Politics ● Government ● Judicial Branch ● Series: New & Improved
Once Bitten, Twice Shy
Treason, Double Jeopardy, and Loopholes in the Law
- Treason is still the only crime defined in the Constitution and, because of this, can only be updated by Amendment to the Constitution.
- Double Jeopardy needs to extend to civil, State, and international courts such that a person already acquitted should not have to face any court again for the same or similar charges.
- All *PEOPLE* everywhere (even outside the United States) should have the full protection of the Constitution and the laws of the land. Intentionally seeking loopholes around our own legal code is fascist.
Returning to the existing parts of the Constitution, there are just a few clarifications that are necessary to make sure Article 3 aligns to all the other changes up to this point. First, we need to clarify the section on treason:
By Amendment to the Constitution of the United States, Article 3, Section 3, Clause 1 shall read:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort, or any specific way defined elsewhere in the Constitution. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
As previously discussed, we have extended the definition of treason in a few specific ways. First, when Congress refuses to do its job and tries to circumvent the legislative process, that would be considered treasonous. Second would be violating the secrecy of election results. And thus far, that is it. That does not mean that there will not be more definitions later in this document or at some other point in the future, but treason is really the only crime in the Constitution and thus the definition of it must be restricted to the Constitution. This slight change to Article 3, Section 3, Clause 1 will allow additional definitions elsewhere in the Constitution to be reflected here without question.
Still, there are limitations to the application of any law. If someone is tried for a crime, no matter the outcome they cannot be charged for it again — at least as far as the theory goes. The previously partially updated 5th Amendment said that no person should “be subject for the same offence to be twice put in jeopardy of life or limb”, what is commonly called “Double Jeopardy”. However, this is not true as the Supreme Court reaffirmed once again in June 2019 that there is a way that this happens. If a person is charged with a crime at the State level, they could be charged with the same crime at the Federal level (or vice versa) and serve separate sentences for each.
This is called the “Separate Sovereigns Doctrine” (or “exception” as this case is) and it dates back to a case in 1847 when the Supreme Court ruled that the States and the Federal Government are different entities, and thus this Constitutional clause does not apply. In the previous section, we have discussed the need for the Supreme Court to be able to return to their decision and re-evaluate, yet this has happened many times with Separate Sovereigns and the courts keep coming to the same decision, with large margins (the last time was a 7 to 2 decision). The courts keep saying it is because of how the Constitution is written that they must rule this way, more than slightly hinting that the Constitution should be updated in order to have a different outcome.
And updating the Constitution to override Supreme Court decisions is not without precedent. We have already discussed the 11th Amendment being a response to a ruling by the Supreme Court, but so was the 26th Amendment that set the voting age for the entire country. In 1970, Congress passed the Voting Rights Act to lower the voting age to 18. However, Oregon said the law in their State asserted the voting age was 21 and Congress could not override the State’s rights. In the end, they won at the Supreme Court. Not only would this create a patchwork of different voting ages across the country, but even in the same elections there would be mass confusion as the court ruled that the States could only control the age for State and Local election and not for Federal ones. This meant in a mixed Federal and State election, the Federal questions would go to those over 18 and the State ones would only go to those over 21. Immediately in March 1971, Congress passed the 26th Amendment to set the voting age for the entire country and it was ratified by enough States just 100 days later, the fastest any Amendment has ever been ratified. It is worth noting this is the last “real” Amendment that was ever passed as the 27th Amendment had been floating around for over 202 years. For those keeping track, that means in 2020 it has been nearly 50 years since a newly drafted Amendment has been passed.
Therefore, we return to the issue at hand of Double Jeopardy. This portion of the 5th Amendment was based on English Common law, but the difference being that in England there is no legal separation between the “Federal” and the “State” (or their equivalents) as there is in America, so it is not a question that needed to be addressed. Because of the unique and different circumstances of what the United States is, we need to modify the Constitution so that the courts can change direction:
By Amendment to the Constitution of the United States, Article 3, Section 4, Clause 2, Part 2 shall read:
… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb no matter if the offence was tried at the Federal, State, Territory, Local, or any other jurisdiction within the United States and foreign courts recognized and designated by Congress; nor shall be tried in a civil court when found not guilty in a criminal court; 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 first part is exactly as we have discussed: if a person (and thankfully the 5th Amendment already said “person” instead of “citizen” so that it applies to everyone regardless of legal status, but more on that later) is already tried for a crime no matter the court, they cannot be tried again for it. It is important to note that we have extended this further than Federal vs. State/Territory/Local, but also included definitions of any other legal body that Congress may create, as well as one additional area. In an increasingly connected world, crimes and civil infractions may take place across borders or in many countries. Most western-style democracies have a judicial system similar to our own; and thus should be trusted with their outcomes. As such, should Congress officially designate a foreign court as equivalent to our own, then its rulings should be respected as if they happened within the United States. In a practical sense, this means that if a person is found guilty and serves their penalty abroad, they could return to the United States without fear of facing the same trial again. Justice can only be served once and a United States’ resident or citizen should not fear returning to the country or being made stateless.
