The war to end all wars

One hundred and two years ago, in July of 1914, the first tendrils of the flame which would become known as The War to End All Wars were sprouting. It was not an accurate name, later it was referred to as the first World War, even before we started numbering them, because it was recognized the world was at war. About 4600 years earlier, the first recorded war, the Battle of Ur, involved the world of the time. There is little doubt there were wars before that, the desire to write was never as strong as the desire to kill.

Humans have always been at war with each other, there have been more than one hundred major conflicts since the War to End All Wars. It can be difficult to tell when one ends and another begins, the “first World War” began as a conflict between Serbia and Croatia, which continues today despite numerous “peace treaties.” The latest spark being when the cases each had against the other for genocide were dismissed in February 2015. The Prussian military analyst Carl Von Clausewitz (1780-1831), in his book On War, calls war “a continuation of politics carried on by other means;” the Serbians and Croates always seem to find those means so something should be happening over there soon. And in Syria, The Ukraine, Afghanistan, Pakistan, The Democratic Republic of Congo, Sudan, Israel, Iraq, Nigeria, Libya, and The United States of America.

Yes, I am hearing the call here in the states. Credible calls which I shall not spread less I be accused of sedition. Hatred and mistrust is at an all time high in the states, look at a political candidate, the one who you won’t vote for, and realize that person’s supporters feel the same way as you. Their candidate has been unfairly vilified, the process was rigged against them, there are multiple conspiracies against them, and the other (your) candidate is the worst being to ever cobble together 46 chromosomes.

I am quite accustomed to hearing young people talk about revolution. I refrain from laughing out loud, they are often passionate, but direct action has no safe spaces.  When our forefathers signed the Declaration of Independence, they said “we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” They understood the meaning of their words, they had lives, fortunes, and honor to pledge. The rumblings I am hearing today come from such people.

Recent events have been disturbing. Using a variety of ruses, the Bill of Rights has been under attack. In California, a law criminalizing speaking against climate change failed to pass, but the Department of Justice is considering civil actions to bypass the first amendment. The second amendment is dying the death of a thousand infringements. The third amendment, prohibiting forced quartering of soldiers, is in question in a case arguing that forcing land owners to allow government designated endangered species habitat is a violation. The fourth amendment has been all but overruled by the NSA. The fifth and sixth amendments, guaranteeing due process and listing rules of evidence and testimony, have been bypassed not only with drone strikes enforcing the death penalty against uncharged American citizens, but also in calls to use “no fly lists,” secret documents compiled without evidence, as reasons to deny second amendment rights. The seventh amendment, guaranteeing a speedy trial by jury, has not applied to the inhabitants of Guantanamo Bay or victims of countless other renditions, both within the continental United States and elsewhere. The eighth amendment, protecting against cruel and unusual punishment, was saved by a filibuster, narrowly preventing drone strikes on American soil. They are currently used on foreign soil to avoid renditions, which can cause bad public relations; better to kill than imprison. The ninth and tenth amendments have simply been ignored, as the federal government created new rights, sometimes (as in the case of Same sex marriage) overruling the voice of the people who passed contradicting laws by referendum. The president has scoffed at separation of powers with his statements of “I have a phone and a pen,” essentially saying “I can do whatever I want, nah nah nah.” The corruption revealed in the FBI and DOJ deny our intrinsic faith in the rule of law, and in any power the Constitution might still hold. Rules are meaningless without enforcement.

The calls for rebellion have many sources, the tinder already glowing. The first war encompassing the world started with a botched assassination in Sarajevo, the American revolution was sparked by a tax on a breakfast beverage.

The horns are blowing with the winds of change.

 

 

 

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Gun Rights and Wrongs

I am a strong supporter of the second amendment to the United States Constitution.

That does not mean I believe it is every American’s birthright to carry an AR-15 through the shopping mall.

Our right to bear arms has nothing to do with self protection, there are plenty of ways to fend off an armed attacker which do not endanger the lives of innocent bystanders. Our right to bear arms has nothing to do with hunting. Most gun owners would not have a clue about how to kill an animal, or what to do with a dead animal. Our right to bear arms has nothing to do with fending off foreign invaders, unlike Switzerland, although there are lessons to learn from the Swiss. Our right to bear arms is about our founding father’s distrust of government. In case of a tyrannical government the second amendment provides the ultimate “check” in our system of checks and balances. This is why I support the second amendment, and am instinctively distrustful of anyone who speaks about repealing it.

