AMERICAN RIGHTS

We live in a time of turmoil in America today. The turmoil spans much of our society arising in the political, economical, social,  and even religious arenas. Politically, there is a great abyss separating the American public, possibly the greatest one since that which preceded the American Civil War. At that point in time in the mid 1800’s, America was and had been divided on the issue of slavery.  This was an issue that existed from the very first day the country came into being and it grew from an argument over slavery into a full-fledged argument over a state’s right to secede from the Union. And, as we are all aware, that argument led to the Civil War.

 

In these times of turmoil and disagreement, many of us find ourselves turning back to the founding documents like the Constitution or the Declaration of Independence looking for some level wisdom which will offer guidance to relieve our disagreements. Abraham Lincoln once advises, “A House Divided Against Itself Cannot Stand.”  Of course he was referring to the two sides in the Civil War between the north and south and he was pointing out that in the end there would be no winners, only a house destroyed.  We find ourselves at that brink again in this time. We are a country so divided that we are encroaching upon destroying our own house in order to win.  When we stop and think of it in that manner, I am sure that most of feel that is a rather stupid direction to follow and it is truly that.  Once we make ourselves aware of that fact, then maybe we can take a different approach to solving our problems and realize that we all can be winners if we do.

 

At one time, America was home to a large number of people who wanted the same things in general.  They wanted to be safe and secure, they wanted their freedom both as individuals and as a nation, and they wanted to practice religion as they saw fit not as directed by the King. Those threads of desire came together to weave a fabric upon which we built a foundation for a great democratic republic.  Certainly there was disagreement from the very start as to how the republic would be shaped and governed.  There was the gnawing disagreement over the slave issue.  There were disagreements between those dwelling in the towns versus those on rural lands as to who was benefiting the most. We have always had disagreement but in the end, as a nation, we have never let our disagreement tear at the fabric of the country with the exception of the Civil War.  As a nation, we certainly learned a great lesson from that disagreement and I think most would agree that we should never go there again.

 

In my mind, I see great strength in the fact that we have a Constitution which has weathered the test of time quite well.  Over time, the Constitution has been amended but, for the most part, our great nation has respected the wisdom of those who created this wonderful document.  One of the most beautiful and important parts of it is The Bill of Rights.  From an individual standpoint, I am not sure there is any other document in our history so important as the first ten amendments to the Constitution which make up what we know as The Bill of Rights.  At times like we witness today, it is good to review those rights and reassure ourselves that we understand what we as individual citizens are guaranteed under the Constitution of our country and the Rule of Law.  James Madison introduced the legislation for these Articles to the Constitution as a step to protect individual liberties of all citizens of The United States of America.

 

 

In essence, The Bill of Rights addressed the concerns of many who worked on the Constitution as to how the individual citizens could be protected from the government which they were creating under the Constitution.  Initially, twelve articles were assembled to define these protections but only the first ten survived the approval process in the end.  In addition, the subject was addressed in the Preamble to the Constitution as follows:

 

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.

 

This broad statement in the Preamble explains that there was much concern for individual liberties and the guarantees there of.  In light of that concern, the original twelve articles to the Constitution were drawn up and approved by a two-thirds vote of the House.  In addition it is further stated that these articles would have to withstand the vote of each state legislature and come away with a 3/4’s majority in order to be sustained.  This step and the successful approval of ten of the twelve original articles taken in such a manner makes it crystal clear that these are rights which are clearly endowed upon each American citizen and cannot be taken from them by anyone in the power of government be it the Executive, Legislative, or Judicial branch making the attempt.

 

Article 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.

 

Basically, the first article has always been heavily referenced because it deals with the right of free speech and a free press.  Certainly we have seen many arguments over time built around this subject matter.  Today, we are seeing a different approach.  While Congress is not making law regulating the Internet, we find that the FCC has decided that it is their job to do so and possibly even to the extent or regulating political speech, content, etc.  There is nothing within the charter, mission, or direction of the Federal Communications Commission which gives it either the authority or the right to police the Internet in the United States of America.  American citizens should be outraged at the suggestion of such and work to stop it immediately.  Otherwise, the rights you have under article one are about to be severely restricted and Congress will not even have to make a law.

