Bill of Rights

The Constitution of the United States, and more particularly the Bill of Rights amended to it, has always struck me as a curious document, though perhaps not as curious as America’s blind devotion to it. Vague, ambiguous, and achingly in need of interpretation and reinterpretation, the Bill of Rights has got to be one of the most loop-hole-iest legal documents in history. Consider:

Amendment I 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.

This is really a mash-up of at least three and maybe five rights — religion, speech and press, assembly and petition. Let’s take them in order:

Religion: You can pretty much practice whatever religion you want in the United States — unless it involves the use of illegal drugs or having multiple spouses or any other other cultural taboo.

Speech and Press: There are no laws abridging the freedom of speech and press, except that you can’t use words like fuck and shit in public, you can’t incite to riot, and you can’t libel or slander. And there was a time, under the Sedition Act of 1798, when you couldn’t criticize (the law used the word “defame”) a member of Congress or the President.

Peaceable Assembly and Petition: OK, but you better get a permit, and stay within the boundaries allowed by the authorities, even if that’s several blocks away from where the President or whoever is speaking (isn’t that “a law respecting the right”?). And don’t bring unauthorized signs or wear offensive t-shirts — oh, that’s speech, not assembly; never mind.

Amendment II 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.

This is of course the most troublesome amendment. The first clause would indicate its intent is to insure that the people in the states have a right to form militias (that’s what the National Guard is). But especially in recent years, the swing of the Supreme Court has swung to the second clause, ruling that this refers to the right of individuals “to keep and bear arms.” Oh, except for machine guns, hand grenades, shoulder-launched missiles, and thermo-nuclear devices — those arms you can’t “keep and bear” (legally, that’s called an “infringement”).

Amendment III 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.

Whew. This seems pretty straight forward (and thankfully anachronistic), though we might want to keep our eye on that last phrase, “in a manner to be prescribed by law”; that seems to me to mean that the Congress could pass a law, at least in time of war (which has been constant for pretty much all of the past century) that would allow for the army, navy, air force, or marines to take advantage of our Budweiser, Doritos, and flat-screen TVs.

Amendment IV 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.

So those random drunk driving stops on the street and the TSA’s rifling through your underwear and one-quart bag of three-ounce liquids and gels are unconstitutional? Well, no, not if you have an expansive (and politically convenient) interpretation of what’s “reasonable.”

Amendment V 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.

Wow, this is a big one. It essentially keeps the government from charging people with unwarranted crimes (except when involving the military), trying someone twice for the same crime, requiring someone to testify against themselves, punishing someone “without due process of law” (whoever determines that), or taking private property (except with “just compensation,” whoever determines that). This is the amendment that has us mired down in how to deal with all those “detainees” we have from the fictional “War or Terrorism.” Book ‘im, Dan-o.

Amendment VI 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 defense.

This is probably the clearest and most adhered to of the original amendments. (Although when I was charged with possession of marijuana back in 1968, it took almost a year for the case to come up just for a hearing, hardly “speedy,” and then it was thrown out of court for police misconduct (and the inconvenient fact that I wasn’t in possession). Which I guess is vindication for the VIth.)

Amendment VII 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 reexamined in any court of the United States, than according to the rules of the common law.

OK, this also seems pretty straight-forward and adhered to, though again there’s that pesky final phrase, “according to the rules of the common law” (somebody has to make that call).

Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

OK, I’ll bite: What’s “excessive”? And what’s “cruel and unusual”?

Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In other words: You do have some other rights that we just aren’t going to let you know about.

Amendment X 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 other words: Some of those rights alluded to in IX might not really be available to you, depending on which state you happen to live in. Sorry, slaves, Indians, women, gays, and possibly just about anyone else.

I understand (though I’m not sure all that many other Americans do) that the purpose of our Supreme Court is to try to make some sense of this jumble as it rattles through time. But in the end, the Bill of Rights can’t really be described as anything more than a legal Rorschach Test. Just this last year, the Court ruled that corporations are essentially “people,” therefore have the same rights as people, and that further, undisclosed corporate (= people) contributions to political campaigns are “speech,” and therefore no problemo. And the following is a picture of a unicorn and palm tree arguing over what’s the best pizza place in Goodland, Kansas: