Friday, January 18, 2008

Our Dysfunctional Republic Part 13

As I continue with my discussion of the Bill of Rights, I am going to do this next segment a bit differently. I am going to cover the 3rd through 8th amendments all at once. My reason for doing so is firstly that the third amendment does not require a full article to discuss, and secondly many of the violations, or infringements upon the 4th-8th amendments all have been done in the name of the war on terror. I would inevitably be repeating myself if I did an individual article concerning each of those amendments. I will also be doing this in two parts, as covering the actual amendments, and then discussing the violations of them would make this article far too long.

To get things started, the third amendment to the Constitution simply states, "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."

One needs only to go to the Declaration of Independence to find the reasoning behind this amendment. In that document, two of the grievances listed by the colonists were that, "He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures." and "For quartering large bodies of armed troops among us:" The framers of the Constitution wanted to ensure that the people were never required to quarter soldiers in their homes, especially in times of peace.

Now let us begin covering the 4th thru 8th amendments. I have clumped these amendments together because they cover the legal rights of the citizens under the Constitution and they are the ones that I feel have been violated the most under the guise of the War on Terror. Remember, it was James Madison who once said, "It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad."

The 4th Amendment to the Constitution states, "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."

There is an outstanding analysis of the 4th amendment online. It can be found at
( I would recommend reading it if you are interested in learning more about this amendment.

The 4th Amendment was written into the Bill of Rights to protect citizens from what where then known as Writs of Assistance. Writs of Assistance were legal documents, that served as a general search warrant, which was open ended and required all parties to support the officer to whom it was issued. It basically gave the officer in possession of it carte blanche authority to search your or your home at random and at will. Later I will explain how this concept has again come into play under provisions of legislation passed under the guise of fighting the War on Terror.

Throughout our nations history, the 4th amendment has been argued in the courts. There have been many rulings that came down, interpreting this amendment from different aspects. For instance, in Harris v. United States, the courts ruled as reasonable the warrantless search of a mans apartment pursuant to the arrest of the occupant of the apartment.

Just a year after Harris v. United States, the courts set aside a conviction based upon evidence obtained by a warrantless search. That decision set forth the “cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants whenever reasonably practicable.”

Two years later it was ruled that, ‘‘is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.’’

Later still, in Chimel v. California, 395 U.S. 752, 761 (1969), the court ruled that, ‘‘The [Fourth] Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence. In the scheme of the Amendment, therefore, the requirement that ‘no Warrants shall issue, but upon probable cause,’ plays a crucial part.’’

So, you can see that the interpretation of the 4th amendment has varied depending upon the particular court that makes the decision. I would like to think that our founding fathers had in mind that we the people be protected by unreasonable searches done without warrants. A warrant, in my interpretation of it, and again I am no legal scholar, is permission granted by the courts, to the law enforcement agencies to go into a persons home and look for evidence of a crime. A warrant should only be issued when the law enforcement agency has provided enough substantial evidence that a crime has been, or most likely is in the process of being committed.

The concept of warrantless searches gives law enforcement agencies the ability to troll for information without specific knowledge that a crime is being committed, and in my humble opinion goes against the spirit and intent of the 4th amendment.

As I now begin to cover the remaining four amendments I will first present the amendments and some historical background, then I will give clear cut instances where these amendments have been infringed upon by our government.

The next amendment to be covered is the 5th, which states, "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 5th amendment has five clauses within it regarding a persons rights which were guaranteed under the Constitution, they are, 1) The right to be indicted by a grand jury for a supposed crime, 2) The right to not be charged with the same crime twice, known as double jeopardy, 3) The right to not be compelled to be a witness against yourself in criminal proceedings, 4) The right to due process of law, and 5) The right to limit eminent domain without just compensation.

The right of indictment by grand jury traces its roots back to pre-Norman England, but the first reference to it in U.S. Law appears to be found in the Charter of Liberties and Privileges of 1683, passed by the colony of New York.

While the right to an indictment by a grand jury is a legal right under federal law, that right does not apply in many states for criminal proceedings. Instead a grand jury indictment is replaced by preliminary hearings.

The grand jury process was not intended to convict a person of a crime, only to determine if enough evidence existed to continue against an accused with a criminal trial. Therefore many of the rights and exclusions, such as those guaranteed under the 4th amendment, do not apply during grand jury indictments.

The double jeopardy clause of the 5th amendment can best be explained by the ruling handed down in Green v. United States, 355 U.S. 184, 187-88 (1957), in which the court stated, ''The constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.''

This was further reinforced by two other court decisions. In Palko v. Connecticut, the Court rejected the argument that the 14th amendment incorporated all the provisions found in the first 8 amendments as limitations upon the states. In its ruling the court decided that the due process theory under which those amendments were written do now apply to the individual states.

