Sunday, February 28, 2016

Bill of Rights, Part I - The First Five

The Bill of Rights

Many of our Founding Fathers did not believe that their new Constitution of the United States gave Americans enough protection from the new federal government. In 1791, a group of ten amendments were added to the Constitution. Collectively, these are known as the Bill of Rights. Most of these amendments specify and guarantee additional rights for Americans.

The reasons for this distrust were rooted in the endless stream of lies, double-dealing, corruption and just plain, criminal activity of the European governments of the day. Any attempt to bring this festering mess to light could result in a persons persecution, prosecution or summary execution. One case known to all Americans of the Eighteenth Century was the trial of John Peter Zenger, the publisher of the New York Weekly Journal. Simply expressing disgust for any dishonorable or despicable act of the government could bring a jail sentence for sedition or libel.

Our Founding Fathers correctly reasoned that in order to keep any government honest, people must be able to discuss the actions of the government, especially when the actions were dishonest. This requires not only the freedom to speak out but also the freedom to publish about these actions. These freedoms would be meaningless, unless the government was also prevented from retaliating against those who speak out.

Governments around the world have not changed much. According to WikiPedia:

In Germany, Italy, Switzerland, and Poland it is illegal to insult foreign heads of state publicly.
  • On 5 January 2005, Marxist tabloid publisher Jerzy Urban was sentenced by a Polish court to a fine of 20,000 złoty (about €5000, UK£3384 or US$6,200) for having insulted Pope John Paul II, a visiting head of state.
[In the Netherlands,] For insulting the king, the heiress apparent, and their relatives, an offender may receive up to five years imprisonment plus a fine.
  • In October 2007, a 47-year-old man was sentenced to one week imprisonment and fined €400[11] for, amongst other things, lèse-majesté in the Netherlands when he called Queen Beatrix a "whore" and told a police officer that he would have anal sex with her because "she would like it".

From the December 15, 2015 edition of the New York Times,

BANGKOK — Thailand’s strict laws making it a crime to insult the monarchy entered new territory on Monday when a factory worker was charged with disparaging the king’s dog.

In a case brought in a Thai military court, the worker, Thanakorn Siripaiboon, was charged with making a “sarcastic” Internet post related to the king’s pet. He also faces separate charges of sedition and insulting the king.

Mr. Thanakorn could face a total of 37 years in prison for his social media posts, ...

Citizen of other nations today can and are penalized by their government for speaking their mind while living in the United States. This is especially a problem for foreign college students and scholars and for American universities offering history and culture courses – think "Spanish Studies" or "German Studies" type of courses – required for political science degrees. India is currently offering a case in point.

Again, from India, a US government agency, the US Commission on International Religious Freedom was, with the support of the US Department of State, planning to visit India. This had been scheduled for quite a while, but India failed to provide the necessary visas. (Updated on 3/4/2016)

With these, and countless other examples found in history, in mind, the Bill of Rights was added to, and is still of paramount importance within, the Constitution.

Amendment I

When the American colonies were founded, religious persecution was rife in Europe. Many colonists came to this continent looking for a place to worship God in their preferred way. In the latter half of the Eighteenth Century, the heavy hand to the British monarchy induced fear on those who disagreed with royal actions. From this, sprang:

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.

First, concerning religion — there is to be no "official" state religion. Everyone is to be able to worship God as they see fit. Our Founding Fathers presumed that God exists and we should worship God in some way.

Second, we have the right to discuss the actions of, and disagree with the policies of, our government in private conversation, in published writings, or from the lectern of a church or assembly hall. We also have the right to complain to our government and ask that it change its ways.

Amendment II

In the Declaration of Independence, our Founding Fathers declared:

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

These words are a powder keg waiting to explode! Governments, by their very nature, attempt to increase their power and to act in self-preservation. To protect ourselves and our individual states from external threats, whether from outsiders or from our own Federal Government, each state must have the right to establish and maintain a state militia. Currently, this function has been subsumed into the National Guard. State militias and the National Guard are both under the command of each state's governor, except in time of war. Thus, the Second Amendment:

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.

