The Ninth Amendment: (all unallocated) power to the people!

In part ten of our series on what’s in the Bill of Rights, we land on the Ninth Amendment, which is a harbinger of the Tenth and final amendment in that it is a portmanteau amendment: a short sentence packed with meaning.

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

That is, any right not listed in the previous eight Amendments of the Bill of Rights, or in the Constitution, is granted to the people. A right has to be explicitly withheld by the Constitution for it to be unlawful. You can see why this was necessary to state: all the rights citizens have can’t be listed in any document; it could get to a thousand pages and still be incomplete. The Ninth Amendment is sort of like “innocent until proven guilty”: an action is protected until it is specifically outlawed in the Constitution. It keeps the federal government from getting tyrannical and withholding rights just because they are not specifically protected in the Constitution. The main, big, fundamental rights are all in there; the many smaller rights are not, but they are indeed our rights until legislation and/or judicial decision makes them unconstitutional.

This puts a burden on the courts, of course, to decide cases where it’s not certain whether something should be made unconstitutional. But that’s how our system is supposed to work, through trial and error and case-by-case precedent and reinterpretation of precedent. Usually the Ninth Amendment is called into play to expand an existing Amendment right: for example, 1973’s Roe v Wade decision said that the right to choose to have an abortion is protected under the right to privacy: “the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

When it’s not assisting interpretation of other amendments, the Ninth Amendment is sometimes called into fundamental question. Harvard law professor Laurence Tribe has stated that “The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.”

That seems to be logical, but then again, a) it’s  important to know how to read the Constitution, and b), it’s even more important to remember that a democracy must assume that rights outnumber prohibitions. If citizens have to prove they are not breaking the law at every turn, if they are “guilty until proven innocent”, the power of the law is not with them. This idea will be reinforced by our next, and final, amendment.

Next time: the end of the road

The Eighth Amendment: no tolerating cruel and unusual punishment

Hello and welcome to the ninth installment of our series on what’s in the Bill of Rights. Here we investigate the short and mighty Eighth Amendment:

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

That’s it! But what a portmanteau of rights is found in this short sentence. We’ve already covered the intrinsic injustice of having to post bail in our post on the Sixth Amendment; here the American people demand that bail set not be “excessive”. They realized, of course, that posting bail is a way to let people with money await trial at home while people without money await trial in jail—they are imprisoned without having been convicted of a crime simply because they don’t have the money to post bail.

Seeing that courts could begin to demand ever-higher bail simply to bring in extra money to the city, state, or federal government, or to keep people they disliked in jail before trial, Americans say here in the Eighth that “excessive” bail cannot be levied, but that word has proven dangerously flexible. We don’t tend to mind it when someone accused of an inhuman crime—child assault, mass murder—is given $5 million bail just to keep them in prison. But we tend not to know that for many people accused of crimes, even $500 is “excessive” bail they can never pay. They are out of the public eye and they fall through the cracks. Until we put a dollar amount on “excessive”, this part of the Eighth won’t ever be enforced.

The question of excessive fines, on the other hand, is constantly in the public eye. We think immediately of someone who has a minor accident and asks for $20 million for their “mental anguish”. In 2007 a man whose pants were lost by a dry cleaner sued them for $65 million; cases like these come to mind. But it doesn’t have to be that extreme. In 1909, the Supreme Court defined “excessive fines” as “so grossly excessive as to amount to a deprivation of property without due process of law’. If you are fined so harshly that you lose everything you own, the fine was likely excessive.

The final clause is deeply embedded in our national culture: cruel and unusual punishment. This phrase was borrowed by the Founders from 1689 English Bill of Rights—in fact, the whole Eighth Amendment is a cut-and-paste of the end of sentence in the EBR: “…that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The prohibition against cruel and unusual punishment was written into the UN Universal Declaration of Human Rights in 1948, and the 1984 UN Convention against Torture also prohibits cruel and unusual punishment, and shorthands this as torture.

So we see that this is clearly an idea that gained traction in the modern world and is almost universally recognized as just and expressive of a basic or natural human right. Sadly, few nations have upheld this ban on torture, including the U.S.