America is a big country, with cities more populated than some nations. A lunatic fringe of three percent would give us more crazy people than the population of Belarus or one hundred ten other countries. Nine and a half million crazy people can do a lot of damage, but they are a fringe, representing no mainstream group. It is no more accurate to judge the entire gun rights movement with the actions of a few crazy people (armed with big scary high powered weapons) than it is to judge scientists by the actions of Al Gore (armed with big scary high powered publicists). In addition to the lunatic fringe, there is the other fifty percent (or more) of the population that lacks the intelligence to understand the issue of gun rights. This group is spread evenly between pro gun rights and anti gun rights groups.

I saw an interview with a woman following a demonstration by the “Open Carry Texas” group. Open Carry Texas members carry long guns, usually “assault rifles,” in public. The woman said “I don’t know if the person with a gun knows how to use it.” I know. They don’t. There is no reason to carry a long gun for self defense. By applying the wrong tool to the task, you are demonstrating that you do not understand the tool and/or the task, so no, you do not know how to use the rifle. You are a danger to others. Using the incorrect interpretation of the “Stand your ground” laws that is prevalent, I would have reasonable fear that you are a danger to my life and would be entitled to use lethal measures to remove you as a threat.

Back to Switzerland. With a population of under eight million and a mandate for gun ownership, they possess 45 guns per 100 people compared with America’s 88 guns per 100 people. In Switzerland firearms training is mandatory. In America the rate of homicide by firearm is 2.97 of every 100,000 people, in Switzerland that rate is 0.77 of every 100,000 people. Now factor in that the rate of homicide by firearm is slightly higher in Switzerland (72%) than in America (60%) and you see the problem is not firearms, it is violence in general. We have forty times their population, and one hundred sixty times their homicides by firearms, while we have fewer homicides by firearms as a percentage of total homicides.

Homicide Rates in Switzerland and United States per 100,000

Homicide Rates in Switzerland and United States per 100,000

We are a violent society. Ending gun violence might cut our homicide rate in half, but I am not sure a murder victim cares how they are murdered.

Perhaps if we were to teach respect for human life, our homicide rate could drop by half without infringing on a basic constitutional right. Perhaps if we were to infringe on that right in ways other than banning weapons, ways that would remove weapons from violent or unstable people, we could reduce our homicide by firearm rate by seventy five percent. If we did both of these things, it would appear we could reduce our overall homicide rate to fall in line with the level of “Civilized” we wish to project.

Contrary to the rhetoric, the only thing that stops a bad guy with a gun is not a good guy with a gun. All it takes is a good guy (or girl). If we would arm our children with confidence and self defense tactics, they would be less likely to be victims of violence, and more likely to be able to end violence.

Or we could just argue about things we cannot change, and keep killing each other.

Death and Taxes

This is the eighth chapter of the “Know your Constitution” series. Chapters One, Two, Three, Four, Five, Six, and Seven can be viewed by clicking on each of those provided links.

We pick up with the first amendment of the twentieth century, the sixteenth to the constitution.

“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

Perfect for today, wouldn’t you say? During the War of 1812, the first public proposal for an income taxwas made by the secretary of the treasury, but it was never implemented until one hundred years later, on the eve of the first world war. We tried income tax during the civil war, first a flat tax then a graduated tax, and those expired in 1872.

The sixteenth amendment came into being thanks to an attempt to tax income illegally. In 1894, an amendment was attached to the Wilson–Gorman Tariff Act that attempted to impose a federal tax of two percent on incomes over $4,000 (equal to $109,000 today). Prior to this, federal funding was through indirect taxes apportioned among the states. In Pollock v. Farmers’ Loan & Trust Co.(1895), the U.S. Supreme Court declared certain taxes on incomes — such as those on property under the 1894 Act — to be unconstitutionally unapportioned direct taxes.

Enter Justice John Marshall Harlan, who in his dissenting opinion in Pollock wrote “it practically decides that, without an amendment of the Constitution — two-thirds of both Houses of Congress and three-fourths of the States concurring — such property and incomes can never be made to contribute to the support of the national government.” Lacking a word processor, he was unable to further emphasize this rather obvious instruction to amend the constitution.

After another fourteen years of bouncing ideas of who to tax, the sixteenth amendment passed congress in 1909., and took four years to be ratified by three fourths of the states (thirty six required at the time). Four states, Connecticut, Rhode Island, Utah, and Virginia, rejected the amendment, and two states, Florida and Pennsylvania, never even considered the amendment.

