The United States Constitution

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The foundation of our Republic and its democratic system of government is rooted in the principles of the U.S. Constitution and the Bill of Rights. Without them, we are NOT a democracy, and the possibility of becoming a fascist, communist, despotic, or tyrannical form of government is massively increased. The Rule of Law is the basis of freedom, because it sets boundaries on what freedoms and rights the government can infringe on or interfere with - and the Rule of Law for the United States resides in the Bill of Rights and our Constitution. In other words, you NEED to know about it and understand it - below is a brief, important piece on the origins, history, and relevance of the Bill of Rights.

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 people peaceably to assemble, and to petition the Government for a redress of grievances.

Freedom of Religion: In the history of England, the reign of Henry VIII replaced the Catholic Church with the Anglican Church as the state religion. Many Englishmen did not accept this change. Kings persecuted individuals and groups. In the 1600s, the Puritans and Pilgrims, as well as Catholics, migrated to America for religious freedom. The English unwritten Constitution added the Toleration Act of 1689, following the Glorious Revolution. Prior to this, Roger Williams of Rhode Island suggested the separation of church and state and, in 1649, Catholics in Maryland guaranteed their right to worship freely by passing the Maryland Toleration Act. This Law required that a person believe in Jesus Christ, but guaranteed religious toleration of those did. Finally, the variety of immigrants to America led to the establishment of many religions. No one religion was adopted as the state religion.

Freedom of Speech:As early as 1689, the nobles of England rebelled against King James II. They passed the English Bill of Rights which guaranteed free speech in Parliament. Prior to this, a member of Parliament could be persecuted by the king for criticizing his reign. In the American British colonies, during this period following the French and Indian War and prior to the Declaration of Independence, 1763-1776, colonists criticized imperial taxation, land and military policies. Royal governors, especially in Massachusetts, ordered the arrest of people who undermined British rule. Because change could not come about without free and open debate, colonists came to embrace the freedom of speech as a natural right and guaranteed it under the US Constitution's Biil of Rights(1791).

Freedom of the Press:In New York, in 1735, the John Peter Zenger trial took place. Zenger was a printer who allowed criticism of the Governor, John Crosby, to be printed in the newspaper. Cosby tried to suppress the information and prosecute Zeger for libel. The courts ruled in favor of Zenger since his lawyer could prove the statements that were printed were true. At that time of the American Revolution, newspapers were a main source of information for citizens. Americans wanted all points of view represented and communicated in order for democracy to function.

Freedom to Peaceably Assemble:When the conflict developed between the colonists and the British, the British knew that the colonists developed resistance plans in their churches, governmental assemblies, and taverns. The British government dissolved the assemblies of New York for their refusal to support the billeting of soldiers in colonists' properties (Quartering Act) and in Massachusetts, Georgia and South Carolina for endorsing the Circular Letter, a protest to the Townshend Taxes, the Writs of Assistance and the Quartering Acts in mid 1760s. The British also used colonists meetings in churches to try to arrest resistors. Colonial protests in the streets were used to register dissatisfaction with British policies.
Freedom to Petition the Government for Redress of Grievances:Colonists repeatedly attempted to petition the King and the Parliament to achieve relief from several illegal policies: maintenance of a standing army in peacetime, taxation without representation, the holding of trials outside of the jurisdiction where offences occurred, suspension of colonial assemblies, and the writs of assistance, to name a few. The British government generally rejected colonial petitions and the positions the colonists held.

THE SECOND AMENDMENT:

The Right to Bear Arms: 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. Colonists in America needed weapons to defend their homes and to hunt for food. Men had guns. Each colony had a citizens’ army called militias. These were called to service when the community was threatened. The colonies each kept their own magazines of weapons as well. When the colonial resistance developed in the 1760s, the citizens who opposed British policies organized militias to resist. In 1775, the British sent out patrols from Boston to Lexington and Concord, Massachusetts to seize colonial munitions. Two skirmishes occurred causing the British to return to Boston, unsuccessful. The colonists of Boston were placed under military rule as a result. The King later used Hessians as mercenary soldiers to quell the rebellion. Americans preferred their security guaranteed by a militia to a standing army, partially populated by foreign troops, in peacetime.

THE THIRD AMENDMENT:

Quartering of Soldiers: 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.

The fundamental expectation of all subjects of the British monarchy was based on the English Bill of Rights. In the Bill of Rights, subjects were guaranteed that there would be no standing army in peacetime. This was done because of the expense of maintaining an army and the threat to liberty that a standing military poses. In America, each British colony had a militia, or a citizens army, that was called out by the governor for emergency situation. Following the French and Indian War, the British government had acquired all lands east of the Mississippi River, except New Orleans. This included Canada, which was full of French people. The American empire now cost 5 times as much to administer. Under the economic system, Mercantilism, the mother country, Great Britain, was responsible for defending her colonies. But the huge war debt and the additional cost of defending the American colonies caused the British to impose a new tax system, which was resisted by the colonists, as they had no representatives in the British Parliament.