It’s not just about what the government or the army does—our Bill of Rights is meant to be upheld and practiced by all of us. If American citizens asked for these rights, we must want to enforce them, right? We want them because we want them to be put in practice in our small towns, big cities, etc.—wherever we live. But Americans, official, military, and civilian, have practiced cruel and unusual punishment on their black peers and fellow Americans. Immigrants have been treated this way. Gay Americans, people in police custody, and people in jail have been subject to cruel and unusual punishment. The mentally ill, orphans, and young people in state custody have all been subjected to it. Whether it’s physical torture, terrorism, beatings, or psychological torture, all are outlawed by our Constitution, and so it’s not just illegal but un-American to allow or commit any of them, against anyone.

We do well to go back to that short sentence that is the Eighth Amendment and remember that we can’t complain about “the government” failing to uphold its tenets: we the people asked for these rights, so we the people must be the first to defend them, not just for ourselves but for all Americans, and, if we want to truly lead the world, all people we deal with.

Next time: everything else

The Seventh Amendment: keeping federal justice democratic

Hello and welcome to part 8 in our series on what’s in the Bill of Rights. Today we look at the Seventh Amendment. It’s short and to the point:

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.

There are two rights expressed here: first, the right to a jury trial in civil cases tried in federal courts; second, the right not to have the facts of a case as determined by a jury overturned.

The first right guarantees that people facing civil trial in federal court will not get different treatment than people in state or local courts. If trial by jury is the gold standard, then every civilian court in the U.S. should offer it. This was meant to prevent the federal government from allowing one person (the judge) or a cabal of high officials to use their personal discretion to decide cases. It was also meant to keep federal courts public: they could not become places where no one knew what happened and no one got to witness the proceedings.

The second right is trickier, and some analyses of the amendment just skip it. It says that the facts of a case cannot be retried. That means that while a jury’s verdict may be overturned by an appeal and a new trial, the facts of the case cannot be retried. If a jury establishes certain facts, a new trial cannot ask that those facts be thrown into question again—unless the lawyers can prove that there was misconduct in the original trial, such as evidence being destroyed or suppressed, or witnesses committing perjury. Then a mistrial is called, new evidence can be introduced, and the facts re-examined.

Oddly, the Seventh Amendment has never been applied to the states. It addresses only federal court cases. But all the states have always voluntarily upheld it, providing jury trials for all civil cases.

Next time: the shortest amendment

The Sixth Amendment lost; or, there are no speedy trials and posting bail is un-American

Hello and welcome back to our series on the amendments in the Bill of Rights. We’re over halfway there as we turn to the Sixth Amendment. The name isn’t immediately familiar, like the First Amendment or the Fifth Amendment, but its content is:

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.

Yes, the right to a speedy trial. As justice delayed is justice denied, one of the key rights Americans in the 1780s wanted specifically protected in the Constitution was the right to a speedy trial. This was no doubt influenced by the Coercive Acts Britain enforced on the Thirteen Colonies after the Boston Tea Party, one of which was the Administration of Justice Act that said any royally appointed official in the colonies who was accused of a crime would be sent to England for trial if other royal officials decided he could not get a fair trial in Massachusetts. This not only meant that the accused official would likely be acquitted, but that American witnesses for the prosecution had to sail to England to give their testimony. It was not only expensive but time-consuming—it was a two-month journey from America to England. The Act said those witnesses would be repaid for the expense of the ocean voyage, but not for lost income while they were in England for 6, 12, or 18 months. George Washington referred to this Act as the “murder act” because it potentially allowed British officials to get away with murder in America by allowing them to be tried in England.

There’s nothing speedy about waiting two months to get all the participants in a trial to the court, then waiting your turn for your trial to be heard, then spending two months sailing back. And what if you wanted to appeal the ruling? Even more time.

So this Amendment to our Constitution addresses that problem in two ways: by saying trial must be speedy, and by saying the accused must have an impartial and local jury. The Sixth also says people must be told what crime they are charged with, be allowed to face the people testifying against them, be allowed to call witnesses in their own defense, and be allowed a lawyer.

