Even Though You Hate the 2nd Amendment, the Bill of Rights Matters
America finds herself on the road toward an authoritarian capitalism that minimizes individual liberty. Libertarian-Socialism seeks to promote the freedom that was the original vision of America’s founding fathers. In the beginning of the republic, there was a clear belief in liberty as the guiding ideology. The founding fathers provided a framework from which to progress, adapt, and evolve over the years, which is not burdened by divisive, preconceived notions of ideology. In America’s genesis, the guiding vision was that the individual’s freedom comes before the needs of the State…most of the time. The focus truly was on the individual and their liberty and not what was best for the state, for business, or the oft cited, public safety.
No doubt, things have changed a lot since the 18th century, but they have not changed as much as the politicians and ideologues would have Americans believe. The portrayal of the Bill of Rights as a slaveholders document misses the point. There is no doubt that there are slaveholder signatories to the Bill of Rights. The important thing to remember for today’s American citizen is the Bill of Rights represents a shield for each citizen against the state.
The Bill of Rights is an expert construct to protect the individual against the coercion of the state. An expert construct insofar as the slaveholder signatories understood what it meant to not be free as they were experts at relieving others of their freedom and meant to avoid it themselves. However, the expertly crafted protections now apply to all American citizens, not just white male landowners.
This is the great experiment that the United States represents today, freedom for ALL citizens. That is why things are such a mess. Freedom is messy. People are free to be assholes and hate each other. Of course, this leads to the current state of affairs, but freedom allows all outcomes.
The Constitution and the Bill of Rights are still the best weapons against tyranny. Like the wielding of any weapon though, it requires courage. It requires the courage to embrace and exercise the rights that individuals are guaranteed by the Constitution. Unfortunately, individuals have been tempted to turn over too many of their freedoms to authorities under the influence of the siren song of safety. The Bill of Rights empowers the individual citizen to drive change, but citizens must act and be engaged. Freedom and individual rights are the real defense against those that would loot the nation’s treasury and drive the nation into a ditch.
The first 10 amendments to the Constitution have been watered down or practically repealed in today’s America. The United States is struggling, and must return to its roots to save the republic. Libertarian-Socialists understand that individual constitutional rights of the citizens are the foundation of the United States upon which the entire republic rests. Freedom is messy, but it also brings vitality and security in ways that often are not immediately clear.
Americans now know that wire-tapping was expanded by the Bush administration almost immediately upon taking power in January 2001. Most Americans also understand that this was an expansion of what the Clinton administration had already put into place. However, most Americans do not accept that these new extra-constitutional powers failed to provide sufficient warning for the same administration to detect and prevent the terrorism of September 11, 2001. This failure clearly demonstrated the ineffectiveness of dragnet surveillance in the Age of Terror, but somehow most Americans missed this point.
Libertarian-Socialists recognize that 9/11 is the “Day the World Changed”; and not just because the anti-constitutionalists named it that within hours of the attacks. The rampant fear following the September 11th attacks was leveraged immediately to justify all manner of authoritarian actions by the state. September 11th is the day that the Bill of Rights was repealed at airports and other public areas.
Unfortunately, as the founding fathers clearly understood, extra-constitutional powers will eventually be used by those in power; to preserve their power, not to protect free citizens. Power corrupts, and without the proper checks and balances, the government can do as it pleases which it often does.
Here it is, the most progressive and radical of all American documents, the Bill of Rights broken down for the 21st century citizen.
First Amendment — Establishment Clause, Free Exercise Clause; freedom of speech, of the press, and of assembly; right to petition. 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.
There has been a chilling effect on this amendment, and it is hard to know where to start. The Supreme Court rulings giving more and more person rights to corporations has been one of the reasons for this. As corporations have gained personal rights, corporations have been able to suppress speech by using their deep pockets to sue individuals for speaking out. Additionally, freedom of the press has all but disappeared with the aggregation of media in all forms by large corporations. No journalists dare push against their corporate sponsors.
Large corporations are not truly interested in protecting citizen rights, muckraking, or other such altruistic motives. Rather corporations are motivated by preserving and increasing profit margins. The objective reporting of events does not factor into that equation. Once it was impossible to own most media outlets in one media market, let alone the entire country. Corporate-written legislation has erased these restrictions and the national media is now controlled by a few large corporate entities.
Television journalism has degraded seriously over the years to become more of an entertainment outlet than a source of information. Just as surveillance increased at the end of the last century, the rules limiting media ownership were relaxed. In 1996, and again in 2003, the relaxation of regulations limiting concentrations of media ownership led to waves of consolidation. This consolidation puts all investigative reporting subject to whims of corporate power. Without any significant regulation limiting consolidation, even the corporate rivalries that might fund some investigative journalism are non-existent. Freedom of the press is not a bad thing; it is a necessity for a functioning republic.
