The Amendment Story

People of my generation will be very familiar with this brilliancy from the writers of the Simpsons:

It would benefit the sitters-in of Congress to take a look, perhaps – no doubt they can lounge back on their pillows, watching on their smartphones while munching all the goodies provided them. For those few of us already here, however, it might help to take a look at the actual Bill of Rights all over again, to see why these principles are too important to trample over in a rush.

At this point, we’ll get an important retort out of the way – “Where were you when this was about the Patriot Act, huh?” The short answer is, I wasn’t blogging yet; I didn’t open Hive 1.0 until late September of 2004. (Post One, for what it’s worth.) The longer answer is, I was in favor of it at the time, though I opposed the Department of Homeland Security and TSA – feeling that those were needless duplications of functions better-handled by the Department of Defense – but as it turns out, the warnings about it look like they’re coming true. I also note, ruefully, that the very people so convinced then of the dangers of such surveillance and infringement are precisely the same people guilty of expanding those abuses; perhaps they knew they wouldn’t be able to control themselves if given such power? And perhaps that explains why they think no legal gun owner can be likewise trusted to his own defense?

To sum up – either you were wrong about PATRIOT, in which case you shouldn’t support this nonsense, or you were right about it, in which case this is exactly what you were warning us about. Now back to our story, below the fold…

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First things First

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Amendment One – 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.

This is the grandaddy of them all, as Keith Jackson might have said in 1787. The Constitution proper outlines everything the citizen can expect his new central government to do; immediately following is a provision that broadly outlines the sorts of activities that a citizen can expect this government to protect and respect.

Note – not permit. There is no permission to be had. This is something a person can do merely by virtue of being a person. You have the right to worship as you please, and speak your mind, and print your ideas and distribute them, and gather with those of your own choosing, and you especially get to appeal to your new government when someone else forbids you any of those things – and especially if the new government is the one doing the forbidding.

That’s a lot to go over. All at once the State is made subordinate to the citizens – deriving their just powers from their consent, as you recall being quoted from the Declaration. Further, the will of the government as expressed in the law is not regarded as automatically superior to religious practice. The well-known “wall of separation” Jefferson referred to in his letters was not meant only to protect the State from any Church, but also the reverse. It was a guarantee that the government would not make laws interfering with the practices or particulars of any sect, nor to make one official over the others. (This reinforces the provision in Article VI of the Constitution proper that “no religious test shall ever be required as a Qualification to any Office or public Trust under the United States.”)

Regardless of faith or lack thereof, we also have the inherent right to speak our mind. I’ve spoken a lot about this in other contexts, especially when it comes to those who, while not bound by the First Amendment, unwisely decide to use social pressures and other tools to make sure that those whose ideas they dislike are never given a hearing. Such things are perhaps a necessary consequence of liberty, since obliging somebody to sit and listen to me is just as bad as obliging me to shut up already. Nobody is forced to give a platform to anyone else. But the habit of silencing leads too easily to the loud demands that somebody in charge take it upon themselves to do the silencing for you; we’ve seen it repeatedly with mobs attacking a political rally in San Jose, state universities permitting protests to shout down or drive off disfavored speakers, and official punishment to those who invited those speakers (but none to the silencers).

This is a dangerous road, and a good enough reason for us to be wary when a large social platform selectively punishes only certain viewpoints.

Finally, we tiresome free peoples have every right to bug our elected officials about doing the jobs we’ve delegated to them, in the manner we direct. We can *peaceably* assemble to tell them so. In fact we can peaceably assemble to do most anything else, too – play disc golf, have a large choreographed dance number, play human chess, set a record for the largest cookie ever cooked in Kankakee County… you name it. And that doesn’t sit well with the gatekeeper personality…

Just a Second

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Amendment Two – 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 bete noir of the moment, subject to all sorts of misconstruals and derision; but considered to be a fundamental and unalienable right of humanity. Why?

