The Bill of Rights - Under Attack
By small increments, the Bill of Rights is being subverted.
January 3, 2006
The Constitution and Bill of Rights were written as much to protect the people from the government as to create a structure to protect the people from outside enemies. But, piece by piece, the power grabbers in the federal government are subverting the Constitution and Bill of Rights and as a result, "We the People" are paying a terrible price.
The following are just a few examples of how that is happening. I have highlighted the portions of each amendment that I will discuss.
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.
As the law stands today, if a member of a protected group (Negro, Mexican, Jew, queer, etc.) insults your sister and you respond by saying "You stupid (insert the protected group here). If you ever say anything like that again, I'll kick your butt." and then bump him slightly as you walk away, you have committed a "Hate Crime." Because of your statement preceding that accidental bump, the bump just became an assault that is classified as a "Federal Hate Crime." In this case, you most certainly do NOT have freedom of speech. The so-called "Hate Crimes Law" is only the most flagrant example of the federal government's violation of the 1st Amendment. Then there is Bill Clinton having protesters at his appearances arrested. There are many more examples that I will not go into here. As I said above, these are just a few of the most flagrant examples.
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.
All that I have to do to make my point here is cite the National Firearms Act of 1934, the Federal Gun Control Act of 1968 and the Brady Bill, though there are many other examples. I wonder what part of "shall not be infringed" they fail to understand.
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.
I don't think that they have got around to this one yet. Let me emphasize that - YET.
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.
To show how the 4th Amendment has been shredded, I have but to cite three words that strike fear in the hearts of every true patriot - actually, one word, one acronym, and one letter.
ECHELON, USA-PATRIOT and "W"
If you are not aware of ECHELON, you really do need to check out the Action America ECHELON Pages. There is now substantial and solid evidence that our government is using an agreement with four of our allies to indiscriminately monitor the private and personal electronic communications of US citizens in their everyday communications. This has gone on since long before the Patriot Act, but has now been overshadowed by the Patriot Act.
The acronym refers to the blatantly misnamed, USA PATRIOT Act that civil libertarians across the political spectrum have denounced as the "single greatest assault upon the Constitution in US history". With a stroke of the pen, Dubya and his bushbots attempted to eliminate that pesky 4th Amendment and large parts of the rest of the Constitution, in one sweep. Fortunately, the people saw it for what it was and pressured Congress to cut back on the worst parts. Even some of the bushbots in the Senate have finally knuckled under to the will of their patriotic constituents, though as this is being written, the verdict is still out. They did authorize a one month extension of the parts that were due to expire.
But, the worst part doesn't expire. It will take a two-thirds majority of both houses to repeal it, since Dubya will certainly veto any attempt to return any of the people's rights that he has usurped. I'm talking about the unconstitutional provision referred to as Know Your Customer (KYC), which requires all financial institutions to spy on their customers financial activities and report those activities to government snoops. Interestingly, a few years earlier, the FDIC proposed KYC as a regulation, but during the mandatory comment period, just the negative comments broke all records for all comments that had ever been received concerning any proposed rule. Because of the public backlash, the FDIC never officially imposed their version of KYC. Yet, the Patriot Act includes a version of KYC that is like the FDIC version on steroids. KYC requires banks to "profile" all of their customers and send Suspicious Activity Reports to federal authorities any time you deviate from your profile. Some profiles are automatically considered "suspicious". Under KYC, the government uses surrogates (banks, stock brokers, etc.) to obtain information that, had law enforcement agents done the deed themselves, they would have gone to jail.
Then, there is the infamous "W". This, of course, refers to the president, who has stated that the Constitution is "just a goddamn piece of paper" and who has admitted to authorizing over a thousand unwarranted wiretaps, which is a direct violation of he 4th Amendment.
Again, these are only some of the more blatant examples of the US government's subversion of the 4th 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 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.
Here is another slam dunk. The Civil Asset Forfeiture Reform Act (Title 21 U.S.C. § 881) allows the federal government to seize the assets of an individual, without any compensation at all, for no other reason than that they have reason to believe that the property was used in a crime. I wonder what part of, "without just compensation" they fail to understand. In fact, only because of an intensive grass roots effort in 1999, were patriots able to prevent a horrible expansion of this law, in the form of the Civil Asset Forfeiture Reform Act of 1999 (S.1701).
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.
On the subject of a speedy trial, I will cite just one of many very public cases, specifically, that of hacker Kevin Mitnick, who federal prosecutors held without indictment, without a detention hearing, without bail, and without a trial for more than 4 years. I will point out that this is the same "dangerous criminal" who was once held in solitary confinement for 8 months because (get this for a lame excuse) the dimwitted judge believed that Mitnick could launch nuclear missiles by just whistling certain tones into a phone (it's part of the court record - no joke).