The press has a monitoring role to play in the republic. Many conservatives have claimed an out of control “free press” wrongly brought down a presidency in the Watergate scandal. While liberals cheer it as the proper role of journalism in a modern democracy, there is more to this story for the libertarian-socialist. Bob Woodward’s revelation that Deep Throat was the Deputy Director of the FBI at the time throws the liberal analysis into question. Combining this fact with the fact that Woodward is an ex-C.I.A. agent also casts doubt upon the liberal narrative of Watergate.
The legacy of Watergate seems to indicate the possibility of media manipulations facilitated by government officials in partnership with corporate entities. First Amendment abridgements are useful in the preservation of power for both public and private officials. The First Amendment no longer seems to be embraced by the government, but it is a keystone in our republic.
Second Amendment — Right to keep and bear arms. 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 second amendment seems rather straightforward. People have the right to keep and bear arms for their personal protection as well as for the maintenance of an independent militia not tied to the federal government. Power to the people must also mean the power to own a weapon.
Free citizens must be allowed to protect themselves and not simply depend on the government to do so. This does not mean that libertarian-socialists believe there should be no licensing or background checks. Individuals are not allowed to drive cars in this country without some modicum of training. Guns are just as dangerous as cars and some type of licensing should be instituted as a matter of public safety. Additionally, felons should also be prevented from obtaining weapons. To accomplish these goals, a minimal background check and a waiting period does not seem to be a violation of this amendment.
Without a doubt, libertarian-socialists understand that this amendment is the one that has survived largely unabridged into the 21st century due to its sponsorship by corporate entities. The National Rifle Association is one of the most effective lobbyists in Washington and the Second Amendment has benefited from this sponsorship from an entire economic sector.
Third Amendment — Protection from quartering of troops. 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.
Of the ten amendments first added to the Constitution, this is the one that may seem the most archaic. This amendment was a direct result of the British government quartering soldiers within the homes of colonists before and during the Revolutionary War. This seems to be a far cry from today, but it is not. There have been several lawsuits in California about police stakeouts using private homes. When these stakeouts extend over many hours or days, there is real hardship to the citizen residents.
Citizens are beginning to question the uncontrolled ability of police to declare private property their own. The federal government continues to use military hardware and tactics in civilian police forces. Police forces across the nation are utilizing military equipment and tactics against the citizenry. Also, in direct violation of the Posse Comitatus Act military personnel are operating on the streets without martial law being declared. As obsolete as this amendment seems, events of the 21st century have made the Third Amendment seem less archaic and more necessary than ever.
Fourth Amendment — Protection from unreasonable search and seizure. 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 fourth amendment has been largely repealed through fear. Libertarian-Socialism interprets the amendment’s reference to “effects” as including one’s “digital effects”, making email as sacrosanct as physical mail. Surprisingly, judges and courts have still not pinned this down, as they should have by now.
Most citizens have been convinced that the government has the right to protect Americans from themselves. Things like drug testing, sobriety checkpoints, confiscation of property without due process and broad dragnet surveillance of all “digital actions” appear to be settled law. Libertarian-Socialists understand law is never settled and pushing back against unconstitutional law is always required.
The security theater that has been instituted in American airports is in direct violation of the Fourth Amendment, as well. Courts have blessed these rollbacks of individual rights at airports as necessary for public safety. There has been no proof that this constitutional violation has made anyone safer. It was not 9/11 that put the Fourth Amendment under assault, but rather the sobriety checkpoints backed by MADD and other “protect-us-from-ourselves” groups that broke this ground in the eighties.
Libertarian-Socialism accepts that perhaps there were and are public safety issues that allow the sobriety checkpoints, but there can be too much of a good thing.
Unfortunately, the checkpoints opened the door to all kinds of other types of checkpoints that definitely are unconstitutional. A wide variety of checkpoints have been created since and now include: seat belt checkpoints, registration checkpoints, and baby car seat checkpoints. Of course, if any illegal activity is turned up in these unconstitutional stops, courts have allowed it to be used against the individual. The courts used to rule evidence obtained in this manner as the “fruit of a poisoned tree” and disallow its usage, but the current execution of Prohibition has warped everything.
The War on Drugs justified all kinds of constitutional abuses. Once these abridgements to the Fourth Amendment were forced through, they were broadened widely over time. Now in the name of the War on Terror, the Fourth Amendment seems to be just a memory. Without a Fourth Amendment, the central government has quite a bit more power than the founding fathers intended.
Fifth Amendment — Due process, double jeopardy, self-incrimination, eminent domain. No person shall be held to answer for any 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 offence 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.
Like the Fourth Amendment, the Fifth Amendment has been largely repealed as well. Asset forfeiture laws in this nation have gone completely out of control since they were first used to prosecute drug dealers in the 1980s. Constitutionally it seems clear; assets cannot be seized without due process according to this amendment. Nowadays the government regularly does so in a whole host of situations.
The original basis for such asset forfeiture laws is shaky. It was to prevent drug dealers from paying for too much defense in the courtroom, which is questionable on its face, since that is how the rule of law works. Today asset forfeiture represents a significant revenue stream into law enforcement coffers across the nation.
Yes, criminals may have ill-gotten gains to pay for lawyers, but this is a consequence of a free society. Due process means the state must have evidence of crimes, except in the most extraordinary circumstances. It is with that evidence that the state should obtain a conviction before stripping the citizen of assets. Without the requirement of due process to seize property, asset forfeiture is being used to further fund law enforcement entities in a clear conflict of interest.
Shockingly, these forfeitures of assets according to the Supreme Court are somehow exempt from the Fourth and Fifth Amendments. Procedures have been put in place to get assets back, but they force citizens to spend more money. Law enforcement personnel determine at the moment of arrest whether assets are to be seized. Suing police departments to retrieve one’s property is not what the founding fathers meant by due process.
Many governments, even America’s friendliest neighbor, Canada, now advise their citizens to not carry cash in the United States. This advice is not based upon the lawlessness of American streets, but rather on the documented actions of police in the United States. Repeatedly, people have cash confiscated from them with the excuse that the person must be involved in criminal activity to be in possession of a large amount of cash.
Nothing seems more totalitarian, more un-American or more anti-capitalist than making the possession of the nation’s currency suspicious. Depriving individuals of their hard-earned cash based on the whims of police officers is a direct violation of this amendment by any reasonable measure.
Sixth Amendment — Trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel. 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 where in 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.
When faced with a trial, to have one’s assets seized would seriously hinder one’s ability to secure Assistance of Counsel. Having a jury pool that is so scarce also makes it quite difficult for the accused to be tried by peers. Only people with sufficient assets to be able to afford to sit in judgment are available in most jury pools. The growing income gaps in the United States make a trial by a jury of peers a fantasy for anyone in the lower economic classes.
The Sixth Amendment, unlike the two preceding, is technically still being honored, though in a practical sense it is in a state of repeal. With the amendment in such a weakened condition, it emboldens the government to introduce things like secret evidence and use testimony of paid informants to convict individuals.
The government now has the power to convict and imprison a citizen based upon secret evidence proving a violation of secret law. Almost all the law surrounding airport security and the TSA is classified. The ultimate power for the totalitarian state is a book of secret laws and to threaten citizens with secret evidence. There can be no defense in such a trial.
There are several lines of argument today that assert the president somehow has the power to label an American citizen as an enemy combatant, and therefore, that person loses all Constitutional protections. Citizens need to wake up to the incredible danger of such power; it gives the president the powers of a dictator or a king. Beware of offending a person with such power, because one can become a non-person, non-citizen and prisoner at the stroke of a pen.
The idea that the United States can indefinitely detain citizens or non-citizens without charge, without trial, and torture them is distressing. With non-citizens, a case has been made that the Constitution does not apply. There are consequences to allowing the American government to treat non-citizens poorly. Libertarian-Socialism believes the Bill of Rights creates a place where human dignity is respected through due process of law, regardless of citizenship.
Seventh Amendment — Civil trial by jury. 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 re-examined in any court of the United States, than according to the rules of the common law.
The rules of common law, so often denigrated today actually represent the basis of everything in America’s contemporary justice system. The United States is a common law country. In all states, except Louisiana (which is based on the French civil code), the common law of England was adopted as the general law of the state, except when a statute provides otherwise.
Common law has no statutory basis; judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction. Broad areas of the law, most notably relating to property, contracts, and torts are traditionally part of the common law. These areas of the law are mostly within the jurisdiction of the states, and thus, state courts are the primary source of common law. Common law is used to fill in gaps. For example, if a man and woman co-habitate for seven years, the common law suggests they are technically married even without ceremony or license.
Common law changes over time, and at this time, each state has its own common law on many topics. The twenty-dollar threshold seems rather low, but the right to civil courts facilitates the rule of law. It would have been nice had this amendment been written in such a way as to index the dollar amount threshold in some way. Interestingly, the founding fathers in another, as yet unapproved, amendment do index the rate of expansion for one of their yardsticks. This the last remaining article of the original Bill of Rights that has not become law. More about that later.
Federal common law is primarily limited to federal issues that have not been addressed by a statute. Libertarian-Socialism believes this amendment is meant to support the idea of jury nullification, but that is for another chapter to detail. Unfortunately, such voting of conscience is no longer permitted in America and the shadow of “repeal in practice” looms over this amendment as well.
Eighth Amendment — Prohibition of excessive bail and cruel and unusual punishment. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The current state of our prison system now constitutes cruel and unusual punishment. Prison overcrowding is a serious issue nationwide. These issues are real and not to be diminished. To force individuals into cramped quarters where they are often subjected to all manner of sexual abuse is clearly cruel and unusual.
Yet, America’s fearful society continues to pass laws and resist reform to reduce prison overcrowding. The United States imprisons a greater number and percentage of its population than any Western nation. Imagine the potential of so many of these people thrown on the scrap heap by America’s overzealous law-and-order mentality.
Similarly, the outsourcing of the costs of imprisoning citizens by contracting to private corporate prisons has created a large lobbying group that ignores the Eighth Amendment. Prison lobbyists only care about making sure the prison cells are filled, because each prisoner represents profit. In a democracy, each prisoner represents a failure of the society and the society should always shoulder the burden of imprisoning citizens. Imprisoning citizens for profit motives skews the outcomes and keeps America private corporate prisons full and profitable.
Ninth Amendment — Protection of rights not specifically enumerated in the Bill of Rights. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
America’s “make a new law” society has largely sprung up to curtail the broader rights of individuals that should be protected here. Each time the politicians enact a new law; the power to decide is put into law enforcement’s and a judge’s hands instead of an individual citizen. Libertarian-Socialism urges Americans to step back from this mindset and reevaluate whether it is wise to give so much power to the police, especially as those confrontations become ever more deadly.
With so many laws criminalizing victim-less actions such as drug usage, eschewing wearing seat belts, etc. Americans no longer are allowing themselves their liberty. Americans have lost the tolerance required to allow individuals to decide their own affairs. Libertarian-Socialism will always return to “tolerance” as a guiding precept and requirement for the success of the United States.
Tenth Amendment — Powers of states and people. 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.
Again, this amendment clearly means to preserve the rights of individuals, but fearful Americans cannot seem to embrace these ideals. Americans spend far too much time making laws to abridge individual’s rights, and therefore, Americans constrain free citizens from their constitutionally protected right to life, liberty, and the pursuit of happiness. A bright future is there to be had by an enthusiastic embrace of this amendment and the other nine for that matter, so long as fear does not get in the way.
And so there it is, an overview of the Bill of Rights for the aspiring libertarian-socialist. One can be excused for asking the question, is the Bill of Rights still in effect? No, is the libertarian-socialist’s answer.
Consider this: To stop the sale of previously legal alcohol in America, an 18th Amendment to the Constitution was enacted in 1920, which started Prohibition. Years later, in 1933 the 21st Amendment was necessary to repeal Prohibition. Strangely, though, shortly after this repeal, a new Prohibition was restarted without any bothersome constitutional amendments.
The banning of the legal sale and use of marijuana did not require an amendment to the Constitution, but simply required politicians to use the legislature to pass laws, which the Supreme Court then upheld. This was done just a few years after Alcohol Prohibition had been repealed. Why, did the Supreme Court not declare these laws unconstitutional? What changed in the short time after the 21st Amendment? Libertarian-Socialism aims to bring back the Bill of Rights as the yardstick for freedom for America’s citizens and judges.
But wait! There were actually 12 original articles in the first draft of the Bill of Rights, and only articles 3 through 12 were ratified, though they now represent amendments 1–10 in the American constitution. What were articles 1 and 2 of the original Bill of Rights? Interestingly, the second of the original amendments was passed much later. Here is Article II from original Bill of Rights.
Article II — On Congressional pay. No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.
This provided protection against congressional pay hikes, preventing a sitting Congress from giving itself a raise. Any increase in pay would not go into effect until the following House election. This proposal was resurrected 203 years later when it became the 27th Amendment to the Constitution in 1992! Again, the founding fathers predicted conflicts and provided a statutory basis to address the situation — such foresight!
That means that 11 of those original 12 have now been passed, but what about the last remaining one?
Article I — Providing for a truly representative republican democracy. After the first enumeration required by the first article of the Constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall be not less than two hundred representatives, nor more than one representative for every fifty thousand persons.
The explosive growth of America’s population outstripped these visionary representation numbers. This was followed on by the abolition of slavery and women’s suffrage, which changed the demographic electoral equations dramatically. Nonetheless, the founding fathers expected the House of Representatives to continue to grow with the growth of the electorate. Inexplicably, for a century the House of Representatives has been stuck at a little more than 400 individuals!
