupid, and it shouldn't be a crime to use information you have due to your position. Everyone actually does it, as a person would have to be a machine not to.
And people are pretty comfortable with other people's property being taken for government use. Even the Supreme Court is, as the recent decision allowing property to be seized under eminent domain for use as a mall demonstrates.
And as we have also seen, people feel free to resort to mob rule where the mob feels that there's been an injustice, rather than allow the legal process to work as it should, and usually does. A community can go into days of riots over a result it feels to be the wrong one, even where they have not heard all of the evidence, and they have not allowed the courts to operate.
Amendment VI
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.
Nobody should doubt how hated this one. It's so hated that right now the President of the United States, who was a Constitutional Law Professor, was, earlier this pat year
busy spouting off about the finding that a criminal defendant was innocent.
In this
particular instance that's disgusting and shameful, in my view, but its hardly unique. I've heard plenty of public outcry about verdicts of innocence before. Perhaps the most amazing thing is that criminal juries still work, by and large, protecting the rights of us all against, amazingly, us all.
Amendment VII
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.
Same deal here. As a lawyer, I've often heard either "what was that jury thinking?" or "wow, what a great system" based simply on the results. Juries are declared to be "dumb" or motivated by improper factors, simply because their results don't square with the speaker's views.
Indeed, we should decide whether we want juries, or not. Not all modern legal systems use them by any means. Most continental European ones, for example, do not, although we find it odd to watch those systems operate.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
People are generally happy with any high bail amount that a court might order. It's only low bails that people complain about. I don't think people have any problem with "excessive" bail.
Likewise, I think people are pretty comfortable with cruel and unusual punishment as well, and I've heard it occasionally espoused as a good idea.
