On Rights

Reading a good discussion of human rights always puts me in the mood to post. After re-reading Nate’s Debs essay , I was in the mood to discuss the erosion of our civil rights in the wake of the current administration’s “war on terror” and implementation of the Unitary Executive Theory. The Bill of Rights, the most “inalienable” human rights, has steadily been under attack by the federal government since 2001. Let us review: 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. Religious freedom is currently protected (assuming you’re not Islamic), but in regards to free speech, we have a problem. Not many people remember the “free speech areas” set up in 2003. The name given these zones is especially ironic, considering that one of the principal features of the zones is their content orientation. (For those interested, the Supreme Court has consistently ruled against hate-speech laws, for example, because of their "content orientation", which the courts have found violates the First Amendment.). From the above linked article, it seems that content orientation is a major factor in deciding which “zone” a person is allowed to enter: At a hearing in county court, Det. John Ianachione, testifying under oath, said that the Secret Service had instructed local police to herd into the enclosed so-called free-speech area "people that were there making a statement pretty much against the president and his views." Explaining further, he added: "If they were exhibiting themselves as a protester, they were to go in that area." So, if you disagree with Bush or Cheney, into a special, fenced-off area you go… 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. Well, no trouble there, yet. We will continue to keep our eyes on the developments that result from the Virginia Tech incident, although I don’t expect the current executive to make any changes to gun control laws based on this incident. 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. Well, thank God I don’t have to quarter a British soldier… The 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. Our current administration has seen fit to support illegal wiretaps without warrants. The President's continued refusal to abandon illegal activity and his contempt for Congressional regulation is yet another example of his belief in the Unitary Executive Theory, which puts him at the unquestioned head of the Executive branch and makes him immune to checks and balances from the other branches. This arrogance continues even today, when Alberto Gonzales could barely conceal his contempt for the Congressional inquiry into his politicizing of the Justice Department. The Fifth Amendment: No person shall be held to answer for any 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 cases of many Guantanamo Bay detainees, as well as Jose Padilla, have made any trial-related amendments laughable at best. For example, testimony given under duress (torture?) is admissible in the military tribunals that will try these individuals. 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 where in 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. Speedy, public trial? Impartial jury where the crime shall have been committed? Confronted with the witnesses against? The trial of David Hicks, Jose Padilla, and the Guantanamo Bay defendants had none of these elements. Trial by jury is strictly optional in military tribunals. 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. I guess we can still sue in common law proceedings. Yay… The Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. I guess “coercive interrogation techniques” are no longer “cruel”, nor “unusual”, although doctors seem to disagree. The President still has his propaganda wing in full force, supporting his policy. They don’t even want to ban torture. The Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Or, “Just because it’s not specifically stated in the Constitution as a governmental limitation does not mean that the right does not exist”. Get it? If not, let me explain... The US Constitution is not a document that gives rights to the populace. Rather, it is a document that limits governmental interference. The Jeffersonian "inalienable rights" were in fact, thought to be so obvious by some, that placing them into a specific Bill of rights was fought against. Alexander Hamilton railed against adding specific terms to the Constitution in this form, saying: "I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?" Here, Hamilton talks about "exceptions to powers that are not granted". I believe he means that there is no need to tell the government that they can "make no law abridging the freedom of speech" because government does not have this authority in the first place. It is an "inalienable right". "...why declare that things shall not be done which there is no power to do?" Hamilton also, possibly prophetically, predicts that the federal government will abuse the Bill. "They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. " This is exactly what has happened when Alberto Gonzales claimed that habeas corpus was not a right; because, although the Constitution says: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it..." Gonzales says that "there is no expressed grant of habeas in the Constitution. There's a prohibition against taking it away." When questioned again, he said: "the Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right to habeas. Doesn't say that. It simply says the right of habeas corpus shall not be suspended except...." Here, we have fallen into the trap that Hamilton warned us about. If habeas corpus is an "inalienable right", then there is no hair-splitting about whether Congressional ability to take a right away implies that everyone has the right. It does not even need to be mentioned, because it is "inalienable". Supposedly... 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. Keeping the Federal Government in line, something which we have done a very poor job of in the US. This has been a problem almost from the beginning. After the passage of the Bill of Rights into the Constitution, political parties formed initially around two positions: federalists in support of a strong national government and the Democrat-Republican party (read, both) opposing the centralizing tendencies. The first change of parties, Jefferson succeeding Adams, was fueled in part by reaction against just the sort of central government overreaching the drafters had feared. In its 1819 ruling, McCulloch v. Maryland, the Supreme Court upheld the creation of a national bank. The court was asked to interpret whether "necessary and proper" limited the national government, in accordance with Jefferson's narrow construction of the meaning of the clause. Chief Justice John Marshall took the broad construction, interpreted the constitution not as a compact among sovereign states but a national constitution established by the people of the United States. Thus construed, "necessary and proper" meant the national government could take actions that were appropriate to implementation of its prescribed powers, and not only those that were indispensable. This forms part of the initial legal basis for a federal government power snatch from both the states and the populace. This ultimately led to the Civil War, as South Carolina declared the right of state nullification of Federal laws, and other southern states followed suit. (A nice timeline of these events is available here.) Currently, Alberto Gonzales is helping the administration grow the government and intrude on both state and personal rights. Check out this site for more information. So, let’s review. Of the “inalienable” rights granted in the Bill of Rights, we have lost: Freedom of Speech Freedom of the Press Protection from illegal search and seizure Governmental burden of probable cause Trial by Jury Protection against self-incrimination Public trials The right to cross-examine witnesses Hearing all evidence against Protection against cruel and unusual punishment Protection of other, non-explicit rights Protection against excessive federal government growth But, rest assured we still have: Religion Guns Civil Suits I don’t have to quarter a British soldier… Not too good of a trade-off.