These are all massive leaps forward in legal justice that derive from Puritan Massachusetts legal precedent but were not in practice in all Thirteen colonies by the 1700s. The Sixth is a very important amendment, so it’s odd that it is so unknown to most people.

It’s unfortunate that the Sixth Amendment is regularly violated by our own legal system in two ways: first, trial is not speedy; second, we make people post bail.

The average time between sentencing and trial in this country today varies by the crime someone is accused of, but it’s never short. Someone accused of a non-fatal car accident (damaging property) can generally count on 2-2 1/2 years between filing and resolution. If it’s a criminal case, it’s much longer. According to The New York World site, “a backlog in the Bronx that leaves accused felons waiting in jail for as long as five years before their case is heard. The average time to resolve a trial in that borough has increased dramatically, from 733 days in 2008 to 988 last year.”

The problem here is that justice is being delayed, which already means it’s being denied, but it gets even worse: where does someone accused of a criminal act wait those five years? As the NYW site says, they wait in jail. We don’t think twice about this because we’ve been doing it so long. But why on Earth should someone be imprisoned before they are found guilty of a crime? Jail is for convicted criminals, not people awaiting trial.

It’s a holdover from our past, the early 1800s, when the wait for a trial was a few days at most and the authorities wanted to make sure the accused showed up for trial and didn’t skip town. It seemed reasonable to have them wait in jail those few days. As the wait got longer, we came up with a horrible solution: posting bail.

As we point out in our post Posting bail is un-American,

This seems like a very small thing. If you’re arrested, you can post bail to stay out of jail until your trial. That seems fair.

But it’s not fair, because it gives those who have money an advantage over those who don’t. If you’re rich you can post bail; if you’re poor, you can’t. So poor people go to jail, while others don’t.

And if you are accused of a horrendous crime, like murder or child sexual assault, you have to post a much larger bail, maybe tens or even hundreds of thousands of dollars. This only guarantees that wealthy people will not be imprisoned while awaiting trial no matter what they are accused of.

Why should anyone have to pay to stay out of jail when they haven’t been convicted of a crime? The only reason this terrible system remains in place is that bail money helps fund state governments. If we got rid of bail, we’d have to pay to hire people to monitor people awaiting trial to make sure they don’t try to run away, and it seems that no state is willing to spend money to uphold justice in this case.

On the radio just this morning, we heard a story that New York City is considering ending cash bail for low-level crimes. People accused of very minor crimes—accused, not convicted—are sent to the pit of hell that is the Rikers Island prison to await trial. And await, and await: thousands of people are awaiting their trial at Rikers because they are too poor to post bail. One man was accused of stealing a backpack and was expected to pay $3,000 to post bail. He could not, and spent three years in Rikers awaiting trial, where he was routinely beaten by inmates. The charges against him were finally dropped, and he was released: this means he went to jail for not committing a crime. He killed himself shortly after being released.

Putting innocent people in jail for years is wrong; putting people whose innocence or guilt has not been established is wrong. Both violate the Constitution. So it’s amazing that we do it with almost zero public outcry. There are groups working to end the bail system that you can join if you would like to turn that around and uphold the Constitution and the Sixth Amendment right your forefounders demanded.

Next time: the right to trial by jury

Pro-Confederate is anti-American

No need to do much more than to point you to James Loewen’s frank article: Why do people believe myths about the Confederacy?

But we will go ahead and also point you to our own posts on this topic: Amazing Fact: The Civil War was fought over slavery, What made the north and south different before the Civil War?, and Slavery leads to secession, secession leads to war.

The Confederate States of America were founded with the sole purpose of perpetuating black slavery. There is nothing heroic in that. The men who created the Confederacy did not care about states’ rights—they had repeatedly demanded that states’ rights be trampled by forcing northern states that had abolished slavery to enforce the Fugitive Slave Act, by going into territories and voting that they enter the Union as slave states even though they were not residents of that territory, by terrorizing residents who wanted to vote anti-slavery, and by taking enslaved people into free states and forcing the free state residents to endure that slavery.

