In the days since the election, we’ve heard a few consistent messages:
—We need to come together and support Trump because the peaceful transfer of power is crucial to our democracy;
—We need to put aside our differences and unite as a nation;
—We need to acknowledge the other side and not automatically assume that anyone across the political aisle is evil.
The real issue at the heart of these three messages is relativism: there is no absolute, objective truth, like “Trump is bad” or “Democrats are good”. We have to support Trump’s election because accepting him, relative to the chaos that the failure of a peaceful transfer of power would bring, is necessary.We have to give every argument a fair hearing. One man’s meat is another man’s poison.
We’d like to challenge this relativism. One senses that many Americans would like to challenge it, feeling that there is something different about this situation, that rejecting Trump is not just petty party politics but a way to take a stand for justice. They are right.
What is our basis for saying this, our objective truth? Well, in this context, there is only one objective truth to turn to. We are Americans. We were educated so that we can understand how our government was framed, how it is supposed to work, and what its goals are—both literal, as in what tasks it is supposed to perform, and more figurative, as in what impact it is meant to have, what kind of nation and people it is meant to create.
Our federal government, as described in the Constitution, was created to balance power between three branches of government. Two of those branches are representative, in that we vote people into their offices. The judiciary is appointed by our representatives. The executive branch handles foreign policy and is the commander-in-chief of our armed forces. The legislatures creates laws. The judiciary reviews laws to be sure they are constitutional, and amends or invalidates laws that are not.
Our Constitution states that the goal of our nation is to offer liberty and justice to all, and to protect citizens’ right to life, liberty, and the pursuit of happiness. It says that we can only protect those rights for all if we offer them to all (that took a few amendments, to extend those rights to non-whites and women, but it got done). It says, in the Bill of Rights, that we have immense personal liberty to worship as we please, speak and write as we please, and generally do as we please—so long as we do not infringe on someone else’s rights by doing that. It’s a balancing act in which our right to liberty is checked by other’s rights to liberty.
Fulfilling these terms has led our judiciary and Congress to pass laws guaranteeing equality of opportunity; laws that give every American as level a playing field for success as we can, through public education that is mixed and equal, through sexual harassment laws, anti-discrimination laws, and more.
These are the objective truths of American government, our Constitution, and our goals as a nation.
Therefore, these are the standards by which we must measure any U.S. citizen. We judge presidents by them, we judge members of Congress by them, we judge state and local officials by them. We judge news outlets and social organizations by them.
And so we must judge Trump by them. When he says he will punish women who have abortions, when he says natural-born American citizens whose parents are not from the U.S. are biased and unworthy to serve in public office, when he says he doesn’t know if the Ku Klux Klan is a hate group, when he says he engages in sexual assault, when he says he will get rid of governmental organizations like the EPA that keep our air and water safe because they hurt big business—in all these cases, he is violating our principles of government and the goals of the American nation.
When his supporters say, as we heard many say over the past weeks and months, that a vote for Trump is a vote for the “angry white man”, and for white supremacy, they are violating liberty and justice for all. When his supporters say Muslims should not be allowed to live in America, they violate the First Amendment.
And most of all, when his supporters say what they want most is for Trump to destroy the federal government, they are striking at the very heart of our nation.
So there is an objective reason for Americans to oppose Trump. He opposes America.
Peaceful transfer of power is important in a democracy—but we have to put the democracy first. We will peacefully transfer power to Trump, but we will not peacefully give him the power to destroy our democracy once he is in office. If all we preserve of our democracy is transfer of power, we don’t really have anything left.
We do not need to come together and support Trump. We need to come together to do what we can to oppose him when he violates our Constitution and our laws and our heritage, and support him when he does not.
We cannot put aside our differences with those who would destroy the American way of life as expressed in our Constitution and system of law. We have to try to get them to see the error of their ways, not say that their opinions are equally valid.
Anyone who wants to destroy this nation’s system of government and commitment to liberty and justice for all is, in our opinion, either evil or extremely dangerous. They cannot be allowed to carry out their mission on the basis of “fairness”. This is not a question of which political party you belong to. It’s a question of whether you hold the American commitment to liberty and justice for all dear.
This is the only objective truth we can call upon when discussing politics, the only way that does not degenerate into relativism. It’s the yardstick we must use as we move forward.
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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.Read Full Post | Make a Comment ( None so far )
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.Read Full Post | Make a Comment ( None so far )
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.Read Full Post | Make a Comment ( None so far )
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.Read Full Post | Make a Comment ( None so far )
…yes, if you read the HP you’ve seen that title before. For our third post in the series on the Bill of Rights, we’re reaching back to one of the first posts we put up in the infancy of the site. It was short—we used to be like that! The topic is still unfortunately pertinent today. We will do a little updating as we go along:
Let’s go out on a limb here to state the obvious.
How does it read? “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
A well-regulated Militia. Not a well-armed citizen.