Well, it’s not the gun. One very foolish meme is that “I wish I had as many rights as a gun.” But of course the gun is a thing, and it has no more rights than a potato or a pine tree or a saltwater aquarium. Remember, we are the people, therefore we have the rights. One of those is the right to lawful self-defense. Hence, the gun.

It’s easy to bog down in debating what, exactly, is proportionate self-defense, but that’s an issue that must rely on the primary right, which is that we need not be passive targets. Just because you can’t shoot your neighbor when their yappy Yorkie piddles on your hyacinths, doesn’t mean that you have to sit helpless when some armed brigand tries to kick in your door. Long before there were any laws, governments to make them, or societies to require them, there was the simple fact – Ogg wants to club you and take your fire, your mate, and your bearskins. Unless you want to be unconscious, cold, lonely, and nude, you had better do something about it.

Beyond this, however, there is another consideration. We’re telling a story right now, and the first Amendment has set us up with a beautiful premise – we, the heroes, have all these rights, and we have a land we’ve set up specifically so that we promise that we will respect these things… not just from person-to-person, either, but when we exercise authority in the form of laws. Those laws will not infringe these rights.

People are, however, sneaky and greedy; they may well decide to ignore this respect and try to use the laws to get their way. After all, agreement or not, they’re in charge now. So they’re going to break up our pizza parties, close our dance clubs, outlaw our doctrines, burn our books, and we’re going to shut up and like it. What are the heroes going to do about it? It’s not like the bosses in charge are required to listen to our redress for grievances after doing all the rest, nor are they likely to act on those grievances.

Well, ultimately – and as strange as it sounds to our 21st-century ears – they had darned well better, because the right to self defense includes defending yourself against your own government. Logically, it must include this, or else the only thing preventing the destruction of your rights and the premature end to our story is if one group manages to get themselves into a public office.

And that’s how the right above comes into play. Because a free state requires a well-regulated Militia, your right to keep and bear arms shall not be infringed. That doesn’t mean that you, the citizen, must submit to regulation of your rights, either. The Militia – the people assembled for their own defense – needs regulating. We don’t want a mere mob. But a disarmed Militia is no practical use either. Where law and order has broken down entirely and the local police are overwhelmed, we’re back to the land of Ogg… only this time there’s fifty of him and they’re looting and burning the entire town. That’s when the Militia – a well-armed and disciplined people – assemble, and in concert exercise the right of self-defense on behalf of themselves and the defenseless. Such an ability is inestimably valuable.

Three is a Magic Number

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Amendment Three – 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.

This one, at least, seems to be rather a moot point. We don’t generally have the Marines knocking on our doors looking for a billet. But this was one of the chief complaints of the colonists to the Crown back in 1776:

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world…

I have bolded the phrase and included the context in order to make it more plain why, exactly, this was a big deal to the colonists, and would be to us if it were happening now – this “pretended Legistlation” would obviously be of no import, a dead letter, if it were not enforced. To that end, the armies of King George were called in, and were not only putting punishment behind the hated Acts, but also hindering open trade via their navy, and all while shielded from accountability under the law.

The colonists rightly hated this, so much so that the United States seriously debated whether they should have a standing army at all, or merely that well-regulated Militia to call upon at need.

Further than that, however, remember the thesis that we’ve been developing so far – these Amendments are laid out as a story, building upon one another, setting a scene and then raising the stakes, leading us through complications to a resolution. You can worship as you like, say what you please, not only criticize your elected officials but also gather to protest them, to haul them before the law if need be. If they ignore this, then you have the right to defend yourself and your rights with armed force if you must.

The government, of course, while nominally respecting these rights, can render them a dead letter in much the same way George III did long ago, by having soldiers forever in amongst the people. How can you organize to speak out or defend yourselves with the state’s armed informants sitting at your dining room table and blockading your ports and roads? The witness of dissidents in communist regimes should tell you all you need to know about how that generally works out – silenced, disarmed, herded into work camps, unable from fear to reach out to anyone else, no matter how trustworthy, because you might be overheard.

