Amendment VI

Breaking down the Amendments, part VI:

The Sixth Amendment follows the Fifth for good reason, because it helps to define the elements of “due process” that the Fifth Amendment called out. The Founders were very good about following a train of thought, for the most part. Again, this Amendment is pretty cut and dry on context, no real hurdles here. It further defines the process by which a Government may attempt to punish a Citizen that has committed a crime.

Here it is:

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

First off, notice the spelling of the word ‘defence’, this is the British English variant of the word ‘defense’ as we know it today. Vernacular aside, this Amendment helps to tell the Government what their process will be and defends the People’s interests.

First part: In all criminal prosecutions

Defined is what the Amendment will cover, “criminal prosecutions”. To this point the Amendment assumes that the previous Amendments were followed and the Person was charged with a crime.

Second Part: the accused shall enjoy the right to a speedy and public trial

This is the basis of our Court system today. This Right guarantees that the People will be provided a quick and public trial. This was done intentionally as prior to 1776, Colonists could be detained without end and tried in a private proceeding, generally where most allegations were false and in the best interest of the Crown.

Third part: by an impartial jury of the State and district wherein the crime shall have been committed.

This portion specifically calls out “who” will weigh the truth of the allegations. The People. Specifically People from the area where the crime was committed and you’ll notice that this does not discuss race or gender (though, at the time those would hardly be sticking points). This is important because for most of the existence of America these juries were predominantly white men; this didn’t do to well when racism was prevalent through most of the United States. But, this is important today because you’ll see organizations like the ACLU or NAACP try to use race and gender as reason to “create” a jury, not of peers, but of specific races and genders – this flies directly in the face of this Amendment.

Fourth part: which district shall have been previously ascertained by law

This portion specifically defines that up to this point the “accused” must have been put in a time and space for committing the “crime”. This goes hand-in-hand with the Fifth Amendment calling out “double jeopardy”.

Fifth part: and to be informed of the nature and cause of the accusation;

The Founders wanted to make sure that the “accused” was well aware of what they were being charged with. The Amendment again was created to correct measures taken by the Crown where accusations could change at the whim of the Court, generally increasing rapidly. This also plays a later role in defining “Miranda Rights” for US Citizens.

Sixth part: to be confronted with the witnesses against him;

And this really sets in play that the Government must provide actual facts and actual witnesses to make their case. The Government must provide to the accused witnesses and evidence against them. The Government cannot hide evidence or claim witnesses it can’t produce.

Seventh part: to have compulsory process for obtaining witnesses in his favor

Right here the Founders said that a defendant might call their own witnesses. During the time of Americas founding it was common practice to put a defendant on trial with no ability to call anyone to testify in their defense (defence), this made it very easy for innocent people to become guilty, as the prosecuting agent was not about to call individuals that might say the defendant was innocent.

Eight part: and to have the Assistance of Counsel for his defence

Probably the most crucial element of this Amendment - the ability of the accused to have representation even if they couldn’t afford it. Now, in common day this seems like a given right? I mean who would dare think that you could arrest a poor person and then essentially destroy them financially by mounting a prosecution they couldn’t hope to defend against. This portion of the Amendment dictates and mandates that the People will be defended against the Government. It cites that the Government must provide a means by which a Person could be defended (clarified further by the 14th Amendment later).

So why does this matter and why should you care? Because again we can go to the “Grand Jury” as we see it applied today. During a Grand Jury preceding it is not necessary to produce a witness on behalf of the defendant, nor provide tangible evidence outside of conjecture. Think next time you rapidly move to say someone is guilty because of a Grand Jury indictment. Also, remember this when you hear about "Military Tribunals" and "drone attacks on 'terrorist' Americans", these fly directly in the face of the Sixth Amendment. Keep thinking people. Keep thinking.

Amendment V

Breaking down the Amendments, part V:

The Fifth Amendment was designed for several reasons; including everything from not having to testify against yourself, to due process, to equality, as a result the Fifth Amendment is a American Civil Liberties Union (ACLU) favorite. In fact, the Fifth Amendment was used very recently to over-turn the DOMA (Defense of Marriage Act) as it was deemed that marriage was between a man and woman was not “equality” under the law.