One way to cut costs was to make the colonies contribute to defense costs. A series of laws, known as the Quartering Acts, were passed in the 1760s and 1770s. In the first Quartering Act (1765), colonial governments were required to provide barracks for soldiers and to pay for it. Most soldiers were kept in coastal cities as it was easiest to supply them there. As the resistance to British taxation laws became more violent, the British government sent more troops to keep order in America. In 1766, a new Quartering Act was imposed, requiring all alehouses, inns, and vacant homes be used to house soldiers. This deprived owners of acquiring income from rentals. In 1768, troop strength was increased. Boston hosted 4000 soldiers for a population of 16,000, all of them there to ride herd on resistant colonists. In 1774, following the Boston Tea Party, a new Quartering Act required that citizens house soldiers in their homes. If one was a rebel, this was highly dangerous to have the enemy within your own dwelling.

FOURTH AMENDMENT: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

During the colonial period of American History, the British government had been too busy to enforce a number of trade laws, the Navigation Acts. These laws established the role of the mother country and each colony in the economic system. Smuggling became an established activity for ship owners due to the shortages of certain goods and markets within the British colonial system. When the French and Indian War ended, the empire was determined to end smuggling. In order to catch smugglers, the British Crown authorized the use of the writs of assistance. These were general search warrants which allowed customs officials to search and seize good from any citizen without a warrant. Anytime, anywhere, anyone, no exceptions. In addition to the repugnant experience of being accused of smuggling, searched and one’s goods seized, the sale of the seized goods were auctioned off and the proceeds went to pay the salaries of the customs officials. This created a serious conflict of interest. Those opposed to taxation without representation in the colonies saw this as a form of oppression, both politically and personally. British officials tended to treat colonists as inferiors and used their power to irritate their adversaries.

Under the Fourth Amendment, the United States citizens are supposed to be protected from frivolous searches and seizures. The officials wanting to search must provide probable cause, acquire a search warrant from a judge which specifies the exact location and the exact items to be searched and seized. Increasingly, the US government has undermined this right with the drug seizure laws and the USA Patriot Act. Even conservatives are concerned with the “sneak and peek” provision of that law. It is a clear violation of the Fourth Amendment.

THE FIFTH AMENDMENT: 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.

The jury system in English History dates back to the reign of Henry II. In the first juries, the accuser came forward to offer evidence against the accused. This jury did not decide guilt, just the merit of the accusation. This evolved into the grand jury. Grand juries today issue indictments if enough evidence is present under the law to bring a person to trial. 100 years later, the petit jury evolved. This is the trial jury which hears the evidence and decides guilt or innocence of the accused. Under English law, no person could be imprisoned without a jury trial. Military personnel undergo military justice, which usually is a trial by military judges who hear the case. Under Ex Parte Milligan (1866), the Supreme Court of the US decided that a civilian could not be tried in a military court, even in time of war.

Double Jeopardy refers to two things. Once a citizen has been subjected to a jury trial, found innocent and released, he/she cannot be tried again for the same crime even if new and damning evidence comes up. This also applies to a convicted person. If a murderer has been sentenced to life in prison and then the legislature increases the penalty to death for murder, that person’s sentence may not be increased. This stems from the arbitrary persecution of political enemies of the King.

Americans learned the concept of “A person is innocent until proven guilty” from the English system of law. As high-minded a concept as this is, it is not always honored. The jury system’s establishment included this idea, so as to protect a person’s “God-given rights”. The right to not incriminate oneself is fundamental. However, under this amendment, if a person answers one question, he/she must answer all the questions asked in a trial or a hearing.

English Kings were often arbitrary. Forced loans, in addition to seizure of property and even death for not professing loyalty to the King, led Enlightenment philosophers to develop the concept of natural rights, given by God, that no authority to take away. Many harsh Kings were overthrown in the 1600s in England. The Glorious Revolution in 1688, overthrowing the evil King James II, led to the English Bill of Rights and the Toleration Act of 1689. Citizens wanted their rights protected in a code of law. These written documents became part of the unwritten English Constitution. The Americans’ experience with British violation of their rights under that constitution, as well as rule by military forces in the colonies, led to this provision. Due process of law refers to proceedings in the judicial system. No arbitrary government power is the basic idea here.

The final clause refers to eminent domain. The government may not take your property for a public use, such as a right of way for a new highway, without paying your fair market value for that property.

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 defense.

