The Bill of Rights: Article V

It's one of those mornings here in Disneyland-on-the-Potomac that makes winter interesting ... the Federal Government (the largest employer in the region) has decreed that, because of freezing rain and resultant ice in locations around the National Capital Region, late reporting (up to 11:00 AM) for work is authorized. By afternoon, the temperature will have risen to near 50, and all that ice will have turned back into dirty water. Winter just ain't fun any more.

Nessa gave me a break and wrote yesterday's post (in the process, getting more comments than I get on my own posts), but now it's time to get back to normal and return to our discussion of the Bill of Rights - we've made our way through Amendments I through IV, so today we'll move on to a look at 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."

Although this may be what grammatical purists would call a run-on sentence, it nevertheless embodies in its run-on-ness several of the freedoms and rights upon which we Americans have come to rely. If most of us know anything about the Fifth Amendment, it probably comes from movies and TV shows that depict a suspect "taking the fifth" or saying something like "I refuse to answer on the grounds that it might tend to incriminate me." There's more to it than just that, though, if we look at everything it enumerates:

- No prosecution without a properly-presented indictment before a grand jury (except in the case of military personnel accused of crimes in time of war);

- No prosecution twice for the same offense ("double jeopardy");

- No enforced self-incrimination (why you can "take the fifth");

- No forfeiture of property without due process; and,

- Limits on the government's power of eminent domain (the seizure of private property for public use).

All of these rights have been limited to some degree over the years, and some are in particular danger today, particularly the power of protection against the power of eminent domain. The Supreme Court decision in the case of Kelo v City of New London (docket #04-108) interpreted the Fifth Amendment to allow the government to seize private property on behalf of a real estate developer, on the theory that the public benefits economically when a developer can replace private property with a commercial development that will, in theory, generate positive economic benefit. The government's power to seize personal assets is also growing, particularly as part of the war on drugs in which the authorities impound homes, cars, aircraft, and other assets of convicted drug dealers.

The Fifth Amendment isn't one of the articles of the Bill of Rights we think about very often, but it's very important, particularly when read in conjunction with the Sixth Amendment, which we'll discuss tomorrow. For now, though, I need to get ready to face the hibernal music and make my slippery way to work.

Have a good day. Know your rights, but also your responsibilities. Both are more important than ever as we draw farther and farther away in time from the world in which the Founders wrote the Constitution and the Bill of Rights.

More thoughts tomorrow.

Bilbo

The Bill of Rights: Articles III and IV

You may have thought, based on recent discussions of more interesting things like the G-Spot, that I've forgotten about our tour through the Constitution. But you'd be wrong. It's just that my brain works in a somewhat unguided manner, and I'm easily drawn off on tangents.

But let's get back to the Constitution; specifically, to our discussion of The Bill of Rights. We discussed the First and Second Amendments already, so today we'll move on to the Third and Fourth.

The Third Amendment is pretty straightforward, and isn't of much import today. It reads as follows:

"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."

At the time of the Revolutionary War, the Americans were pretty upset by the King's insistence that the people house and feed his soldiers, and they wanted to be sure that their new government didn't do the same thing. Today, we don't worry much about the government wanting us to serve as a Holiday Inn for the 82nd Airborne ... we worry a great deal more about the sort of rights spelled out in 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."

Americans of the Founders' era had suffered the experience of the King's soldiers breaking into and searching their homes on questionable authority, and they weren't about to allow the new government they were devising to have such power. Thus, the Fourth Amendment found pride of place in the Bill of Rights, being one of the most invoked set of freedoms (along with the First and the Holy Second amendments). It's often cited as a right to privacy, although that isn't quite what it says.

Today, there is probably no set of rights enumerated under the Constitution that is more endangered than those guaranteed by the Fourth Amendment. When the Founders wrote this amendment, the cutting edge of surveillance technology was the spyglass, and a search warrant was the battering ram the King's agents could use to break down your door in search of whatever they hoped to find. The Founders drafting our basic rights in 1787 could never have foreseen electronic surveillance technology, GPS tracking, the tapping of telephones (or, in fact, telephones themselves), or computers and the ability of evil persons (not only the government) to hack into those computers and steal our personal information. A man's home may be his castle, but nowadays there are a lot of people who know how to lower the drawbridge and invite themselves in.

The Supreme Court is wading its way through the issue of the constitutionality of GPS tracking, and may impose limits on the ability of law enforcement to track you and I 24 hours per day using this technology. But this is the same Supreme Court that, through its incredible decision in Citizens United v Federal Election Commission, has allowed Super PACs to purchase our government as if it were a package on a Wal-Mart shelf. If I were you, I'd worry about those Fourth Amendment rights. It's too bad we don't have an all-rights/no-responsibilities organization like the NRA to protect them.

Insist on all your rights guaranteed by the Constitution ... and remember that they are guaranteed to the people whose political opinions and lifestyle you don't like, too.

We'll get funny again tomorrow with Cartoon Saturday, and move on to the rest of the Bill of Rights next week. Be here.

Have a good day. More thoughts tomorrow.

Bilbo