# Know Your Rights



## Winston (Feb 20, 2018)

I have a simple proposition.  Let's torch the Bill of Rights.

Today, we argue too frequently about what a "right" is, and what it means.  From a legal perspective, our rights are defined as unalienable.  They are inherent, and cannot be taken away.  In the United States, they are codified in the first ten Amendments to the Constitution.  Our Bill of Rights. 

Constitutional scholars mostly fall into one of two camps:  Those that believe in a loose, adaptable "living Constitution", and those that see the document as a rigid legal protection against future tyranny.  These "Originalists" see a living document as a slippery slope into irrelevance, where the loose constructionalists view inflexibility as a nonsensical "suicide pact".

They are both right, and they are both wrong.  Our Bill of Rights, as it stands, is almost two and a half centuries old.  Our Founding Fathers could not, in their wildest dreams, imagine the society that we live in today.  It is a world of scientific advances that would make us seem as gods.  It is also a world of societal decline that would illuminate us as demons. 

Let's get this straight.  Our Founding Father's late 18th Century world was far from perfect.  It was racists, misogynistic and intolerant.  Yet somehow, they produced a government that was, at the very least, successful.  Scream about slavery and native genocide, just get it out of your system now.  Every large colonial power lived in that same glass house, throw rocks at your own peril.  And you small, globally insignificant countries?  Enjoy your smug moral superiority.

Regardless of Hamilton's slave holding etc., our Founding Fathers wanted a just, and moral country.  They struggled within the limitations that the Real World imposed on them, and crafted our Constitution.  But even during that process, it was recognized that a functional blueprint for a nation was not enough.  The citizens of this new nation must be protected. 

They foresaw a nation "By The People".  One in which the power ultimately rests with the people.  Without such protections, we would be no better that the serfs and subjects lorded over by monarchs and oligarchs.  Before The Constitution would be ratified, a "Bill of Rights" would be amended to it.  These first ten Amendments would ensure that the new government would be by, of and for The People. 

Jump forward to today.  How do we think they did?    
That answer depends a lot on whether you're an Originalist or a Constructionalist.  

Grab your copy of The Constitution and read along.


_The First Amendment_ addresses the establishment of religion, the free exercise thereof, freedom of speech, freedom of the press, the right to peaceably assemble and to be able to redress the Government.  How we doin' here folks? 

Aside from the Mormon State of Deseret, no jurisdiction has tried to establish a State Religion.  Yet this clause has been bastardized to mean that any government involvement in any religion is "establishment".  And where our Federal government does involve itself, it favors one religion over another (Christians MUST violate their faith, while Muslims are allowed theirs).  Or, it simply prohibits all religion in public.    
Freedom of speech today is meaningless.  Everyone has access to the Internet, so what?  Foreign nationals can buy ad space during an election, and use "bots" to flood over your small voice.  The wind howls against the mountain.  
Meanwhile, the press is broken into partisan camps.  They have more interest in finding a "scandal" and blaming someone than in actually reporting facts.   
You do not have a right to peaceably assemble anymore.  If you're peaceable, but the counter-protesting anarchists are not... you're to blame.  You said something incendiary that made the anarchists violent.  Great way to gag all free speech right there.
And redress your government?  Does the term "spitting in the wind" ring a bell?  Show up with cash, or don't bother.

_The Second Amendment_ states that a well regulated militia, necessary to a free state, the right of the people to keep and bear arms shall not be infringed.   God, is this one a mess.

If you don't like guns, you focus on the "militia" part.  If you're a gun nut, you emphasize the rest.  Current law sees this as an individual right.  We can go way into the bushes on Original Intent.  Did our Founding Fathers intend that citizens have access to modern firearms like soldiers use?  If so, would they have balked at any individual having so much firepower?  
To put things into perspective, does anyone think that there would be one moment's hesitation to better arm early 19th Century explorers and settlers?  Or, when the Winchester repeating rifle came out, was there ANY clamoring for "gun control"?  Some towns later in the century did attempt to enact "gun free zones".  Look at Chicago and Baltimore today.  That worked out about as well then as today. 

_The Third Amendment_ prohibited the quartering of troops in any house without the owner's consent.  Thank God we had an entire continent of space, and this never became an issue.  But, the population is rising.  And thanks to overly-restrictive land use edicts, we have less useable land per capita every day.  Stay tuned.  

_The Fourth Amendment_ protects people and their possessions against unreasonable searches and seizures.  It also specifies that warrants must have probable cause, and be limited in scope.  Wow.  Has this one been run through the meat grinder, or what? 