Also, in Benton v. Maryland the court ruled that ''that the double jeopardy prohibition . . . represents a fundamental ideal in our constitutional heritage. . . . Once it is decided that a particular Bill of Rights guarantee is 'fundamental to the American scheme of justice,' . . . the same constitutional standards apply against both the State and Federal Governments.''

The next clause of the 5th amendment is probably the one most people are familiar with, the right not to incriminate oneself. When asked a question, which when answered truthfully could be considered embarrassing or incriminating, people often jokingly answer, "I plead the 5th".

Historically the right not to incriminate oneself has been more narrowly applied than it is today. It is now commonly accepted that this clause of the 5th amendment serves to preserve the accusatorial system of criminal justice, and the preservation of personal privacy from unwarranted governmental intrusion.

The next clause of the 5th amendment covers due process. This amendment protects a person from being punished for a crime without having 'due process of law', or in other words a criminal trial.

This clause was found equally applicable to the states as to the federal government in Bolling v. Sharpe, 347 U.S. 497 (1954). In their ruling, Chief Justice Earl Warren stated, "[T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive".

Also in Solesbee v. Balkcom, 119 U.S. 9, 16 (1950) the courts ruled that, ''It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due Process is that which comports with the deepest notions of what is fair and right and just.''

The final clause of the 5th amendment regards the governments power of eminent domain, the right that a government has to take private property for public use. The 5th amendment prohibits the government from taking such land without compensating the owner of that land.

According to the courts, as ruled in Boom v. Patterson, 98 U.S. 403, 406 (1879), eminent domain ''appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.''

The right of eminent domain may be an inherent right of any government, however property can only be taken for the effectuation of one of the powers granted the government by the Constitution, as ruled by U.S. v. Gettysburg Electric Ry. 160 U.S. 668, 679 (1986).

The 6th amendment states, "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."

The right to a speedy trial dates back to the Magna Carta and was also found in the Virginia Declarations of Rights of 1776. The basic reasoning behind this clause can be found in the ruling handed down in U.S. v. Ewell, 383 U.S. 116, 120, ''an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of an accused to defend himself.''

The right to a speedy trial is one of the most basic rights preserved by the Constitution, it is one of the fundamental liberties which the due process clause of the 14th amendment makes applicable to the states as well. (Klpfer v. North Carolina, 386 U.S. 213, 226).

These trials were to be public as well. The idea of public trials was based upon a distrust of private trials, to include the Spanish Inquisition, the Court of Star Chambers, and the French monarchy's abuse of the letter de cachet.

In Commentaries on the Laws of England, 349-350 (T. Cooley 4th ed. 1896), W. Blackstone wrote that a trial by jury is part of a ''strong and two-fold barrier . . . between the liberties of the people and the prerogative of the crown'' because ''the truth of every accusation . . . . [must] be confirmed by the unanimous suffrage of twelve of his equals and neighbors indifferently chosen and superior to all suspicion.''

The last clause of the 6th amendment regards the right to counsel. In Powell v. Alabama 287 U.S. 45, 57 (1952) the courts ruled that ''during perhaps the most critical period of the proceedings . . . that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thor oughgoing investigation and preparation [are] vitally important, the defendants . . . [are] as much entitled to such aid [of counsel] during that period as at the trial itself.'' Therefore the right to counsel has been also settled by the courts as well.

The 7th amendment states, "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."

Prior to the end of the Constitutional Convention, Mr. Williamson of North Carolina observed that there were yet no provisions made for juries in civil cases. There was some discussion on the issue but the members of the convention decided that it would be next to impossible to draft a suitable provision. However, this provision was cited by many opponents of ratification, and therefore was included in the Bill of Rights.

Aside from the reasons for the 7th amendment, it is similar to the 6th, and therefore does not need to be covered as in depth as the preceding amendments.

The 8th amendment to the Constitution states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

There has been much discussion in the courts in regards to the issue of excessive bail. In Stack v. Boyle, 342 U.S. 1, 4 (1951) the court ruled, ''This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. . . . Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.''

Later, in Carlson v. Landon, 242 U.S. 524, 545 (1952) the courts ruled that, ''The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept.''

In the 1rst Annals of Congress, 754 (1789), Mr. Livermore stated, ''The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be judges?''

This ambiguity comes from a trend in the United States going back to a provision of the Massachusetts Body of Liberties of 1641 which guaranteed bail to every accused person except those charged with a capital crime or contempt in open court. It wasn't until 1984 that Congress authorized preventive detention in federal criminal proceedings in D.C. Code, Sec 23-1321 which was held constitutional in U.S. v. Edwards 430A.2d 1321(D.C. App. 1981)

When the founders were discussing the clause concerning cruel and unusual punishment, there was significant debate regarding the subject. Again from the 1rst Annals of Congress 754 (1789) we read, ''the import of [the words] being too indefinite'' and another Member said: ''No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in the future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it would be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind."

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