I think this was an interesting time in American social history. During the years in which the sixteenth amendment was being ratified, the seventeenth amendment, changing the election of senators from by state legislature to popular vote, was introduced and passed congress. It was ratified only months after the sixteenth amendment.

Both of these amendments remove responsibility (and some might say control)  from the state legislatures and gives that responsibility to the individual.

The seventeenth amendment reads as follows;

“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.”

State legislatures, which had been (and in some ways still are) local centers of power (and the requisite corruption that is chained to power), were no longer as directly tied to federal funding or the election of senators. Senators are supposed to represent the state and its interests, with Members of the House representing the individuals of the state. With these two amendments America took the first steps away from being a union of states and towards being a unified republic. There are positive and negative aspects to this change of direction, and as with all things, those aspects are affected by the the climate presented by society.

In 1912, there were four popular political parties, Republican, Democratic, Progressive, and Socialist represented in the presidential election, and over 239 political parties in existence. Today we recognize two popular parties, treating other points of view as “fringe elements”. With a population of eligible voters in excess of two hundred and thirty million, how can we rationalize a “digital” or “binary” choice? I believe this is the influence of technology on society. We have moved from the “analog” spectrum of multiple points of view to the digital view of “yes/no”, “good/bad”, “black/white”. Add to that basic ego-centrism and you end up with a growing Fascist movement.

We are still growing, and will hit many bumps along the road, but the all or nothing positions that are becoming increasingly popular in every aspect of society have their roots in these attempts to spread political power. The founding fathers were either prescient or lucky in designing a republic which balanced democracy between the masses and the elite, we should keep these missteps in mind as we consider further changes.

 

 

Hate in the name of love

It might have been during the “Political Correctness” phase that American society found itself losing tolerance for all things not sanctioned by the arbitrary gods of popularity. We seemed to be doing fairly well breaking away from prejudices based on stereotypes, and then bigotry made a comeback in some twisted vision of being intolerant of intolerance. We went from being proud of ourselves to being disdainful of everything outside our selves.

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There seems a race to be the first identify and denounce anyone who doesn’t share the acceptable views. It is not even an analog approach, in which acceptance is based on a percentage of shared ideas. Zero tolerance became the buzz word for the thought police, any variation means being labeled an outcast.

Who behaves like this? Insecure, shallow fools. But the very point of this article is to avoid hatred, so don’t get me wrong. I love insecure shallow fools. I’ve even been married to a few. I love dogs, I just don’t like being snarled at.

Maybe it is just too much to ask people to be better than that which they despise. Jesus tried and for his efforts was nailed to a tree.

A bill recently introduced in Tennessee, HR 1547, is titled ” The Religious Viewpoints Antidiscrimination Act”. Apparently, the fact it is from Tennessee automatically makes it racist and homophobic. An article published on “The New Civil Rights Movement” website carries the headline “Tennessee Passes Bill Allowing LGBT Students To Be Bullied In The Name Of ‘Religious Freedom’.”

Okay, there are hack writers of every stripe, and fanning the flames of prejudice is always a money making proposition. What makes this article so astounding is the link to the actual bill within the hate speech. The bill actually empowers LGBT students in their rights to free speech in the schools, but the article implies allowing any speech without prejudice is allowing bullying.

The extrapolation of the effects of the bill continues with “At a basic level, a student could merely write “God” on a chemistry test as the answer to a question asking to where water comes from.” Why yes, a student could write that today. He would be wrong. The summary of the bill states “This bill requires an LEA (Local Education Authority) to treat a student’s voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject.” which means that the expression of a viewpoint is allowed, not judged as correct, and only on otherwise permissible subjects, science (with the exception of AGW) is not about opinions. That’s just not good enough for the muckraker who wrote this, or the drooling hordes who chimed in with their learned views. “Bartdrom” commented “Congratulation to the people of Tennessee. You have now set the new standard, lowered the bar, for civility, intellect, and education of your young. Now states like Alabama, Mississippi, and Arkansas have a new low to aim for. Until then, they’ll be able to say: “Yes, we’re backward 3rd world states too, to whom education, reason, tolerance and civility are largely eschewed …but at least we aren’t Tennessee.”.” No, no prejudice or intolerance there.

I’m not suggesting that so called liberals are the only source of intolerance, there are closed minded people of every creed. It is the hypocrisy that astounds me. One friend uses the sarcastic phrase “Kill all fanatics”, and is joined with a chorus of fanatics who cannot see the sarcasm. I suppose it is to be expected, seeing yourself is a trait associated with critical thinking, not angry mobs.

