Monday, February 4, 2013

Our Decrepit Constitution: 1. Bill of Rights

The framers of the U.S. Constitution cobbled together a document that described a possible government for the thirteen original colonies. All of the framers who signed the constitution understood that it is not a perfect document. It is a compromise. The Senate is composed of two delegates from each state as a compromise to appease the smaller states. This principle, adopted by the California State Constitution for its State Senate, was struck down by the U.S. Supreme Court in Reynolds v. Sims, 377 U.S. 533 (1964), when Earl Warren wrote that legislatures represent people, not trees or acres. The U.S. Constitution, 48 years later, still supports the notion that U. S. Senators represent trees, not people.

The Constitution limited eligible voters to white male property owners. The property owners could also cast votes on behalf of their slaves, each of which was set equal to 3 fifths of a white man. Seventy-six years later, the Fourteenth Amendment gave to African-Americans the right to vote. Fifty-five years after that, the Nineteenth Amendment extended the franchise to women. Yet modern textualist jurists insist that we should interpret the words of the Constitution exactly as the framers meant them. This is nonsense. The framers were parochial thinkers in a backward country, still threatened by larger neighbors and Native American tribes. They were hardly the repositories of all wisdom that modern conservatives imagine them to be, nor did they believe that of themselves. Their experience did not include much of what today informs our thinking about human rights, science, and philosophy.

Some of the framers might be included in the group of thinkers who epitomize world wisdom on the subjects of politics and government, but not all. Madison, Hamilton, and Jay authored the Federalist Papers. Other signers of the Constitution are less well known as thinkers. Later thinkers would also be included in the prestigious group, like Abraham Lincoln, Theodore Roosevelt, Woodrow Wilson, Franklin Delano Roosevelt, Susan B. Anthony, Eleanor Roosevelt, and Martin Luther King, to name only a few Americans. The international list would be much longer and would include a number of non-Americans who influenced the framers, including Locke and Montesquieu.

Americans in general, not just conservatives, believe that the Constitution is a semi-divine document. It gives us foolproof rules for governance. It protects our rights. We believe this despite the numerous constitutional crises that have occurred over the years.

Constitutional Crises

The first constitutional crisis involved the manner prescribed by the Constitution for the election of the president. This crisis occurred in 1800, when opponents of Thomas Jefferson tried to have Aaron Burr declared president. Burr was the vice presidential candidate, but the Constitution failed to recognize that the Vice President and the President would usually have the same number of electoral votes and that this fact could be exploited by politicians. The election of 1800, only the third presidential election held under rules established by the Constitution, was decided by the House of Representatives instead of the electors.

The nation has a severe problem. The Republicans have kept their promise never to raise taxes, but they lowered taxes and made vast appropriations for two wars without raising the funds to pay for them. No one likes high taxes, but the government needs money to pay for the programs that voters have approved and that business and the poor may rely on. The Constitution, which makes it impossible to pass laws without compromise, compounds the problem. The Republicans will not compromise on their political positions. They have made a constitutional crisis into a government crisis for which no one has found an answer.

Despite evidence to the contrary, many people, including members of the courts, consider that the Constitution is perfect or nearly so. All we need to do is tweak it from time to time. But the document itself forbids change. The Constitution is 224 years old this year. It is a creaking vessel taking in water at every joint. It was designed to slow the pace of change. Recently it has succeeded so well that it seems to be turning time backward to a time when only property owners had rights, minorities were enslaved, women had no vote, and only one culture was accepted and protected by the government.

The Supreme Court determined the outcome of the presidential election of 2000. The election in Florida was indecisive. Both sides claimed victory. A series of actions by the Florida state legislature and courts were appealed to the Supreme Court, which made its decision along strict party lines. Nothing in the Constitution gives the authority to decide elections to the Supreme Court, but nothing in the document prevents them from doing so.

Our leaders and thinkers spend a great deal of time thinking about how to make the Constitution work, just as medieval thinkers exhausted their energies trying to imagine God and his plan. The thinkers who followed medieval times created a government ruled by a document, just as the Church was ruled by the Bible. The study of the Constitution has become as sterile and fruitless as the theological studies of the Middle Ages. We need to stop wasting time fantasizing about what the framers intended and start thinking about how to put our country back on track.

First 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.

The first amendment was intended to guarantee the rights of individuals to speak out against the abuses of government. From the very beginning, these rights were challenged by the government, which passed the Alien and Sedition Acts in 1798. The Supreme Court never invalidated the Alien and Sedition Acts, although the Acts specifically banned freedom to criticize the government. The government used the Acts to imprison a Congressman, John Lyon, for writing a letter critical of President Adams and other similar acts. The Constitution did not protect Lyon's rights.

