John Whitehead's Commentary
Do You Know the Bill of Rights?
"It astonishes me to find... [that so many] of our countrymen... should be contented to live under a system which leaves to their governors the power of taking from them the trial by jury in civil cases, freedom of religion, freedom of the press, freedom of commerce, the habeas corpus laws, and of yoking them with a standing army. This is a degeneracy in the principles of liberty... which I [would not have expected for at least] four centuries."--Thomas Jefferson, 1788"Most citizens," writes columnist Nat Hentoff, "are largely uneducated about their own constitutional rights and liberties."
The following incident, which was shared with me recently, is a case in point for Hentoff's claim. A young attorney, preparing to address a small gathering about the need to protect freedom, especially in the schools, wrote the text of the First Amendment on a blackboard. After carefully reading the text, a woman in the audience approached the attorney, pointed to the First Amendment on the board and remarked, "My, the law is really changing. Is this new?" The woman was a retired schoolteacher.
For more than 200 years, Americans have enjoyed the freedoms of speech, assembly, and religion, among others, without ever really studying the source of those liberties, found in the Bill of Rights--the first ten amendments to our U. S. Constitution.
Yet never has there been a time when knowing our rights has been more critical and safeguarding them more necessary. In a time when elected officials continue to pass intrusive legislation like the U.S.A. Patriot Act, which is drastically altering the landscape of our liberties, it is vital that we gain a better understanding of what Thomas Jefferson described as "fetters against doing evil."
A short summary of the first ten amendments shows how vital these freedoms are to the republic in which we live.
The First Amendment protects the freedom to speak your mind and protest in peace without being bridled by the government. It also protects the freedom of press, as well as the right to worship and pray without interference. In other words, Americans cannot lawfully be silenced by the government.
The Second Amendment guarantees "the right of the people to keep and bear arms." This is one of the most controversial provisions of the Bill of Rights. Indeed, there are those who claim that gun ownership in America should be restricted solely to the police and other government officials. In many countries, owning a firearm is a mere privilege, reserved for the rich and powerful. Self-protection, however, is not a privilege in America. It is a right. In fact, Harvard law professor Laurence Tribe has said that Americans have the right "to possess and use firearms in defense of themselves and their homes" and that the "government may not disarm individual citizens without some unusually strong justification."
America was born during a time of martial law. British troops stationed themselves in homes and entered property without regard to the rights of the owners. That is why the Third Amendment prohibits the military from entering any citizen's home without "the consent of the owner." Even though today's military does not threaten private property, this amendment reinforces the principle that civilian authority is superior to the military. Civilian control of the military is a key ingredient to safeguarding the liberties we cherish. History clearly shows that citizens of militarily-controlled states and of military dictatorships are rarely free. This is why it's so important that the military be subordinate to elected leaders.
There's a knock at the door. The police charge in and begin searching your home. They invade your privacy, rummaging through your belongings. You may think you're powerless to stop them, but you're not. The Fourth Amendment prohibits the government from doing so without a warrant approved by a judge. But what about other kinds of invasions? Your telephone, mail, computer and medical records are now subject to governmental search. Even though they're all personal and private, they are at risk for unwarranted intrusion. Fourth Amendment protections, however, against "unreasonable searches and seizures" go far beyond any actual police search of your home. The U. S. Supreme Court has defined this amendment to mean that you have a reasonable expectation of privacy as well.
You cannot be tried again after having been found innocent. The government cannot try you repeatedly for the same crime, hoping to get the result they want. It's one of the legal protections of the Fifth Amendment. Moreover, you cannot be forced to testify against yourself. You can "plead the Fifth." This means that if you are suspected of committing a crime, it is up to the state to prove its case against you. 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.
The Sixth Amendment spells out the right to a "speedy and public trial." An accused person can confront the witnesses against him and demand to know the nature of the charge. The government cannot legally keep someone in jail for unspecified offenses.
Moreover, unlike many other countries, Americans also have the right to be tried by a jury of ordinary citizens and to be represented by an attorney. Our fates in criminal proceedings are not decided by panels of judges or unaccountable politicians.
Property ownership is a fundamental right of free people. In a legal dispute over property, the Seventh Amendment guarantees citizens the right to a jury trial.
Like any other American citizen, criminals have rights under the Constitution as well. In some countries, the government abuses what they see as disloyal or troublesome citizens by keeping them in jail indefinitely on trumped-up charges. If they cannot pay their bail, then they're not released. The Eighth Amendment is, thus, similar to the Sixth--it protects the rights of the accused. These are often the people most susceptible to abuse and who have the least resources to defend themselves. This amendment also forbids the use of cruel and unusual punishment.
The framers of our Constitution were so concerned about civil liberties that they wished to do everything conceivable to protect our future freedom. Some of the framers opposed a bill of rights because it might appear that these were the only rights the people possessed. The Ninth Amendment remedied that by providing that other rights not listed were nonetheless maintained by the people. Our rights are inherently ours, and our government was created to protect them. The government does not, nor did it ever, have the power to grant us our rights. 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 and is a landmark of American freedom.
Ours is a federal system of government. This means that power is divided among local, state and national entities. The Tenth Amendment reminds the national government that the people and the states retain every authority that is not otherwise mentioned in the Constitution. Congress and the President periodically assume more power than the Constitution grants them. However, it's up to the people and the state governments to make sure that they obey the law of the land.
Having stood the test of time, there is little doubt that the Bill of Rights is the greatest statement for freedom ever drafted and put into effect. In the end, however, it is the vigilance of "we the people" that will keep the freedoms we hold so dear alive. Therefore, know your rights and exercise them freely.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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