So I try. I try not to treat all of Islam based the acts of the Taliban. I try not treat all LGBT people based on the acts of queer nation. I try not treat all Christians based the acts of the Westboro Baptist Church. I try not to treat all liberals based the acts of a few uneducated children. But then, I’m one of those Christian Conservative Republicans from Texas, so my opinion doesn’t count anyway.

Every belief system teaches to treat others with the respect you wish to receive. That does not mean treat others the way they treat you, it means prove you are worthy of the treatment you desire by treating others in that fashion. Don’t damage your cause by acting in the way the people you don’t like act. Or the way you think they act. Or the way you think they acted one hundred years ago. If we all tried to be better than the people we don’t agree with rather than the same as them, the world would pretty much have to be a better place.

 

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Reconstruction

This is the seventh chapter of the “Know your Constitution” series. Chapters One, Two, Three, Four, Five, and Six can be viewed by clicking on each of those provided links.

We pick up with the fourteenth amendment. When we look at countries torn by civil war, we often fail to empathize. We were there ourselves, and the effects on society are devastating. Look around you at how passionate people can be about their beliefs, and imagine if the passion increased to the point they were killing each other rather than making snarky comments. Now imagine they’ve been killing each other for four years, taking the lives of three out of ten of your neighbors. Just because someone signed a treaty doesn’t mean it all goes away.

Following the Civil War, the United States went through a period called reconstruction, literally rebuilding the union. The thirteenth amendment was the first step, abolishing slavery, six months later the fourteenth amendment was submitted for ratification. In order to abolish slavery, definitions would be required for some people. The amendment also addresses those involved in the civil war or any future insurrection. It reads as follows;

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article

The first section is one of the more litigated parts of the constitution, containing clauses establishing Citizenship, Privileges or Immunities, Due Process, and Equal Protection. These clauses form the basis for such diverse cases as Roe v Wade and Bush v Gore. When you compare it to the amendments of the Bill of Rights, there’s nothing new here other than the force of the idea of reconstruction, these rules apply to everyone.

Sections two and three address counting of people as people, apportioning representatives based on population of all people rather than all white people, and requiring representatives to have not been involved in insurrection.

Section four is rather interesting. It basically states that the expenses of the the Civil War incurred by the Union will be paid by the newly reunited states, but the expenses of the Confederacy will not, with the allowance any debts incurred by the Confederacy are invalid. The words “The validity of the public debt…shall not be questioned” took me by surprise only because it is established in the amendment. How many times have you heard people refer to some democratization of the budget, as in “I only want to pay taxes if they pay for what I want”. Forty years later in the sixteenth amendment this concept takes force.

The next amendment of the reconstruction era was submitted for ratification just six months after the fourteenth amendment was ratified. During those six months, the first presidential election since the War was held, in which twenty three electoral votes from formerly Confederate states were discarded and only eight Northern states allowed blacks to vote. The fifteenth amendment was determined necessary despite section two of the fourteenth. It reads;

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

While Northerners had assumed allowing former slaves to vote would maintain a Republican majority, they had wished to preserve restrictions denying the right to vote to foreign-born citizens, as did Representatives from the West, where Chinese Americans were banned from voting. The amendment passed with voting defined by party lines, not a single Democrat voting for the amendment.

The first known black voter after the amendment’s adoption was Thomas Mundy Peterson, who cast his ballot on March 31, 1870 in the Perth Amboy, New Jersey mayoral election. Although Blacks had been elected and appointed to local and state offices previously, following the ratification of the fifteenth amendment it would still be one hundred and twenty years before a black governor was elected, Douglas Wilder of Virginia in 1990.

When we consider the difficulties of our own reconstruction, the wounds that still haven’t healed, perhaps we can find some sympathy for nations that have civil wars continuing for centuries. We’re all growing, sometimes it takes a while to heal so growth can continue.

It took another forty years before another amendment was submitted, we’ll pick up there next time.

After the Bill of rights

This is chapter six of the “Know your Constitution” series. Chapters One, Two, Three, Four, and Five can be viewed by clicking on each of those provided links.

The Bill of rights is not the entire list of constitutional rights. It is the platform upon which we have expressed a growing recognition of the rights of the people and the limits we place on the Federal government. The first amendment added after the Bill of rights was submitted for ratification a little over two years after the ratification of the bill of rights, and ratified within a year. Of course there were only fifteen states at the time, streamlining the process we face today. Most of the next few amendments were clarifications of existing constitutional provisions.

