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

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.

The 2016 Presidential Race - What and Why?

Earlier this month, I said I would begin examining the "big questions" of the new year. Today, I would like to start with the political race for the American Presidency. At this point in the process, before the first caucuses or primary elections, there is a whole bunch of candidates. But really, what are they all vying for, besides ephemeral fame, power and posterity?

Let us back up a little. What is the President? This is the elected leader of the American government. This nine word sentence is packed with assumptions. The most important single word in the sentence is "government."

Why Do We Need Governments

First, we are human beings. We believe that we each have certain rights which are fundamental to being human. Our Declaration of Independence lists "life, liberty and the pursuit of happiness." This makes us a rarity among nations: we believe that each of us should be equal before the law. In some other countries, there is a hierarchy of groups - such as the royal family and lords and ladies of a monarchy, hierarchical social tiers, or a ranking of religious, ethnic, racial or tribal groups - each of which has different rights and privileges before the law.

Second, and most importantly, governments solve disputes. We human beings are a fractious bunch – in large groups, we cannot agree on much. Some might say, we cannot agree on anything! We need a framework, rules and procedures for solving disputes. Government, whether it is a tribal leader, judicial courts or the United Nations, provide this.

Third, if we are to have rules and procedures, we need people to make them.

Fourth, if we are to have rules and procedures, we need people to enforce them.

Lastly, since we are such a fractious bunch, we will never willingly agree to a single, all-powerful government. Thus, we need our government to negotiate with other governments.

History of American Government

Native Government

The first governments in the Americas were created by the Native Americans for their own needs. Most were family groups and multi-family villages. led by a single individual or a small council of "elders." These groups loosely combined to form tribes and tribes combined to form nations. The "glue" was similarity in traditions, customs, dress and language.

Some groups, notably the Mayans, Incas and Aztecs, created and operated highly organized and bureaucratic governments which expanded by conquest and enslavement.

Colonial Government

When European explorers found the Americas, their governments wanted to extend their power to grab the resources of the "new" lands. They needed the resources -- especially gold, silver, iron and timber -- to fuel their petty, endless wars with each other. Different European governments implemented different methods for organizing their colonies.

The British, colonizers of most of the east coast of North America, brought the monarchy, commercial firms and - most importantly - the Magna Carta of 1215. The Magna Carta was, and still is, the cornerstone of how British citizens relate to their monarchy, and by extension, their national government. One key clause from this document reads:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

To no one will we sell, to no one deny or delay right or justice.

The British colonists tended to be people not wanted in Great Britain. Many came with the dream of getting rich and returning to England. Many others came with the dream of owning their own land - a feat nearly impossible in England. Others came to escape religious persecution and find a place where they could worship freely. Still others came to escape jail sentences or as a part of their incarceration.

Early British colonial government was colony by colony and, within each colony, village by village. All were still subjects of the monarchy. Because of the distances involved, this largely became "self-government." As the years flowed, the colonists became used to electing their own leaders, and writing and enforcing their own laws and judgments, based on British laws, with little influence or interference from the monarchy.

End of Colonial Era

This all came to a halt as European wars spilled into North America. To the north of the British colonies was the French colony of Quebec. To the south were the Spanish colonies of Florida, Mexico and the Caribbean islands. War between Spain and Great Britain led to the chartering of privateers to harass Spanish colonial shipping. War between France and Great Britain in the mid Eighteenth Century required shipping British troops and mercenaries to the American colonies to protect British citizens, lands and commercial interests. This cost money and lots of it and the monarchy was short of money due to its war with France.

Suddenly, the British monarchy was interested in their American colonies. The crown sent British administrators to govern the colonies. They enforced long-ignored English laws and assessed taxes to pay for the new military presence in America and the wars in Europe. Seeing their money siphoned off to pay for a war in Europe infuriated many of the descendants of British colonists.

Time had separated the viewpoint of British citizens in Europe from their American colonial compatriots. Even when they used the same words - freedom, liberty, equality, rights - the very meaning of the words had become different. Traditional British government, based on a hierarchy with the monarch at the top, followed by dukes and barons and all of the lesser royalty and nobility, Parliament, and the citizenry at the bottom, was no longer meaningful to the colonists.

Government Within the Colonies

Colonial Americans were used to governing themselves. The primary government was the village or city government. Almost all government services were provided at the village or city level. People could see their tax money at work. Those too poor to pay their taxes with money could pay with work. Local officials were directly elected, often by open ballot, by the citizens of the village or city.

Next level up was the colony's legislature, which wrote the laws for the colony. These were elected by the colonists to debate colony-wide issues and create new laws to aid the functioning of the colony. From this experience, the American colonists created the concept that government should only exist with the consent of the governed. This concept was radical. President Abraham Lincoln, almost a hundred years later, would summarize this idea in his address at the consecration of the Gettysburg cemetery with the famous phrase: "... government of the people, by the people, for the people ..."