It's hard to know where to begin with this Amendment.  This is one where the Constructionalists have an easy time of it.  There is no way in Hell that our Founding Fathers could have predicted the digital world we live in.  Yet I bet they are spinning in their graves.
Both The People and The Government have dropped the ball.  People, in general, just throw every personal detail about themselves on line.  It's hard to expect privacy when you have diarrhea of the cyber-mouth.  The Government's job is to keep people safe.  But, they've been taking short-cuts with FISA courts and warrantless wire taps.  And while all kind of paranoid noise is made of "Big Brother", no one cares enough to change their behavior.       
There is no "firewall" separating a person's public and private life.  It is only hastily constructed once a citizen has been sufficiently publicly shamed.  

_The Fifth Amendment_ proscribes use of a Grand Jury, prohibits Double Jeopardy and compelling witness against oneself, mandates Due Process and just compensation (in "takings")  There's a lot in this one.

First, the good news is that the Grand Jury system still works, mostly.  But Double Jeopardy only applies to Federal charges.  Any unlucky schmuck with a crappy lawyer can get consecutive sentences from local and Fed charges.  Sucks to be you. 
"Taking the Fifth" is alive and well.  So much so, you can appear before a judicial proceeding and vacillate between talking and not.  Say your piece, then take the Fifth. 
Best of both worlds (that was sarcasm).  And the only victim is The Truth.  
Due process?  Right.  Shorthand for Public Defender is "PD", Prison Deliverer.  You get what you pay for.  
And Just Compensation?  It is neither.  For example, to build light rail here in Seattle, the city took various tracts from private citizens, paying market rate for the property.  Then, they decided they didn't need the land.  They didn't offer the land back to the original owners, but instead sold it below market to political allies. 

_The Sixth Amendment_ mandates that trials be public and speedy, with an impartial jury in the jurisdiction of the crime, be informed of the charges, confront and obtain witnesses and have a right to counsel.  Man, does that look good.  On paper.  

Speedy trial?  95% of the time, at the arraignment the defense asks for "an continuance".  Overworked courts grant it.  This benefits the accused because evidence gets lost and witnesses forget.  You know who doesn't benefit?  The victims of crime, that often have to wait years for justice.  
An impartial jury is a box full of unicorns.  Your results may vary, but during the voir dire, a jury will be picked.  Of your peers, sort of.  Good luck.  
Your counsel will explain the charges against you and handle obtaining and questioning witnesses.  Unless you're fool enough to try it yourself.  Regardless, the legal team with the best experts will win.  It's an "adversarial system", where the actual truth isn't even a consideration.  Just as long as the procedures were followed.  'Murica. 

_The Seventh Amendment_ reaffirms the right to jury trial in civil cases.  All I gotta say for this one is how asinine it is to get a bunch of common folk to decide any case that is highly technical.  Then again, I have seen some judges who also were dullards.  So once again, the side that puts on the best show wins.          

_The Eighth Amendment_ prohibits excessive fines and cruel and unusual punishment.  What a good idea.
Except the critters in government found a way around that.  Just don't call it a "fine".  Call it a "tax" or "levy".  For example:  If you own 20 acres, and plan on selling timber, the government can tax and levy your sale to the point it is not financially feasible.  Then, they tax your land that you can't make money on.  You fall into arrears, and they place a lien against your property.  None of that was excessive.  Just regulatin'.  
The whole cruel and unusual thing is subjective.  The French invented the guillotine for a reason... it was efficient. But it was also rather quick and painless.  The nonsensical argument against the death penalty is that it is "cruel".  Yeah, gassing and electrocuting folks is pretty dumb.  Who are we taking our cues from, Westinghouse or Himler?  
Our Founding Fathers were mainly lawyers, but even they would scoff at this Machiavellian yet spineless government.  Do, or do not. 

_The Ninth and Tenth Amendments_ state that all rights not specifically stated belong to the people, and that those powers not enumerated in The Constitution are reserved to the States, and The People.  This is so straight forward, it really is a wonder that the concept gets so bastardized.  

Honestly, why do we have a Department of Education?  Which sates are so full of idiots that we need the Federal Government to mandate what they teach?  Please, name the states.  
Somewhere in the last hundred years, the "general welfare" clause has come to encompass every facet of an American citizen's life (I blame FDR ).  The Feds can regulate and mandate whatever their "king of smart" power tells them to.  
Aside from Interstates, why does the Federal Government build roads?  Ever?  So, California sends money to DC.  DC sends (most) of the money back to Cali to build roads.  Why couldn't California just build it's own roads?  Or Bridges?  For every dollar sent to DC, a state is lucky to get back seventy cents.  What a bargain!  
A bunch of Confederate yahoos roped "states rights" a hundered and fifty years ago.  
Can we be intellectually honest enough to get past that now?    


So, is it obvious now why I want to torch the Bill of Rights?   Most of it has fallen into disuse, and the parts still alive have mutated into a monster.  

The real issue is that, quite frankly, we don't deserve it.  Our Founding Fathers formed a government to be cared for and nurtured by sober people of good character.   Our current society is selfish, hedonistic and lazy.  We have the government we deserve.  Everyone kicks the can down the road.  Things get worse.  And we'll let someone else deal with it, later. 

