No politician who entertains hopes of election to office would dare directly and publicly oppose the United States Constitution and especially its Bill of Rights. The most liberal or conservative among them unabashedly wave a copy of the supreme law of our land when seeking to garner support for their particular agendas. At a minimum, these politicians give lip service to the only document in mankind's history explicitly subordinating the State to the individual citizens whose lives the machinery of government is meant to protect.
Yet just as with such abstract concepts as freedom, justice, and equality, "the Constitution" and the "Bill of Rights" have taken on a mercurial aspect in which they serve to cloak often contradictory approaches to handling the social and political problems arising in our daily lives. Some see the Constitution as mandating governmental interference in nearly every aspect of our lives. Others maintain that the Constitution sets strict limits on what constitutes appropriate governmental actions. In response to recent "common law courts," certain public officials even state that it is legislative action -- not the Constitution -- which forms the only legitimate body of law in the United States.
Arguments flow in heated exchanges as to whether a broad or a narrow interpretation of the Constitution should be adopted. Questions are raised as to its relevance in our modern, high tech civilization. It is argued that the conditions under which we exist today are so radically different from those in the Eighteenth Century that we must follow new rules applicable only to our current world. Critics of this idea hold that the ideas codified by those who established our country are eternal to the human condition and can never go "out of style" like tastes in clothing or architecture.
Students of the Constitution wrangle over whether the original intent of those who crafted this document is to be considered in our evaluation of its tenets or whether such stated or unstated intentions are not to be given weight in our interpretations. Activists insist that the Supreme Court become a policy making body in the way it implements its decisions. More cautious individuals would severely limit the discretionary activities of those nine individuals in black.
As Bernard Siegan points out in Economic Liberties and the Constitution, "Many people believe that the Constitution is a flexible and evolving document, always adaptable to changes in our society's conditions and circumstances. Others insist that judges be bound by its words and by the historical record of what the framers of both the original text and the amendments intended."
The United States Supreme Court has in the past two centuries provided support to all sides in this debate. At times it has acted in accordance with historical precedents and on other occasions in line with a view of the Constitution as expressing timeless principles. Sometimes, it has invoked the Constitution to restrict the actions of state and local governments. Other cases have led the Court to permit local legislation that, if passed at a federal level, would be deemed violations of our basic rights.
The erosion of Constitutional adherence is nothing new. Politicians pay the Constitution no mind when it comes to handling our money supply, waging war, or violating the sanctity of our rights. The notion that the Constitution is based upon principles derivable from the nature of what it means to be human is ridiculed and dismissed. Many individuals in this country when presented with the ideas expressed in the Bill of Rights reject them as untenable.
Because the Bill of Rights is what comes first to mind for most people when they think of Constitutional rights, I will focus on those famous first ten amendments, with special emphasis on the First, Second, Fourth, Ninth, and Tenth. I will examine them in the light of the one overarching principle guiding any moral society: that no one may initiate force against another person. Based on an individual's right to his life, liberty, and property, this principle should guide us in evaluating any proposed legal doctrine. Only by coming to a proper understanding of what it means for something to be a "right" and how it should be implemented will we escape the morass that has mired the citizens of this country as we seek to preserve (or rather, return to) the proper relationship between ourselves and the government that is supposed to serve us in the protection -- not the violation -- of our rights.
THE 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.
In a free society, the State should do nothing positive in regard to the religious beliefs of its citizens. Even though a proper culture should recognize that there are absolute and universal moral principles applicable to anyone and everyone, religious tenets should have no bearing on the nature of the laws considered and passed by our legislative bodies. The panoply of religious standards -- even among the subset of Christianity -- is too great and too diverse for any single viewpoint to prevail without the imposition of force.
Yet even if every individual in this country subscribed to some particular religious viewpoint, that fact would still not justify the acceptance of governmental interference in and/or regulation of religious activities. What private individuals, groups, and organizations do is entirely up to them and those who choose to associate voluntarily with them. The only fundamental moral idea with which the State should concern itself is the establishment of the necessary conditions which afford people the opportunity to express their moral dignity as individuals: to make ethical choices without the fear or threat of direct or indirect coercion from other people. As long as we are free from physical harm imposed on us by others -- whether directly by murder, assault, kidnapping, or rape, or indirectly by means of robbery, theft, fraud, or their variations -- then government has fulfilled its obligations to us.