Soldiers of the Confederacy were not heroes. The old argument that most of them were poor and were not slaveholders is meaningless: they fought to protect their land and their governments, which meant protecting the slave system and the slave aristocracy that governed their land. If they won the war, those poor, non-slaveholding soldiers would have allowed slavery to keep going. They knew that. You can’t cherry-pick motives and focus on the heartwarming “they fought to keep their families safe” motive and ignore the chilling “the soldiers didn’t care if black Americans were enslaved as long as they kept their land” motive.

Secession was not allowed in the Constitution. There is no place in it that makes secession legal. So founding the Confederacy was the most anti-American action in our history.

It’s high time we became as tough on Confederacy worship as the Confederates were on America, democracy, and states’ rights.

Gay marriage, religious freedom, and the First Amendment

Recent events force us to stop in the middle of our series on what’s in the Bill of Rights to circle back to our post on the First Amendment-–the celebrity amendment. The Supreme Court’s ruling in favor of marriage equality has led to a firestorm of protest from people who say our First Amendment right to religious freedom is being tramped. They are wrong.

Let’s revisit the text of the amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The “free exercise” of religion means freedom to worship. That’s it. Our First Amendment religious right is to worship as we see fit. Since Congress will not “establish” a religion—i.e., make it the official state religion—everyone is free to worship as they wish.

Worship is generally defined as attending a religious service, but it can be extended to prayer, pilgrimage, wearing one’s hair a certain way, and dressing and eating a certain way.

What worship is not defined as is belief. This is the crucial misunderstanding so many Americans have. Worship is an outward manifestation of belief. But it is not belief itself. And that’s why the First Amendment says nothing about religious belief. Absolutely nothing at all. This is what makes separation of church and state possible: religious belief is not allowed to determine what services the state provides. This means people who have certain religious beliefs can’t be refused state services, and it means that people who have certain religious beliefs can’t refuse to provide state services to people their beliefs condemn.

That’s why all these “religious freedom” bills being passed are bogus. They enshrine beliefs as rights (this is nowhere in the Constitution) and then say the First Amendment protects those beliefs by allowing people to refuse to serve others because their religion says to. Beliefs are amorphous. They are not concrete activities like worship. Anyone can have any belief they want, and their right to express those beliefs is protected. But if that expression comes in the form of refusing state or federal government services, then they cross a line by saying the state or federal government must conform to their beliefs.

This is what’s happening when county clerks refuse to issue marriage licenses to gay couples. The clerks are saying their right to do so is protected, but it is not. If something is legal in this country, the government must provide it—end of story. If people feel they cannot do that, then they should resign their position (quit their job). You cannot refuse to uphold U.S. law on the basis of your religious beliefs. The First Amendment specifically says this by saying Congress shall establish no religion.

On NPR this morning, Tammy Fitzgerald, Executive Director of the North Carolina Values Coalition, said this:

Religious freedom is what our country was founded upon. That is why the Pilgrims came to America, because they were being persecuted in Europe for their religious beliefs.

Of course she is wrong on both counts. The Pilgrims, as faithful and patient HR readers know, came to America because they wanted the freedom to practice their own religion. This is not the same as freedom of religion. They did not allow any other religion than their own in Plimoth. The Puritans, which is who Ms. Fitzgerald probably was thinking of, did not allow freedom of religion either. Those two groups wanted to establish states where their religion was the sole state religion, and they did not tolerate any other religions. The same was the case in Virginia (strictly Anglican).

The Declaration of Independence does not mention religion one time. The Constitution did not mention it until the First Amendment was added. So it’s hard to say that our country was “founded” on religious freedom.

And, as we know, when the Founders wrote the First Amendment, they protected freedom of worship only, which, as we’ve made clear, is not the same thing as saying “your religious views are allowed to overturn federal law and you can do whatever you want if it’s part of your religion.”

Insisting that states pass laws protecting the right to do whatever people want so long as they say it’s part of their religion is a way to establish a state religion: it makes public access to government services dependent on the religious beliefs of government employees. That is NOT in the First Amendment, and Americans who know this must dedicate themselves to teaching those who don’t.