So, what might a cunning and devious would-be tyrant try next?

Fourscore and Seven Laws Ago

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Amendment Four – 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.

OK, so far so good. You can say what you like, protect yourself, and the army’s at a proper length instead of drinking your milk from the carton and putting their boots up on the coffee table. But of course, you still need an army, and a local police force, and they have to be able to investigate crimes and punish the guilty.

So now, in the guise of such investigations, they come barging in every few days, early or late, or else wait until you’ve gone and then waylay you. “Just checking,” they say. “If you’re not guilty you have to reason to worry!” No reason, of course, except that even though they don’t actually live with you, they’re such frequent guests that you can’t live your life, and you can’t make any protest without them showing up to “investigate” you a bunch more. Nor will anyone else back you up, since they don’t want to have regular visits of their own.

Enter the Fourth Amendment. You have the right to be free from being harassed, harried, hounded, and otherwise hassled by the powers that be. Their authority to do their job in protecting the law is itself bound to be lawful, requiring such things as probable cause and specific details. The protections of our rights build one upon the other in this manner.

Five ain’t no Jive

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Amendment Five – 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 by 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 Fourth Amendment notwithstanding, there’s a way for our cunning tyrant to try to get around us – they can go right ahead with the seizures and arrests while claiming that of course they were all above-the-board! In fact, in some cases the tyrant may even be correct. Maybe they really did have a just cause to search a home, did find real evidence of a serious crime, and got the actual culprit.

Sure they did. Are you gonna take their word for it?

Let’s make sure that their word is good, even if they aren’t. Should they try any shenanigans, the Fifth Amendment steps in to elaborate on what the Fourth has made plain. Even if you think you have a legitimate cause to punish a criminal, you have to prove it before a group of his fellow citizens before you even try the case. When you try the case, you get one shot at it – you can’t just bog down somebody you don’t like in an endless series of charges and trials. Neither can you force that person to confess or otherwise incriminate himself. And the state can’t just help itself to your stuff.

Plenty of people know about “pleading the Fifth” but it covers more than just keeping your mouth shut under questioning. (Not that this is a bad idea in any case:

Hat tip for that video to attorney and congressional candidate T Greg Doucette, @greg_doucette, via Twitter.) It covers much more than that. Further, it’s worth noting that the one exception actually written into the Amendment covers the armed forces; or the Militia (that’s us, remember) ONLY during actual service. We as citizens have greater protections than the agents of the government are granted, unless we are acting as such agents ourselves, such as National Guardsmen called to active duty.

This still leaves our clever would-be Komissar some wiggle as to what, exactly, constitutes due process or just compensation. It also leaves aside what happens after an indictment but before a conviction. The story must continue…

Watch your Six

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Amendment Six – 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.

Slowly but surely, we are hemming in our would-be satrap trying to get one over on us. “Well, I got probable cause, got the warrant, got the evidence, got the indictment… so you can just sit there for a while, see?”

No. No, we will not be sitting a while. We will be getting a trial, on charges made plain to us, with a jury of fellow citizens, and we aren’t going to get shuttled off someplace convenient to you and inconvenient to us, either. The process of picking a venue will be according to legal principles. During that trial, we will have the assistance of a proper lawyer and not a figurehead you approve of. We can face our accusers and rebut their testimony and evidence. We can also summon people on our behalf, and they can’t conveniently excuse themselves when it’s time for them to appear.

This process greatly hinders any shenanigans – the accused has the right to know what the State has against him, what they accuse him of, and can both cross-examine opposing testimony and offer his own. You will, of course, note yet again that the presumptions are in favor of the citizen, and the burdens of proof are levied on the government to show convincingly that a particular person is to be deprived of their innate rights – it can only be done for cause.

Does the state have any other tricks to play?

Seven and the Ragged Trier

(Hey, let’s see you come up with enough clever headlines for this! I ain’t Dawn Eden, here.)