The eleventh amendment reads:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State”.

This amendment is often used as the foundation for what we refer to as “state sovereign immunity”, essentially meaning that you cannot bring suit against the government for the repercussions of a law, in this case extending the protections to states against prosecutions from out of state. The most recent argument was Alden v. Maine in 1999, in which a state was sued for a federal violation. This isn’t something that affects the majority of people directly.

The twelfth amendment addresses presidential elections, again, not something directly affecting the average citizen. From an historical perspective, I find it more interesting to see what it corrects. With the number of states growing (now at seventeen) a number of adjustments were being made, for instance the idea of one star and one stripe on the flag for each state was abandoned. The text of this amendment is rather long, but this is where we started electing a vice president rather than the vice president being the second place winner of the presidential election.

By the time the thirteenth amendment was ratified, the country had been through some major changes. It was now 1865, there were thirty six states, but the year before there had been twenty three states, Nevada and West Virginia hadn’t been recognized as states, and the eleven Confederate states had seceded from the Union. As a response to the issue of slavery which had divided the nation, these words were added to our constitution:

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation”.

At the time, “radical Republicans” were arguing for a more expansive amendment, as you will see there are loopholes for discrimination in the thirteenth amendment. The alternative version was much more direct:

All persons are equal before the law, so that no person can hold another as a slave; and the Congress shall have power to make all laws necessary and proper to carry this declaration into effect everywhere in the United States

Republicans argued that slavery was uncivilized and that abolition was a necessary step in national progress, Democrats who opposed the amendment generally made arguments based on federalism and state’s rights. The Emancipation Proclamation was of questionable relevance, as it applied to citizens of the Confederacy and not the United States (and under the eleventh amendment was fairly obviously illegal, ignoring the sovereign status  of the Confederacy). States that initially rejected the amendment were Alabama, Kentucky, Delaware and New Jersey.

The definition of slavery continues to be argued today. The definition of “person” is still being argued. Nonetheless. The thirteenth amendment was a turning point in society. Although nations such as The Netherlands and Britain had outlawed slavery within their own borders, they remained the major traffickers of international slaves and exploited slavery in their colonies. Following the abolition of slavery in America, the world view of slavery began to change, and in 1926 the League of Nations addressed slavery, followed by a United Nations resolution in 1948.

The fourteenth and fifteenth amendments were ratified in response to the responsibilities placed on Congress by the thirteenth amendment. The fourteenth defines citizenship, contains the Privileges or Immunities Clause, the Due Process Clause, the Equal Protection Clause, and deals with post-Civil War issues, and the fifteenth prohibits the denial of the right to vote based on race, color, or previous condition of servitude (but not sex, that comes later). These amendments have applications beyond their motivations.

Due to the scope of those amendments, I will address them in the next chapter.

 

 

 

 

More from the Bill of Rights

This is chapter five of “Know your Constitution”, here are the links for chapters One, Two, Three, and Four.

We pick up with 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 re-examined in any Court of the United States, than according to the rules of the common law”

This one may seem a little mundane. It has never been “incorporated”, that is to say applied to the states, although every state complies. The twenty dollar limit has never been challenged or changed, allowing for inflation $20 in 1789 is about $526 today.

Important parts of this amendment is the establishment of jury trials in civil cases (which may be waived if both parties agree) and protection of civil findings in higher courts. It is the most straightforward and least disputed amendment.

The eighth amendment has been bandied about quite a bit.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”.

The purpose of this amendment is to limit the power of judges. While we look at “mandatory sentences” as ways to force judges to hand out harsher punishments, this amendment requires judges to follow precedent, granting reasonable bail rather than using bail as a form of imprisonment before trial, and limiting punishments to a societal norm.

This amendment is most often brought up in reference to torture. While physical torture appears to be covered by this amendment, it is only because torture is unusual. Punishments are judged based on the crime, so while some have been determined to be excessive for any crime, as in Wilkerson v. Utah, in which the Supreme Court commented that drawing and quartering, public dissection, burning alive, or disembowelment constituted cruel and unusual punishment regardless of the crime, but the reality of the amendment’s meaning is that it would be unusual to sentence someone to five years imprisonment for a parking ticket.

