That Which Defines Us...Part III: The Bill Of Rights--Amendments I - IV

Amendments to the Constitution of the United States During the debates on the adoption of the Constitution, its opponents repeatedly charged that the Constitution, as drafted, would open the way to tyranny by the central government. All too recent were their memories of British civil rights violations before and during the Revolution [remember the Declaration of Indpendence?]. They demanded a "bill of rights" that would spell out the immunities of individual citizens. Several state conventions in their formal ratification of the Constitution asked for such amendments; others ratified the Constitution with the understanding that the amendments would be offered. On September 25, 1789, the First Congress of the United States therefore proposed to the state legislatures 12 amendments to the Constitution that met arguments most frequently advanced against it. The first two proposed amendments, which concerned the number of constituents for each Representative and the compensation of Congressmen, were never ratified. Articles 3 to 12, however, ratified by three-fourths of the state legislatures, constitute the first 10 amendments of the Constitution, known as the Bill of Rights. Not all the amendments were added at once; they came as their time was due, when a burgeoning American society was expanding and exploring its geographical and societal boundaries. The initial Bill of Rights developed as promised to the original Constitutional oppostion: they protected the individual liberties many feared would be weakened under an unamended constitution. Some sixty years later came the Civil War Amendments. Perhaps no other amendments so drastically molded the direction of a young republic: freeing of slaves, securing equal protection of the laws, and extending suffrage to black men. Let slip the sands of Time another forty years, and we see the amendments of the Progressive Era: the income tax, direct election of senators, Prohibition, and suffrage for women. America had enough on its hands during the Depression and World War II, so only two amendments appear during this period: one ending lame duck sessions, and the second repealing an exisiting amendment--Prohibition. Since 1950, most amendments have revolved around voting-related issues: limiting presidential terms, allow citizens of the District of Columbia to participate in presidential elections, banning the poll tax, and extennding the right to vote to eighteen-year-olds. For being 215-years-old, the Constitution has very few amendments, which is pehaps one good reason for its success and longevity. For such a document to remain viable it must be above ordinary law, keeping it in the vested interest of the people, not mere majorities. It must also have the flexibility to adapt with societal changes without losing its teeth in the process. It must become an intrinsic part of a nation's sovereignty, a small yet inextinguishable candle amidst the shadow of iniquity, a document whose ink lifts from the page and lives in its nations heart.