Militias are made up of local volunteers, originally set up by towns and villages to protect the townspeople from raiders. They also have to react quickly – natural disasters and foreign adversaries strike quickly and with little or no warning. Training is also of vital importance. However, for good or for ill, it is the weapon that keeps the peace in time of crisis – thus, the right to keep and carry weapons. Criminals and foreign adversaries will not care about our laws controlling weapons and will use these laws to their advantage. We the People must have the right to level the battlefield.

Amendment III

In the mid- to late-Eighteenth Century, when the British troops occupied the American colonies, the British government often forced local citizens to host, at their own cost, these soldiers – especially the officers – in their homes, taverns and inns. The locals resented the practice, but had no voice in the matter. From this was born the Third Amendment:

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.

Amendment IV

Governments around the world have a long history of confiscating the property and possessions of dissenters as a form of retribution for disagreeing with the government or its policies or of alleged criminals, especially political criminals, to render them financially unable to mount a vigorous legal defense. Sometimes property, such as grand houses and estates, were confiscated for the "convenience" of the government, or to satisfy the greed of a government functionary, to become an "official residences." As you can imagine, this practice was strongly resented, leading to the Fourth Amendment:

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.

Amendment V

Governments around the world, both then and now, have long been known to arrest people and charge them with crimes that they did not commit. Sometimes this is due to malice, sometimes because the police have no other suspect, and sometimes just to arrest someone – anyone – to alleviate the political heat caused by the crime. Under some governments, as this story from North Korea shows, people are arrested and forced to confess in a very public way in an attempt to force foreign policy concessions from other nations. These practices lead to the Fifth Amendment:

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.

The last clause is still contentious. Laws have been passed in this country which allow private property, allegedly purchased by money gained illegally, to be seized and auctioned by the government without first convicting the owner of any illegal activity. The owner does not receive the money from the sale; it goes to the state treasury. These laws were passed to penalize organized crime and drug traffickers. However, as much as I detest criminal activity, I do not believe these laws pass Constitutional muster and should be challenged in the Federal courts.

Next: Part II, the Second Five Amendments

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Wednesday, February 24, 2016

Replacing Justice Scalia

Replacing Justice Scalia has become a political football. With the impending Presidential election only nine months away, some politicians are saying that our lame-duck President should defer to the next President to nominate the replacement. Senate Majority Leader Mitch McConnell (R-Ky.) pledged that there will be “no action” on any Supreme Court nomination before the election in November.

I believe this is wrong-headed. The Supreme Court should not be ham-strung by the potential for four-to-four decisions. President Obama should nominate someone and the Senate should consider each nominee.

Another issue crossed my desk. I read an article by Royal Furgeson, the Founding dean, University of North Texas – Dallas College of Law, entitled "Diversity key in finding Scalia's replacement on Supreme Court" on the Texas Tribune website. He pointed out that all of the current Supreme Court justices are either from the New York area or from California and that all of them graduated from either Yale or Harvard Law Schools. Seven of the justices advanced from the Federal appeals courts and one is an academic. He continued with his point that we need more diversity on the Supreme Court:

That was not always the case: The Supreme Court that decided Brown v. Board of Education consisted of, among others, a governor, an academic, a senator, an attorney general and a regulator, none of whom had had prior judicial experience. Certainly, it could not hurt to bring broader experience to the court, and it just might help.

As the president considers bringing more balanced experience to the court, he might focus on legislative experience — after all, issues of statutory interpretation make up a significant part of the court's docket.

I believe that he is right. Americans do not just live on the East and West Coasts. Many of us live in "fly-over" country. Most of our "high-powered" politicians also are from the Coasts. These people have little understanding of the problems faced in fly-over country and they often write laws and create Federal programs that just do not work out here.

For example, they talk of gun control because gangs are shooting people while we need guns for rattlesnake and predator control. The effect of such laws is that the gangs, who do not care about laws, are still shooting people while out here we cannot stop the predators from killing our livestock.

I urge our Presidents to consider jurists from law schools across the country, especially those who have served on state courts, and not just those from the Yale and Harvard "old boys" clubs.

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Friday, February 19, 2016

More on Justice Antonin Scalia...

I do not usually re-post, but this time I will make an exception...

Gary Joiner of the Farm Bureau posted this, regarding on the effect of the loss of Justice Scalia on farmers and ranchers.