 

 

Article 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.

 

We have provisions with our government to create and sustain a well-trained and regulated army which increases and decreases in size based on the needs of the times and includes a variety of service units and missions.  Given that fact, article two says that even in light of a standing army, there is no basis upon which the government shall infringe on an individuals right to keep and bear arms.  This is an area in which we have seen crime used as the lever to reason why we should regulate firearms.  This reasoning has led us to the current level of registration of firearms held by an individual.  It will continue to be the basis of reasoning as to why guns should be taken away. Here again, there is no person or organization in the government of the United States of America authorized by law under the Constitution and the Bill of Rights to take our guns.  Any discussion in that direction basically is a discussion which is built upon an unconstitutional basis.  As citizens, we need to hold our ground here.  Enough is enough.  The next attempt on this particular right will come through foreign treaties and the rationale will be that the government must impose the requirement because it is called for in the tenets of the treaty as signed by the President and approved by the Senate.  I say “nuts” to that…read Article II!

 

 

Article 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.

 

We do not hear much of this right, thank God. Essentially, as long as we are not at war, WE, the individual homeowners, will decide who will be a guest in our home and even in times of war, should the need arise, it must be done in a manner prescribed by law and not just imposed by some military commander.  There are those who would hold that this article is outdated and has no bearing whatsoever and base that reasoning on the rationale that it has not happened in this country except possibly during the Civil War.  While I understand that reasoning, I do not understand anyone who lives and subscribes to a democratic society voluntarily giving up any of their rights.

 

 

Article 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.

 

This right must be observed on a daily basis by those in law enforcement. The existence of this right is the fence we have which keeps away the “police state” from  our front door.  And the best part of this right is that anyone who legally crosses it must have “probable cause” to gain legal access to perform such search or examination.  This particular right is under challenge in some areas of the country as the police have employed mandatory blood testing for DWI suspects.  Blood can be drawn with a search warrant approve by a judge because the officer has “probable cause” to believe the suspect is drunk or beyond a relative limit imposed by the government as the definition of “drunk”.  Once the search warrant is issued, the blood may be taken forcibly.  Here, I have to question how we arrived at “probable cause”.  Was it just because the individual was stopped for a traffic violation?  Is there is qualify process which sustains “probable cause” or are we at the mercy of the judge and a police officer?  I certainly am not a proponent of intoxicated driving but at the same time, I feel there is an aspect of “filling the money coffers” by simply applying the defined blood alcohol ratio to some guy who had a glass of wine with dinner.  Where is intent and judgment in this scenario…certainly not with some judge who answered the phone in the middle of the night to approve a search warrant.  This is a sticky wicket and certainly walks the tightropes of this article.

 

 

Article V:  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.

 

Basically, we have always look upon this article as our right to due process.  If we are accused of a crime, that a Grand Jury must be convened to determine whether there is ample evidence on which to try us with a jury of our peers.  The article does make exception for military during conflicts.  We are currently seeing this article used as the basis of rationale for the terrorist held at Gitmo and calling for their trials to be held in an American courtroom as opposed to a trial before a military tribunal.  We are seeing a reverse application of a “right” which is extended to a “citizen” applied to a “terrorist” who had every intention of killing said “citizen”. There are instances to be cited in America in which lands are being taken for commercial development purposes by local governments and those who own these lands certainly do not feel they are receiving just compensation.  If you doubt that, just ask some of the folks who had their homes condemned by the City of Arlington TX when the Dallas Cowboys needed land to use for the building of a new football stadium.  Certainly the benefit received by the local government, local businesses, and the Dallas Cowboys, far outstripped the prices paid for these homes.

 

 

Article 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 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.

 

This article gives us the right to speedy trial by a jury of our peers and stipulates that we can see our accusers, the evidence, and the witnesses brought forth prior to the presentation of it to that jury.  It also points out that we are entitled to defend ourselves within the legal limits of the laws under which we are accused and bring forth witnesses and evidence in that defense. It also stipulates that we will not be tried on criminal charges without the benefit of proper legal representation.  To date, I am not yet aware of any situations in which our court system has attempted to circumvent this process but we must certainly stay on guard for it. It is better that we know we have those rights prior to any accusation of criminal intent.