I suppose in 1775, those old guys in Philadelphia could have passed a Continuing Resolution, and revisited the idea of Independence later.  After all, a lot is at stake.  We need to move slowly...George ain't so bad..　

On the flip side of Rights are Responsibilities.  Ask yourself truthfully:  Are you Responsible?    How each of us answers that question, in our private thoughts, will determine whether the American Experiment is over, or we have a future.


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## H.Brown (Feb 20, 2018)

An interesting read Winston, i'm not one that knows much about this subject but now I know a little bit more.


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## Ralph Rotten (Feb 20, 2018)

Actually, a surprising number of western nations do not have a bill of rights.  Australia is one example; tis how they banned guns in a month flat.

I disagree on the idea of removing the bill of rights.  In fact I have long considered the bill of rights to be the second greatest document ever written.  There is great wisdom in those amendments.  In my current WIP the lead character actually instructs the town to start with the bill of rights, then the constitution.


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## Winston (Feb 20, 2018)

Ralph Rotten said:


> ...I disagree on the idea of removing the bill of rights.  In fact I have long considered the bill of rights to be the second greatest document ever written...



I went all absurd to illustrate my point.  Our current American society does not act like a culture that deserves such a document.  Ergo, why not just burn it?  It isn't like we're listening to those silly words, anyway.  Written so long ago.  Irrelevant, they are...

Now, for our intermission short:
[video=youtube_share;e004RHFIxLg]https://youtu.be/e004RHFIxLg[/video]


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## Ralph Rotten (Feb 21, 2018)

I'm gonna guess that you have never lived in a foreign country.
Look, you wanna know why we have the bill of rights then watch The Tudors and you will understand.
And keep in mind that what you see on the news is not a true reflection of America.  What you see is a magnification of our best & worst, but mostly the worst because that sells better.
Always remember that the one bias all press have in common is "If it bleeds, it leads."


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## Winston (Feb 22, 2018)

Ralph Rotten said:


> I'm gonna guess that you have never lived in a foreign country.
> Look, you wanna know why we have the bill of rights then watch The Tudors and you will understand.
> And keep in mind that what you see on the news is not a true reflection of America.  What you see is a magnification of our best & worst, but mostly the worst because that sells better.
> Always remember that the one bias all press have in common is "If it bleeds, it leads."



I've never bought property or paid taxes outside the US, but I have spent quite a few nights in very foreign lands.  
I've seen child soldiers, human trafficking and woke to the smell of tear gas in the streets.  None of what they do is an excuse for what we do not do.
I hold my country to a higher standard.  That's what we used to be about.
If your perceive pessimism,  it is only the the skeptical frustration of someone that loves and respects his country.  And laments that he may be alone.


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## Ralph Rotten (Feb 22, 2018)

Tis true that we have become fat, jaded, and unappreciative of what we have.  By my way of thinking each of us (born in the US) essentially won the lottery the day we were born.  After all, statistically speaking we shoulda been born Chinese or Indian, but instead we were born citizens of the most powerful nation in the history of the world.  Yet how do we spend our days?  Tweeting like morons, gorging ourselves, and nagging about nonsensical topics.  

But it's a process, we are improving slowly but surely.  In my lifetime we have gone from Mad Men to the #MeeToo movement.  That's a lotta ground to cover.


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## Bayview (Feb 24, 2018)

Ralph Rotten said:


> Tis true that we have become fat, jaded, and unappreciative of what we have.  By my way of thinking each of us (born in the US) essentially won the lottery the day we were born.  After all, statistically speaking we shoulda been born Chinese or Indian, but instead we were born citizens of the most powerful nation in the history of the world.  Yet how do we spend our days?  Tweeting like morons, gorging ourselves, and nagging about nonsensical topics.



Can you explain what's lucky about being born in the most powerful country? Like, how does the US's global power make life better for the average US citizen?


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## Ralph Rotten (Feb 24, 2018)

Being the most powerful means that we have tentacles & legs in everything, everywhere.  Because we are a rich nation with business interests all over the world, our danger of ending up like Brazil (financial apocalypse) are much reduced because our economy has multinational legs.  In a less powerful nation the economy is more localized which increases its risk of crash (because it does not have multinational legs.)  
And since American foreign policy is really all about protecting our financial interests abroad (it ain't for the safety of tourists...) then all of our diplomacy and military might are used to support the American oligarchy (via foreign policy.).
In essence, our power and financial clout have enabled us to make 'America first' a reality many years ago.  
Under capitalism we enjoy an economy known as trickle down, and since we are a rich nation we have more trickle down than a poor nation would.  
Essentially the crumbs that fall off the oligarch's table are better here than in poorer countries.  Does this mean we are happier than other nations?  A recent study in NatGeo says no.


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