Bill of Rights

President Obama’s Farewell Speech continues, despite the best efforts of the Trump Administration

Posted on January 20, 2017. Filed under: Bill of Rights, Civil Rights, U.S. Constitution, What History is For | Tags: , , , , , |

So now we continue with our close reading of the Obama farewell speech, despite the Trump Administration removing the transcript from its location at whitehouse.gov/farewell. Along with pages on LGBT rights, climate change, health care, and civil rights.

Our transcript source is now The New York Times, for as long as it is allowed to post it.

We left off in part 1 with President Obama talking about his time as a grassroots political organizer in Chicago:

Now this is where I learned that change only happens when ordinary people get involved, and they get engaged, and they come together to demand it.

After eight years as your president, I still believe that. And it’s not just my belief. It’s the beating heart of our American idea — our bold experiment in self-government.

—Those last two sentences are so critically important: we must participate in our democracy in order to uphold it. It doesn’t matter what kind of change you want. You have to act for it, and support others who take action.

That action should be informed by nothing other than our founding principles:

of due process before the law…

of equality of opportunity…

of no discrimination based on race, creed, or sex…

…of liberty and justice for all. Any change, any movement, any one that does not support these things is un-American. So erasing gay people and non-white people is not supporting our democracy. It is un-American.

It’s the conviction that we are all created equal, endowed by our creator with certain unalienable rights, among them life, liberty, and the pursuit of happiness.

It’s the insistence that these rights, while self-evident, have never been self-executing; that We, the People, through the instrument of our democracy, can form a more perfect union.

What a radical idea, the great gift that our Founders gave to us. The freedom to chase our individual dreams through our sweat, and toil, and imagination — and the imperative to strive together as well, to achieve a common good, a greater good.

—These founding principles are indeed a gift and an imperative. We have to work to maintain them—they are not self-perxetuating. We will have them for as long as we want them. When Americans top wanting everyone in this country to be treated as equal, our democracy will end.

For 240 years, our nation’s call to citizenship has given work and purpose to each new generation. It’s what led patriots to choose republic over tyranny, pioneers to trek west, slaves to brave that makeshift railroad to freedom.

It’s what pulled immigrants and refugees across oceans and the Rio Grande. It’s what pushed women to reach for the ballot. It’s what powered workers to organize. It’s why GIs gave their lives at Omaha Beach and Iwo Jima; Iraq and Afghanistan — and why men and women from Selma to Stonewall were prepared to give theirs as well.

—All of those examples in the second paragraph are concrete manifestations of “liberty and justice for all.” All of the people mentioned are true Americans.

So that’s what we mean when we say America is exceptional. Not that our nation has been flawless from the start, but that we have shown the capacity to change, and make life better for those who follow.

—It would seem the president had been reading our blog! Especially our About page.

When we face people saying they want to make America great again, we must ask them what they mean by that. Whose lives will be made better? What should be changed? What exactly isn’t great? How can we solve problems by expanding civil rights rather than curtailing them?

We’ll leave off here for now. Next time, the ridiculous red herring of “the peaceful transfer of power.”

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“Money talks and BS walks”—corporate reaction to “religious freedom” bills in Georgia and North Carolina

Posted on March 30, 2016. Filed under: Bill of Rights, Civil Rights, Politics | Tags: , , , , , , , |

Fans of This is Spinal Tap will recognize that immortal line, spoken by Bobbi Flekman, AR tour de force for Polymer Records. When the band find their album is being banned “by both Sears and K-Mart stores” because of its sexist cover art, Bobbi overrides the band manager’s protests and justifications to say “money talks, and b*** walks”. It became an instant mantra in many industries. (See the clip here.)

And it’s proving true in the real world as well: corporations in Georgia and Atlanta have responded forcefully to the anti-American “bathroom bills” and “religious freedom” laws those states have passed or are about to vote on. In North Carolina, PayPal, Bank of America, and Dow Chemical, all headquartered in the state, have denounced the state-wide law requiring people to use the bathroom earmarked for their biological or “birth sex” (not a real term) that was conjured up to overturn a Charlotte, NC law that banned discrimination against LGBT citizens. The NBA has threatened to move the All-Star game from Charlotte.

In Georgia, HB 757, protects “religious liberty” by allowing anyone calling themselves religious to deny service in a public business to LGBT people. Disney and Unilever now threaten to pull business from the state, and the NFL says Atlanta will not host the Super Bowl if the bill is passed. Through the group Georgia Prospers, Coca-Cola, Home Depot, UPS, Delta Airlines, and Marriott Hotels have all said they will reconsider investment in Georgia or move their operations if the bill passes.

You may recall that in 2014 the NFL successfully threatened to move the Super Bowl from Arizona if its governor signed a pro-discrimination “freedom” bill, and that pressure led Gov. Brewer to decline signing the bill.