The Supreme Court declared executing the mentally handicapped in Atkins v. Virginia, and executing people who were under age 18 at the time the crime was committed in Roper v. Simmons,  to be violations of the Eighth Amendment, regardless of the crime. “Cruel” is applied more often to mental duress than to physical duress. “Unusual” applies to staying within precedent of historical punishments.

The ninth amendment is protection against legalese.

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

Quite simply, “Just because we didn’t mention a right doesn’t mean it doesn’t exist”. From this amendment springs all the arguments for interpretation of non enumerated rights. Notice that this is not a limitation of rights, not a “and after a certain time some of these rights no longer exist” statement. This allows for growth and expansion in the recognition of rights.

This idea is reinforced in what was at the time the final amendment, the tenth.

“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 will likely be the amendment cited in states that have legalized marijuana, in that it has been used to remove states from enforcing contradictory federal statutes, in 1998, the Court ruled that the Brady Handgun Violence Prevention Act violated the Tenth Amendment in Printz v. United States.  The act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns. Justice Antonin Scalia, writing for the majority, applied New York v. United States to show that the law violated the Tenth Amendment. Since the act “forced participation of the State’s executive in the actual administration of a federal program”, it was unconstitutional.

These are the ten amendments of the Bill of Rights. Echoing the last few amendments, they don’t cover everything nor were they intended to do so. Another seventeen amendments have been ratified, most recently in 1992.

Our constitution grows, because it is alive. It is vibrant and adaptive, and it never loses its importance.

The Bill of Rights, part three

Yes, the numbering of this series is a bit confusing. This is chapter four of “Know your Constitution”. When I finish with the Bill of Rights and move into the other amendments, I’ll try to work out the titles so they make more sense.

Chapter One, Two, and Three can be viewed through those links. I’ll start here with the fourth amendment.

Despite the current state of affairs I will do my best to remain dispassionate on this subject.

“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”

As with the other amendments, this was intended to limit the power of government, protecting the citizens against tyranny. You should see from the current administration of this amendment the importance of defending our Constitution.

This amendment has been stretched to support the “Right to Privacy”, although it only protects against governmental searches and seizures. The question we face in America today is “What constitutes a Warrant?”. Presently, a secret (unaccountable) government agency may apply to a secret (unaccountable) court for a secret warrant. How is this possible? Somehow, the Foreign Intelligence Surveillance Act (FISA) is being used to circumvent the warrant procedure for domestic surveillance. Perhaps this will be pursued as an investigation someday, well after 2016.

In the meantime, remember this is an amendment to the constitution, and as such does not apply to third parties, as held in United States v Jacobsen, so if you wonder why the government agencies involved in surveillance so often use third party contractors, wonder no more. As long as our leaders are lawyers, expect case law to be argued using every imaginable interpretation as they attempt to find loopholes in their limitations.

Seizures are not necessarily of property, so the fourth amendment also applies to seizures of people. An arrest is a seizure, and must be warranted (see “secrets” above). People being spirited away in the night is not supposed be possible in this country. Despite this administrations promises to uphold the Constitution as long as it’s convenient, this document was never intended to be convenient for tyrants.

While the fourth amendment protects what you may have said or written in the past from being seized, the fifth amendment protects the government from seizing our very person.

“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”.

These clauses are designed to limit over zealous prosecution. It begins with a way to slow down the arrest process with Grand Juries. A “secret grand jury” is a perfect example of the letter of the law being met while the spirit is being consciously averted. The double jeopardy clause prevents the government from repeatedly charging an individual with the same crime, forcing the government to have a complete case before prosecution. Were this not in place the government could use successive prosecutions to slowly build a case, and the individual would not rest, knowing that he had never been found “Not Guilty”, just “Not Guilty so far”.

The next is the clause most are familiar with, protection from being compelled to self incriminate. This is where the protection from forced confessions comes from. Each of the clauses so far in this amendment are misused by criminals, but were they not in place, the innocent would suffer from false prosecutions, and the actual criminals would still escape prosecution. We often say it is better that criminals go free than innocents be punished.

The final clause reiterates the third and fourth amendment protections with due process provisions.

The rights of the accused continue to receive protection in 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 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”

A speedy trial is largely protection against indefinite detainment. Pre-trial detention is punishment for a crime that has yet to be proven, and without limitations, well, there’s a reason we use Guantanamo Bay as a prison for those without constitutional rights.

