Constitutionality

Lately, I've been hearing a lot of people citing the Constitution of the United States in support of one argument or another, and as often as not, it sounds as if the person citing it has not actually READ the document in question.

As a result, I decided to go back and re-read it and make sure that it wasn't my own memory which was faulty, and now I've decided to enumerate a few of the lesser quoted among the bill of rights, or those I think are less understood.

Beginning with 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.

Keep in mind, at the time this was written, the United States had no formal armed forces. In those days, there wasn't a standing army to send off to war, if the country was invaded, the men of the town would grab their weapons of choice and head off to protect their little piece of it.

This is not to say that this right can be ignored, but we need to recognize that at the time it was written, “arms” meant muskets and flintlocks, not Uzis and Howitzers. I'm all for people being allowed to own some weapons for their personal protection, or for hunting in pursuit of food, and I'm not prepared to state that I know where the line should be drawn, BUT...

The argument of some seems to be that this Amendment guarantees them the right to own any weapon they can get their hands on, and this is usually an argument in favor of some new semi-automatic weapon the person would prefer to own, I suppose on the grounds that without 20 rounds per second, that darn deer might get away.

I'll take this argument, IF... you're willing to grant that you believe I should be allowed to own a nuclear weapon (and please, if you just read that as “nuke-you-ler”, stop reading now, you're not going to agree with me anyway) based on this same Amendment. If you aren't (and I believe most people would balk at the reasonability of average citizens owning nuclear weapons) then you are already agreeing that the Second Amendment has limits. At that point, like the old joke of the woman being incensed at being offered $10 for sex, after having accepted an offer of $1 million, we're just haggling over price. If you're willing to admit that there is a line, then you're just arguing where the line is. Your definition may be different than someone else's, but you can no longer say that the line doesn't exist.


Next, let's discuss 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.

Read this one carefully, if you fully support the Patriot Act. Among the provisions of said Act are sections dealing with “administrative” warrants, not actually signed by a judge. Also blanket warrants, allowing one warrant to be used to search a broad variety of locations and people, not particularly described or enumerated. Make no bones about it, certain provisions of the Patriot Act violate the Fourth Amendment, and that's scary business.


Amendment V is being violated today in the case of Jose Padilla and probably the rest of the people being held at Guantanamo Bay: 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.

Several things about this wording jump out at me. First, note that it says “No person shall...”, not “No citizen shall...”. This Amendment applies to our Government's treatment of PEOPLE, not merely of it's own people. Next, note the phrase “nor be deprived of life, liberty or property without due process of law”. Now, the due process of law in war time may cover our treatment of non-citizens, but it does not cover U.S. Citizen Jose Padilla, and it doesn't matter whether he's entirely innocent or whether he's guilty of everything from kidnapping the Lindberg baby to framing Roger Rabbit. The Fifth Amendment is intended to guarantee that what's happening right now to Padilla never happens to anyone, certainly not to any citizen: Being held (deprived of liberty) without due process of law.

Some may point to the clause “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” and say that this is the exception that makes this treatment OK, but note the end of it, “when in actual service in time of war or public danger”. Unless the press has entirely dropped the ball, Padilla was not in the service, so this clause does not apply to him. This Amendment and the Sixth should have every American citizen screaming at the tops of their lungs “Charge Padilla or free him!”

And again, it's not because Padilla necessarily deserves his freedom, that's for a court of law to decide. I am not weighing the evidence here nor finding Padilla not guilty. I am merely saying that if they can do it to him and get away with it, what's to keep them from doing it to someone else? What's to prevent the next person accused of terrorism and shipped out of country to Guantanamo being some outspoken critic of the Administration? The way we ensure that too much power is not handed to those at the very top is by requiring that each case be reviewed by a separate judge and jury.


Amendment VI I've already touched on: 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 defense.

Where Five should have guaranteed Padilla his freedom unless charged with a crime, Six should have guaranteed that he'd be informed of the charges against him and should have enjoyed a speedy and public trial. Now, the definition of “speedy” I'm willing to let slide, inasmuch as our court system is overwhelmed and sometimes they're just doing the best that they can. But certainly charges should have been filed and a court date set. It amazes me that more “strict Constitutionalists” aren't more incensed by the gross violations of Five and Six. Again, they must protect even the most guilty among us, or they aren't worth anything.


And now we come to my favorite of the Bill of Rights, something which seems to be often forgotten by those “strict Constitutionalists” who seem to feel that it is an act of judicial activism to find rights implied and not expressly enumerated by the Constitution. Number IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

That's right, it's right there in our Bill of Rights: Just because we didn't expressly grant a right doesn't mean it doesn't, or shouldn't, exist. This Amendment alone gives Judges the right to interpret the Constitution to fit situations never expressly foreseen by the Founders and Framers. For example, there have been laws against child pornography since long before there was an internet or much in the way of digital pictures. And yet just because the Internet didn't exist at the time doesn't mean that existing laws against child porn can't be reasonably assumed to apply to Internet distribution. That's an interpretation. On reads the statute in question and recognizes that when an old law says “photographic prints” of children in sexual positions are illegal, that the intent clearly includes digital images, although such didn't exist when the law may have been written.

One great example is the right to Privacy. It has been held time and again by the court that a right to Privacy exists in the intent of the Bill of Rights, even if it is not expressly enumerated. In my quick re-reading of the Ten, I find clear indications of privacy rights in III and IV, and others have argued for more subtle indications in other Amendments.


The last one is another important one. It is the cause of many unpopular Supreme Court decisions, and is also one of the most widely infringed by the Federal Government. Amendment 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.

Powers not expressly given by the Constitution to the Federal government are not their business, and they have no rights to them.

I've rather enjoyed this, and so if I get some time later in the week, perhaps I'll go through the rest of the Amendments, lesser known, lesser quoted, but no less important.

And heck, maybe if I really get going, I'll review the core document as well.

Copyright © July 20, 2005 by Liam Johnson. Http://www.liamjohnson.net