Feel free to copy this article far and wide, but please keep my name and this sentence on it.
The Bill of Rights, a Status Report by Eric Postpischil
4 September 1990
6 Hamlett Drive, Apt. 17 Nashua, NH 03062
edp@jareth.enet.dec.com
How many rights do you have? You should check, because it might not be as many today as it was a few years ago, or even a few months ago. Some people I talk to are not concerned that police will execute a search warrant without knocking or that they set up roadblocks and stop and interrogate innocent citizens. They do not regard these as great infringements on their rights. But when you put current events together, there is information that may be surprising to people who have not yet been concerned: The amount of the Bill of Rights that is under attack is alarming.
Let's take a look at the Bill of Rights and see which aspects are being pushed on or threatened. The point here is not the degree of each attack or its rightness or wrongness, but the sheer number of rights that are under attack.
Amendment I
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.
ESTABLISHING RELIGION: While campaigning for his first term, George Bush said "I don't know that atheists should be considered as citizens, nor should they be considered patriots." Bush has not retracted, commented on, or clarified this statement, in spite of requests to do so. According to Bush, this is one nation under God. And apparently if you are not within Bush's religious beliefs, you are not a citizen. Federal, state, and local governments also promote a particular religion (or, occasionally, religions) by spending public money on religious displays.
FREE EXERCISE OF RELIGION: Robert Newmeyer and Glenn Braunstein were jailed in 1988 for refusing to stand in respect for a judge. Braunstein says the tradition of rising in court started decades ago when judges entered carrying Bibles. Since judges no longer carry Bibles, Braunstein says there is no reason to stand -- and his Bible tells him to honor no other God. For this religious practice, Newmeyer and Braunstein were jailed and are now suing.
FREE SPEECH: We find that technology has given the government an excuse to interfere with free speech. Claiming that radio frequencies are a limited resource, the government tells broadcasters what to say (such as news and public and local service programming) and what not to say (obscenity, as defined by the Federal Communications Commission [FCC]). The FCC is investigating Boston PBS station WGBH-TV for broadcasting photographs from the Mapplethorpe exhibit.
FREE SPEECH: There are also laws to limit political statements and contributions to political activities. In 1985, the Michigan Chamber of Commerce wanted to take out an advertisement supporting a candidate in the state house of representatives. But a 1976 Michigan law prohibits a corporation from using its general treasury funds to make independent expenditures in a political campaign. In March, the Supreme Court upheld that law. According to dissenting Justice Kennedy, it is now a felony in Michigan for the Sierra Club, the American Civil Liberties Union, or the Chamber of Commerce to advise the public how a candidate voted on issues of urgent concern to their members.
FREE PRESS: As in speech, technology has provided another excuse for government intrusion in the press. If you distribute a magazine electronically and do not print copies, the government doesn't consider you a press and does not give you the same protections courts have extended to printed news. The equipment used to publish Phrack, a worldwide electronic magazine about phones and hacking, was confiscated after publishing a document copied from a Bell South computer entitled "A Bell South Standard Practice (BSP) 660-225-104SV Control Office Administration of Enhanced 911 Services for Special Services and Major Account Centers, March, 1988." All of the information in this document was publicly available from Bell South in other documents. The government has not alleged that the publisher of Phrack, Craig Neidorf, was involved with or participated in the copying of the document. Also, the person who copied this document from telephone company computers placed a copy on a bulletin board run by Rich Andrews. Andrews forwarded a copy to AT&T officials and cooperated with authorities fully. In return, the Secret Service (SS) confiscated Andrews' computer along with all the mail and data that were on it. Andrews was not charged with any crime.
FREE PRESS: In another incident that would be comical if it were not true, on March 1 the SS ransacked the offices of Steve Jackson Games (SJG); irreparably damaged property; and confiscated three computers, two laser printers, several hard disks, and many boxes of paper and floppy disks. The target of the SS operation was to seize all copies of a game of fiction called GURPS Cyberpunk. The Cyberpunk game contains fictitious break-ins in a futuristic world, with no technical information of actual use with real computers, nor is it played on computers. The SS never filed any charges against SJG but still refused to return confiscated property.
PEACEABLE ASSEMBLY: The right to assemble peaceably is no longer free -- you have to get a permit. Even that is not enough; some officials have to be sued before they realize their reasons for denying a permit are not Constitutional.
PEACEABLE ASSEMBLY: In Alexandria, Virginia, there is a law that prohibits people from loitering for more than seven minutes and exchanging small objects. Punishment is two years in jail. Consider the scene in jail: "What'd you do?" "I was waiting at a bus stop and gave a guy a cigarette." This is not an impossible occurrence: In Pittsburgh, Eugene Tyler, 15, has been ordered away from bus stops by police officers. Sherman Jones, also 15, was accosted with a police officer's hands around his neck after putting the last bit of pizza crust into his mouth. The police suspected him of hiding drugs.
