Archive for June, 2015

The Atlantic Slave Trade in Two Minutes

Posted on June 29, 2015. Filed under: Slavery, What History is For | Tags: , , |

We have to interrupt our series on the Bill of Rights to share this with you. This astounding animation by Andrew Kahn and Jamelle Bouie shows all of the slave ships that left Africa for the Americas between 1546 and 1860. Larger dots are larger ships.

You see that until about 1600, almost all of the ships went to the north coast of South America and the Caribbean islands. Then Brazil becomes a destination, and that’s really how it continues right through the end: Brazil and the Caribbean like some horrible magnets drawing slave ships. Conversely, from today’s Senegal to Angola, the west African coast literally has the life  sucked out of it as dots fly and fly for centuries from its shores.

Surprisingly, through the 1600s the main and almost only destination for slave ships going to today’s United States is what is now the Washington, DC/Chesapeake Bay area. Only a fraction head directly for the Carolinas. After 1750, the already heavy traffic picks up even more, and the Atlantic is almost blotted out by slave ships. Now slave ships are heading directly to the Carolinas, and, unexpectedly, the number of slave ships heading to French Canada picks up tremendously. The American Revolution slows things down remarkably—it was Britain running the bulk of the slave trade at this point, and its focus on the war meant a big loss in profits from the slave trade. But a thin stream of ships still heads relentlessly to the sugar islands of the Caribbean. As soon as the war ends, the traffic resumes at its original density.

Then it’s 1808, and the U.S. withdrawal from the slave trade shows in the complete lack of ships heading to the Atlantic seaboard. Even the number heading to the Caribbean falls, and Brazil is left as an insatiable market for the hundreds and hundreds of ships leaving Africa.

A lull in the 1820s is followed by an upswing in the 1830s and 40s, and then the traffic trails off to a few sporadic seasons, and then we end in 1860. Nearly 16,000 ships carrying human beings to slavery have crossed the ocean. Brazil would not abolish slavery until 1888, the last of the Latin American nations to do so.

Many, many thanks to Kahn and Bouie for doing this work and putting it in a form that is instantly clear and powerful. Viewing this resource leaves you with a sick feeling, and a strong sense of never being able to make up for all those lives lost. But we can and must work every day to undo the damage of black slavery in our own countries by ending the racism that is its strongest legacy. And we can work to end the slavery of Africans and Asians that is ongoing today.

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The Fifth Amendment: not just about the right not to incriminate yourself

Posted on June 18, 2015. Filed under: Bill of Rights, U.S. Constitution | Tags: , , , |

It’s part six of our series on the Bill of Rights, and here we consider the Fifth Amendment, which reads:

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 offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Why is it we only think of “I take the Fifth?” being said in court when we think of this portmanteau amendment? The Fifth Amendment does four distinct things:

—It does indeed give people the right to refuse to say anything in court that might prove them to be guilty of a crime, or essentially make a person a witness for the attorney prosecuting her/him. However, you must explicitly say that you are invoking your Fifth Amendment right not to answer a question: you can’t just remain silent.

—It requires grand juries to be called to hear cases of felony (“Infamous crimes”), except in the case of military personnel accused of committing crimes during wartime (these are handled by military trials/tribunals).

—It gives people the right not to be tried twice for the same offense in federal court. Clearly, people are often tried and re-tried through appeals, but someone cannot appear as a defendant in the same case before the same federal court (that’s why things move up to district and circuit courts and finally to the Supreme Court). This is called the “double jeopardy clause”.

—It grants citizens due process under the law, in a preview of the Fourteenth Amendment. No one can be arrested or have their property taken away without being explicitly told which law they have broken (or that they have broken a law at all).

—It forces any state or federal authority that takes away someone’s property by right of eminent domain to reimburse the person(s) who lost their property with something of equal value (“just compensation”).

That’s a lot. Most Fifth Amendment cases have addressed the self-incrimination aspect. During the Red Scare of the early 1950s, people hauled before the House Un-American Activities Committee who refused to testify against themselves by even answering questions about whether they were communists invoked the Fifth Amendment, but were lacerated as cowards and liars for doing so. Since being a communist was not actually a crime in the U.S. legal code, many people were not allowed to invoke the Fifth because it is specifically meant to prevent people from being forced to admit criminal activity.

In the following decade, this history was revisited when the Supreme Court decided in Griffin v. California (1965) that taking the Fifth in court cannot be used to persuade a jury that the person refusing to testify is guilty.