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Amendment Seven – In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of a 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.

Well, there’s this trick. A person could be held on charges and the State could claim they were civil rather than criminal, and sue the accused rather than seek to jail him. It’s not much, perhaps, but the Constitution has been boxing things in pretty closely now. In fact, our story is building up to a big finish, and it’s looking good for us. But let’s make sure that the State can’t merely bankrupt people in lieu of criminal convictions.

We, the people, can always have our civil disputes heard by a jury, rather than by a judge, so long as the amount is sufficient; and their findings of fact in the matter can be reviewed only by established common-law rules. These rules are as much for the protection of a plaintiff as they are the defendant, of course. Any appellate process may discover that a dismissal or acquittal has been improper, just as they may find that a jury has erroneously found against the defense.

After all of this, of course, a jury of one’s peers could find in favor of the State. We’ll go ahead and say yeah, you had it comin’, you done it, and you deserve it. Our story has taken a sudden turn, hasn’t it…

Pieces of Eighth

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

PORTIA

A pound of that same merchant’s flesh is thine:
The court awards it, and the law doth give it.

SHYLOCK

Most rightful judge!

PORTIA

And you must cut this flesh from off his breast:
The law allows it, and the court awards it.

SHYLOCK

Most learned judge! A sentence! Come, prepare!

PORTIA

Tarry a little; there is something else.
This bond doth give thee here no jot of blood;
The words expressly are ‘a pound of flesh:’
Take then thy bond, take thou thy pound of flesh;
But, in the cutting it, if thou dost shed
One drop of Christian blood, thy lands and goods
Are, by the laws of Venice, confiscate
Unto the state of Venice.

GRATIANO

O upright judge! Mark, Jew: O learned judge!

SHYLOCK

Is that the law?

PORTIA

Thyself shalt see the act:
For, as thou urgest justice, be assured
Thou shalt have justice, more than thou desirest.

–Shakespeare, the Merchant of Venice, IV:1 lines 299-316

Such a contract as Shylock and Antonio signed would never pass muster in the courts of the United States, thanks to the Eighth Amendment. But what the State cannot permit others to do, it routinely does itself – and not without cause, either.

Has our hypothetical corrupt politician finally got us where he wants us?

Well, the quote I used above was kind of a spoiler. The answer is no – not even if we are guilty of a crime can the State simply do away with us, or do with us according to personal cruelty or caprice. As the saying goes, the punishment must fit the crime. A dispute over whether a certain punishment is inherently unreasonable must, by definition, rely on the concept that such punishments are an affront against the rights of a person, even a criminal, as described herein. Senator Shylock is doomed to disappointment, and though we do not call his own goods forfeit to the state for such things, we should perhaps be more diligent in kicking him out of office to seek honest employment.

Is all well that ends well? Maybe, but we haven’t quite gotten to the end of our story.

Nine and Ten and Back Again

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These last two are sides of the same coin, so let’s deal with them together.

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

Amendment Ten – 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.

After all of our story, with our happy free citizens finally triumphant and our wicked wannabe overlords thwarted, we get what appears to be a little epilogue. After all, empires like to try to strike back. So our heroes – us, in this case – need tools to carry on the fight. These two Amendments are, in fact, those tools. They re-emphasize what I wrote just as we began our tale: “Every one of these Amendments, as you will see, lays restrictions on the state, not on us.”

In short, we the people don’t need it in writing to be allowed to do it. In fact, we don’t need permission at all. The government, however, does. If it isn’t in the Constitution, they have no authority. And when it comes to the Federal Government, the restriction is stronger – the States can forbid the Feds from doing things too, though in practice that has pretty much been a dead letter for many years.

Subsequent chapters have seen our intrepid adventurers in dire situations, in large part because many of the parts of the story have been forgotten or ignored. Again, how many of us knew that the Fifth Amendment was about more than just self-incrimination? How many years has it been since Congress paid any heed at all to the Tenth Amendment? Just today, in my conversation with my Twitter friend, I was told that “There is also a system of checks and balances, as the ‘rights’ outlined by the law are not blank checks.”