Above the legislature was the colonial governor. Initially, they appointed by the commercial firm that founded the colony. Later, the monarchy decided that it had the right to appoint the colonial governors. The royal governors angered the colonists by ignoring, attempting to disband and sometimes arresting the colony legislatures.

The more the British monarchy tried to assert its rightful control over the colonies, the more angry the colonists became. Having let the genie of self-government out of the bottle, it was finding it impossible to force it back in.

The Move to Independence

As the anger in the individual colonies grew, it became a political crisis for all government in the colonies. One by one, the colonies began to band together. The legislatures of the colonies sent representatives to create a common front. These representatives became the first Continental Congress. They wrote to the British monarch requesting that the colonies be allowed to go back to governing themselves, the royal taxes be repealed and other concessions. The monarch rebuffed these requests.

Again, the colony legislatures sent representatives to meet. This is the Second Continental Congress. The mood this time much more strident. They were not going to ask the monarch for anything. They were telling him that since British government would not work with the colonies, the colonies will form their own national government. Thus, the Declaration of Independence was born.

The Declaration of Independence

Our Declaration of Independence is a remarkable document. The second paragraph and the last paragraph were, at the time it was written, and I believe still are unique in the annals of human government.

The Second Paragraph

The second paragraph begins:

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 to these Ends, it is the Right of the People to alter or 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.

Look at all of the radical concepts packed into this first sentence of the paragraph:

• "all men are created equal"
• "endowed by their creator with certain unalienable rights"
• "governments ...[derive] their just powers from the consent of the governed"
• "right of the people to alter or abolish [their government]"
• "institute new government"

The Last Paragraph

The last paragraph reads:

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

It is worthy to note that the Second Continental Congress were declaring the creation of thirteen new independent nations.

Articles of Confederation

It was not long before the American Colonies began to feel the need to band together under a common government. Great Britain was still a threat and there was a need for an army and a navy to protect the colonies. In order to secure aid from the other European powers, the colonies needed to present a common negotiating front, as these nations feared that the colonies would fall to bickering among themselves or be conquered by the British one by one.

As a result, the Second Continental Congress, in June of 1776, began attempting to draft a charter for a new "government of governments" which would provide the framework to allow the colonies to act as one. Many of the colonies were very wary of surrendering their newly granted freedom to another master. And speaking of masters, some of the northern colonies, led by Connecticut, objected to slavery. There were also the problem of overlapping land claims because of the way the British monarch granted charters to the original founders of the colonies. It took until November of 1777, almost a year and a half later, that most of the colonies could agree on a single draft. On November 15, 1777, the Second Continental Congress ratified the draft and submitted it to the colonies for approval.

On March 1, 1781, Maryland finally ratified the document that we now call the Articles of Confederation and Perpetual Union and it took effect. We became the United States of America.

Because of the states' experience with the British monarchy, they were afraid of a strong central government – especially over the long term. As a result, the government established under the Articles of Confederation was weak. It required the consensus of all thirteen states before it could do anything. It did not have the authority to levy taxes, enforce laws, regulate foreign trade or interstate commerce. About the only thing it could do was to engage in diplomacy. And to tie the government's hands further, the central authority was Congress, when in session, or the Committee of the States, when Congress was not in session.

As soon as the British military arrived to put down our little insurrection and disrupt our plan to be our own nation, it became apparent that there were some major weaknesses in the Articles of Confederation. Without the ability to levy taxes, how was the United States of America to raise an army and navy to defend itself against the most powerful nation in the world at the time?

Constitution of the United States

During the war for independence from Great Britain, the weaknesses of the Articles of Confederation became all the more glaring. Not only could it not raise the funds needed for General George Washington to fight the war, but it could not stop the states from trading with Great Britain, nor could it quell the squabbles between the states over trade and land. Beginning in 1786, the states met to decide how to remedy the weaknesses. They decided to call a formal meeting to amend the Article of Confederation.

In May of 1787, the delegates from the states met. They quickly decided to scrap the Articles of Confederation and write a constitution for a new government. The delegates chose to exercise "the Right of the People to alter or abolish [the government], 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" listed in the Declaration of Independence.

The new charter, called The Constitution for the United States of America, acknowledges the Articles by opening with:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

This new constitution proposed three branches of government: Congress, the President and the Supreme Court. Congress is the legislature, writing the laws, the government's budget and levying taxes. Congress also has the power to declare war and to ratify treaties. The President is to enforce the laws, conduct diplomacy and act as the supreme commander of the military. And, the Supreme Court is to adjudicate disputes between the government and the states and among the states. To keep the government responsive to the people, members of Congress and the President are elected to office for defined terms and must stand for election periodically to remain in office.

This brings us back to the original question – what is the President of the United States? The President of the United States is:

• Our chief diplomat, negotiating treaties with other nations.
• Our chief executive, enforcing the laws written by Congress and the decisions of the Supreme Court.
• Our chief military commander, leading all of our military forces.
• Our chief comptroller, collecting, spending and accounting for the moneys authorized by Congress.

Copyright 2016 by Jalapeño Bob