Bill of Rights

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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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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