PETITION FOR REDRESS OF GRIEVANCES: Rounding out the attacks on the first amendment, there is a sword hanging over the right to petition for redress of grievances. House Resolution 4079, the National Drug and Crime Emergency Act, tries to "modify" the right to habeas corpus. It sets time limits on the right of people in custody to petition for redress and also limits the courts in which such an appeal may be heard.
Amendment II
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.
RIGHT TO BEAR ARMS: This amendment is so commonly challenged that the movement has its own name: gun control. Legislation banning various types of weapons is supported with the claim that the weapons are not for "legitimate" sporting purposes. This is a perversion of the right to bear arms for two reasons. First, the basis of freedom is not that permission to do legitimate things is granted to the people, but rather that the government is empowered to do a limited number of legitimate things -- everything else people are free to do; they do not need to justify their choices. Second, should the need for defense arise, it will not be hordes of deer that the security of a free state needs to be defended from. Defense would be needed against humans, whether external invaders or internal oppressors. It is an unfortunate fact of life that the guns that would be needed to defend the security of a state are guns to attack people, not guns for sporting purposes.
Firearms regulations also empower local officials, such as police chiefs, to grant or deny permits. This results in towns where only friends of people in the right places are granted permits, or towns where women are generally denied the right to carry a weapon for self-defense.
Amendment III
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.
QUARTERING SOLDIERS: This amendment is fairly clean so far, but it is not entirely safe. Recently, 200 troops in camouflage dress with M-16s and helicopters swept through Kings Ridge National Forest in Humboldt County, California. In the process of searching for marijuana plants for four days, soldiers assaulted people on private land with M-16s and barred them from their own property. This might not be a direct hit on the third amendment, but the disregard for private property is uncomfortably close.
Amendment IV
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.
RIGHT TO BE SECURE IN PERSONS, HOUSES, PAPERS AND EFFECTS AGAINST UNREASONABLE SEARCHES AND SEIZURES: The RICO law is making a mockery of the right to be secure from seizure. Entire stores of books or videotapes have been confiscated based upon the presence of some sexually explicit items. Bars, restaurants, or houses are taken from the owners because employees or tenants sold drugs. In Volusia County, Florida, Sheriff Robert Vogel and his officers stop automobiles for contrived violations. If large amounts of cash are found, the police confiscate it on the PRESUMPTION that it is drug money -- even if there is no other evidence and no charges are filed against the car's occupants. The victims can get their money back only if they prove the money was obtained legally. One couple got their money back by proving it was an insurance settlement. Two other men who tried to get their two thousand dollars back were denied by the Florida courts. RIGHT TO BE SECURE IN PERSONS, HOUSES, PAPERS AND EFFECTS AGAINST UNREASONABLE SEARCHES AND SEIZURES: A new law goes into effect in Oklahoma on January 1, 1991. All property, real and personal, is taxable, and citizens are required to list all their personal property for tax assessors, including household furniture, gold and silver plate, musical instruments, watches, jewelry, and personal, private, or professional libraries. If a citizen refuses to list their property or is suspected of not listing something, the law directs the assessor to visit and enter the premises, getting a search warrant if necessary. Being required to tell the state everything you own is not being secure in one's home and effects. NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION: As a supporting oath or affirmation, reports of anonymous informants are accepted. This practice has been condoned by the Supreme Court.
PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED AND PERSONS OR THINGS TO BE SEIZED: Today's warrants do not particularly describe the things to be seized -- they list things that might be present. For example, if police are making a drug raid, they will list weapons as things to be searched for and seized. This is done not because the police know of any weapons and can particularly describe them, but because they allege people with drugs often have weapons.
Both of the above apply to the warrant the Hudson, New Hampshire, police used when they broke down Bruce Lavoie's door at 5 a.m. with guns drawn and shot and killed him. The warrant claimed information from an anonymous informant, and it said, among other things, that guns were to be seized. The mention of guns in the warrant was used as reason to enter with guns drawn. Bruce Lavoie had no guns. Bruce Lavoie was not secure from unreasonable search and seizure -- nor is anybody else.
Other infringements on the fourth amendment include roadblocks and the Boston Police detention of people based on colors they are wearing (supposedly indicating gang membership). And in Pittsburgh again, Eugene Tyler was once searched because he was wearing sweat pants and a plaid shirt -- police told him they heard many drug dealers at that time were wearing sweat pants and plaid shirts.
Amendment V
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 to 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.