On the subject of an impartial jury, I will point out that one of the most basic principles of "Common Law," upon which our laws are based and which is kept hidden from modern juries, is the principle of Jury Nullification. The principle of Jury Nullification was described best by John Adams, our second President, who said, "It is not only [the juror's] right, but his duty...to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." I am personally aware of an entire panel of 36 prospective jurors who were dismissed during voir dire, because one prospective juror asked if there was any law that would prohibit the jury from voting contrary to the direction of the court, as provided under the principle of Jury Nullification. They were dismissed for no other reason than that they had been made aware that they "might" be entitled to vote their conscience, regardless of the judge's direction. In fact, the process of modern voir dire has become a way, not to select impartial jurors, but to eliminate them. See the article, "Novel Concept" for more information about Jury Nullification and the courts.
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.
Again, I refer you to the case of Kevin Mitnick, who was held for 4 years without incitement, bail or trial, and held in solitary confinement until he waived in open court, his right to a detention (bail) hearing (required to determine whether to release a defendant with or without bail, or to hold a defendant without bail until trial) and to waive his right to a preliminary hearing (required to determine whether there is probable cause to hold a defendant when no indictment has been handed down) to determine if there was probable cause to hold him without indictment. Again, just one of many such cases.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Well, while we are on the subject of Kevin Mitnick, we might as well use his example again. In the 4 years that he was held in federal prison (released on January 21, 2000), he was never granted a bail (detention) hearing. In fact, immediately upon his arrest, he was placed in solitary confinement for the sole purpose of forcing him to waive in open court his right to a bail (detention) hearing. As soon as he waived that right, he was released to the general prison population. In the California case against him, the bail was set at a MILLION DOLLARS. To put this into perspective, the bail set for most murderers is not half that high. Was Mitnick a murder? No. Was he even violent? No. This guy was just a hacker. What this plainly shows that if the government wants you, the 8th Amendment means nothing.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
I will present here just a few examples of rights that most people believe that we should retain, but that the federal government has usurped. How about the right to invest your own money as you see fit? That's something that most people would take for granted and they would be wrong. During the last few years of the Apartheid era, in South Africa, Americans were not allowed to invest in South Africa. How about the right to travel where you choose? Try traveling to Cuba. Or how about private property rights in general? You can own a piece of land that has been in your family for years, but be prevented from clearing it or building on it because it was declared "wetlands" by a federal agency the day before. How many more cases like this can you think of. The 9th Amendment might as well not exist for all the attention given it by Congress or the courts.
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.
As pointed out in the article, "Federal Lawmakers Are Using Tax Dollars To Buy Powers Assigned to the States," the federal government has come up with a three step system, whereby they can and do circumvent at will, any right granted to the states and take it as their own. The three steps are "Assistance," "Encumbrance" and "Extortion." They start by granting federal tax dollars to the states for "Assistance" in such things as highways or schools. Then, they wait a few years, until the states have come to rely heavily upon that money (our tax dollars) and have incurred much debt, based upon that income (they have become "Encumbered"). Then, the federal government tells the state that you must reduce your top speed limit to 55mph or teach your school children in a certain manner or lose those funds. Unable to pay off their debt without that money, the states relent.
Ladies and gentlemen, that is unadulterated "EXTORTION" by our own government.
As you can see, the federal government has managed to subvert, corrupt or ignore at least part, if not all, of 9 out of the 10 amendments that compose The Bill of Rights. If you look at the timeline of when these attacks occurred, you will see a distinct pattern of systematic weakening of the Bill of Rights by our elected representatives. As a result of the loss of these rights, it is estimated that upwards of 300,000 wealthy or just fed up US citizens leave the USA every year to establish permanent residence and/or citizenship in a foreign country. Of course, when the wealthy do this, they take their wealth with them and that wealth represents lost US Jobs.
So How Did All This Happen?
Determining how it happened is the easy part. In a phrase, "Power Corrupts." The power of political office is addictive. Once our elected officials get a taste of power, many of them just want more for themselves. Others, who are more altruistic, like to think that they have all the answers and can solve many of our problems if they had just a little more power. Together, these two groups, for their own separate reasons, have incrementally subverted The Bill of Rights, over the years. The dangerous thing about incrementalism is that most people don't notice it until it is too late and many never will understand how the damage was done.
So How Can We Restore Our Lost Rights?
That is a question that has no easy answer. The problem is that regardless of who we elect, they may be tempted in the same way that other elected officials have been tempted. I personally, never vote for the incumbent in the primaries. I also never vote for a judge who has been a lawyer, if there is a qualified non-lawyer running for the same position. And in all cases, I vote in the general election, for the Conservative candidate that leans most Libertarian, regardless of party affiliation. But, even that will do little to repair the damage already done to The Bill of Rights.
I don't pretend to have the answer to this one. All that I am really sure of is that we need to do something and we need to start now so we can turn it around while we still have a few rights left.
I do occasionally allow myself to indulge in flights of political fancy. They are usually philosophical concepts that would be nearly impossible to implement. But, in 1994 I saw one of my long-standing unpublished pet ideas implemented by the Republicans in Congress. They called their idea the "Contract With America." It resulted in the 1994 GOP landslide takeover of Congress. Since then, I try to publish my ideas, regardless of how unlikely they may seem. In fact, I encourage all conservatives and libertarians to talk-up their ideas. Who knows when the next one might catch on. It might be my idea. It might be yours.