Beyond upholding the moral principle of the non-initation of force, the State oversteps its bounds whenever it seeks to legislative morality in any form whatsoever. The virtue of its citizens is of no legitimate concern of government. To force someone to act in a certain fashion -- even if it is objectively right or in his best interests -- destroys the very basis of morality: free will choices, even foolish and self-destructive ones.
All the political brouhaha concerning such things as school prayer, pornography, artistic expressions of violence, and sex education is misplaced. Excising the State from the field of education would eliminate political concern with the first and last of these issues. Realizing that adults are free to engage in both exalting and debasing activities would limit the State's actions in the other two realms to the protection of minors and matters of display so unwanted exposure is not imposed upon unsuspecting and unwilling observers.
Moral instruction -- whether religious or not -- is the province of the family, private organizations, and individuals. Injecting religion into the political process warps and distorts its sole proper function: the protection of individual rights.
Much of the same can be said for our freedom of speech and the freedom of the press. Only the State can engage in censorship in any politically meaningful fashion. The coercive power of the State -- its legal monopoly on the use of force -- can overwhelm any individual attempts to express certain unpopular or unfashionable views. The distinction that must be made here is that words and actions are not equivalent. The old adage concerning sticks and stones summarizes this realization. In terms of individual interaction, as long as you are free to walk away figuratively or literally from someone else, his words cannot be considered a violation of your rights.
Politically correct notions about "hurtful" or "offensive" speech fly in the face of this fact as does the proliferation of "hate crimes" seeking to punish people for their beliefs and motivations rather than simply for their actions directed wrongfully against other individuals.
In this connection, however, it should be noted that private organizations are free to establish any speech or print codes they desire as a condition for association with them. While this distinction is muddied in today's society in which even "private" colleges are thoroughly infiltrated with tax-funded monies, in a free society, colleges, clubs, or groups would not be forced to be identified with or fund ideas with which they vehemently disagree or find repugnant. Suing a private college for violating your freedom of speech if you voluntarily choose to attend and accept its rules is incorrect.
Nor is one's freedom of speech and press violated when someone decides not to print your book, air your commercial, publish your ad, or rent you an auditorium. Individuals have a right to use their property as they see fit, including denying others access to the use of that property. Someone has a right to say or print what he will at his own expense or in a venue willing to air those ideas, but there can be no such thing as a right to say or print what you desire in any and all media regardless of what they owners of those venues desire. Only when "public" areas are as loosely defined as they are today does this become a matter for political debate, for example, in the issue of "equal access" on so-called publicly owned airwaves. The solution, as is so frequently the case in such situations is: privatize.
As regards libel and slander, a case can be made that someone who spreads falsehoods which materially damage the value of your reputation can be held accountable for the destruction of that value you have worked hard to establish. This could well be taken to be a case of fraud, for example. The burden of proof, of course, must rest on the individual alleging such damage. Critics of this position feel that no one is forced to believe or act upon such lies. Therefore the initiator of falsehoods cannot be held accountable for the free-will actions of others. While this specific area is open for further argument, it does nothing to obviate a person's freedom to express himself in his own particular private sphere.
The right to assembly follows the same caveat that such assembly must not be provided at someone else's (unwilling) expense. The right to voluntary association must be absolute within the guidelines established above.
Petitioning the government for a redress of grievances flows from the fact that the State acts only as an agent of the citizens of that country. Whenever the implicit contract between employer (the citizens) and employee (government) is violated, the government must be held accountable for its transgression of its duties. Blanket prohibitions of suits against the government are improper.
THE SECOND AMENDMENT: 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.
Perhaps even more emotionally charged than debate over the First Amendment, discussion of the Second Amendment often falls prey to the biases and political agendas of the participants. Objective facts and evidence seem to make little headway in correcting erroneous perspectives. Perhaps because this amendment deals most directly with issues of life and death, the disputes involved have been especially acrimonious.
While nearly all scholars who have studied the history of this amendment agree that the right to own and carry weapons refers to individuals, opponents to gun ownership and use still seize upon the Militia reference to maintain that the Second Amendment concerns only the rights of individual states to raise militias in times of crisis.
As is abundantly clear, however, from the writings of those involved in the constitutional process, the right recognized in this amendment applies to individuals and not to any governmental body. This right has its roots in our right to self-defense, to protect and preserve our life, liberty, and property from those who would seek to deprive us of them. Whether those transgressors are private criminals or public officials, the principle remains the same: retaliatory violence is morally proper.