More recently, the supreme court has ruled that people with large sums of money have a right to drown out the voices of the majority. A small group of plutocrats spent hundreds of millions of dollars in 2012 to elect candidates to office. They did not succeed in getting the presidency, but they did succeed in many other races and they retained control of the House of Representatives. The framers envisioned a representative democracy. The Supreme Court has interpreted the First Amendment as giving inordinate power to a small group of wealthy people. The government has almost ceased to be a democratic republic and is close to becoming a plutocracy.

The plutocrats have taken advantage of the Supreme Court's ruling by financing propaganda. They use vast fortunes to buy advertisements on television, radio, and in print. They buy their own newspapers, radio stations, and television networks. The newspapers and networks created numerous scandals that were damaging to their political opponents.

The First Amendment protects people's right to tell lies, but it does nothing to protect people from the damage done by lying, legally called defamation. The laws against defamation in the U.S. are too weak to prevent elections being altered by lies. In 2004, a group of wealthy Republicans spent millions of dollars to convince the public that John Kerry had lied about his war record. The Kerry campaign had no way to stop the lies being broadcast continuously for weeks. The First Amendment protected the defamers and engineered Kerry's defeat.

Rupert Murdoch has subverted the press by buying Fox News Channel and turning it into a non-stop propaganda networkfor the Republican party. The wealthy publishers, Disney and Warner and their peers, still have this freedom. The rest of us do not. The copyright law makes an exception for fair use, meaning that you or I can use copyrighted material without paying for it under circumstances. The Digital Millennium Copyright Act (DMCA) took the right of fair use away from anyone posting to social network sites on the internet. The DMCA determines that a copyright holder can demand that a publisher, such as Facebook or YouTube, must immediately remove any material from its website or face severe fines. This removes the concept of fair use from copyright law, since Facebook or YouTube will not protect your fair use right and risk large fines. The Congress has taken away your right to due process, since the material must be removed immediately. You can appeal, and may win, but lawyers cost money and trials take time. If fair use must be won it court it is not safe to publish anything that may be contested.

It may appear contradictory that laws against defamation are too weak to prevent intentional lying but copyright laws are not strong enough to protect the right to fair use of copyrighted materials. The parties favored by the two laws have a great deal in common, however. They have plenty of money to defend themselves from charges of defamation or to attack people they accuse of violating copyrights.

The First Amendment forbids the congress making any law respecting the establishment of any religion. Congress passed and President Clinton signed the Defense of Marriage Act in 1996. This law, by defining marriage exclusively as a right of heterosexuals, adopted the religious views of part of the population and incorporated those views into federal law. The First Amendment did not prevent this from happening and could not help people who suffered from its effects. In 2012 the Supreme Court appears ready to annul the law, only sixteen years after its passage. The constitutional system appears to work, but only after time and money have been expended to fight this law. Justice delayed is justice denied.

Second Amendment

Its supporters, including members of the supreme court, ardently believe that the second amendment guarantees every U.S. Citizen the right to own a gun. The actual wording of the amendment does not appear to support this belief:

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 form of this amendment is a logical inference, meaning that if and only if the first part of the sentence is true, then the second part will also be true. Therefore, if a well regulated militia is not necessary to the security of a free state, the right of the people to keep and bear arms may be infringed by federal law. In some cases, where firearms cause danger to the people, then arms must be regulated to protect the public safety.

Justices of the Supreme Court who wish to return the country to the supposed golden age of the 18th century have ceased to analyze the actual meaning of the Constitution. They instead have developed complicated systems to infer that the framers, or at least the society of the late eighteenth century, believed that the right to bear arms should exist independent of any militia. This is hardly plausible, since the framers showed themselves to be fearful of the masses in numerous aspects of the Constitution.

The Second Amendment is obsolete. It guarantees citizens the right to bear arms because a well-regulated militia is essential to the security of a free state. This amendment passed before the U.S. had a standing army. Many of the framers, including Thomas Jefferson, opposed a standing army or navy. They intended to defend the country from England or France, then world superpowers, with a volunteer army whose soldiers kept their own guns.

During the Civil War militias were called out by the governors of the southern states to serve as the nucleus for an army of rebellion. In response to this abuse by the states, the Militia Act of 1903 established the National Guard under the dual control of the states and the federal government. The Militia Act gave the President the authority to place the state militia under the authority of the Army, thus effectively preventing their use for purposes of insurrection. Yet second amendment supporters continue to threaten rebellion.

The Second Amendment continues in force long after it has outlived its original purpose. Today it causes more harm than good by providing a legal excuse for the sale of deadly weapons to civilians. Twelve thousand people die from gunshot wounds in the U.S. every year. The Second Amendment, intended to protect the United States against invading armies, now contributes to needless slaughter of our citizens.

The politicized Supreme Court ruled in 2008 (District of Columbia v. Heller, 554 U.S. 570) that the Second Amendment guaranteed an individual's right to own a firearm, regardless of his membership in a militia. In this ruling, the majority of the Court continued its identification with the Republican Party by ignoring the legislative history of militias after 1789. Their ruling would have been correct in 1789, in a frontier country where everyone was required to bring a musket with them when they were called up.

A musket is a single-shot weapon that takes up to a minute to reload. The bullet must be inserted into the barrel of the musket, then tamped into place with a steel rod. A person must practice long hours to reload quickly and aim the gun properly. He will find great difficulty hitting a moving target, especially one that tries to get away. Most minutemen were not great marksmen, nor were they capable of coordinating their shot

It is not 1789 any longer. Our hand-held weapons can fire 50 or 100 shots in minutes without reloading. Gun sales advocates frequently argue that murderers will find other weapons if guns are not available. These advocates cite the genocide in Rwanda where 500,000 people were killed with machetes. The massacres there occurred over 100 days and involved up to 500,000 attackers. By contrast, a single individual with an automatic rifle killed 20 children, along with the 6 adults that tried to protect them, in less than an hour. Had the shooter been armed with a knife, it is likely that no children would have died, as there were adults on site who tried to disarm the shooter.

President Obama has recently announced several initiatives on gun control. He announced, as do all other politicians making public statements in support of gun control, that he is a firm supporter of the second amendment. Gun control laws protect the American people from the dire consequences of the second amendment. Its repeal would save thousands of lives annually.

Fourth 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.
The Patriot Act was the first law that subverted the terms of the fourth amendment. Section 215 of the Act made it possible for investigators to demand that a suspect turn over tangible things so long as these things are needed for an authorized investigation. The investigators no longer need to show probable cause, or even reasonable grounds, that the person under investigation is engaged in criminal activity.

In 2002 President Bush signed an executive order authorizing the National Security Agency (NSA) to conduct warrantless wiretapping of thousands of American citizens without a court order. At about the same time, the NSA began working on a top-secret project called Stellar Wind, that would collect millions of documents, phone calls, and digital transactions and store them in a massive facility in Bluffdale, Utah. These digital records were collected from law-abiding American citizens without warrants.

The Fourth Amendment did not stop the President from authorizing warrantless searches, nor did it stop the Congress from passing legislation that apparently violates the constitutional provision against unlawful search.

Fifth 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 framers put their faith in independent, reasonable jurors. A grand jury today seldom decides cases against the advice of the prosecutor who convened the jury. The prop of an independent grand jury has been removed, although the independence of jurors may always have been illusory.

Supreme Court Justice Antonin Scalia has held that the Constitution does not prevent the execution of a defendant who has been convicted by a full and fair trial and later convinces a habeas court that he is innocent. This is true. The Fifth Amendment states that a person may not be deprived of life without due process of law. It does not prevent a state from manufacturing evidence against a defendant. The Supreme Court, following Scalia, considers only the careful observance of procedure, not flaws in the process itself, or the prejudice of the people. Troy Davis, whose case Scalia was commenting on, was executed by the state of Georgia despite efforts of numerous individuals and organizations to secure a review on the basis on recanted testimony..

The framers erroneously assumed that state governments would take care not to convict innocent persons. Instead, according to the NAACP and Amnesty International, states have shown a propensity to convict African-Americans for crimes regardless of their guilt or innocence. Since 1973 over 140 persons have been released from death row where they had been confined as a result of due process. The defendants were not protected by the Fifth Amendement, but because of a post-trial actions, such as the discovery of DNA evidence.

An unjustly convicted person should not expect a reprieve from the Supreme Court, where Scalia refused to consider Davis's case, calling it a fool's errand and a sure loser.

Due process starts with the presumption of innocence. Without that presumption, the accused is presumed guilty until he clears himself. The reasonable doubt is then given to the prosecution. Without that coin to throw onto the scales of justice, a defendant has little chance to escape punishment.

The Fifth amendment explicitly prevents the state from forcing a defendant to testify against himself. This clause was intended to prevent the use of torture in criminal trials, where it was still used in the eighteenth century. The Bush Administration, wishing to use torture against captured terrorists, simply disregarded the Fifth Amendment. John Woo, a lawyer appointed by the president, wrote an opinion that justified the use of torture. His opinion was used by the CIA to justify their treatment of enemy combatants.

Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The Eighth Amendment bans cruel and unusual punishment. The state of Alabama impressed prisoners into chain gangs and forced them to toil in the hot sun without concern for their health or safety. Chain gang members who became angry at their treatment vented their anger on the men who were chained next to them and could not escape their attacks. Prison wardens rounded up African Americans on fictitious charges to supply their customers, who profited from this form of slave labor. The institution of the chain gang was outlawed by the U.S. Supreme Court as cruel and unusual in 1910. Despite this ruling, Alabama and Arizona once again began using chain gangs in the 1990s until the Supreme Court outlawed the practice again in 1996.

As a form of discipline, Alabama prison authorities chained prisoners to a high railing and forced them to stand for hours, a practice decried as torture by the United Nations. The Federal Court indicated (Gates v. Collier 501 F.2d 1291 (1974)) that this practice in Mississippi constituted cruel and unusual punishment as early as 1974. The prison system of the state of Alabama was still using this form of punishment in 1995. The Supreme Court definitively declared this practice unconstitutional in 2002 (Hope v. Pelzer 536 U.S. 730 (2002)). This indicates the prisons in Alabama continued inflicting cruel and unusual punishments on inmates for at least 21 years after the courts ruled such practices unconstitutional.

Justice Thomas (Hudson v. McMillian (1992)) argued that such treatment did not constitute cruel and unusual punishment because it was not part of a judgment. Thomas apparently believes that the treatment of prisoners, once they are sentenced and incarcerated, is of no concern to the Supreme Court. This opinion comports with the views of eighteenth century politicians, who did not intend the eighth amendment to apply to prisoners; it has no place in the present day, more than 50 years after the Universal Declaration of Human Rights (UDHR) (1948) declared that no one shall be subjected to cruel or inhuman punishment.

In 2009, Attorney General Eric Holder ordered independent prosecutor John Durham to investigate whether the CIA had used any unauthorized.interrogation tactics in the years following 9/11. Durham discovered that the CIA had destroyed 92 video recordings of interrogations, but Holder concluded that most of the subjects had never been in CIA custody. Holder thereupon closed the remaining two investigations in 2012. If these were not interrogations by the CIA, then they may have been interrogations conducted by extraordinary renditions.

Holder's opinion, hence the Obama administration's opinion, is thus that whatever happens to a prisoner of war once he is handed over to a third party cannot be blamed on the American CIA officer who handed him into hostile hands.This reluctance to prosecute Americans under the terms of the Geneva Conventions may explain why the Obama administration has not sought indictments against the politicians who planned and executed the Iraq War. The laws of the United States do not apply to non-citizens; the Eighth Amendment is not broad enough to provide protection to foreign prisoners of war. The Geneva Conventions apply equally to all nationalities, but these rules are not recognized as law in American courts, partly because of reservations made by the Americans when the accords were adopted, and partly because American courts do not recognize international law as binding.

The Constitution is Dead

Our statutes don’t morph. They don’t change meaning from age to age to comport with whatever the zeitgeist thinks appropriate. When you read Chaucer, you try to figure out what the words meant when they were put down on paper. It’s the same thing with the law. --Justice Antonin Scalia

Scalia is correct when he says the Constitution is dead. Abraham Lincoln, who loved the Constitution well, declared in his inaugural address that

no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions.

But the Supreme Court under the leadership of Justice Scalia is currently engaged in a project to change all our laws to comport with what the framers of our Constitution believed. When he is asked whether a new law is constitutional, Scalia goes directly to the text of the document. If he finds that the Constitution agrees with this new law, he approves the law. If he finds otherwise, he declares the law unconstitutional and throws it out.

Scalia is an expert interpreter of laws, but he is no literary critic. Otherwise, he would understand that every critic reads Chaucer differently. There is no absolute meaning in a work of literature. Each generation finds something different in Chaucer or Shakespeare. The new discoveries make these works of literature relevant again.

When Scalia argues that the Constitution is dead, he is arguing that we need a new document to take its place, or at least one that is completely altered. The Constitution is a fossilized relic of a bygone age. We should study it for its ideas, but we should not try to preserve them intact.

We should reform the Constitution so that it is easier to change. The framework that Justice Scalia praises so highly has broken down utterly. The Congress is so feeble that it can hardly pass a bill. The President is so powerful that he can violated the Bill of Rights with impunity, merely by declaring a war on some tiny group of people in a far corner of the globe.

The people have passed laws to repair flaws in the Constitution. Justice Scalia and his brethren strike them down. Their decision in Citizens United tells the people that they cannot decide what kind of government they want, but must accept the kind of government described by the framers. All power in the state arises from the people. If the Constitution prevents the people from making decisions based on new information, then it is the Constitution that must yield, not the people.

Nothing lasts forever. Everything eventually outlives its usefulness. The time has come to retire the Constitution and seek a replacement more suited to today.

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