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Sunday, February 14, 2016

Supreme Court Justice Antonin Scalia (1936-2016) RIP

Early this morning, Supreme Court Justice Antonin Scalia died at the age of 79. While I may not have agreed with many of his decisions, he was always an honest broker and a strong believer in the original meaning of the words of the Constitution of the United States.

He also did something rare and unusual — he made the Supreme Court approachable by the ordinary citizen. When I was in high school, Supreme Court arguments were seldom mentioned in the newspapers. In oral arguments, the two opposing councils merely read their statements and maybe a question or two would then be asked. Since President Ronald Reagen appointed Justice Scalia to the bench, the lawyers would barely get started before Justice Scalia or one of his colleagues would fire off a question to be answered. This made following the action at the Supreme Court actually newsworthy on a regular basis — a much needed improvement.

Justice Scalia, may you now and forever rest in peace. Your watch is done; your victory won. May the Lord take you into his house to sit at his right hand.

Now, it falls on our current President, President Obama, to nominate a successor to Justice Scalia. Because he is a "lame duck," the current crop of presidential contenders, on both sides of the aisle, are urging him to wait until after the next President is elected and inaugurated.

I strongly disagree — Justice Scalia died on his watch, therefore President Obama should nominate his successor. In the current climate in the United States Senate, I do not believe, however, that any jurist nominated by President Obama or even his successor stand much of a chance of being confirmed by two-thirds of the Senate. It is his job to try, however.

As lawyer-turned-journalist Greta Van Susteren wrote today:

The U.S. Constitution, Article 2, Section 2, Clause 2 says presidents nominate justices to the Supreme Court. It says the president SHALL and does not say MAY. This means it is not an option.(Huffington Post)

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Wednesday, February 10, 2016

Rights Granted in the United States Constitution

In addition to, and as a consequence of, the rights to "life, liberty and the pursuit of happiness" listed in the Declaration of Independence, our Founding Fathers wrote some additional rights into the Constitution.

There was a division among them as to whether the Constitution was the proper vehicle for a listing of the rights of individuals. Some felt that this document should only address the structure of the new government and the relationship of the new government to the individual states. Others took a more comprehensive view.

In order to break this logjam, it was proposed that the Constitution would be ratified first and that one of Congress's first order of business would be to declare and guarantee the rights of the individual citizen. Being honest men, this was agreed to and faithfully executed, resulting in the first amendments to the Constitution now known as the Bill of Rights.

The Constitution of the United States

The United States was created out of the consensual joining of the thirteen former British colonies. Each colony had its own local government, wrote and enforced its own laws, and their own elected leaders. The problem was, as individual states, they were too weak to protect themselves from the great European powers. In uniting together, there was strength.

After their experience with the British monarch, they were very wary of giving any new "government of governments" too much power and authority. They sought to achieve balance, both between the states and the federal government and between the branches – legislative, executive and judicial – of the federal government.

In the Constitution of the United States, several individual rights are declared.

Article I - The Legislature

Section 8

Article I, Section 8 lists the powers of the legislature, including:

Congress shall have the Power ...

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

This establishes the right of individuals to own their intellectual property and protect their investment in it with copyrights and patents. This was in contrast to the British system which, at that time, rewarded intellectual property "pirates" because

..., the British designed their early patent system to introduce foreign technologies to the kingdom. Therefore, they granted monopoly privileges not to inventors, but to those who brought inventions into public knowledge. (Susan Sell, Intellectual Property and Public Policy in Historical Perspective: Contestation and Settlement. 9/1/2004, p.282)
Based on the mercantilist goals of limiting imports and promoting exports, and to gain the maximum benefit from inventions, most European nations
had adopted intellectual property policies to encourage the migration of useful inventions to their territory and to facilitate the reading public's access to an extensive range of published materials. These policies included introductory patents, compulsory licensing, working requirements, differential treatment for citizens versus foreigners, and by contemporary standards, weak or lax intellectual property protection. (Susan Sell, Intellectual Property and Public Policy in Historical Perspective: Contestation and Settlement. 9/1/2004, p.282)

Section 9

In Article I, Section 9, there is a list of individual rights created by placing restrictions on Congress, including