Amendment I: Freedom of Expression 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. Ask a group of people who know the Constitution what the most important amendment is and it's very likely the majority of respondents will say "the first amendment." It has been noted that some believe it's the most important because of its order in the Amendment heirarchy--but hold on there, pilgrim. If you actually read the introduction to this page, you would now know of two original amendments which were never ratified. What is now our first amendment, was, at one point in history, actually our third. So the whole most-important-because-of-order theory doesn't hold up. Since the states failed to ratify the first two original amendments, the third moved up to the number one position. What were the first two? They dealt with reapportionment and congressional pay raises. Without the freedoms provided by the First Amendment it would be impossible for Americans to assert any of the other rights granted to them. That fact alone gives the First Amendment immeasurable worth. The freedoms listed--religion, speech, press, assembly, and petition--enable us to participate in the process of self-government. Some of the first colonists settled here in an effort to escape religious persecution. The constitutions of several of the states prohibited public support of religion. Given the many varying sects of Christianity in America, in order to be fair to all, there could be preference to no single form of religion. Nowhere in the Constitution is a "separation of church and state" directly addressed--search all you like, it just isn't there. Neither does the Constitution refer to the terms "God," "Creator," or "Divine Providence," unlike the Declaration of Indpendence. "A right is not what someone gives you; it's what no one can take from you." --Ramsey Clark(4) The implication is not that America is a godless country, nor that the American government disavows, represses, or oppresses organized religion; much to the contrary, it's implied that religion plays a significant role in the lives of many Americans, and perhaps moreso...Faith. The First Amendment prevents the government from espousing one religion or belief over another, yet guarantees everyone the freedom to practice their own beliefs without fear of personal or governmental reprisal, also referred to as the Establishment Clause. The flip-side of this coin is the Free Exercise Clause, which prohibits the government from interferring with the expression of religious beliefs. Seem to be saying the same thing? Not entirely. While the Establishment Clause limits government policies that aid religion, the Free Exercise Clause restricts government action which hurt religion. Generally speaking, we have an absolute right to the freedom of religious expression, but the government can step in and regulate the actions a person may take in the course of expressing their beliefs. A blurred line perhaps, but in light of current events not without validity. Undoubtedly, one of the most prolific expressions bandied about is the "freedom of speech." On a superficial level it would seem to indicate that we have an inherent and constitutional right to say whatever we damn well please where ever we please. The construct of the law doesn't implicitly tout moral or ethical interpretations of speech, as much as delineate what is or is not a true infraction of constitutional freedom of speech. What is Free Speech? The Supreme Court has repeatedly ruled that freedom of speech consists not only of spoken words but also other types of expression. To draw some clarity from the shades of gray, the Court has categorized free speech activities as follows: pure speech: things such as public meetings that involve spoken words alone speech plus: activites like demonstrations and picketing that combine speech with action symbolic speech: also known as expressive conduct, symbolic speech consists of actions that are themselves a message, without spoken words, for example burning draft cards and burning an American flag. In U.S. v. O'Brien (1968), the Court ruled that burning a draft card was not protected by the First Amendment, even though intended as a form of protest against the Vietnam War; it held the government had a valid purpose in punishing the destruction of draft cards which, in themselves, were necessary to raise and support an army. Therefore, the government's goal was to maintain the draft, not prevent dissent. But in Texas v. Johnson (1989), the Supreme Court ruled that burning the U.S. flag was protected by the First Amendment, thereby striking down a Texas law that prohibited the desecration of the American flag. Gregory "Joey" Johnson had burned a flag outside the 1984 Republican National Convention in Dallas as part of a political demonstration. The Court held that "government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." That same year, Congress passed the Flag Act of 1989, prohibiting flag desecration regardless of whether bystanders were offended. The next year, 1990, the Court held that the law violated the First Amendment because it punished any person "who knowingly mutilates, defaces, physically defiles, or tramples upon any flag." Such terms, the Court said, outlawed disrespect for the flag, not the physical destruction of it. Noting that burning the flag is the proper way to dispose of a tattered flag, the Court argued the Flag Protection Act was punishing a person for the reason he burned the flag, which violated freedom of speech. Congress has repeatedly attempted to pass a constitutional amendment to outlaw flag desecration since 1990. As of 2002, all fifty states had passed resolutions saying they would ratify such an amendment if Congress passed it.