So, in that regard, here is my idea for restoring our Constitutional rights. The whole concept is based upon the fact that the citizens of this country can initiate a vote on a Constitutional Amendment without the aid of Congress. Because the exact same amendment would have to be put forward in many states at once, it would have been close to impossible, before the Internet. Even with the Internet, it would still be tremendously difficult. But, my idea is even more difficult than simply voting a new amendment to the Constitution.
Let's publicize, in a manner similar to the "Contract With America," a complete set of proposed Constitutional Amendments reestablishing the rights granted us in the original Bill of Rights, but in language that makes it very clear that government is our servant and the people are the masters. We should sell it as a package deal and it should have an easily marketable name. One of the reasons that the Contract with America succeeded was the positive and meaningful name that they gave it.
For that reason, I suggest that we call it the:
Millennium Bill of Rights
We sell it with phrases like:
"A 21st century reaffirmation of the Bill of Rights."
"Reaffirming America for the next millennium."
"A Bill of Rights for our children."
We sell ourselves as:
"Patriots of the new millennia"
There are many other good phrases that make for good sound bites. The concept is very marketable, but it requires the right type of publicity and financial backing. If it's ever going to happen, the concept will need to be seen by the people who can make it happen. So, if you like it, please pass it around. Refer your friends and legislators to this web page
(http://www.ActionAmerica.org/constitution/y2kbor.shtml). Who knows. It just might catch on.
As a starting point, I present here my initial ideas for what a Millennium Bill of Rights might contain. Most of the proposed amendments are expansions on the respective amendments in the original Bill of Rights. But, since some of the proposed amendments strengthen more than one of the original amendments, I have substituted a few new ones for your consideration.
Millennium Bill of Rights
No laws shall be made that would give preferential treatment to one or more religions over other religions or restrict the free exercise of an established religion, or impose criminal penalties or unusually harsh civil awards based upon something that a person may have said, or restrict the press; or limit the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Recognizing that a well regulated militia is necessary to the security of a free state and that without a well armed populace, even the best formed government might eventually become an enemy of the people and that the police cannot be expected to be everywhere at all times, the right of individual citizens to keep and bear arms of any type, power, caliber, feature set or appearance shall not be infringed or restricted in any way by or through any third party, any governmental entity.
The government of the United States of America may own title to, lease or otherwise exercise control of, either directly or through surrogates, no more than five percent of the total land comprising the United States of America. Upon passage of this amendment, the government of the United States of America shall have five years to divest itself of excess land holdings, through public auction.
The right of the people to be secure in their persons, houses, papers, effects and communications, including encrypted communications, against unwarranted searches, seizures, interception or decryption, by anyone including, but not limited to, law enforcement agents or their domestic or foreign surrogates, 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, or the communications to be intercepted and the data to be captured, and in no case shall a warrant issue based upon the fact that data has been encrypted nor that fact considered in a court of law as evidence of a crime, nor shall the prompt notification of any subject of a search be waived for any reason, and all evidence, including encrypted data, belonging to a defendant must be returned in good order within ten days, should no charges be filed or immediately after an acquittal has been handed down, unless said evidence is part of a court ordered settlement.
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, including being required or in any way coerced or compelled to reveal any of his encryption or decryption keys; nor be deprived of life, liberty, or property, without due process of law, which must include criminal charges being filed and a timely finding of guilt; nor shall findings of a previous criminal or civil proceeding be withheld from evidence in any future criminal or civil case; nor shall private property be taken for public use, without just compensation; nor shall any person be coerced or compelled in any way to give up any of these or other rights.
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 compulsory process for insuring that jurors shall not be denied any previously unheard evidence of any kind, and to have the assistance of counsel for his defense.
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, yet the findings of any prior court proceedings must be allowed into evidence, as historical or character evidence, in all subsequent court proceedings.
All jurors shall be informed of their rights as final arbiter of any case and specifically of their right and duty to judge, not only the evidence, but the law itself, as it applies to the case at hand and no evidence or fact may be withheld from a jury for any reason.
No governmental entity shall participate in any way in any civil suit on behalf of any person, group of persons or entity other than itself, and only where it can be shown that the government entity was the injured party.
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 and shall not be compromised, subverted or limited, either directly or through the use of either domestic or foreign surrogates or incentives or disincentives of any kind.
You will notice that there is a fair amount of duplication in these proposals. That is to help insure that the important issues would become law, even if only part of those proposals were to actually become amendments to the Constitution. Also, if all of these proposals were to become amendments, the duplication, with slight differences in phraseology, would make it more difficult for future courts to misconstrue.
I realize that the idea of a Millennium Bill of Rights will probably never be anything more than a dream. But, it is a pleasant dream. Such a set of constitutional amendments would return control of this country to those whom the founding fathers intended - The PEOPLE. The government would again become subservient to The PEOPLE, at least for another hundred years or so, when our elected officials eventually figure out how to subvert even these amendments.
As you consider this, consider what several of our forefathers and one contemporary have said:
Eternal vigilance is the price of liberty.
"I believe there are more instances of the abridgment of freedoms of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations."
"The only thing necessary for the triumph of evil is for good men to do nothing."
"Abuse of power isn't limited to bad guys in other nations. It happens in our own country if we're not vigilant."