Checks and balances, of course, refers not to our rights, but to the various powers of the branches of government, each restraining the other, and by design to help protect our rights. Not only is a fairly smart person mistaken about to whom that restriction applies, he used scare quotes for the term “rights” as if WE were the problem, not the State!

Is it any wonder we’ve got issues as a nation? We are so convinced that we are each others’ worst problem that we are ignoring the rampant abuses of both our laws and our rights in the name of “safety,” and we’re not even getting any safety out of this bargain. Many of our own elected representatives are staging an occupation of their own workplace in protest of our inherent rights to self-defense and due process. The government as a whole is pronouncing on matters in which the Constitution is wholly silent, while demanding control over things expressly forbidden them. And in defiance of Portia’s wisdom, they establish these ills as a judicial precedent and then demand that these precedents be respected as if they were the same as the lawful Amendments, even if they contradict the plain language of the Constitution.

As long as 30+ years ago, P.J. O’Rourke looked at our government and named all sorts of their acts and laws that exactly fit the description Thomas Jefferson wrote of the tyrannies of King George III and his Parliament against the Colonies. Things have only gotten more alarming since then. People are fond of saying “It can’t happen here,” but the whole point of the Constitution is to make that saying true. If you ignore or gut the Constitution, then there’s no reason why it can’t. We’re human, and humans can be awful, terrible, and pitiless. In fact, arguments in favor of denying us the rights to self-defense and autonomy pretty much all boil down to noticing how awful we can be and refusing to trust us.

The self-refutation of that argument should be plain – if humans are indeed all that lousy, and we are, then granting undisputed power to one group of us is certain to be a terrible idea. Calling that group “the government” doesn’t make the people within it any more virtuous. They already pretend to be superior to the laws that protect us from them, and neglect their oaths and their numerated responsibilities in favor of bullying us about in our day-to-day lives. Why should we assent to this?

(This, incidentally, is why I am quite suspect of one Donald J. Trump to be our President. It seems to me like quibbling over the color of our prison walls. Like Gandalf once said, we don’t want merely to replace a Dark Lord with one of our own choosing – we want to cast him down, and put nobody in his place. In our current situation, it means voting for people who actually defend the Constitution, rather than one who will simply punish other people instead of us for a while.)

Since this is the case, is it any more wise to trust to the smaller groups of us?

I think it is, for a number of reasons:

1. A smaller group can’t do as much damage to individuals as a larger one.
2. You can influence a smaller group more easily – if your town seeks to pass a bad law, a few hundred people might be enough to stop it; failing that, it’s easy to move out of the town and not uproot oneself too badly. But if it’s the country? How are you going to sway millions in states thousands of miles away? And where can you go to get away from it?
3. If a small group wrongs you, you have recourse to law. If the law itself wrongs you, what will become of you? If a lawless State is your opponent as well as your judge, will you be assured of a fair hearing?
4. If a large group is your adversary, your small group can band together with others for support; you can also appeal to the law and the government to restrain the majority and protect you. This is much harder if the State is the means by which the majority opposes you.
5. The more direct control you have over your own life, the more competent and skilled you need to be. It’s a spur to growth and knowledge and persistence. The more such people we have, the greater the benefit is to the whole as well.
6. Likewise, if a small group is in trouble they can’t solve, they have many people around them to render aid, and they will be better-equipped to render it. A larger group is much harder to rescue.

Perfect? No. Nothing is. But it’s been a superior system for quite some time. I cited Lord of the Rings just now; recall in that book that Gondor, even in its decline, was still a great city and a noble people. Despite all, we still have a great country and more freedoms than just about everyplace else. I love it here, and in fact love it so much that I want the things that make it wonderful to increase, for it to be freer and happier than before. I don’t want it ruined; I want room for as many as can be to have as much of the life they prefer to lead.