(5) Is there a limit to Free Speech? Absolutely. There are indeed categories of free speech which enjoy no protection at all by the First Amendment: Obscenity: Could there be a more controversial or inflammatory category? In general, the Court has legally defined obscenity as speech or action that portrays sex or nudity in a manner contrary to societal standards of decency. The Supreme Court has held that speech or conduct may be legally obscene [something of an oxymoron, I'd say--JN] if it meets all three of the following conditions: ...appeals to prurient interest of the average person... ...depicts or describes, in a patently offensive manner, sexual conduct as...defined by applicable state law...and... ...the work, as a whole, lacks serious artistic, political, or scientific value. Suffice to say, that certainly doesn't make everyone happy, but it's the objective standard which the Court holds all cases to when presented with a matter claiming to be patently obscene. Defamation: Hurting another's reputation by spreading falsehoods. There are two types of defamation: slander; spoken or verbal defamation, and libel; written defamation. Proof of defamation cannot be made if the statements at issue are true. Fighting Words: Yeah, I know...sounds pretty hillbilly. These are defined as abusive and insulting comments delivered face-to-face to a specific individual. To illustrate: In 1942 the Supreme Court upheld the conviction of a Jehovah's Witness for calling a police officer "a damn Fascist and a racketeer." Such "fighting words," the Court said, "have a direct tendency to cause acts of violence." Ya think? Hate Speech: A touchy but very necessary criteria. Some legal scholars maintain that ethnic and racial slurs are types of "fighting words," and as such should be included amongst the limitations to free speech provisions. In a real-world sense, at the very least they incite a good old-fashioned ass kickin'. On the other side of the political aisle are critics who assert that enforcing such political correctness doesn't end bigotry, and such codes enacted by states to prohibit derogatory remarks on the basis of religion, gender, sexual orientation, or race only serve to punish any speech that hurts someones feelings. Speech that Incites Illegal Action: When I was in school I recall the specific phrase "...to incite a riot," that is, you could speak your piece up to the point where it would persuade those of weaker minds to rise up in a violent manner. The current standard the Court uses to determine incitement states that such action must be "imminent" and probable. In one case the Supreme Court ruled the a leader of the Klu Klux Klan was not in violation of the First Amendment when, during a rally, he called for members to violently oppose civil rights--this, while egregious, is still constitutional free speech. However a specific call to bomb churches at a designated time and place would not be protected. "The press was to serve the governed, not the governors." --Justice Hugo Black The media...everyone's favorite punching bag. Originally, the term "freedom of the press" referred to printed media. Many word-mongers, from Johann Gutenberg to John Peter Zenger, have helped form the bridge between a government pandered to and one scrutinized. The Fourth Estate, as it's sometimes called, has nothing if not a contentious relationship with government. Back as far as the rule of Henry VIII in England, the monarchy expressly forbade any written criticism of itself. He decreed that all books be licensed by the crown before publication. His daughter, Elizabeth I, ordered that all written works be submitted to official censors for prior approval. Under this kind of doctrine, any publisher critical of the government could be prosecuted and even put to death for seditious libel (the published criticism of the government).The crown alleged that such criticism led to revolution and social unrest. To wit...the American Revolution. The bedrock premise for a free press is that the government may not censor a work before it is published--this is called prior restraint. It can, however, prosecute authors or editors after publication. The Court has stated that just because a few bad apples choose to print harsh, or perhaps false, criticism of the government (in their words [I love this!--JN]: "miscreant purveyors of scandal"), that's no reason to lessen the prohibition of prior restraint. They did say that prior restraint might be justified in cases of national security. A "free press" can also be limited by laws which ease the burden of proof for libel. Believe it or not, the press go to great lengths to censor themselves, for fear of lawsuits. An editor will, for instance, absolutely mandate that a story involving any accused person use the word "alleged" in reference to such a person, as they have not been proven guilty via the guaranteed due processes. The court has said that in order to protect "robust public debate," criticism of public officials deserves a wide berth. Consequently, those nagging errors of fact, or even "publishing oversights," are not enough to justify a libel suit by a public official. Instead, the Court ruled, the offical must prove that a newspaper printed the error with actual malice, meaning "with knowledge that it was false or with reckless disregard of whether it was false or not." This standard has since been applied to public figures as well as public officials. Lastly, this amendment included a provision for the right to peaceably assemble and petition the government. The notion of petitioning wasn't new--English nobleman included the provision in the Magna Carta, thus requiring King John to address the petitions of his constituency. One of the specified reasons for our declaring independence from England (and the monarchy) had to do with King George III failing to hear petitions from the colonies. Pertaining to, yet not directly... Common perception holds that once the Revolutionary War was over the British headed back home to tell their big brother George what we did. Some Redcoats actually hung around a while, here and there. So what do the British have to do with the White House? I'll get to that. In 1791, a Frenchman named Pierre Charles L'Enfant worked with George Washington to draw up designs for what he envisioned as a "Presidential Palace." Its initial conception would have made it four times the size of the present-day White House, and called for setting aside eighty-two acres for a "Presidents Park." But George and Pierre had a parting of ways--George dismissed him for insubordination (George, if you only knew what the French would put us through later...). Individual architectural competitions were held and in 1792 an Irishman by the name of James Hoban was chosen to pick up where L'Enfant left off. Construction began that same year, with the first president occupying it in 1800, President John Adams.. So things hummed along for next fourteen years...1814. On August 24th, British troops invaded Washington. The British, typically known for their utter attention to manners and societal protocol, apparently left all manners at the door that day. Reportedly, they ate a dinner which had been prepared for the president that evening, then summarily torched the building; this apparently in retaliation for the burning of government buildings in Canada by American forces. The old building was torn down to the basement walls and rebuilt again with the help of James Hoban. Three years later President James Monroe moved in. The picture is of the White House, circa 1850. President Theodore Roosevelt was the first to officially name the building as the "White House." Prior, it was known as the Executive Mansion or the President's House.

