Bill of Rights, Part II - The Second Five

The Bill of Rights

Amendment VI

Another "dirty trick" that has long been used by governments around the world to silence someone is to arrest the person but then never quite get around to charging the person with a crime or bringing the person to trial. Or, if the person is actually brought to trial, it is done in a way that makes it very difficult for the press, relatives, defense witnesses and often the defense counsel to attend.

During the Colonial period in America, the British often dragged alleged criminals to England for trial. Often, after the trial, the defendant could not afford to return to the Colonies and remained in England. From this practice, the Sixth Amendment was born:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Over the years, American law enforcement, quite famously, denied many alleged criminals their rights. Police detectives would arrest a suspect, question them for hours, until they would confess to anything. The suspects did not know about their rights to a lawyer or that they did not have to incriminate themselves. As alleged criminals became more aware of their rights, cases worked their way up to the US Supreme Court. The Court decided, in 1966, the case of Miranda vs Arizona that this police tactic was illegal. This led to the "Miranda Warnings" which American law enforcement officers must give to suspects when they are arrested, either verbally or on a card such as this:

Amendment VII

A key concept of British law was trial by jury. Unfortunately, in the Colonies, many civil legal decisions were decided by a judge in camera, often following the payment of a "fee" to assure that the judgment was in favor of the fee-payer. Twenty dollars, at the time, was a considerable sum of money. Thus was born:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Unfortunately, this still happens today — usually, with a little more discretion. Today, instead of a private decision and a fee, the judge announces the decision in open court for which he receives a political favor at some point in the future, usually during their next political campaign either for re-election as a judge or for election to a higher office.

Amendment VIII

The purpose of bail is to ensure that the defendant will appear in court to face a criminal charge. Under a British law, The Statute of Westminster in 1275, bail was granted only when the accused owned considerable real property and only for certain offenses. The granting of bail allows the accused to work with legal counsel to prepare the best defense possible. This can be very difficult to do while jailed, especially with limited or virtually non-existent visiting hours.

Governments around the world today still jail suspects pending trial, regardless of how long they chose to wait prior to setting a trial date. Not only does this make planning a defense difficult, it prevents the accused from earning an income from which to pay the legal counsel and other costs related to the defense.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This amendment also prohibited punishments such as torture, maiming, and depriving a prisoner of food and water.

Amendment IX

Our Founding Fathers knew that they had not listed all of the rights that should be accorded to Americans. They assumed that, although they tried their best, the States and the people would consider routine actions needed for day-to-day living, such as hunting or privacy, as a right. This amendment allows the Supreme Court to declare judicially that this is an unlisted right.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The Founding Fathers firmly believed in limited government. They added this amendment in an attempt to prevent the Federal government from usurping all the power.

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.

This amendment says to the Federal government: if a power is not listed here in the Constitution, then it is not yours to usurp or exercise. It says to the States: all other power belongs to you and the Americans unless this Constitution reserves it to the Federal Government. This leaves most of the power in the hands of the States and, through state and local elections, in the hands of the people.

This does make sense. Laws and programs enacted by the Federal government must apply to the whole country — a one-size-fits-all solution to a problem. Our nation is so varied that a law that makes perfect sense in cold mountainous state like Alaska or Montana often seems nonsensical to a warm, flat state such as Florida or Louisiana.

Next - Amendments XI Through ??

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.