Many cases have dealt with whether police officers used harsh interrogations, intimidation, threats, or torture and violence to force confessions out of suspects in their custody. The 1966 Miranda v. Arizona case threw out Miranda’s confession because it was forced out of him by police officers who did not tell him he had the right to remain silent. The Supreme Court said that the police are required to tell people that they have a Fifth Amendment right not to incriminate themselves—a right now usually referred to as “Miranda rights”.

Other rulings include one saying that someone can’t refuse to provide their tax records because they will incriminate them, and another that said, conversely, that someone can refuse to provide computer hard drives on that basis.

Next time: the long-abused Sixth Amendment

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The Fourth Amendment: what is a search? what is property?

Posted on June 12, 2015. Filed under: Bill of Rights, The Founders, U.S. Constitution | Tags: , , , |

We’ve reached part five in our series on the Bill of Rights. Here we look at the Fourth Amendment, which gives us the old chestnut “a man’s home is his castle”. Sort of.

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.

Readers of the HP will feel these words are familiar, and they are: the very first law of the 1641 Body of Liberties—the first codification of English law in North America—states:

No man’s life shall be taken away, no man’s honor or good name shall be stained, no man’s person shall be arrested, restrained, banished, dismembered, nor any ways punished, no man shall be deprived of his wife or children, no man’s goods or estate shall be taken away from him, nor any way indemnified under color of law or countenance of authority, unless it be by virtue or equity of some express law of the country warranting the same, established by a General Court and sufficiently published, or in the case of the defect of a law in any particular case by the word of God. And in capital cases, or in cases concerning dismembering or banishment, according to that word to be judged by the General Court.

Every tenet of the Fourth Amendment is here. This concept has a fairly long history in English law. Seizure of goods became an issue in the run-up to the American Revolution, as early as 1754, when the Excise Act of 1754 gave tax collectors expansive powers to search people’s homes and shops under the aegis of uncovering and destroying smuggled goods. The problem was how general the search warrants were—they did not specify what the tax collectors might be looking for, and thus allowed them to go through anything and everything they wanted.

As an unknown writer at Wikipedia succinctly puts it,

Fourth Amendment case law deals with three central issues: what government activities constitute “search” and “seizure”; what constitutes probably cause or these actions; [and] how violations of Fourth Amendment rights should be addressed.

The Fourth Amendment typically requires “a neutral and detached authority interposed between the police and the public,” and it is offended by “general warrants” and laws that allows searches to be conducted “indiscriminately and without regard to their connection with [a] crime under investigation”, for the “basic purpose of the Fourth Amendment, which is enforceable against the States through the Fourteenth, through its prohibition of “unreasonable” searches and seizures is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.

Nowadays, what constitutes “houses, papers, and effects”, as well as “the place to be searched, and the persons or things to be seized” is up for grabs. Are text messages “papers”? Are phone calls? How can these be seized? Can anyone’s calls or emails or tweets be somehow removed from them and taken into government custody? And if the place to be searched is the Internet, how can searches be narrowed down to be very specific? If a video goes viral and is picked up by ten thousand websites, should all 10,001 sites be shut down? If the “paper” is a phone call, is the “place to be searched” the data-minimal phone records, or wiretap recordings of the calls?

If the police stop someone because they suspect that person was texting while driving, do they have the right to ask for the person’s cell phone to see if it has a recent text on it? Some courts have said yes, others no because the contents of the cell phone are private and a search warrant is needed to read them.

Other recent cases involve drug-sniffing police dogs, including the issue of whether a person arrested for some other crime who is then found to have drugs in their possession by a police dog can be arrested and held for drug possession when that was not the original reason for the arrest. If you’re stopped for speeding, then a police dog finds drugs in your car, the police officer should only be able to arrest you for speeding since that’s why s/he stopped you—that’s the specific “warrant” for the stop. The dogs become an added, general search warrant that might turn up other problems. The courts have generally found in favor of the police in these cases.

And of course the NSA’s surveillance of all phone calls in the United States has been attacked on Fourth Amendment grounds because it is the definition of “general”. The constant monitoring of phone calls represents a constant, general search that is most likely completely unwarranted in 99% of cases. You can’t search every house in New York City because there might be a gun in one of those houses.

This amendment was so clear and simple when it was ratified; the Founders would be grateful they aren’t around now to revise it to suit 21st-century life.