Some representative quotes will convey the mood of the country when the Second Amendment was written:
In the private realm, when a person's rights are being violated in a directly violent way, the only protection he is likely to possess is that which he can produce himself. Since police are primarily reactive in nature, they will usually arrive only after the crime has been committed and the criminal long gone. A firearm is, overall, the safest and most effective means of achieving that self-defense.
In the public realm, when the State systematically seeks to enslave the populace, only arms of sufficient power in the hands of the people themselves will suffice to check or reverse the government's abuses. Dictators have long recognized that fact. Lenin called for "the disarming of the bourgeoisie." In calling for gun controls on the German people, Hitler said, "The most foolish mistake we could make would be to allow the subject races to possess arms. History shows that all conquerors who have allowed their subject races to carry arms have prepared their own downfall." In contrast, as Machiavelli noted in The Prince, "The Swiss are well armed and enjoy great freedom."
Even though research has shown the ineffectiveness of gun controls in reducing crime or loss of life; even though guns are used far more frequently to curtail a crime than to commit one; even though an armed individual is much less likely to be injured in an assault than doing nothing or using any other method of self-defense; even though none of the claims of gun control advocates withstands close scrutiny, respect for and observance of the Second Amendment has perhaps seen more erosion than any other of the Bill of Rights. Thousands of gun control laws are on the books at all levels of government abridging the rights of law-abiding citizens to keep and bear arms.
As with any moral issue, people must not be presumed to be guilty of some criminal action until they have actually committed some action violating the prohibition against the initiation of force. Gun controls such as permits or background checks are flagrant examples of prior restraint -- in which you require permission from the State before you may act on a right -- that would unlikely be tolerated if applied, for example, to one's freedom of expression. Only Vermont correctly places no restraints on its citizens regarding the bearing of arms: no licenses, permits, or fees are required. The criminal immorality of a few individuals does not justify restrictions on the moral actions of the majority in this or any other instance.
As to how powerful the weapons may be which individuals may use in their self-defense, that is open to some debate. Any weapon presenting a reasonable danger to one's neighbors (such as an atomic bomb or nerve gas) and unsuitable for individual defense (such as a tank) would likely be restricted to military use. Yet fully automatic weapons such as those which Swiss citizens possess should be accessible for an individual to use in self-defense and as a potential deterrent to a tyrannical government.
THE THIRD AMENDMENT: 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 amendment is a straightforward application of one's property rights. In times of peace, no one may trespass upon your sphere of autonomy. Even in times of crisis such as war, the rules for allowing the quartering of troops in a private dwelling must be reasonable given the context and objectively defined. If delineated properly, this latter course would not be a violation of rights. Rights are moral guidelines for defining how to establish peaceful relationships among individuals in a society. Where peaceful coexistence is not possible as during a war, such rights are not applicable, and thus no direct violation would occur.
THE 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.
This amendment likewise flows from a person's property rights including the "property" of one's self. Even though justice Bork can find no right to privacy in the Constitution, we do, in fact, possess such a right not to be intruded upon without proper justification. If a person does not have control over his own sphere of responsibility, then freedom becomes impossible.
Protection against unreasonable searches and seizures has been eroded over the years. Warrentless, unannounced raids have increased in the wake of the Drug War as our political leaders have seized upon excessive drug usage as an excuse to increase their own powers. Everything and anything becomes justified in the name of obtaining the Holy Grail of drug prohibition. Forfeitures of personal property sans criminal conviction or even charges; murders of innocent individuals suspected of drug activity instigated on the "word" of anonymous and non-credible sources; violating financial privacy by turning banks into snitches as the State seeks to track money laundering; indocrinating our children in State schools; all these violations of our privacy and more occur as the result of an activity that should never be illegal for adults in the first place. "Probable cause" becomes a myth as police stop, harass, and arrest people on mere suspicion, on their belief that someone meets a malleable "profile" stretchable to suit their own prejudices and desires.
Whether the issue is drunk traps for drivers disguised as "safety checks" or stopping pedestrians wearing fanny packs in case they might be carrying a gun, police are being seen more and more as "the enemy" than as acting as our servants. When the President suggests warrantless drug and weapon sweeps of public housing and so many people agree that trading in their rights for safety (lost in the first place due to faulty government policies) is a good idea, then we witness a practical example of the weakening of this amendment.
In a free society in which rights were scrupulously observed, evidence obtained from faulty warrants or warrantless searches could reasonably be used against a suspected criminal if the officers involved were punished by an independent agency in accordance with the severity of their transgression. Truth, after all, should be our standard in obtaining justice for individuals who have been criminally wronged.