Again, due to the arbitrary nature of English Kings, the rights of the accused evolved to protect his natural rights. In the colonies, several instances of violations of these rights occurred. One incident, the colonial attack and destruction of the British customs schooner, the Gaspee (1772), changed these rules in the American colonies. The colonists had burned the ship after it had run aground in Narragansett Bay, mainly because the captain had seized legal cargoes and had harassed local fishermen. The Crown declared that the culprits, if caught, would be tried in Great Britain. How would the colonists get witnesses in their defense to travel to Britain and spend months in their defense? Following the Boston Tea Party (1773), the Crown imposed the Coercive Acts. In the Administration of Justice Act, all trials of royal officials would be transferred out of New England, if a capital offense was committed in the enforcement of the law. This usually applied to collecting revenue or putting down a riot. Travel then was treacherous. How could a witness against an official travel to another place to testify? It would take months.

Today, judicial districts have been created by law. Only in the case of prejudicial press coverage of a crime and the accused will a change of venue be granted by a judge. Otherwise, the trial must take place where the accused and the accusers can gather witnesses for the defense and prosecution. Indictments by a grand jury provided the nature and cause of the accusation. In a petit jury trial, the accused is confronted with the witnesses against him and the defense counsel may build a case that undermines their testimony. Under Miranda v. Arizona (1966), the US Supreme Court has verified the right of the accused access to a lawyer to build a defense, as well as the right to remain silent, so as not to accidentally undermine his/her own defense.

THE SEVENTH AMENDMENT: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Common law is the fundamental basis of the English system of civil rights. Common law began around the time of Henry II. He wanted to make law and its application more uniform across the country. He wanted penalties to be similar as well. Common law is a body of law based on custom and court decisions. One often hears about a precedent set in a court trial, such as in the case Brown V. Board of Education, (1954) which struck down segregation in public schools. Common law reflected what the society held as its values and how those values were codified in law and applied to citizens.

In the case of the seventh amendment, the framers of the Bill of Rights wanted the same system of justice to apply to civil cases and not just criminal cases. To be sure a person’s property rights were not violated, this amendment was included.

THE EIGHTH AMENDMENT: Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.

The English Bill of Rights guaranteed no excessive bail. Without the right to bail, a person could rot in jail forever. He/she could not organize a defense against the accusation against him/her. Arbitrary kings imprisoned people without any due process. The rebellious English imposed this right on their kings.

Excessive fines were seen as an illegal deprivation of property and as a form of political prosecution.

Cruel and unusual punishments were rampant in the Middle Ages. Fingernails were pulled out, heads were chopped off, people were pulled limb from limb by horses, and many were drawn and quartered. This clause has been the basis for the arguments against the death penalty. Hangings, gas chamber, electric chairs are going by the wayside in capital punishment. Lethal injection is still controversial for its painful muscle-paralyzing drug, the first one administered in an execution. But other prisoner rights have developed from this clause. Each prisoner has the right to food, shelter, and clothing and to be safe within his prison environment.

THE NINTH AMENDMENT: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage other retained by the people.

Knowing the abuses suffered by American colonists under British Rule in the 1760s and 1770s, the framers of the Bill of Rights wanted to reiterate that the people have natural rights that no government can take away. This made it possible to legislate to protect other rights later, such as the right to an equal education, the right to a divorce, the right to travel freely.

THE TENTH AMENDMENT: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This is the most important amendment in the definition of federal v. states’ powers. Since the early 1900s, the federal government has assumed much power that the states have let go. Much of this power has to do with regulation of the economy by the federal government, education, and the funding of government programs. One example was the denial of federal funding to states by the Reagan administration (1981-89) for highway construction unless the state reduced the speed limit to 55 mph. This amendment is the most important one in the Constitution for allowing the people of the states to decide their own lifestyle, their allocation of resources, the way they educate their populations, provide medical care, and regulate the environment. This provides a clear path to creating the living conditions that each population would like. The way to start asserting this power is to encourage state leaders to resist unfunded federal mandates. An example would be to not enforce the “No Child Left Behind” Act and its incessant testing of pupils unless the federal government provides the funds to carry it out.

The Bill of Rights is so precious. One big concern is the preservation of these rights in light of the War on Terrorism. Fortunately, we have a judicial system in which we may challenge the limitations of these rights. The Supreme Court, being the court of last resort, will be the arbiter of this. However, the Constitution holds one last resort for the people. That is the ability to impeach and remove justices that do not faithfully uphold the letter and the spirit of the Constitution. Perhaps that option should be considered as our Supreme Court upholds the destruction of our rights in favor of the fascist tendencies of the corporate dominated politicos.

Knowledge is the best defense. Know your Bill of Rights, use it and teach others about it.