In one way this is heartening: it’s good to see corporations, which usually bend most of their efforts to breaking the law and violating the Constitution, united behind the cause of justice.

But in another way, it’s depressing: voters, lawmakers, and elected officials in many states are kept from exercising tyranny of the majority not by their love of American principles of liberty and justice for all, but by their fear of losing money. Keeping Coke or NBA dollars in their state is more important than anything, even their supposedly deeply held “religious” beliefs.

Of course, the companies are motivated by money, too; they don’t want to alienate a portion of the population that is supposed to have a lot of money to spend (an enduring though fatally outdated corporate myth about gay people is that, since they don’t have children, they spend all their money on consumer goods. The “gay American” to most companies is a white man living in a city with his partner and more money than he knows what to do with).

We can’t rely on corporations to be the guardians of justice because they are very unreliable. They are motivated by profit, and if they ever sensed that not all LGBT Americans are rich and white, they would jump off the LGBT bandwagon pretty quickly. We all have to keep working in our cities and states to remind people that what makes America great is its commitment to liberty and justice and separation of church and state.

Remember: if you don’t want to serve gay or trans people, don’t open a public business. Once you open a public business, you are obliged to serve the public—no exceptions. There’s no difference between these anti-gay laws and the anti-black laws that kept black people from eating in restaurants with white people, going to movie theaters with white people, and riding city buses with white people. Anti-gay laws are discrimination, and America finally got rid of that curse through the hard work of the civil rights movement in the 1950s-70s. You can’t teach kids in school that Rosa Parks was a hero if you then vote for a law that says you can keep trans people off your bus or out of your bakery.

In an election year where people stumble over themselves to love America the most, one easy test of who really means it is whether they support anti-American discrimination laws.

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A Holiday Gift: Religious Tolerance

Posted on December 22, 2015. Filed under: American history, Bill of Rights, Civil Rights, U.S. Constitution | Tags: , , , , , |

Here’s a sharp video from Dr. Larry Schweikart, University of Dayton, on the PragerU site that explains the origins of religious tolerance in the English colonies of North America, and the astounding breakthrough that was the First Amendment of the U.S. Constitution. He even gets the Puritans right! Since WordPress won’t let us import the video, we just have to give you the link:

Religious Tolerance: Made in America

Enjoy, and enjoy watching a short video rather than reading reams of text from the HP crew. That’s our gift to you!

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Kim Davis, the Supreme Court, and tyranny of the majority

Posted on September 15, 2015. Filed under: Bill of Rights, Truth v. Myth, U.S. Constitution | Tags: , , , , |

If you read the HP regularly, you know that in 2008 we ran our first post on gay marriage and the tyranny of the majority. That’s when California legalized gay marriage, and when we heard someone on the radio complain about the role of the California State Supreme Court in making that happen. We explain in the post how the judiciary was specifically created to overturn majority laws/votes that oppress minorities, and therefore court rulings overturning laws against gay marriage are not, as is so often claimed, unconstitutional. Here’s the bulk of the post:

The California Supreme Court’s decision that banning gay marriage is unconstitutional has been met with the by-now common complaint that the Court overstepped its bounds, trampled the wishes of the voters, and got into the legislation business without a permit.

A review of the constitutionally described role of the judiciary is in order.

The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule—the basis of democracy—ends up perverting democracy by forcing injustice on the minority of the public.

For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans were trampled by the tyranny of the majority.

Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation.

In each example, the majority is imposing and enforcing injustice which is incompatible with democracy. They are tyrannizing rather than governing.

The judiciary was created to break this grip of majority tyranny. The legislature—Congress—cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.

If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.

This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.

We heard a commentator yesterday saying the California court should have left the issue to “the prerogative of the voters”. But if the voters’ prerogative is to oppress someone else, then the court does not simply step aside and let this happen.

The same people who rage against the partial and biased justices who lifted this ban are generally the same people who would celebrate justices who imposed a ban on abortion. People who cry out for impartiality are generally only applying it to cases they oppose.

So that’s what the judiciary does: it prevents the tyranny of the majority from enforcing injustice in a democracy. Like it or not, the “will of the people” is not always sacred, and sometimes must be opposed in the name of equality.

Over and over we reposted this article as new states approved or disallowed gay marriage. When on June 25, 2014, the Supreme Court ruled in Obergefell et al. v. Hodges that gay marriage is constitutional—or, more pointedly, that denying it is unconstitutional—we happily reposted for the last time on that subject.

Being historians, however, we knew that the backlash would not be long in coming. The clamor for “religious rights” that has grown up suspiciously in synch with the campaign for equal marriage began to claim that upholding gay Americans’ rights was oppressing Christian Americans’ rights. This is based on a fundamental and perhaps willful misunderstanding of the First Amendment, which we post about here. The First Amendment protects freedom of worship, not belief: here’s the gist from our post:

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.

