John Whitehead's Commentary
Bill of Rights Day: Are Our Freedoms in Jeopardy?
“A Bill of Rights is what the people are entitled to against every government, and what no just government should refuse, or rest on inference.”—Thomas Jefferson
The Bill of Rights officially became part of the U.S. Constitution on December 15, 1791. Unfortunately, 220 years later, the freedoms enshrined in those first ten amendments are in dire jeopardy. Those responsible for its demise are none other than the schools, which have failed to educate students about its principles; the courts, which have failed to uphold the rights enshrined within it; the politicians, who long ago sold out to corporations and special interests; and “we the people” who, in our ignorance and greed, have valued materialism over freedom.
A quick review of the Bill of Rights shows how dismal things have become.
The First Amendment is supposed to protect the freedom to speak your mind and protest in peace without being bridled by the government. It also protects the freedom of the media, as well as the right to worship and pray without interference. In other words, Americans cannot be silenced by the government. Yet despite the clear protections found in the First Amendment, the freedoms described therein are under constant assault. Students are often stripped of their rights for such things as wearing a t-shirt that school officials find offensive. Likewise, local governments and police often oppose citizens who express unpopular views in public. Peace activists who speak out against the government are being arrested and subjected to investigation by the FBI, while members of the press are threatened with jail time for reporting on possible government wrongdoing and refusing to reveal their sources.
The Second Amendment was intended to guarantee “the right of the people to keep and bear arms.” Yet while gun ownership has been recognized by the U.S. Supreme Court as an individual citizen right, Americans remain powerless to defend themselves against the government. In fact, in 2011, the Indiana Supreme Court broadly ruled that citizens don’t have the right to resist police officers who enter their homes illegally, which is the law in most states. And consider how many individuals have been killed simply for instinctively reaching for any kind of weapon, loaded or not, during the initial trauma of a SWAT team raid. Thus, as local police departments become more and more like paramilitary units, dressed in black riot gear and armed with assault weapons, the ability of the citizenry to protect itself from the government will become more and more difficult.
The Third Amendment reinforces the principle that civilian-elected officials are superior to the military by prohibiting the military from entering any citizen’s home without “the consent of the owner.” Unfortunately, the Congress is in the process of passing a Defense Authorization Bill which will finally tear down the wall between civilian and military policing, allowing soldiers to arrive at your front door and arrest you. With domestic police increasingly posing as military forces—complete with weapons, uniforms, assault vehicles, etc.—a good case could be made for the fact that SWAT team raids, which break down the barrier between public and private property, have already done away with this critical safeguard. Indeed, the increasing militarization of the police, the use of sophisticated weaponry against Americans and the government’s increasing tendency to employ military personnel domestically have eviscerated the Third Amendment. At all levels (federal, local and state), through the use of fusion centers, information sharing with the national intelligence agencies, and monetary grants for weapons and training from the Pentagon, the local police and the military have for all intents and purposes joined forces. In the process, the police have become a “standing” or permanent army, one composed of full-time professional soldiers who do not disband, which is exactly what the Founders feared.
The Fourth Amendment prohibits the government from searching your home without a warrant approved by a judge. Unfortunately, the Fourth Amendment has been all but eviscerated by the passage of the USA Patriot Act, which opened the door to unwarranted electronic intrusions by government agents into your most personal and private transactions, including phone, mail, computer and medical records. Added to the Patriot Act’s lengthy list of abuses, one recent court decision sounded the death knell for our Fourth Amendment rights. Indeed, in its 2011 decision, the U.S. Supreme Court gave police carte blanche authority to break into homes or apartments without a warrant. Specifically, the court ruled that if a SWAT team arrives at the wrong address but for whatever reason suspects the citizen inside the home may possess drugs, these armed warriors can break down the door and invade your home—all without possessing a warrant.
The Fifth Amendment is supposed to ensure that you are innocent until proven guilty, and government authorities cannot deprive you of your life, your liberty or your property without following strict legal codes of conduct. Unfortunately, those protections—especially as they apply to Muslim-Americans—have been largely extinguished in the wake of 9/11. For example, beginning in 2002, the government has detained nearly 13,000 Arab, Muslim and South Asian men under cover of a special registration program spearheaded by Immigration Services. Detainees were held without bail for an average of three months and waited up to three weeks to contact an attorney.
The Sixth Amendment was intended to not only ensure a “speedy and public trial,” but it was supposed to prevent the government from keeping someone in jail for unspecified offenses. That too has been a casualty of the war on terror. For example, the Presidential Military Order of November 13, 2001, gave the president the power to detain non-citizens suspected of connections to terrorists or terrorism as “enemy combatants.” They can be held indefinitely without charge, without a court hearing and without access to a lawyer. Not only have non-citizens been held in such a manner but so, too, were American citizens who were captured on American soil, rather than on a foreign battlefield.
The Seventh Amendment guarantees citizens the right to a jury trial. However, when the populace has no idea of what’s in the Constitution that inevitably translates to an ignorant jury incapable of distinguishing justice and the law from their own preconceived notions and fears. As Mark Twain famously observed, “The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity and perjury. It is a shame that we must continue to use a worthless system because it was good a thousand years ago...I desire to tamper with the jury law. I wish to so alter it as to put a premium on intelligence and character, and close the jury box against idiots, blacklegs, and people who do not read newspapers.”
The Eighth Amendment is similar to the Sixth in that it is supposed to protect the rights of the accused and forbid the use of cruel and unusual punishment. However, by turning a blind eye to the abuses at Guantanamo Bay and Abu Ghraib and sanctioning torture deliberately and unapologetically, including the use of waterboarding as a benign form of legalized torture, the Bush administration not only violated U.S. laws and virtually every international treaty against torture but raised the bar on what constitutes cruel and unusual punishment. Many of these same practices are still in place under the Obama administration. And the Supreme Court’s determination that what constitutes “cruel and unusual” should be dependent on the “evolving standards of decency that mark the progress of a maturing society” leaves us with little protection in the face of a society lacking in morals altogether. The continued reliance on the death penalty, which has been shown to be flawed in its application and execution, is a perfect example of this.
The Ninth Amendment provides that other rights not enumerated in the Constitution are nonetheless retained by the people. Popular sovereignty—the belief that the power to govern flows upward from the people rather than downward from the rulers—is clearly evident in this amendment. However, it has since been turned on its head by a centralized federal government that sees itself as supreme and which continues to pass more and more laws that restrict our freedoms under the pretext that it has an “important government interest” in doing so. Thus, once the government began violating the non-enumerated rights granted in the Ninth Amendment, it was only a matter of time before it began to trample the enumerated rights of the people, as explicitly spelled out in the rest of the Bill of Rights.
As for the Tenth Amendment’s reminder that the people and the states retain every authority that is not otherwise mentioned in the Constitution, that assurance of a system of government in which power is divided among local, state and national entities has long since been rendered moot by the centralized Washington, DC power elite—the president, Congress and the courts. Indeed, the federal governmental bureaucracy has grown so large that it has made local and state legislatures relatively irrelevant. Through its many agencies, the federal government has stripped states of the right to regulate countless issues that were originally governed at the local level.
Sadly, when all the glibly patriotic gestures and jargon are stripped away, I’m not even sure Americans really want freedom. What they really want is to be left in peace with their shopping malls, flat-screen TVs, cell phones and mindless entertainment. After all, how many Americans during the course of a day—even when they see fellow citizens under attack—ever think about their rights? If they did, surely there would be more resistance.