Next time: the famous Fifth Amendment

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The lonely Third Amendment and its defense against quartering of troops in private homes

Posted on June 4, 2015. Filed under: Bill of Rights, Quartering Act, U.S. Constitution | Tags: , , , , |

Hello and welcome to part four of our series on the Bill of Rights. Here we shine a rare spotlight on the Third Amendment, the lonely wallflower of the Bill. Here is its unanimously undisputed text:

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.

When we read it, we are immediately taken back to the tumultuous lead-up to the Revolutionary War. After the Boston Tea Party, one of the Coercive Acts issued by Parliament stated that British soldiers were to be quartered wherever housing existed—including people’s private homes. This only really had an effect on the Boston area, because the Coercive Acts were accompanied by a surge of soldiers to enforce them. Suddenly there were many times more British soldiers in the Boston area, and there really were not enough barracks or official military housing for them. And so the Quartering Act of 1774 read thusly:

WHEREAS doubts have been entertained, whether troops can be quartered otherwise than in barracks [within] any town, township, city, district, or place, within his Majesty’s dominions in North America: And whereas it may frequently happen, from the situation of such barracks, that, if troops should be quartered therein, they would not be stationed where their presence may be necessary and required: be it therefore enacted [that] it shall and may be lawful for the persons who now are, or may be hereafter, authorized by law, in any of the provinces within his Majesty’s dominions in North America, [at the request] of the officer who, for the time being, has the command of his Majesty’s forces in North America, to cause any officers or soldiers in his Majesty’s service to be quartered and billeted in such manner as is now directed by law, where no barracks are provided by the colonies.

And be it further enacted by the authority aforesaid, That if it shall happen at any time that any officers or soldiers in his Majesty’s service shall remain within any of the said colonies without quarters, for the space of 24 hours after such quarters shall have been demanded, it shall and may be lawful for the governor of the province to order and direct such and so many uninhabited houses, out-houses, barns, or other buildings, as he shall think necessary to be taken, (making a reasonable allowance for the same), and make fit for the reception of such officers and soldiers, and to put and quarter such officers and soldiers therein, for such time as he shall think proper.

So ominous. That Quartering Act was a long way of saying “Britain now considers the people of America to be an enemy population which will not only be placed under martial law, but will be forced to give up its own property to the soldiers commanding them.” Did they really station soldiers in “out-houses”? Luckily, or unluckily, depending on your viewpoint, “out-houses” here does not mean privy pits (outdoor bathrooms) but buildings in the yard of a house (stables, smokehouses, etc.).

During the Revolutionary War, General Washington won the hearts of many of his compatriots by refusing to let his men take anything from local people when they passed through an area—no food, firewood, clothes, or any other much-needed supplies. And he never forced people to house his soldiers anywhere on their property. Thus when the American people came to enumerate the rights they felt were most important to their life and liberty, they wanted Washington’s voluntary example to become mandatory law. And so the Third Amendment was written.

It’s interesting that it does not really completely preclude quartering. It just makes quartering a legal matter. “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”—that is, the government/Army is free to ask any property owner if soldiers can stay in their houses during peacetime, but during wartime there might be a law passed allowing quartering. This would be a temporary law, one feels, but it could happen. Quartering is not ruled out, it is taken out of the realm of official whim and placed within the realm of democratic law.

There has never been a major Supreme Court case predicated on the Third Amendment. That’s because the amendment immediately takes us back to the Revolutionary era, and that’s because, aside from the War of 1812, we haven’t had a war fought in our country since the Revolution. (The Pearl Harbor attack did not involve foreign soldiers landing on our soil.) During the War of 1812, our army was too small and too much on the run to trouble anyone with quartering. And so the problem that was so fresh and real in 1789 when the Third Amendment was written has become a museum piece (so far).

There have been a handful of court cases that referenced this amendment. As recently as February 2015, the District Court in Nevada rejected an argument that police officers cannot enter people’s homes without their permission because that would be a kind of quartering by saying that the police are not soldiers. (The case was sparked by police entering a home to help a victim of domestic abuse when the owner of the home [and the accused abuser] was not there.)

One colorful attempt to invoke the Third Amendment was in United States v. Valenzuela in 1951, when the defendant stated that rent control law was “the incubator and hatchery of swarms of bureaucrats to be quartered as storm troopers upon the people in violation of Amendment III of the United States Constitution.” This plea was not heard by the Court.

Let’s all hope that the Third Amendment continues to be a moot point as we move forward in our history.

Next time: the all-too-relevant Fourth Amendment

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