Mesogen
07-11-2007, 11:18 PM
I was just looking through the Bill of Rights to get the specific wording of one of them and something struck me. The Bill of Rights may have been the Patriot Act of the 1780s.
I'm very glad that certain things were spelled out (enumerated), but there are some very subtle removals of certain rights included, as well as some serious outlets for future violations.
Let's look at 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.
Of course, the "Congress shall make no law" phrase is a compromise. They could have simply worded it like other amendments, saying "The right of the people to freely exercise religion, etc. shall not be infringed." The Establishment clause could have applied to the States as well. They didn't go as far as they could have.
The second amendment is pretty cut and dry.
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.That's the way they should all read.
The third amendment is one of those amendments that protects rights while allowing the state to take them away if it so choses.
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.
You don't have to quarter soldiers in your house, unless the law makes you.
We've been hearing about violations of the 4th amendment lately with the warrantless wiretapping, etc. But read it very carefully and the wording can get a little loose.
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 says that you have the right against "unreasonable" searches and seizures. Well, who decides what is unreasonable? Not the person being searched. That's for sure. Also can you tell me if this amendment requires a Warrant to be issued for a search to be conducted? I don't see it. It simply gives the conditions upon which a Warrant may be issued, but not that a Warrant is required for a search. One may or may not assume, when reading this, that a Warrant is required for a search.
The fifth is another amendment with mixed blessings.
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.
That's great that you can't be held for a capital or infamous crime without being indicted by a Grand Jury. It's also great that you can't be tried for the same crime twice or be required to testify against yourself.
The last bit is just awful though. No private property may be taken "without just compensation?" That clause just took your property rights.
The sixth amendment is another cut and dry one, unless I'm missing something really sly.
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.The only thing I see here is the assumption that a crime has actually been committed when there might not have been. The term "committed" should have read "alleged."
The seventh is a doozy in disguise.
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.
Whatever you may think of the common law system, this amendment seems to grant judges and juries the right to continue the tradition and "write law" in a largely undemocratic fashion. Common law is what gives us the "right" to be detained and questioned by police on the basis of "reasonable suspicion" instead of the "probable cause" standard listed in the 4th amendment. Common law also gives us the "right" to be forced to show ID when we are detained under "reasonable suspicion." Common law gives us the "right" to abortion. Etc etc.
The eighth is so vague that it's almost pointless. It may only serve to remind people that there are hypothetical limits to punishment.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
I guess we have to leave it up to "common law" to determine what is excessive, cruel, or unusual. Actually, since it doesn't say what or who determines these things, rogue executives and courts can pretty much get away with these things if they try hard enough.
Thank goodness for the 9th and 10th amendments?
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 for the States respectively, or to the people.
Oh, but again with the tricky wording! What, ninth amendment? What rights to we retain then? Who determines that? Do I get to decide what rights I still retain that you haven't taken from me? Oh, "common law" decides maybe?
The tenth says that unless the constitution specifically prohibits something to the States, the States can basically do what they want.
I'm sure there are many arguments to be made in favor of the Bill of Rights, and I'm glad we AT LEAST have these amendments, but they are far from perfect, and in many ways, through their lovely wording, have allowed for the many violations of the people's rights that have taken place through these 216 years. I guess it's a hell of a lot better than nothing.
I'm very glad that certain things were spelled out (enumerated), but there are some very subtle removals of certain rights included, as well as some serious outlets for future violations.
Let's look at 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.
Of course, the "Congress shall make no law" phrase is a compromise. They could have simply worded it like other amendments, saying "The right of the people to freely exercise religion, etc. shall not be infringed." The Establishment clause could have applied to the States as well. They didn't go as far as they could have.
The second amendment is pretty cut and dry.
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.That's the way they should all read.
The third amendment is one of those amendments that protects rights while allowing the state to take them away if it so choses.
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.
You don't have to quarter soldiers in your house, unless the law makes you.
We've been hearing about violations of the 4th amendment lately with the warrantless wiretapping, etc. But read it very carefully and the wording can get a little loose.
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 says that you have the right against "unreasonable" searches and seizures. Well, who decides what is unreasonable? Not the person being searched. That's for sure. Also can you tell me if this amendment requires a Warrant to be issued for a search to be conducted? I don't see it. It simply gives the conditions upon which a Warrant may be issued, but not that a Warrant is required for a search. One may or may not assume, when reading this, that a Warrant is required for a search.
The fifth is another amendment with mixed blessings.
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.
That's great that you can't be held for a capital or infamous crime without being indicted by a Grand Jury. It's also great that you can't be tried for the same crime twice or be required to testify against yourself.
The last bit is just awful though. No private property may be taken "without just compensation?" That clause just took your property rights.
The sixth amendment is another cut and dry one, unless I'm missing something really sly.
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.The only thing I see here is the assumption that a crime has actually been committed when there might not have been. The term "committed" should have read "alleged."
The seventh is a doozy in disguise.
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.
Whatever you may think of the common law system, this amendment seems to grant judges and juries the right to continue the tradition and "write law" in a largely undemocratic fashion. Common law is what gives us the "right" to be detained and questioned by police on the basis of "reasonable suspicion" instead of the "probable cause" standard listed in the 4th amendment. Common law also gives us the "right" to be forced to show ID when we are detained under "reasonable suspicion." Common law gives us the "right" to abortion. Etc etc.
The eighth is so vague that it's almost pointless. It may only serve to remind people that there are hypothetical limits to punishment.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
I guess we have to leave it up to "common law" to determine what is excessive, cruel, or unusual. Actually, since it doesn't say what or who determines these things, rogue executives and courts can pretty much get away with these things if they try hard enough.
Thank goodness for the 9th and 10th amendments?
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 for the States respectively, or to the people.
Oh, but again with the tricky wording! What, ninth amendment? What rights to we retain then? Who determines that? Do I get to decide what rights I still retain that you haven't taken from me? Oh, "common law" decides maybe?
The tenth says that unless the constitution specifically prohibits something to the States, the States can basically do what they want.
I'm sure there are many arguments to be made in favor of the Bill of Rights, and I'm glad we AT LEAST have these amendments, but they are far from perfect, and in many ways, through their lovely wording, have allowed for the many violations of the people's rights that have taken place through these 216 years. I guess it's a hell of a lot better than nothing.