That covers the criminal side of the house, but there is one more type of Double Jeopardy: civil liability. Even if a person is found not guilty for criminally committing a crime, they can be sued civilly for the same crime and be found liable. In a criminal affair the prosecution must prove their case “beyond a reasonable doubt” and that the defendant is “innocent until proven guilty”. However, neither of these phrases are guarantees of the Constitution or the Amendments; they are just interpretations of the 5th and 14th Amendments. As such, there is an argument that could be made to make these functions part of the Constitution. For now, we will leave it as is and assume “due process” (the actual Constitutional guarantee) will need refinement over time.
Back to civil cases: in these the plaintiff need only prove a “preponderance of the evidence”, or in the simplest terms that the defendant is at least 51% at fault. The burden of proof is far lower and is more about convincing a jury that your side is more correct than the other. This is the reason someone like O.J. Simpson could be found not guilty of murder but civilly liable for wrongful death. With the same evidence and a near repeat of the criminal trial, a different outcome was arrived at. No matter if the criminal court landed at the correct verdict or not, this was Double Jeopardy. While it may “feel” satisfying that an alleged murderer was at least punished in some way, it does not pass an objective legal standard.
If that can happen to O.J. Simpson, it can happen in many other cases. Take this hypothetical for instance: A protester is outside a government facility and is approached by a police officer to move. The protester refuses and notes that they are on public property (say the sidewalk) and not within the facility grounds. The police office decides to use physical force and in the scuffle is hurt by the protester with a blunt object the protester retrieves from inside his jacket. After being arrested and charged with assaulting a police officer, the protester is found not guilty of assault. However, the police officer faces severe medical bills and decides to sue the protester. That court rules in favor of the police officer and now the protester must pay the police officer’s medical bills and court bills, as well as his own legal fees.
The circumstances do not seem as clear cut there, do they? And there are countless more situations like this. Even if a person is not found civilly liable as well, they still must go through all of the time and stress of the trial, losing wages, productivity, time with family, and anything else they hold dear. Even if in the end the plaintiff has to pay the legal fees of the defendant (which they may never be able to claim thanks to the monetary situation of the plaintiff in the first place), all of that time, effort, and anxiety can never be returned. Sometimes just the act of going through the civil trial is a punishment unto itself is all the plaintiff wants.
No, we cannot draw lines between people we want to find civilly liable those we do not; everyone has the right to be seen evenly and objectively in the eyes of the law, no matter the circumstances. As such, we must make sure that civil Double Jeopardy is removed as a possibility. But do note that this Amendment was specific if the person was found criminally not guilty. If the person was found criminally guilty, they could still be civilly sued! That is not Double Jeopardy, just continuation of the same crime and deciding additional penalties within the law.
Yet there is still one question of if these rights are enjoyed by all. “Due process” would seem to be guaranteed by the 5th Amendment above and the 14th Amendment, Clause 1. Despite that, the latter is lacking and allows certain groups of people to not receive protections — specifically non-citizens and those detained outside of the United States’ official borders.
By Amendment to the Constitution of the United States, Article 3, Section 4, Clause 7 shall read:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State or Territory wherein they reside. No State, Territory, Local government, or Federal authority shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States or any other person within or in the care of the United States; nor shall any State government or government body deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
When the 14th Amendment was passed, it was a reaction to the post-Civil War America that still did not know how to deal with millions of people who were once slaves. Laws passed to protect the former slaves and grant citizenship did not seem to have any enforcement mechanism and conflicted with other parts of the Constitution and court cases on State’s rights. In order to correct this, the 14th Amendment worked its way through Congress and the States. The other provisions are not controversial today in that they fixed the errors of how to count people for representation in the House, limited debt assumption due to the rebellion, and barred anyone who had engaged in insurrection against the United States from serving in the government. The first clause, though, was completely about trying to make sure all people were treated fairly under the law.
Unfortunately, it was not an immediate success and it would take generations to get due process and equal protection to most of the people. Yet today, the fight continues as groups of people are often attempted to be circumvented. We will return to this point later, but there is one significant area we need to address.
As written, the 14th Amendment is set up for the protections of citizens of the United States. Yet, there are almost 23 million non-citizens in the United States (including over 11 million undocumented), and the “due process” protections only say that a “State” cannot limit those protections, not the Federal Government. Even more than that, the United States government — and especially military — has looked for technicalities to avoid giving due process. This includes setting up detention centers like Guantanamo Bay in Cuba where the United States has held people indefinitely with no trial and no rights. The rational is that these are war efforts (Congress has declared no war, as previously covered) and that the Constitution does not apply to those outside of the United States.
The spirit of the 14th Amendment was about making sure all people had equal protections of the law. Since it was written in a volatile political environment with some compromises and some shortsightedness, the actual wording is missing that spirit. The corrections above ensure that all people — whether they are citizens or not, whether they are within the United States or not; just that they are “in the care of” the United States — have access to all of the same legal options and abilities to present their cases. The United States should not look for technicalities to get around its own rules; the United States should set the moral bar to exceed expectations and make sure rule and law are applied equally no matter the circumstances. To find a loophole and use it means that we have no values — period — and the Constitution is worthless. If we are just going to intentionally find ways to circumvent the rights of people to due process, then there is no point in having due process at all and we might as well adopt a fascist model.
TO BE CONTINUED…
NEW & IMPROVED:
THE UNITED STATES OF AMERICA
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