The Constitution. All the rage right now. Largely on the back of the tiny American flag waving subset, the Constitution has seen a huge popular resurgence in the past year or so, capping with members of Congress reading it on the floor of the House to open their latest session. Without a doubt it is one of the most influential governing documents in the history of civilization, triggering a far-reaching shift from rule by monarchy to one by democratically elected representatives. To that end, its importance can’t be overstated. (Unless you claim something cuckoobananas, like the Constitution and John Wayne marched around Europe armed to the teeth, overthrowing dictatorships and bedding fancy ladies who smelled of jasmine. Then you could overstate it.)
But as a very impressive and knowledgeable law student (*shines apple on lapel*), it dawns on me that not everyone actually knows the extent of the freedoms the Constitution grants. Sure it’s easy to quote songs and passages about freedom and liberty, but what do the words in the Bill of Rights actually guarantee us, and what has been bastardized by decades of cop dramas where Clint Eastwood just shoots anyone whose last name ends in a vowel? Well, don’t you worry. I’m here to help. What follows is a basic primer on the Bill of Rights, and how they apply to you.
Note: A few years of law school have bred a fear of actually saying anything into me, so here’s a brief disclaimer. This is a humor article giving a very simplistic view the first ten amendments. None of it should be taken as actual legal advice. Christ, I wouldn’t even take my legal advice. I mean, I did get an A- in Constitutional Law, so, you know, go me… but if you have a real legal issue, contact a real lawyer. Preferably not one who just referenced the Constitution sleeping with European prostitutes.
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 the big one, people. The First Amendment guarantees our freedoms of speech, religion, assembly, and the press. It’s too easy to take these for granted now. This means we can’t be imprisoned for disagreeing with the government, or for saying things that are merely unpopular. Without it, all the loudmouth talking heads on the 24-hour news networks would have been locked up with the key thrown away years ago, and… and… well look, that part wouldn’t be so bad. But it means that you can voice YOUR opinion without fear of retribution. And as much as people say Bush was a Nazi, or Obama is a totalitarian threat, keep in mind that you can shout your opinion up and down the street without any serious repercussions besides people thinking you’re a jack-ss. Ask someone in Iran or North Korea how that would work out for them.
One important note on free speech: the freedom of speech does not mean you can say whatever you want in any situation without facing consequences. Example: f-ck, assh-le, c-cknose. Had I not censored those words, I’d have been in deep sh-t with the Uproxx bosses, and might have lost my sweet sweet stream of blogging income. Rather, the freedom of speech only means that the government can’t punish you for speech (except in extreme circumstances, like yelling “Fire!” in a crowded theater, or speaking ill of The Sandlot once I’m in charge).
So when Dr. Laura Schlessinger threw the N-word around on her radio show like butter in a Paula Deen recipe, and the resulting uproar led to her leaving the show, that wasn’t her First Amendment rights being infringed. Technically, that was her precious free market distancing itself from unpopular ideas. Likewise, people protesting the construction of a Muslim gathering center near Ground Zero are perfectly within their rights. Just as the people are to build it. No one’s freedom of religion or assembly is being violated unless the government steps in and take action.
I guess what I’m really saying is this: you have the RIGHT to say what you want, but maybe you SHOULD shut up a little more.
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.
If the First Amendment is the most important, the Second Amendment is probably the most controversial. Those on the political right and left have been arguing over what it means forever. On one hand, it does state that the right of the people to keep and bear arms shall not be infringed. On the other hand, at the time of its adoption, it’s hard to imagine the Founders could have conceived of the types of weapons available today: powerful automatic handguns, weapons capable of firing off a staggering number of rounds in the blink of an eye, etc. When compared to the slow loading, single-shot muskets of the 1780s, it’s certainly plausible the Founders wouldn’t have wanted every person in the country to have access to easily concealable weapons that makes our streets unsafe, or weapons capable of leveling a city block in the hands of a mad man.
On the other hand, you know… this:
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.
After the powder keg of the first two amendments, the Third is kind of a letdown. Basically, in peacetime, the government can’t make you let soldiers live in your house. And in wartime, they technically can do it, but only in a manner Ok’d by Congress. That’s it. The Founders only included it because the British forced the colonists to house and feed their soldiers prior to the Revolution, and the colonists HATED it. Looking back on it now, it seems a little petty and reactionary compared to the amendments surrounding it. It would be like if your boss put you on a committee to propose new policies for the company, and you went with: 1) The company should begin offering a comprehensive benefit package to all full-time employees; 2) Sandra has to shut the hell up about her new necklace, which her husband only bought her because he feels guilty about cheating on her with his secretary and EVERYONE KNOWS IT, and; 3) Any decision regarding layoffs must be made by a majority vote of the board.
My point is, considering that the military is now a multi-billion dollar operation, and there hasn’t been a war fought on U.S. soil in almost 150 years, I wouldn’t exactly lose sleep over this one.
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.
Ok, back to the important ones. The Fourth Amendment is your protection against unreasonable search and seizure of your person or property. This means that if the police want to dig around in your stuff, they have to have a pretty good reason. Contrary to what firecracker meathead detective Elliot Stabler on “Law & Order: Special Victims Unit” might lead you to believe, the cops can’t just yell “OPEN THIS DOOR,” count to three, then bust it down with one swift kick because they have a hunch. If they want to execute a search, they need to have: 1) Your consent; 2) A REALLY good reason (like an emergency or something illegal just sitting out in the open), or; 3) A warrant (which they can only get from a judge after showing probable cause). And the warrant has to be fairly specific. You know, something beyond, “We wanna search all that dude’s sh-t.”
So if the cops are asking you if they can come in, you’re perfectly within your rights to ask to see a warrant or say no. Although if Detective Stabler is the one knocking, and you’ve got nothing to hide, I’d consider letting him in. At least if you like your door.