So when Kim Davis and her ilk say their religious rights are being trampled, they are wrong. There’s a right to freedom of worship in the U.S., but not to protection of religious belief.

Yet Davis and her fleet of lawyers and her opportunistic supporters are making the same complaint against the courts that were made throughout the marriage equality campaign: Republican presidential candidate Mike Huckabee said in an NPR report that “People are tired of the tyranny of judicial action that takes people’s freedoms away, takes their basic fundamental constitutional rights and puts them in jeopardy.”

Ah, the scourge of “judicial tyranny”. It ruins everything for people who want to oppress others. It seems we will have to keep running our post on the judiciary and its role in stopping tyranny of the majority for as long as people misrepresent and contort the Constitution to serve their goal of restricting liberties, establishing a state religion, and claiming that offering liberty and justice to all is contrary to their Christian beliefs.

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The Tenth Amendment and a Bill of Rights wrap-up

Posted on August 6, 2015. Filed under: Bill of Rights, U.S. Constitution, What History is For | Tags: , , |

It’s part the last of of our series on what’s in the Bill of Rights, and so of course we are discussing the Tenth Amendment. It’s the mirror image of the Ninth 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.

Remember how the Ninth Amendment said that any right not listed in the previous eight Amendments of the Bill of Rights, or in the Constitution, is granted to the people? As we put it last time, 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 keeps the federal government from getting tyrannical and withholding rights just because they are not specifically protected in the Constitution.

In mirror fashion, the Tenth Amendment says the opposite: every power of the federal government is listed in the Constitution. If a power is not “delegated to the United States by the Constitution”, it’s because the U.S. (federal government) does not have that power. The phrase “nor prohibited by it to the States” means powers given expressly to the state governments cannot be assumed by the federal government.

This is clearly meant to keep the bulk of the political powers and civil rights in this country in the hands of local governments (more directly controlled by the people) and individual citizens. It would seem to work perfectly to limit the federal government, if not for the lack of one word: expressly.

Originally, the Tenth Amendment said “The powers not expressly delegated to the United States”. This would mean powers literally described in the Constitution. You can read the Constitution and find them written there. When you take out the qualifier “expressly”, then you allow for interpretation of the Constitution rather than literal reading only. One might interpret the Constitution loosely, extrapolating meaning to grant the federal government powers that are not literally listed in the document.

This means that the Tenth Amendment does not override the “necessary and proper clause” in Article 1, Section 8 of the Constitution, which says that

The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

In other words, Congress (the federal government) can make any law it deems necessary to uphold and enforce the Constitution. There is a difference between a right and a law, of course: the NPC gives Congress the power to make any laws it sees fit, but not the right to violate the Constitution. Yet it is laws that more immediately impact individual citizens, and laws can violate our rights. Laws can be fought, but that can take many decades and sometimes many lives, and so the NPC has been held by some to negate the Tenth Amendment.

It’s a slightly hollow note to end our series on the Bill of Rights on, but it’s fitting that our final two posts sum up the fundamental, creational tension between local and federal rights that has shaped, damaged, and ennobled our government, depending on the case you examine.

Now that we have the entire Bill of Rights in hand, how would we sum it up? We see a mix of rights so well-expressed that we take them for granted (freedom of speech, freedom of religion, the right to a trial by jury), rights that have been so loosely interpreted and re-interpreted as to lose all meaning (the right to bear arms, freedom of speech and religion), rights that have taken a beating from the modern world (the right against unreasonable search and seizure, the right to be free from quartering), and rights that are so flat-out violated at all times that it’s hard to believe no one cares (the right to a speedy trial, no excessive bail).

The important thing to remember, perhaps, is that the Bill of Rights is elastic in one sense, demanding re-interpretation as times change, but inelastic in another: it requires an educated public to uphold and enforce it.

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

Posted on July 30, 2015. Filed under: Bill of Rights, U.S. Constitution | Tags: , , , |

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

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The Eighth Amendment: no tolerating cruel and unusual punishment

Posted on July 24, 2015. Filed under: Bill of Rights, U.S. Constitution | Tags: , , |

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

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The Seventh Amendment: keeping federal justice democratic

Posted on July 17, 2015. Filed under: Bill of Rights, U.S. Constitution | Tags: , , |

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

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

Posted on July 9, 2015. Filed under: Bill of Rights, U.S. Constitution | Tags: , , , |

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

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Gay marriage, religious freedom, and the First Amendment

Posted on July 1, 2015. Filed under: Bill of Rights, Truth v. Myth, U.S. Constitution | Tags: , , , , , |

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.

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