Without a charge, there can be no preparation of a defense, so the prescriptions for a proper trial (impartial jury of peers, ability to confront accusing witnesses, assistance of counsel), are laid out here. The Fifth and sixth amendments make up the criminal rights made famous by  Miranda v. Arizona, in which a confession was made without the suspect being informed he had the right to not self incriminate. It should be noted that after Miranda‘s initial conviction was set aside by the supreme court, he was retried without benefit of the confession, and was still convicted. Eventually he was stabbed to death, and the only suspect the police had exercised his “Miranda Rights” and remained silent. No arrest was made.

In the next chapter, I should finish with the Bill of Rights, and summarize the significance of these first ten amendments to the Constitution. From there I’ll go over the subsequent amendments.

The Bill of Rights, part two

This is part three of the “Know your Constitution” series.

The previous parts, “Constitutional Rights“, and “The Bill of Rights” may be viewed by clicking those links.

I don’t expect that every amendment to require an article of its own, we’ll see how it goes.

We pick up with the second amendment, “The right to bear arms”. This amendment is short and simple.

“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”. (emphasis on comma mine)

That comma has been the centerpiece of many arguments, which is why I emphasized it. For such a short, simple statement, it has probably been argued more than any other amendment to the constitution. The simplest explanation I can give you goes back to the core of understanding why this document was written, which is limit the powers of the federal government. The Constitution itself is written defining the construction of government, maintaining a system of equal representation and allowing checks and balances to prevent any branch of government from becoming too powerful. The first amendment is yet another check allowing avenues of redress and protest. The second amendment is the ultimate balance, the availability of armed revolt.

Yep, that’s what it’s about. It has nothing to do with hunting, not even for survival. It’s about the survival of the union.

My reading, based on the way the other amendments are written within the Bill of rights, is that militias, the right to keep arms, and the right to bear arms should not be infringed. Without the comma, militias don’t enter the equation.

So what is a militia? It is an independent military force. The Militia Act of 1792 allowed the President to call upon militias to support federal troops, indicating they are independent. The second Militia Act of 1792, passed just six days later, provides for the organization of militias, and conscription of all able bodied men, age 18 to 45. Not for a couple of years, but for the period of twenty seven years, from age 18 to 45. It also provides that each man “provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder”.

Based on 25 grains of powder per round, that’s enough powder for seventy rounds, required by law to be maintained by every man. Considering a guerrilla tactic of free fire rather than controlled fire ranks, a well trained rifleman could get off four rounds a minute maximum.  So that’s enough powder to keep shooting for almost twenty minutes.

Can you imagine if someone were to arm themselves with sufficient ammunition to fire for a solid twenty minutes today? I couldn’t maintain a rate of one aimed shot a second for twenty minutes, but I could certainly use that rate to describe suppressing fire. That would be twelve hundred rounds, filling forty standard thirty round magazines. Just to put things into perspective.

When we consider the reasons firearms are banned, it is because they fit the requirements set forth by the second amendment. Hunting rifles and handguns are not what the amendment addresses. Arms suitable for military use are what are prescribed.

Moving on to 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”.

In the colonial era, the practice of billeting British troops in private homes was a widespread. One of the complaints against King George III in the Declaration of Independence was “for quartering large bodies of armed troops among us”. Keeping in mind the Constitution is designed to limit federal powers, this is one more instance in which the federal government is likened to an enemy of the people.

There have been very few third amendment arguments, most recently a man in Nevada refused to allow local police to use his home in a surveillance operation,  was subsequently arrested, and is using the third amendment as his defense. It should be interesting to see how that case goes, as local Police Officers are not quite federal “Soldiers”. In Griswold v Connecticut (1965), the third amendment was cited as protecting against government intrusion in a “Right to privacy” defense. The closest case I can find that comes close to a violation is Engblom v. Carey (1982), in which National Guardsmen, fitting the description of soldiers under the Militia act of 1792 (see above) in which a state militia member can be called to federal service, were quartered in homes. In this case, the homes were owned by the State of New York, and were compensation for prison guards. The guards went on strike and the state called in the National Guard to fill in, housing the replacements in the striking guards homes. If you’re on strike do you still receive compensation? The state won the case on a technicality (Immunity of State officials from suit from unknowing violation of the law) so the third amendment complaint is not satisfactorily addressed.

Next we’ll pick up with the fourth amendment, which fits nicely with the fifth. See you then

The Bill of Rights

This is the second part of a series of articles called “Know your constitution”. The first part may be viewed here

The Bill of Rights is the name applied to the first ten amendments to the Constitution. Created a year after the ratification of the Constitution, and ratified two years after that, the Bill of Rights, along with the remaining seventeen amendments that have been ratified, address individual citizens rights. Where the Constitution laid out the foundation upon which the government was built, the amendments provide the barriers to government actions affecting individuals. These are what we commonly refer to as our “Constitutional Rights”.