But in an era when manufactured evidence is commonplace, when warrants are obtained on the basis of lies, when a warrant becomes a tool for fishing expeditions into individuals' lives, police should be restrained on a short leash that prevents such abuses to the largest degree possible. As events in Philadelphia demonstrated -- with 100,000 arrests over the past ten years now being reviewed -- and with the on-going scandal in Los Angeles of police framing suspects, police corruption is not an isolated phenomenon. Even though the actual perpetrators may be relatively few in number, the "code of silence" which keeps "good" cops from reporting the crimes of their fellow officers makes them all suspect. Added to a growing sense in many large city police departments of an "us vs them" mentality on the part of those who are supposed to protect us, a stringent observance of our privacy rights is essential.
If the day comes when the State can be trusted to do the right thing, then current policy tossing out "tainted" evidence could be reviewed. In a free society, the State would have to build a case on objective evidence and not engage in fraud or worse in seeking to put criminals behind bars.
THE 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 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.
Taken in conjuction with the Fourth Amendment, the Fifth, Sixth, and Seventh Amendments protect a citizen's right to a fair trial based upon objective principles rather than the arbitrary whims of the State. The only exception allowed is during times of great crisis when, as noted earlier, normal, peaceable cooperation between individuals becomes impossible.
The prohibition against so-called double jeopardy prevents the State from constantly harassing criminal suspects. Given the disproportionate financial and investigative resources of the State, government gets only one shot to make its case. A person's life must not be continually disrupted and put on hold while being bled dry financially and emotionally in attempting to defend himself.
In line with these facts, it is not the obligation of any person to help the State convict him, even if he is truly guilty of the crime. Only when all the relevant evidence has been examined in accordance with objective laws may an individual be punished by execution, imprisonment, or fines.
The due process aspect of the Fifth Amendment is violated with alarming frequency by the practice of asset forfeiture, as noted above: citizens are deprived of their values without so much as charges being filed, let alone going through a trial and being convicted. The IRS is another notorious violator of the due process clause when it seizes property on its own authority in tax cases. (Here again we see an example when the worse abuses of our rights occur when we are accused of crossing some law which violates our rights in even existing in the first place; in this case, the income tax.)
The final section of this amendment has also been shredded over time. Except perhaps in the case of emergency or crisis, no one should have his property taken from him without his consent. A "fair market value" is hardly fair to someone who does not want to sell his land. The most egregious transgressions of this section even as its stands occurs from land use regulations and zoning and environmental laws which prevent a citizen from use or disposal of his property as he sees fit. In these cases, values are stolen from individuals without any compensation at all even though they still retain title to the property in question. Ownership becomes meaningless without the ability to determine for yourself how your property is to be used.
The very idea of "eminent domain" in which the State declares it will take your property for some "public" use is flawed at the core. Even when invoked to obtain land for such things as highway construction, it violates property rights. Used as it was during the Sixties and Seventies during urban renewal projects to seize the property of one private owner for the benefit of another, eminent domain is exposed for the farce that it is. Despite recent indications of a modest return to a reasonable interpretation of just compensation, this section should be removed from the Constitution.
THE SIXTH AMENDMENT: 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.
In addition to recognizing a citizen's right to a fair trial before an impartial jury, this amendment also codifies the principle that the State may not conduct its prosecutions in secrecy. Kafka's The Trial serves as a fictional example of what can happen when the State ignores such a right. Any dictatorship serves as a real-life example of the nightmarish consequences which occur when people are deprived of their say in court. Secret tribunals and show trials have no place in a free society. All criminal proceedings must happen in the open and proceed in accordance with objective rules of evidence.
THE SEVENTH AMENDMENT: In Suits of 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.
This amendment further enshrines a person's right to be judged by his peers and that any such judgment that they shall render will not be arbitrarily set aside by another court.
THE EIGHTH AMENDMENT: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Punishment should fit the crime, i.e., be proportionate to the actual damage done to the offended parties. Before a trial, a person may not be arbitrarily incarcerated without consideration of the type of crime of which he stands accused. Since an individual is presumed innocent, bail out of line with the damage he is alleged to have caused would itself constitute undeserved punishment.
The prohibition against excessive fines and cruel and unusual punishment helps insure that objectivity, reason, and justice rather than vindictiveness and revenge guide the costs imposed upon a criminal for his transgressions of another's rights.