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 offence 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.
The Fifth Amendment is another of the more familiar amendments, mainly drawing from its popularity as a plot device in courtroom dramas. The prosecutor thunders away at the slick mobster on the witness stand, asking him point blank if he was responsible for the murder in question, only to have him casually smirk, look at his manicured fingernails, and reply, “I ain’t sayin’ nothin’. I plead the Fifth.”
In reality, the Fifth Amendment is way more important than that for other, more functional reasons — notably the clause guaranteeing you due process, and your Miranda rights to remain silent and have a lawyer present during interrogation. At its most basic, due process means you’re entitled to a fair shake from the legal system. The government has to give you a legitimate trial, and the normal tools to defend yourself. It’s your prevention from being railroaded. (Note: The Fifth Amendment guarantees you due process only related to the federal government. Due process on the state level stems from the Fourteenth Amendment. This separation doesn’t affect you greatly on a day to day basis here in 2011, but is a nice little fact to tuck away for cocktail parties so people will be impressed with your intellect before you begin making a drunken spectacle of yourself.)
The Miranda warnings we’re all familiar with — the right to remain silent, the right to an attorney, and the right to have one provided if you can’t afford it — come from your right against self-incrimination. The theory behind this is that the right is so important you must be made aware of the tools at your disposal to protect it. If you take away any one thing from this feature, I hope it is this: take advantage of these rights. The police have pretty wide latitude when they are questioning you. They can talk about how much better it will be if you talk to them now, they can play psychological tricks, and they stretch the truth (saying the have witnesses who saw you or saying they have evidence they don’t have). The playing field is really tipped in their favor. Invoking your rights to silence and counsel means you can level it a little more, having someone as experienced as the police on your side.
Remember in Little Giants how the Giants were getting the crap kicked out of them until Becky “Icebox” O’Shea put down her pom-poms, suited up, and started wrecking house like Lawrence Taylor in a pony tail? It’s like that.
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 defence.
The Sixth Amendment covers most of your trial rights. It means the government has to try you relatively quickly, near where the crime you’re accused of was committed, and you have the right to question your accuser and force witnesses to testify. You also have the right to counsel at the trial, again provided for you if you can’t afford it. Similar to the theory of due process, this protects you against sham or lopsided trials. For example, the government can’t arrest you for a crime in New York, and try you in Alabama without letting you cross-examine the witnesses against you. They also can’t arrest you and just keep you in jail indefinitely without ever bringing you to trial.
Parents, don’t tell your kids about this one. You do not want to be dealing with the insufferable, 8-year old version of me going on and on about why “time out” is unconstitutional.
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.
Oh, inflation. The Seventh Amendment is the ultimate “When I was a kid, milk cost a nickel and people respected their parents, unlike you kids with your new-fangled haircuts and O-Pads.” It guarantees your right to a jury trial in a non-criminal matter in any action exceeding a certain dollar amount. At the time the Constitution was written, that amount was $20. Now… not so much. Technically it still says what it says, so you CAN go to court for anything exceeding $20, but given how incredibly expensive legal proceedings have become, it wouldn’t be worth it to fight over a mere dickety dollars.
I do think, however, this would be one of the secret treasures of time travel: bringing a Founding Father back with you like in Bill & Ted’s Excellent Adventure and just blowing their mind. I think the best example would be bringing Sam Adams to a beer distributor and spending $30 on a case of Samuel Adams. Dude’s brain would be vaporized.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The Eighth Amendment is another one that’s been argued about quite a bit. Like due process and the right to a speedy trial, the bar against excessive bail prevents the government keeping you imprisoned unreasonably. It means an outspoken critic of the government, or just someone they want off the streets, can’t be held on eleventy zillion dollars bail for jaywalking. The punishment has to fit the crime.
The more controversial issue is the ban on “cruel and unusual punishment.” What is cruel and unusual? Who gets to decide? It’s pretty clear we can’t tear criminals limb from limb in the public square, but where do we draw the line?
Probably somewhere around shackling criminals to the wall and forcing them to listen to “With Arms Wide Open” by Creed on loop. I’m pretty certain the Founders would agree with me on that.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people
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.
The Ninth and Tenth Amendment deal with the remainder of the powers not discussed by the first eight. The Constitution likely would not have been ratified without their inclusion, as the colonists had just come from a situation where a strong national government pissed all over them and did whatever it wanted.
The Ninth Amendment states that the rights outlined in the previous amendments aren’t exhaustive, and the Tenth distributes all power not granted to the federal government by the Constitution to the states. The latter has also become a live wire lately, as people argue about the proper role and scope of the federal government — especially related to health care. While the Constitution grants the federal government power to regulate interstate commerce, the question is whether the recent overhaul is an appropriate exercise of that power. Even though I have a number of strong beliefs about this debate, I don’t particularly want to touch the subject with a 30-foot pole in this forum. I’m sure that the commenters, known for their reasoned analysis and tone, will show similar discretion.
There you go. Even assuming I explained this 90% correctly (remember, A- in Constitutional Law), you are now somewhat more knowledgeable about the Constitution than most Americans. Hell, than most of Congress. But remember, despite our differences over the way some of these words get interpreted and enforced, it’s pretty cool that they’re there. We’ve got these rights and protections that lots of other people in the world don’t have, and we take that for granted too often. So go wow people at your next dinner party, or protect yourself against being imprisoned for a crime you didn’t commit. Or just watch that clip of the chick with flamethrower a couple dozen more times instead of working. That’s probably one of the other rights they were talking about in the Ninth Amendment. But whatever you do, and I can’t stress this strongly enough, never, EVER, speak ill of The Sandlot. Sing it, Ray.