Let it begin:

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

I’m going to lump a few of these context points together for the sake of reasoning.

Part one: No person shall be held to answer for a capital, or otherwise infamous crime

This Amendment was designed to protect the People from Government over-reach (as most Amendments were). The statement established the guidelines for capital or infamous crime, infamous crime by the way is generally described as a felony or something that usually is punishable by more than a year in prison. Sketchy for sure.

Part two: unless on a presentment or indictment of a Grand Jury

Here we get how the Government can get around the Fifth Amendment – the Founders were very good at detailing the loophole, unfortunately a Grand Jury can find a sandwich liable because in this event the prosecution can show evidence that violates multiple amendments, including search and seizure.

Part three: except in cases arising in the land or naval forces

Complicating things the Founders have pretty much written off the Military, they don’t mention “Air” so this should probably be amended itself.

Part four: or in the Militia

Once more, writing off the military aspect, so this clearly applies only to Civilians in the public

Part five: when in actual service in time of War or public danger

Ah the Founders threw in a clause, see the Military can’t just wave the Right, the Military member must have been engaged in conflict or engaged as a result of conflict. Confusing, but somewhat clarifying.

Part six: nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb

This is my favorite statement; this is what essentially stops the Government from doing what Italy just did with Amanda Knox. If the State charges you and can’t make its case, they can’t simply wait, gather more evidence and charge you again for the same crime. I find the words interesting as for the punishment “jeopardy of life or limb”, I think we all get the life part, essentially imprisonment, but the limb part, ouch.

Part seven: nor shall be compelled in any criminal case to be a witness against himself

“I plead the Fifth”, you hear that a lot in movies or shows with a court scene. What this means is that you cannot be forced to provide testimony against yourself that would incriminate yourself – can’t use your words against you, so to speak. This part has become very interesting in recent years when you discuss passwords and encryption, etc. The Courts have ruled that at no time can a person be forced to provide the State with their passwords, or even the fact that a password exists. The Government has tried repeatedly to get around this, but the mandate is clear. Providing your password would incriminate yourself, thus it is unconstitutional. The only way the State could force this issue is if they had enough corroborating evidence to say all of the following: “we know there is a password”, “we know the data you hid”, “we know you’re trying to hide it”.

Part eight: nor be deprived of life, liberty, or property, without due process of law;

The Founder started getting very fond of the semi-colon, setting context and almost ending the statement. Here we see that they’ve detailed what the State can’t take without first providing that the Person has had every opportunity given them under law.

Part nine: nor shall private property be taken for public use, without just compensation

And now the eminent domain portion of the Fifth Amendment oddly placed I think. This is a really interesting place to put a clause about seizure of property, almost seems like it was a hold over from the Fourth. What this establishes is that the Government can’t take a persons property simply because it wants it without giving adequate compensation (money). For the creation of this again the Founders looked at English law. During the Founders time the People had almost no rights to land, everything was that of the Crowns or whom the Crown selected. This precedent existed throughout history; see R v Earl of Northumberland was decided in 1568 where 12 judges in good ol’ England decided that every single mine was really the Queens. The Founders wanted to make sure that the Government couldn’t claim land without regard for the People or Person who owned it. In our current day we see this applied usually more so around the Government wanting to do something for the public good (like a road, park, utility lines, etc) – but watch this closely. The Government has picked up large portions of States land in the name of “National Parks”, do some research and you’ll see what I mean.

The goal of the Founders with the Fifth Amendment was to set rules for the Government when attempting to imprison or remove a persons personal effects. This Right is what ensures that most Americans are getting fair trials the majority of the time. While this doesn’t remove incident it does limit it. Now the problem with the American justice system is that case law allows judges to rule ad hoc on many, many things. This creates a definite injustice in sentencing guidelines; where you see a rapist get 5 years and a guy with 10lbs of pot go to prison for 10 years. All in all the Right is pretty clear and offers Joe Citizen a lot of protection but make sure you pay attention to Grand Juries and what they actually do and see, realize that an indictment by a Grand Jury is a cake walk and allows the State to trample the 4th, 5th and 6th Amendments in trying to reach an indictment. Watch closely for when the Government, through DHS or another body, attempt to remove the "Person" by associating an individual or group with something dangerous - think Terrorist. And also, remember that when you add the 4th and 5th Amendments together, you’re protected from the Government attempting to seize your property online (passwords, etc.). Keep thinking people. Keep thinking.