Amendment II: Right to Bear Arms

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.

Upon closer inspection of both the Declaration of Independence and the Constitution, it may be noted that many of the foundational principles are issues which have the power to elicit the full emotional gradient. Yet, they're objective enough to stand up to scholarly debate and interpretation. The Second Amendment is no shrinking violet in that respect. This one plays no hormonal favorites; the estrogen-fueled critics charge that "guns kill people," while the staunchly pro-arms testosterone-cadre say "guns don't kill people--people kill people." Clearly the truth lies within the confines of responsibility and self-governance. "...the right of the people to keep and bear arms..." Some have suggested this clause only gives people the right to bear arms as part of a "well regulated militia." In todays terms, that would constitute being a member of the National Guard, the direct descendant of the Minutemen of the Revolution. Conversely, others emphasize that at the time the Bill of Rights was adopted a Militia consisted of a "body of the people." The argument has been made that no right is absolute. Therefore, gun control measures would not always violate the Second Amendment. Just as free speech does not protect obscenity. the Second Amendment does not include an unlimited right to own guns. As journalist Wendy Kaminer wrote: "The irony of the Second Amendment debate is that acknowledging an individual right to bear arms might facilitate gun control more than denying it ever could."

Benjamin Franklin... On Law: "Laws too gentle are seldom obeyed; too severe, seldom executed." On Lawyers: "A countryman between two lawyers is like a fish between two cats." On Liberty: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety. "

Amendment III: Quartering of Troops	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.
	This amendment could just as well be called The Quiet Amendment for all the modern-day relevance it has, yet colonial Americans absolutely demanded this be ratified as an amendment; they'd had it with being forced to provide room and board for British soldiers. Time for a short walk down Social Studies Lane...the Boston Massacre.
Paul Revere's engraving of "The Bloody Massacre perpetrated in King Street" Full image	Prior to the Revolution, during the French and Indian War (1754-1763), the British had troops here defending their colonies--remember, we hadn't declared independence yet--that was over a decade in the future. The troops were stationed in Albany, New York at the time. In 1756 the citizens of Albany refused to quarter British troops in their homes while barracks were being built, so the British commander took the homes by force. After the war was over, the Brits decided to overstay their welcome. Moreover, England felt America should bear the cost of their defense, so Parliament passed the Quartering Act in 1765. Big trouble in river city... The Quartering Act mandated that colonial legislatures pony up the funds to pay for the room and board of British soldiers stationed in America, and to rent quarters when the regular barracks overflowed. As one can imagine the colonies resoundingly declared "this sucks!," seeing the Act as a tax imposed upon them to pay for an occupying army they did not want. Tensions over the Quartering Act stewed until 1770. The Massachusetts legislature flat out refused to house thousands of British troops who had come to Boston to enforce a tax on imports. Friction with townspeople culminated in a confrontation outside the Customs House, in which British soldiers killed five Americans. Apparently England wasn't listening...big surprise, as history tells us. In 1774, Parliament passes a second Quartering Act--this one authorized British troops to not only be quartered in public houses, but in private homes as well; this along with a series of laws which Americans called Intolerable Acts. Two years later, when the colonies finally tell England to officially piss off, they specify as one of their grievances against the king that he had agreed to laws "for quartering large bodies of troops among us." So passionate were the colonies about being protected about further incursions of this nature that most states included this provision for an amendment to the Constitution over freedom of speech. The Supreme Court has never specifically ruled on the meaning of the Third Amendment, although the Court has cited it as support for a constitutional right of privacy. The Third Amendment has long been understood to reinforce a citizen's right to privacy. Justice Joseph Story once wrote about the Third Amendment "that a man's house should be his castle...," which in principle would be extended by later Supreme Court rulings to support a generalized right to privacy--a "right" not specifically alluded to anywhere in the Constitution.

"Man is the only animal that blushes -- or needs to. " --Mark Twain, on Privacy

Amendment IV: Search & Seizure

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.

writ of assistance: a type of general warrant used by British customs officials to search colonial homes and businesses for smuggled goods on which import taxes had not been paid.