The preamble to the Bill of Rights reads 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.”

These rights are recognized by the government’s prohibitions on infringement of them. That in itself is the very first level of interpretation. The tool for interpreting what our “rights” are is the knowledge of why the infringements were prohibited, in other words, “Why isn’t the government allowed to do these things?”. The answer comes from the reasons for the amendments, the Constitution, and the revolution itself. The writers had been oppressed by a tyrannical government, had risked thier lives and fortunes to free themselves from tyranny, and were not about to create another tyrannical government.

There is no significance applied to the order of the amendments, although to me it appears that the first few were indeed listed in order of importance. The first amendment reads;

“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”

From this we get the concepts “Separation of Church and State”, “Freedom of Speech”, “Freedoms of the Press” including censorship protections, and “The right to protest (or picket)”. The essential tools of revolution are protected in the very first amendment.

Looking for a moment at the interpretations of these rights, we can see some disparities between what is written, and what is interpreted. “Congress shall make no law respecting an establishment of religion” is generally interpreted to mean there should be no state religion, no “Church of America” or official religion as in other theocracies. Followed by “or prohibiting the free exercise thereof”, is taken to mean the government can not only not establish its own church, it cannot exercise any control of churches. It cannot control what religion you choose to follow, or how you follow it (as long as you do not harm anyone or break any other laws in the practice of your religion).

This is our first “problem”. Conflicting rights. What to do when your right to practice your religion conflicts with the governments right to pass laws restricting other behavior?  A good case is Employment Division v Smith, in which an American Indian argued (and won) his position that the use of peyote was a sacrament of his religious beliefs. This opened the door for a number of frivolous cases attempting to protect otherwise illegal behavior as sacrament, which required a violation of the first portion of the amendment. Congress would have to make a law respecting the establishment of religion.

Supreme Court Justice Black observed for the majority of the Court in Everson v Board of Education, that “The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church.” It should be self-evident that the exercise of federal power to define a church is equivalent to the federal establishment of a church.

It remains a sensitive area, which is why we have a Supreme Court, to judge individual cases. For most practical purposes, the court has deferred to the Internal Revenue Service in defining religions. The Internal Revenue Code makes no distinction among religions on its face, if it is administered or applied in such a way as to make sectarian discriminations among religions, the application would violate the Establishment Clause. Consequently, the statute must be interpreted so as to avoid an unconstitutional result. Thus the IRS definitions serve as a safe starting point in determining what is and is not a religion.

The preferred direction is to err towards freedom, using the simple rule from Kindergarten “Your rights end where my nose begins”

With the second right, “Freedom of Speech”, restrictions are easier to understand. “Falsely shouting fire in a crowded theater” is a metaphor for speech or actions made for the principal purpose of creating unnecessary panic. First stated in Oliver Wendell Holmes, Jr.‘s opinion in the United States Supreme Court case Schenck v. United States in 1919, which held that the defendant’s speech in opposition to the draft during World War I was not protected free speech under the First Amendment of the United States Constitution. Slander and other defamatory remarks are obviously not protected speech.

“Freedom of the press” faces the same restrictions, libel is an infringement on the rights of the libeled. Just this week charges against Courtney Love have made the news, as we test the limits of free speech in the age of Twitter.

“The right of the people peaceably to assemble” is tested every election year. Again, note the word “peaceably”. This does not mean throwing rocks at the police. Having survived the 2002 Republican National Convention, I might argue that “peaceably” should include “bathed”, I didn’t mind when the protesters blocked traffic as much as I minded having to smell them in the subway. The Federal government is walking a fine line with HR 347, which opened (or closed) a new area in a post 9/11 world. Prohibiting access to any area protected by the Secret Service is open to vague interpretations of prohibiting protest, which will no doubt be argued before the Supreme Court in the future. The argument will remain, “was assembly prohibited, or just assembly in a particular place?”

The last section, “the right to petition the Government for a redress of grievances”, is the very function of the Supreme Court. It is our opportunity to address misinterpretation of the law by the government and abuses of power.

This is our first set of freedoms, the right to believe as we wish, to talk and write about those beliefs, to join together and discuss our beliefs, and to have an avenue of redress if any of these rights are abridged. The essential tools in fighting oppression.

The next section covers the second and third amendments.