Sunday, April 26, 2009

You'll Get Nothing and Like It!

In lieu of the recent controversy surrounding the Bush administration's torture policy, I wanted to review the Bill of Rights and see what rights remained unabridged in light of the policies of the previous administration (and in some cases continued by the current one). Let's take them one by one.

1st Amendment - 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. While the Bush administration did not establish a religion, they did base some of their policies on the desires of the religious right. Freedom of the press is a different matter. They not only planted stories and talking points on one cable news network, but they also instituted a program of electronic surveillance of members of the press who were particularly critical of the administration. I'm going to say that the first amendment did survive fairly intact though. So the People are up 1-0.

2nd 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. Without a doubt this amendment came through unscathed. There are more assault weapons in the hands of Americans than ever before. The poor deer don't stand a chance. People 2-0.

3rd 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. The People are on a roll. This one also remains in place. Although I can't imagine a time when this would be needed. Regardless, the People are on a roll 3-0.

4th 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. Here is where it all starts to go wrong. The Bush administration (and for that matter the Obama administration) have decided that they can indeed gather any information they feel necessary without obtaining a warrant. The at first illegal wiretapping program that is now somehow been deemed legal by Congress, flies in the face of the 4th Amendment. The wiretapping now assumes that the all electronic data gathered by the government is "reasonable" and therefore not subject to the 4th Amendment. It's amazing how easily government action becomes reasonable when the rights of Americans are in peril. The People lose their first one 3-1.

5th 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 offense 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 now infamous "enemy combatant" label laid waste to this amendment. The President now has the power to hold any person, he deems a threat to the security of the United States, indefinitely and without trial or representation. Any individual can now be denied of at least liberty and property without due process. The Obama administration has gotten rid of the enemy combatant label, but has maintained the right to use the power when necessary. The People take one in the nuts, 3-2.

6th Amendment - 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 defense. This right goes hand in hand with the last one. The right to a speedy and public trial have been replaced by the right to held indefinitely without charge. The government gets around this one, by never charging the individuals with anything "criminal". While that allows them to avoid the letter of the law, it certainly violates the spirit of the law. After a strong start the People now stand in a dead heat 3-3.

7th Amendment - 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 reexamined in any court of the United States, than according to the rules of the common law. It looks like this one is still intact! The People rule! 4-3.

8th Amendment - Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. And just like that, the winning streak comes to an end at one. Torture without a doubt would fit the definition of cruel and unusual punishment. Although the fact that it was used over 180 times in one month on one individual means that it certainly wasn't unusual to at least one person. Deadlocked again 4-4.

9th Amendment - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. I would like to know exactly what rights are retained by the people at this point. We can be made to disappear by our government, we can be tortured by our government, we can be subjected to unreasonable search and seizure without a warrant and these are just the rights that are enumerated in this document. I not even sure I can think of what "others" we actually retain. This goes against the People. 4-5.

10th Amendment - The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. I have the same thoughts about this one as the 9th Amendment. The Federal Government has at this point gathered so much power in the name of the People, that they have left little outside of their control. The states do retain control over their own elections and their day to day operations, so even though I have my doubts, I'm going to give this one to the People. That leaves the final score at 5-5.

The Obama administration has ended the use of torture, but I'm not sure that holding an individual indefinitely without charge or legal counsel does not also rise to the level of cruel and unusual punishment. The 8th Amendment may or may not still be in tact depending upon your definition of the terms. One of my greatest hopes for the Obama administration was that they would reverse the course of the previous administration with regards to the Bill of Rights. It appears that although some steps have been taken (e.g., ending torture), we still have a long way to go to restore the rights that were supposedly guaranteed to us over 200 years ago.


Jack Jodell said...

This is an outstanding post! I would seriously encourage you to forward it to Rachel Maddow for inclusion on her show, as well as to constitutional expert Jonathan Turley for comment. It is indeed that well reasoned and presented!

While you score it 5-5, I actually see it as 4-6. The Bush administration did muzzle the press by throwing reporters into jail for not revealing their sources, something a reporter should never have to do. This amounts to intimidation and coercion of the press, something I believe is not permitted under the 1st amendment.

I am very disappointed with the Obama administration in their non-reversal and non-repudiation of ALL of their predecessor's trangressions on the Constitution. These violations must not be allowed to stand, lest they become precedent. Thomas Paine and Patrick Henry would not be at all pleased!

This is a spectacular post I will email all my friends advising them to look at for themselves. It deserves much wider circulation than this. Thank you, Michael, for a very superior effort! You are a TRUE patriot!

Mycue23 said...

That is high praise indeed coming from you Jack. I certainly appreciate it. As always, I have hope that Obama will show his true colors eventually. I just thought that of all the things that needed to be changed from the last administration, this would be among the easiest. I guess I was wrong.

SJ said...

see? told you it was 4-6.