If ever you thought the Brits were all about tea and crumpets, then take note of the pattern of uninvited assertions and affronts against the colonists. Once again an amendments genesis springs from a desire to protect against the kind of treatment visited upon the colonial citizenry. British forces were particularly invasive, taking every opportunity to ransack homes and arrest colonists without warrants. When British officials did have warrants, they were typically open-ended with no specification as to who was to be searches or what was to be seized. The meat-and-potatoes of the Fourth Amendment concerns warrants and probable cause. These two work hand-in-hand. The second half of this amendment, known as the Warrant Clause, requires warrants for searches and seizures to be premised upon a reasonable belief that a particular person has committed a particular crime--probable cause. The clause does not set forth the circumstances which make a warrant necessary, rather provides the conditions necessary to obtain one. A common practice of the crown was to issue general warrants, which allowed the crown's agents to perform search and seizure as they pleased. One Boston lawyer in particular, James Otis, resigned his post with the crown to oppose the writ of assistance in court. Otis argued the case on behalf of Boston merchants, but lost. One auspicious witness to the proceedings was John Adams, a prominent lawyer himself, who would later become the second president of the United States. Of Otis' arguments Adams later wrote: "Then and there the child Independence was born." The Fourth Amendment specifically protects the people "in their persons, houses, papers, and effects." In 1967, the Supreme Court ruled that "the Fourth Amendment protects people, not places," thus holding the amendment applies not just in homes, but wherever a person has "a reasonable expectation of privacy." That's key. For instance, courts have ruled there is a decreased expectation of privacy in vehicles, or in the garbage bags placed upon the curb for sanitation pickup. In our current Era of Technology it can be said you can't expect that your data transmissions--e-mail, chat sessions, web sites visited, etc.--are necessarily private. Once those data packets leave your machine they travel over data lines which are, like it or not, vulnerable to being tapped into. While we'd certainly like that type of information to remain private, can we reasonably expect them to be so? Once the test for a reasonable expectation of privacy has been met, a judge considering issuing a warrant must determine if the search in question is "reasonable" under the Fourth Amendment. The test for this criteria is simple--probable cause. There are certain instances where the court has held warrantless search or seizure does not require probable cause, among them are: Stop and Frisk: Police officers, based on street experience but not necessarily on probable cause, may stop suspects and pat them down for weapons or contraband; however, such contraband must be obvious through the defendant's clothing. Airport Searches: Courts have ruled that searches of airline passengers without probable cause are reasonable. Sobriety Checkpoints: Officers may stop all drivers at roadblocks to check for drunk driving, but individual motorists cannot be singled out. Consent Searches: As the name implies, probable cause is not required if a person consents to said search. In searching property, though, consent must be appropriately obtained; a landlord can't grant a search of a tenant's dwelling, but a tenant's roommate can. Drug Testing: The government may test certain employees for drugs, such as those involved with public safety or law enforcement--again, without probable cause. Student Searches: The Fourth Amendment does apply to public school students, but their rights are not equal to adults under similar circumstances. Public school officials do not need probable cause in order to search students, but police officers do need probable cause before conducting a search on school premises. If any one industry has helped bring about an acute (if not somewhat loose) awareness of illegal search-and-seizure, it's the entertainment industry. The principle portrayed "The criminal goes free, if he must, but it is the law that sets him free." --Justice Tom Clark is correct when based on the aforementioned principles and tests. Ill-gotten evidence presented in court can, and in many cases will, be disallowed. This can have the unfortunate result of setting an otherwise guilty defendant free. The Supreme Court has ruled that any evidence seized as part of an illegal search must be excluded in court--this is known as The Exclusionary Rule. It's intended to give police incentive to adhere to the Fourth Amendment. However, the Court recognizes there are some exceptions to the exclusionary rule. For instance, if police officers believe the search warrant they are executing is legal, and they are acting in "good faith", then the evidence may be admitted in court, even if later the warrant is discovered to have been technically invalid. There is also the inevitable discovery exception, which states that evidence will not be withheld if the police can prove that they would have found the evidence independently of the illegal search.

Because They Can ~ Alan Dershowitz Harvard Law professor Alan Dershowitz believes that one result of the exclusionary rule has been a rise in police perjury to avoid the rule's consequences. I once asked a policeman, "Why do you lie so brazenly in search-and-seizure cases?" He responded with a rude macho joke: "Why do dogs lick their balls?" To which the answer is "Because they can." Police know they can get away with certain kinds of common lies...Even a judge who is courageous enough to blow the whistle on the pervasiveness of police perjury in general is not willing--or able--to do anyting about it in a particular case. Everyone is happy with this result. The cop gets credit for a good drug bust. His supervisor's arrest statistics look good. the prosecutor racks up another win. The judge gets to give his little lecture on "rectitude" without endangering his reelection prospects by actually freeing a criminal. The defense lawyer collects his fee in dirty drug money, knowing that there is nothing more he can do. The public is thrilled that another drug dealer is off the street. It is this benign attitude towards police perjury in the context of search-and-seizure that makes it so acceptable--indeed so essential--a part of our criminal justice system.(6)

Could you pass the test for citizenship? Candidates must be familiar with the basics of the Constitution as part of their testing. If you know more about "taking two steps backward to go one forward" than you do about America, then you really had best keep a'readin'...the Amendments continued.!

⁽⁴⁾ _{As much as I may find his current work objectionable (as of this writing he is part of the defense team for Saddam Hussein), I find his quote concrete and absolute.}

⁽⁵⁾ _{As stated on page 1, I have intentionally included many passages of text from The Words We Live By, in some cases word-for-word, mainly because of its inherent readability. In many cases I have paraphrased or slightly altered the original text to suit my style or for reasons of flow. In this case, I used almost the entire entry illustrating these acts as I admittedly feel strongly about it, and the text from the book was an excellent way to present it factually.}

⁽⁶⁾ _{Much as before, this sidebar was far too enticing not to include it to highlight the matter of search-and-seizure as applicable to the Fourth Amendment. Again, taken verbatim from The Words We Live By by Linda R. Monk.}