Amendment IV

Breaking down the Amendments, part IV.

The Fourth Amendment is about as popular in modern day America as the First. The Amendment itself revolves around guaranteeing the People that the Government cannot come in to your deemed “private” life and take or seize anything without proper “warrant” which has be supported by an Oath or Affirmation. Hmm, interesting choices of words so we’ll need to briefly discuss.

Here it is:

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.

That's quite a statement isn’t it? Almost as impressive as the First Amendment so the Founders must have put some serious thinking into this one, or were bored and just rambling. Either way, it is impressive.

First part: The right of the people to be secure in their persons

Essentially this part guarantees the People of the United States of America that they themselves of sound mind and body may not be “seized” – think Miranda Rights (a later follow on in American law to an obvious oversight). This is pretty clear and concise in its statement.

Second (and I’m going to lump a few together) part: houses, papers, and effects

Ah, somebody in the room realized that while the Person themselves might be OK with this Right, there objects were not. And considering America was just coming off a Revolution where raiding houses to find information would have been very valuable to stopping said Revolution, it makes sense that they wanted this protected. What is important here though, and not to be overlooked, are the exact words: Houses, Papers and Effects. The House part is pretty straight forward, your house, easy to see, the papers part this gets cloudy in modern day – see the Founders couldn’t conceive the “Internet” nor people ad hoc handing out their private affairs to “cloud” servers and “email”.  We’ll discuss in a few. And the term Effects, well what does Effects mean? Well by all standards it means personal belonging, so things that are yours. Now pair personal belongings with Papers and you have just defined that your “email” and “cloud” information is in fact, protected by this Right…regardless of what politicians will tell you in the ever glowing light of Security.

Third part: against unreasonable searches and seizures

This part really alludes to a follow up, which comes right shortly after.

Fourth part: shall not be violated

Ah, so the Founders are serious on this one, almost the same tone as the use of ‘infringed’ in the Second Amendment.

Fifth part: and no Warrants shall issue

Essentially authority figures can’t simply grasp legal precedence without something, coming soon.

Sixth part: but upon probable cause

Boom, there it is the most critical statement in this Right, that is the method by which the Right could be removed. Probable cause is something most Americans are familiar with because they’ve inundated themselves with Law & Order episodes, but it isn’t enough to merely suspect something or is it? Perhaps the Founders can assist.

Seventh part: supported by an Oath or affirmation

Finally, some serious text here, so this Right cannot be altered by the Government/State without someone providing Oath or affirmation to the need for a Warrant to wave the Fourth Amendment and detain a person or their effects. But what does Oath or Affirmation mean? Oath, generally is a term for a statement of fact, someone testifies under “Oath”, Affirmation is a little shady, see affirmation is kind of the step-brother of Oath, it looks like it on paper but differs slightly. Affirmations are in a sense a declaration of validity without actually “testifying” to accuracy.  This again goes back to the Founders considering what they were leaving. Affirmations were relatively common alternatives in English Law to Oaths, and thus, carried over into American law. But an affirmation is not necessarily valid, it can be wrong, though the best intent of the provider – where as an Oath is a testimony of truth.

Eighth/Ninth part: and particularly describing the place to be searched, and the persons or things to be seized

And here we have the quagmire, the place and item, something policies like the Patriot Act and the 1978 FISC creation have all but minimized. See in modern day where things happen in seconds and social media has replaced news papers and face-to-face communications, it is difficult to know exactly “what” item Authority plans to seize, however, it should be pretty simple to say “who” you’re going after. Remember where I discussed DHS in the Third Amendment write up, this comes into play again. Agencies that the Government creates with such broad scopes of power in the light of Security just move more and more to gray areas that the Founders intended to be clear lines. Now this would be OK if the Supreme Court provided Amendment clarification, but this never happens, the USSC tends to sit on the sidelines for as long as humanly possible.