INDICTMENT OF A GRAND JURY: Kevin Bjornson has been proprietor of Hydro-Tech for nearly a decade and is a leading authority on hydroponic technology and cultivation. On October 26, 1989, both locations of Hydro-Tech were raided by the Drug Enforcement Administration. National Drug Control Policy Director William Bennett has declared that some indoor lighting and hydroponic equipment is purchased by marijuana growers, so retailers and wholesalers of such equipment are drug profiteers and co-conspirators. Bjornson was not charged with any crime, nor subpoenaed, issued a warrant, or arrested. No illegal substances were found on his premises. Federal officials were unable to convince grand juries to indict Bjornson. By February, they had called scores of witnesses and recalled many two or three times, but none of the grand juries they convened decided there was reason to criminally prosecute Bjornson. In spite of that, as of March, his bank accounts were still frozen and none of the inventories or records had been returned. Grand juries refused to indict Bjornson, but the government is still penalizing him.
TWICE PUT IN JEOPARDY OF LIFE OR LIMB: Members of the McMartin family in California have been tried two or three times for child abuse. Anthony Barnaby was tried for murder (without evidence linking him to the crime) three times before New Hampshire let him go.
COMPELLED TO BE A WITNESS AGAINST HIMSELF: Oliver North was forced to testify against himself. Congress granted him immunity from having anything he said to them being used as evidence against him, and then they required him to talk. After he did so, what he said was used to find other evidence which was used against him. The courts also play games where you can be required to testify against yourself if you testify at all.
COMPELLED TO BE A WITNESS AGAINST HIMSELF: In the New York Central Park assault case, three people were found guilty of assault. But there was no physical evidence linking them to the crime; semen did not match any of the defendants. The only evidence the state had was confessions. To obtain these confessions, the police questioned a 15-year old without a parent present -- which is illegal under New York state law. Police also refused to let the subject's Big Brother, an attorney for the Federal government, see him during questioning. Police screamed "You better tell us what we want to hear and cooperate or you are going to jail," at 14-year-old Antron McCray, according to Bobby McCray, his father. Antron McCray "confessed" after his father told him to, so that police would release him. These people were coerced into bearing witness against themselves, and those confessions were used to convict them.
COMPELLED TO BE A WITNESS AGAINST HIMSELF: Your answers to Census questions are required by law, with a $100 penalty for each question not answered. But people have been evicted for giving honest Census answers. According to the General Accounting Office, one of the most frequent ways city governments use census information is to detect illegal two-family dwellings. This has happened in Montgomery County, Maryland; Pullman, Washington; and Long Island, New York. The August 8, 1989, Wall Street Journal reports this and other ways Census answers have been used against the answerers. COMPELLED TO BE A WITNESS AGAINST HIMSELF: Drug tests are being required from more and more people, even when there is no probable cause, no accident, and no suspicion of drug use. Requiring people to take drug tests compels them to provide evidence against themselves. DEPRIVED OF LIFE, LIBERTY, OR PROPERTY WITHOUT DUE PROCESS OF LAW: This clause is violated on each of the items life, liberty, and property. Incidents including such violations are described elsewhere in this article. Here are two more: On March 26, 1987, in Jeffersontown, Kentucky, Jeffrey Miles was killed by police officer John Rucker, who was looking for a suspected drug dealer. Rucker had been sent to the wrong house; Miles was not wanted by police. He received no due process. In Detroit, $4834 was seized from a grocery store after dogs detected traces of cocaine on three one-dollar bills in a cash register. PRIVATE PROPERTY TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION: RICO is shredding this aspect of the Bill of Rights. The money confiscated by Sheriff Vogel goes directly into Vogel's budget; it is not regulated by the legislature. Federal and local governments seize and auction boats, buildings, and other property. Under RICO, the government is seizing property without due process. The victims are required to prove not only that they are not guilty of a crime, but that they are entitled to their property. Otherwise, the government auctions off the property and keeps the proceeds.
Amendment VI
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 RIGHT TO A SPEEDY AND PUBLIC TRIAL: Surprisingly, the right to a public trial is under attack. When Marion Barry was being tried, the prosecution attempted to bar Louis Farrakhan and George Stallings from the gallery. This request was based on an allegation that they would send silent and "impermissible messages" to the jurors. The judge initially granted this request. One might argue that the whole point of a public trial is to send a message to all the participants: The message is that the public is watching; the trial had better be fair. BY AN IMPARTIAL JURY: The government does not even honor the right to trial by an impartial jury. US District Judge Edward Rafeedie is investigating improper influence on jurors by US marshals in the Enrique Camarena case. US marshals apparently illegally communicated with jurors during deliberations. OF THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED: This is incredible, but Manuel Noriega is being tried so far away from the place where he is alleged to have committed crimes that the United States had to invade another country and overturn a government to get him. Nor is this a unique occurrence; in a matter separate from the Camarena case, Judge Rafeedie was asked to dismiss charges against Mexican gynecologist Dr. Humberto Alvarez Machain on the grounds that the doctor was illegally abducted from his Guadalajara office in April and turned over to US authorities.
TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION: Steve Jackson Games, nearly put out of business by the raid described previously, has been stonewalled by the SS. "For the past month or so these guys have been insisting the book wasn't the target of the raid, but they don't say what the target was, or why they were critical of the book, or why they won't give it back," Steve Jackson says. "They have repeatedly denied we're targets but don't explain why we've been made victims." Attorneys for SJG tried to find out the basis for the search warrant that led to the raid on SJG. But the application for that warrant was sealed by order of the court and remained sealed at last report, in July. Not only has the SS taken property and nearly destroyed a publisher, it will not even explain the nature and cause of the accusations that led to the raid.
TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM: The courts are beginning to play fast and loose with the right to confront witnesses. Watch out for anonymous witnesses and videotaped testimony.
TO HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES: Ronald Reagan resisted submitting to subpoena and answering questions about Irangate, claiming matters of national security and executive privilege. A judge had to dismiss some charges against Irangate participants because the government refused to provide information subpoenaed by the defendants. And one wonders if the government would go to the same lengths to obtain witnesses for Manuel Noriega as it did to capture him.
TO HAVE THE ASSISTANCE OF COUNSEL: The right to assistance of counsel took a hit recently. Connecticut Judge Joseph Sylvester is refusing to assign public defenders to people ACCUSED of drug-related crimes, including drunk driving.
TO HAVE THE ASSISTANCE OF COUNSEL: RICO is also affecting the right to have the assistance of counsel. The government confiscates the money of an accused person, which leaves them unable to hire attorneys. The IRS has served summonses nationwide to defense attorneys, demanding the names of clients who paid cash for fees exceeding $10000.
Amendment VII
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 common law.
RIGHT OF TRIAL BY JURY IN SUITS AT COMMON LAW: This is a simple right; so far the government has not felt threatened by it and has not made attacks on it that I am aware of. This is our only remaining safe haven in the Bill of Rights.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
EXCESSIVE BAIL AND FINES: Tallahatchie County in Mississippi charges ten dollars a day to each person who spends time in the jail, regardless of the length of stay or the outcome of their trial. This means innocent people are forced to pay. Marvin Willis was stuck in jail for 90 days trying to raise $2500 bail on an assault charge. But after he made that bail, he was kept imprisoned because he could not pay the $900 rent Tallahatchie demanded. Nine former inmates are suing the county for this practice.
CRUEL AND UNUSUAL PUNISHMENTS: House Resolution 4079 sticks its nose in here too: "... a Federal court shall not hold prison or jail crowding unconstitutional under the eighth amendment except to the extent that an individual plaintiff inmate proves that the crowding causes the infliction of cruel and unusual punishment of that inmate."
CRUEL AND UNUSUAL PUNISHMENTS: A life sentence for selling a quarter of a gram of cocaine for $20 -- that is what Ricky Isom was sentenced to in February in Cobb County, Georgia. It was Isom's second conviction in two years, and state law imposes a mandatory sentence. Even the judge pronouncing the sentence thinks it is cruel; Judge Tom Cauthorn expressed grave reservations before sentencing Isom and Douglas Rucks (convicted of selling 3.5 grams of cocaine in a separate but similar case). Judge Cauthorn called the sentences "Draconian."
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
OTHER RIGHTS RETAINED BY THE PEOPLE: This amendment is so weak today that I will ask not what infringements there are on it but rather what exercise of it exists at all? What law can you appeal to a court to find you not guilty of violating because the law denies a right retained by you?
Amendment X
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.
POWERS RESERVED TO THE STATES OR THE PEOPLE: This amendment is also weak, although it is not so nonexistent as the ninth amendment. But few states set their own speed limits or drinking age limits. Today, we mostly think of this country as the -- singular -- United States, rather than a collection of states. This concentration of power detaches laws from the desires of people -- and even of states. House Resolution 4079 crops up again here -- it uses financial incentives to get states to set specific penalties for certain crimes. Making their own laws certainly must be considered a right of the states, and this right is being infringed upon.
Out of ten amendments, nine are under attack, most of them under multiple attacks of different natures, and some of them under a barrage. If this much of the Bill of Rights is threatened, how can you be sure your rights are safe? A right has to be there when you need it. Like insurance, you cannot afford to wait until you need it and then set about procuring it or ensuring it is available. Assurance must be made in advance.
The bottom line here is that your rights are not safe. You do not know when one of your rights will be violated. A number of rights protect accused persons, and you may think it is not important to protect the rights of criminals. But if a right is not there for people accused of crimes, it will not be there when you need it. With the Bill of Rights in the sad condition described above, nobody can be confident they will be able to exercise the rights to which they are justly entitled. To preserve our rights for ourselves in the future, we must defend them for everybody today.