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

This quotation contains three legal terms from British Common Law that require explanation:

Writ of Habeas Corpus
Habeas corpus is a legal action in which a prisoner challenges the authority of the jail or prison to continue holding him. ... it allows incarcerated people to seek relief from unlawful confinement. Habeas corpus is a protection against illegal imprisonment, afforded to United States citizens as outlined in the Suspension Clause of the U.S. Constitution. (Legal Dictionary)
Bill of Attainder
A legislative act, directed against a designated person, pronouncing him guilty of an alleged crime, (usually treason,) without trial or conviction according to the recognized rules of procedure, and passing sentence of death and attainder upon him. (The Law Dictionary)
Ex post facto Law
Ex post facto often refers to a law that applies retroactively, thereby criminalizing conduct that was legal when originally performed. (US Legal)

In this article, we find a deep distrust for government, especially a national government located many miles away. The British government, indeed almost all governments of the time, threw political opponents into jail charged with various made-up or newly created crimes. They then left these prisoners there indefinitely.

Actually, we do not have to look to history to find modern examples of this behavior. We just have to look into the newspaper — China versus Ai Weiwei, Russia versus Pussy Riot, and various local Syrian and Egyptian critics whom have been jailed by their respective governments.

Article III - Judicial

Section 2

In Article III, Section 2, our Founding Fathers guaranteed anyone accused of a Federal crime the right to a trial in front of a jury:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Again, by requiring that criminal trials be public and be judged by members of the public, our Founding Fathers were attempting to eliminate the use of secret trials and of "show trials" where the verdict is determined in advance of presenting the evidence in the case. Both of these tactics were in wide use at the time and, in much of the world, are still in use today.

Article IV

Section 1

In Article IV, Section 1:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

This section of the Constitution allows Birth Certificates, Marriage Certificates, Divorce Certificates, Death Certificates and real property deeds issued by one state to be valid in all states. It also allows escaped convicts caught in one state to be returned to the state in which they were convicted or to another state to complete their sentence. The Supreme Court upheld this and the Fourteenth Amendment in the Loving case, where a black person and a white person whom were married in one state were arrested in another where interracial marriage was illegal, and recently upheld this in a case of a same sex married couple.

Section 2

In Article IV, Section 2:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

This, too, was an attempt to protect the rights of citizens as they travel from one state to another. It was strongly reinforced by the Fourteenth Amendment.

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Sunday, February 07, 2016

Our Rights as Americans

We Americans talk about "rights" all the time. But what are our rights? What do we mean by rights? Where do they come from?

In this and the next few essays, I will discuss our concept of rights and where they come from.

In most other countries, a citizen's rights are either listed in their constitution, if there is one, or in laws either passed by the legislature or declared by the president, prime minister, monarch or dictator. These rights are often very malleable, changing at the whim of the government.

The United States, however, is very different. Our most basic founding document, the Declaration of Independence, defines the concept of "rights" as it applies to the American people. In paragraph 2, it states:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

In this remarkable document, our Founding Fathers declare that mankind has a creator and that this creator granted certain rights, foremost of which are:

  • Life
  • Liberty
  • The pursuit of Happiness

These rights are not enshrined in law. From the deeply religious point of view of our Founding Fathers, there was no need to, since they were granted by the creator of all mankind. For this, they drew their inspiration from the great English philosopher, John Locke, and specifically from his essay Two Treatises of Government which was published in 1689. As this is a long and unwieldly work, an annotated extract of relevant passages from the second treatise may be found here.

They defined "government" as a creation of mankind and, thus, must exist and operate with the consent of the governed. This, at the time, was a really radical idea. In Europe and most of the rest of the world, government was created by conquerers, whether you called them dictator, emperor or monarch, and the governed had no choice. In most of the world of today, the governed still do not have a choice.

In fact, twice in our short history, we have taken this radical step and thrown out one government and established a new one. The first time was in 1776, when we declared ourselves independent of Great Briton. The next government we established was under the Articles of Confederation. When this form of government failed to work well, we tossed it out in 1787, adopting the Constitution of the United States.

This Constitution remains the legal basis for our nation. In the next installment, I will discuss the rights granted in this 225-year old document.

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