We have to agree with ourselves here. But before we can analyze, we have to really understand. The amendment is written in that cart-before-the-horse way that plagued 18th-century writing in English. If you break it down, it says “Since the militia is necessary to national security in a free state, the government cannot forbid the public to keep and bear arms.”
This is such a time machine window into the state of the early U.S. We had no standing army. We had only volunteer state militia for our national defense. The key words are “free state”: rather than create a standing army, which was only ever used in Europe to oppress the people and defend the monarch’s absolute power, the U.S. wants to continue to rely on volunteer militia.
But what if the federal government tries to get around this protection of the people by forbidding them to own guns? That way, they can’t form militia, and the federal government could create an army after all, arm it itself, and be tyrannical.
The answer is to forbid the federal government from outlawing private gun ownership. As we said back then…
This Amendment is clearly meant to protect the right of the citizen to own a gun to use in military service. You keep your arms so that you can serve in the militia. This was written when the main form of defense was state and local militias, for which you needed your own gun.
Now, we’re not a strict-interpretation-of-the-Constitution people here at the HP. We believe the Constitution is flexible and can be read in new ways. But this Amendment seems so clearly to be about protecting a volunteer military—to be about military service—that to extend it to people who want to be able to carry guns into a bar or a supermarket, or keep them in their glovebox, is clearly untenable.
That is, the Second Amendment has no meaning outside of military service. It’s ironic that most strong supporters of expanding carry laws and gun ownership are often very anti-military (official U.S. military, that is). They want guns to protect them from an attack by the U.S. armed forces that they feel is imminent.
The Second Amendment does NOT encourage or demand that average citizens keep guns in their homes for any reason. It does not mention hunting. It does not mention personal defense. It is strictly about maintaining a national army.
There are times when we wish the Founders had been more specific, but this is not one of them. The Second Amendment is clearly about military service. It cannot be read loosely to apply to anything else—a new constitutional amendment would be necessary to do that. Until that new amendment is ratified, we will continue to honor the Second Amendment as it is written.Read Full Post | Make a Comment ( 1 so far )
It’s time for another series! We’ve decided to take up the Bill of Rights and give it a good going-over, since it seems that when people argue about preserving “the Constitution” they are only ever talking about the Bill of Rights section—the first set of amendments to the Constitution.
So let’s get right into it. For curiosity’s sake, and to give a sense of what was originally proposed, we’re going to start with the first two of the 12 amendments presented to the state legislatures for ratification; the only two that were not ratified.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
…Article the first… After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
—The closing phrase of the first paragraph (from the short preamble) is interesting: these amendments are meant to “extend the ground of public confidence in the Government, to best ensure the beneficent ends of its institution.” In other words, the amendments we know as the Bill of Rights are meant to make Americans more confident in the federal government because they prevent the federal government from ever overstepping its powers and becoming tyrannical. Yet today, most Americans seem to see the Bill of Rights as a weapon to use against a federal government that can only ever be tyrannical: instead of assuring us that our government will never be unfair, the Bill of Rights panics us that our government will always be unfair. The Bill was meant to put fears of tyranny to rest, but now it only ever stirs them up.
On to the first article, which was not ratified. It deals with representatives to Congress, and tries to anticipate the problems that population growth might provoke as the nation grows. The men drafting our Constitution and its amendments had this problem on their minds at all times. It was clear the nation would only experience exponential growth as it took over the continent from sea to sea. They tried to set up frameworks that would work in 1787, when the population was already a little unmanageably large, and work in 1887 or 1987, when they imagined the population to have soared far beyond their imagining.
The public imagination at the time, however, rejected this proposed amendment as impossible. One representative for 50,000 people? That wasn’t right: how could one person fairly and effectively represent so many? The other problem was this: if this amendment had been ratified, today we would have over 6,000 Representatives in the House. As it is, we have 435, and each House member represents over half a million people (about 650,000). When your population grows to hundreds of millions, it’s impossible to give them anything close to effectively individual representation.
When you think about it, that’s why political parties really took off. Parties allow thousands or millions of people to become one person, adopting one set of beliefs. If you represent 650,000 people and 500,000 of them are Republicans, if you just follow the party platform you will be accurately representing most of your district. You don’t have to try to get to know 500,000 personal beliefs. Early on in our history representatives and the represented figured this out.
Article the second… No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
—This failed amendment says that Congress can’t vote to change its pay during a term. Members can propose a pay change for the next term. To make sense of this, first we have to note that they only change in pay likely to be proposed is a raise. So this amendment says that Congress can’t give itself a pay raise without allowing the people to vote on it. What Congress can do is propose a pay raise for the next session, which allows people to vote on that pay raise: if they approve it, they re-elect the members who voted for it; if they don’t approve it, they elect new members. James Madison was behind this amendment because he didn’t think Congress should be allowed to pay itself arbitrarily without giving the people a chance to approve or reject the changes.
The interesting thing about this amendment is that it was not ratified in 1787—but it was ratified 202 years later, in 1992, as the Twenty-Seventh Amendment.Read Full Post | Make a Comment ( None so far )