See the Government has no right whatsoever to capture you email, attack your social media account or follow your chats online because these are your effects, your property, the means by which they are transferred or conveyed are not defined in the Right and as you’ll see later, the 9^th and 10^th Amendment clarify that any power not specifically provided to the Government is in the hands of the States (not State) or the People, but never the Government.

So, next time your watching the news and hear something from some “leader” saying “well the Fourth Amendment didn’t define…”, remember that was not its charge. The Government is given specific powers; it does not get to pick up whatever it feels like, that right is reserved for the People and States. Keep thinking people. Keep thinking.

Amendment III

 Breaking down the Amendments, part three.

Ah, the “Intolerable Acts” clause. The Third Amendment finds its origin in the Quartering Acts of the English Parliament right up until the American Declaration of Independence. In its essence the “Quartering Act” allowed British soldiers to stay pretty much wherever they pleased. It had been that British Troops could stay in Bars, Inns and Stables or places that were mostly ‘public’ but with all expenses paid by the Colonists. This boiled over into private homes being taken to house British troops, and thus the Third Amendment was born.

And here it is:

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

Here we go, first part: No Soldier shall

OK easy enough, and simply put, a declaration of what soldiers representing the “State” can’t do. Pretty much not open to interpretation.

Second part: in time of peace be quartered in any house

Again, easy and in keeping with the first statement, no troops in a house (think establishment not owned by the Government) during a time of peace.

Third part: without the consent of the Owner.

Keeps falling in line, this might be the clearest Right yet. So no soldiers in private residences without consent of the Owner. That was easy.

Fourth part: nor in time of war

Simple again, during a war apparently this can be altered.

Fifth part: but in a manner to be prescribed by law

And here we go I knew we couldn’t get one that was perfectly clear. So, prescribed by law, pretty open to whatever the ruling party at the time decides the “law” should be. With the creation of things like The Department of Homeland Security, this line has the possibility to be significantly grayed. The Government already created the designator “terrorist” as a blanket statement for dang near anything they deem out of line. It once was that a known “organization” with some semblance of defined leadership and a cause could be labeled ‘terrorist’, but today we have ‘terrorist’ States as well as Politicians labeling random political parties ‘terrorist’ based on their positions – not violent actions.

This is important because we need to remember context. This Amendment was written in direct response to the Intolerable Acts actions taken by the British post-Boston Tea Party. Now, what was the Boston Tea Party? Simplistically enough (yes there is far more to it), the Boston Tea Party was a display of complete dissatisfaction with the ruling Government geared towards destroying some relative amount of noticeable commerce. As I stated in the 2^nd Amendment write up, please read about good old John Hancock, loyal port merchant that he was. Now tie this into today, think…”Tea Party” political group taking non-violent (meaning not killing anyone) actions against the Government, seems oddly familiar to the Boston Tea Party. So pay attention when executive orders come out attempting to “clarify” positions, but above all, always ask where such power is coming from. Keep thinking people. Keep thinking.

Amendment II

Breaking down the Amendments, part two.

The Second Amendment to the U.S. Constitution is probably one of the most perplexing sentences in the United States of America. Courts and Politicians have argued it's meaning since December 15, 1791. The words aren’t complex; the sentence structure leaves a lot to be defined (again, founders liked to use commas to set context):

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.

Again this use of the “comma” forces us to break down the sentence structure, so hold on it’s going to be a bumpy ride.

First part: A well regulated militia being necessary to the security of a free state

Consider the times, 1776 the Colonies decided they no longer wished to live under the Crown of England, check that, about 15% of the Colonists decided this. Those 15% just happened to be landowners, wealthy and capable of forming a resistance both through personality and financing (do a little independent thinking on John Hancock and you’ll discover a lot).

From 1775 to 1783 the Colonies were fighting and slowly winning their sovereignty. This was a time and era where individual rights were the last things on a King’s mind – think socialism meets dictatorship in a horrific union. That said, 1786 rolls around and the United States are finally just that, United.

After realizing that being forced under a certain religion and not being able to speak, right or “march” for a cause was a horrible thing, the founders realized they needed to back that statement up or risk falling to the same page in history.