 

 

Article 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.

 

In this case, we have the right to a trial by jury anytime in a “civil proceeding” the value at risk exceeds twenty dollars.  We also have the choice to waive the right if we are not willing to pay the cost of court should be lose that trial.  It goes on to stipulate that we will not be in jeopardy of being tried again in some other USA court using any other rules of law.

 

 

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

 

Under the rights of this article, if we are accused of a crime, then the bail set for our temporary release from incarceration cannot be unreasonable to the crime.  This does not mean that we can be bailed out of jail for any crime we commit if someone has the money. There are considerations regarding the serious nature of the crime (i.e. murder by a serial killer) and also a reasonable belief that the individual could be a flight risk and would not show up for trial.  Regardless, whether we are freed on bail or held in jail, we have to right to be free of cruel and unusual punishment inflicted at the hands of our incarcerators.

 

 

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

 

This was the article in which I like to think that our Founding Fathers inserted judgment and common sense.  What this article relates is that just because a specific right in not spelled out in the Constitution does not mean that it is retained as a right by the people.  Certainly there would be those who might test that situation with absurdities.  This article simply implies that any controlling bodies such as law enforcement or the courts should apply common sense in determining a right.  While the Constitution may not enumerate specifically my right to walk down the street, common sense would prescribe that the right to do so does exist on the part of the citizens.  Conversely, local government may impose certain laws which state that although it is your right to walk down the street, you may not “loiter” in particular areas in public places.  In most cases, the litmus test here is just good old common sense.

 

 

Article X:  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.

 

This article goes somewhat hand in hand with article 9 in that it stipulates that the powers of the Federal Government are delegated to it by the Constitution and also limited in application by the States.  Any powers not addressed by the Constitution automatically belong to the States or by common sense to the people.  I contend that the imposition of the Healthcare Reform package or ObamaCare as it has come to be called is in violation of this Article and therefore unconstitutional.  There is no Constitution stipulation which specifically grants such power to make a citizen buy health insurance.  The government may have the power to legislate the healthcare and create it but not the power to require one to buy it.  As you have seen in the court cases, the Federal Government is attempting prove its position of authority on this subject by citing the Commerce clause references in the Constitution which allow for the Federal Government to regulate commerce.  As we have seen so far, the lower courts are not seeing this in the same light and feel the Federal Government is over-stepping the intent of the Commerce clause.  If that decision holds through the Supreme Court, then article ten is the fallback position of the citizenry in citing that those powers have not been delegated to the Federal Government.

 

Conversely, the Federal Government has used the Constitution as the basis for filing suit against the State of Arizona with regard to immigration control.  The Constitution does assign that power to the Federal Government.  I believe it is reasonable to assume that the Founding Fathers made that decision with the assumption that the Federal Government would vigorously and efficient pursue the task.  There are no stipulations with regard to the Federal Government’s failure to adequately perform the task except to say that the Federal Government is inadequate in its actions in carrying out the task.  Basically the actions of the Federal Government on this issue reflect those of a country willing to go through the motions of prosecuting a war but holding no will or desire to win it even if it is within their power.  In the end, the final decision will come from the Supreme Court and it will likely hold with the Constitution in citing the duties as a Federal responsibility. Given that ruling, what a shame it will be if the court does not elect to comment on the sad state of affairs on the border and point out the serious implications their existence has in light of our national security.

 

 

As citizens, we should all be aware of our rights under The Bill of Rights.  It is our responsibility as good citizens.  We also must be aware that when we consider granting “amnesty” to those who have come to this country in an illegal manner that the value of those rights are diminished in that we have handed them out like boxes of Cracker Jacks.  Being a citizen in America is serious business and should not be offered to those who have no intent other than to partake of the milk and honey of this great nation.

 

Unless we work toward a common purpose in America, those who desire to divide us will continue on that path and our house will surely tumble.  We must remind ourselves that we can have our differences of opinion and desires but ultimately when the chips are down we all have to do what is right for America.  It is our home, our house and it must stand.

 

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