THE NINTH AMENDMENT: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
The "forgotten amendment" is one that should be among the most powerful. People have the right to engage in any non-coercive, voluntary activity. To list all such behaviors and choices in a legal document such as the Constitution would be neither practical nor desirable. Until the citizens and leaders of this country come to a proper understanding of rights, this amendment will remain an unloved child.
The very concept of rights has been so corrupted in this century that few people understand what this idea properly entails. As Ayn Rand defined it, "A 'right' is a moral principle defining and sanctioning a man's freedom of action in a social context.... [It] pertains only to action -- specifically, to freedom of action. It means freedom from physical compulsion, coercion or interference by other men.... [T]he concept...provides a logical transition from the principles guiding an individual's actions to the principles guiding his relationship with others....Individual rights are the means of subordinating society to moral law." ("Man's Rights," in The Virtue of Selfishness. Emphasis in original.)
There are no such things as women's rights or gay rights, no rights of the disabled or of Blacks. No one has a right to a job, a home, a fair wage, or health care. There is no right to be free from risk or poverty or fear. No one has a right to any value except that which they have earned or that which others have voluntarily given them. Animals do not have rights. Only individual human rights exist.
Nor do or can legitimate rights contradict each other. Though some conservatives believe that certain rights must by their very nature clash and be subject to compromise, their position indicates only that they, too, suffer from an erroneous notion of the proper foundation for rights. Their arguments serve only to leave open the door to governmental intervention and control.
An individual's rights are contextually absolute. Within the context of noncoercive relationships, he may act as he best sees fit. He does not exercise those rights by permission. They are his by virtue of his right to his own life and the means he uses to sustain that life, i.e., property rights.
THE TENTH AMENDMENT: 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.
In recent court cases, the Tenth Amendment has regained a small fraction of its original lustre. Local governments argue that much of what the federal government does is illegitimate since it engages in actions not specifically authorized or delegated to it by the Constitution. If this trend continues, we may witness a true curtailing of what the federal government is allowed to do.
Since the time it was written, however, the Constitution has moved from being a document expressly detailing what actions the State may engage in, to an excuse to intrude into any and all aspects of citizens' lives. The true "public sphere" has been bloated beyond all recognition. Laws benefitting or punishing only select members of the public rather than applying to all citizens equally and impartially are now the rule rather than the exception.
Perhaps in the future, however, this amendment will once again serve its role as a check on the business of the State. A legitimate role for government does exist in our society. That role, however, is severely limited to protection of citizens from enemies foreign and domestic, that is, the military, police, and the courts form the core of the State's functions. Any steps beyond that delimited sphere are immoral and a violation of rights.
Local government usually knows better the specific context of its citizens and how the basic principles of a free society can be implemented for any particular group of people. In addition to this more intimate knowledge, local government is frequently more responsive to those it serves. Voters can more easily contact and influence their local representatives.
Yet the Tenth Amendment has often been misread in granting states the ability to enact laws that would be judged improper if passed by Congress. This amendment does not give states carte blanche in implementing any policies they desire. Despite arguments to the contrary, the states have no more authority to violate individual rights than does the State. Though the Bill or Rights was directed at the federal government, its prohibitions in that realm do not mean a state has the right, for example, to pass gun control laws. No more than Congress, local governments may not act outside those legitimate areas reserved to them by their nature. For example, organizing local governing bodies, setting up police forces, or establishing polling sites are actions properly the province of local government, not Congress. But the boundaries of such power must occur within the confines of protecting individual rights. If censorship is impermissible for the federal government, it becomes no less acceptable for local governments simply because the Constitution does not specifically prohibit the states from such actions.
Interpreting the Constitution correctly means that we must recognize not only the political principles that document expresses but also the proper moral foundation upon which it rests. Individual rights and their corollary, the non-initiation of force, provide that ethical underpinning. Neither the Constitution nor the State can grant or give us our rights. All they can -- and should -- do is recognize and secure those rights against individuals and groups who would violate them.
Today little remains of the original vision that created the only country which explicitly subordinated the State to moral law and the citizens under its protection. Far too many people would gladly impose their will on their neighbors or surrender respect of their rights for a temporary yet false sense of security. Whether we as a people can salvage the United States from the slippery slope upon which we have glided for so long remains to be seen. The principles to guide us through the rapids of political change exist. It remains only for us to recognize and implement them in a consistent fashion.
The challenges before us are formidable. Yet the rewards of freedom and personal dignity are worth the risks and the effort. Perhaps ours will be the first generation in history to get the Bill of Rights right.