A well regulated militia was more feasible than a large scale standing Army because during that time there was a far greater sense of community and personal responsibility when it comes to defense than we have today. Not to mention, it was considerably cheaper – something advantageous to a new found State. People sometime consider this statement “..the security of a free state” to mean the independent states (13 at the time), I offer that it means the union of State – the Country itself, not necessarily the independent States. That is another debate. Essentially what we have here is the founders saying “hey we need a capability to defend this Nation now since England will no longer provide us Security”.

Second part: the right of the people to keep and bear arms shall not be infringed

And now the confusing part, well, not really just people attempt to over-analyze this to a fault. The statement is simple, people keep and bear arms and that right cannot be limited by the Government itself. The concept is very, very simple. The founders were a smart group and they knew that Governments couldn’t be trusted because people run them, limited people, people of power and people are riddled with authoritative hunger – absolute power corrupts absolutely.

The founders weren’t going to see that happen here. Thus they provided the average person, “the People” (as in “We the People….”) the Right to maintain firearms for defense. What the founders didn’t do was say the People have the right to bear arms, as long as the Government thinks it is all right. However, the people do have the right through their self-governing to create guidance. And right here is where the constant debate lands. See, most people and most elected officials know there is absolutely, 100%, no chance of repealing the 2nd Amendment, instead they attempt to limit it through legislative action deemed as “security” for the individual – kind of goes directly in the face of the reason we have a Bill of Rights, doesn’t it? The Government telling the People, something seems backwards here.

One thing to note is that there were two versions of the Second Amendment, one that Congress liked, one that the States ratified. What do you think the States changed? The context…the comma…as in they removed one. And where was the comma? The original writing, the one you find in the National Archives, goes as follows:

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.

The ratified version by the States goes like this:

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.

Ah, you see, a context change. Congress liked the pause between the Peoples rights and general infringement, or limiting. The States wanted it clear that the “infringement” piece of that Right was tied directly to the People. Think about that next time someone tries to preach to you what the 2nd Amendment meant, ask him or her about the context and who and what was meant by it. Slippery slope. Keep thinking people, keep thinking.

Amendment I

Breaking down the Amendments, part one.
The First Amendment, the one most bastardized by Americans and used to defend everything from pedophiles to hating the faithful, is more tricky than the Second Amendment when it comes to 'interpretations'. Here it is:

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.
Let's look into the text, shall we, because the framers of the Constitution loved the use of commas. In fact, they use commas in nearly every single sentence they wrote. This is difficult for definition because the comma itself tries to establish context. Here we go...

First part: Congress shall make no law respecting an establishment of religion

OK, seems easy enough, Congress can't legislate a religion to the Citizens. Essentially they can't make a law saying "Everyone shall be Christian", or Muslim, or Buddhist, etc. They also can't say we all are "Atheist" nor "Agnostic". No law.

Second part: or prohibiting the free exercise thereof

Ah, thanks, so we can have faith and religion in the United States and no law may tell us we can't.

Third part: or abridging the freedom of speech

This is the one we Americans love to quote "Freedom of Speech", yup, sure enough we have it..which allows me to write something like this without getting arrested, though I'm sure I'm on a "list".

Fourth part: or of the press;

This allows our now useless media outlets to flourish in a 24 hours opinion column.

Fifth part: or the right of the people peaceably to assemble

Wow, man they shoved a lot in the First seems like they didn't see the other nine coming at all. So this part says you can "assemble" which most Americans have used to "protest" a nice negative term on an otherwise useful piece of founding parchment.

Sixth part: and to petition the Government for a redress of grievances

This part has seriously been all but abandoned by America. Well, not the petitioning but any attempt and redress of grievance. Lets define the word "redress" - to remedy or set right; when is the last time that occurred?

This concludes the breakdown of the Amendment and shows how much this single complex sentence contains.

The next time you hear or read about some Atheist group using the "first amendment" as their rationale to not allow prayer in a public school, ask yourself this "where is that written?". The answer, no where. The Right simply says the US Congress can not legislate a religion, not that the State can't participate in one. Keep thinking people, keep thinking.