September 05, 2014

Horse 1748 - Is the United States Bill of Rights Obsolete?

On a forum that I visit which happens to be about motorsport of all things, the following question was posted:
So you are saying that the United States Bill of Rights, part of the original amendments to the Constitution, is totally obsolete?
This question wasn't directly posed at me, though I think that it warrants investigation.

The oldest law currently on the statute books which is still in force in Australia is part of the Statute of Marlborough passed by King Henry III of England in 1267. Under the doctrine of reception and subsequent Statute of Westminster Adoption Act (1942), laws which affect the Commonwealth of Australia, remain in force until they are repealed or replaced. The Distress Act (1267) which forms part of that Statute of Marlborough, makes it illegal to seek recompense for damages through other means than the courts. In other words, don't take the law into your own hands.
This proves in principle at least that just because laws are old, doesn't mean that they are obsolete for that reason. Even though the word has changed significantly since 1267, in the 747 years since, people have not.

With respect to the Bill of Rights, firstly I think it strange that even before a piece of legislation became law, they needed to be tacked on to the end. The US Constitution should govern how the government is to be run and this seems to me to be almost unrelated. Secondly, I rather like the idea that under common law principles, people are disposed to do as they see fit unless hemmed in by legislation.

I think that the best way to tackle the question of the supposed obsolescence of the United States Bill of Rights is to got through each of them one by one.

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.

The United Kingdom has the Church of England as the official state church with the Monarch as head of the church and patron. This is probably a leftover of a strange state of affairs when Henry VIII wanted a divorce, Rome wouldn't give him one, and so he set up his own church with himself in charge so that he could.
The House of Lords also has within its chamber, the Lords Spiritual and Temporal, which again are a left over from the time when the church, the barons and the King all ran the country in a merry triumvirate dance to an ancient rhythm.
America though was a mix of Puritans, Presbyterians, Catholics, Methodists, Lutherans &c. and there was no way that in 1789 that it could even consider having a state church. It would have been a political nightmare.
There's also the rather pointed fact that the clergy perhaps aren't as business savvy as businessmen and career politicians. Politics has often been likened to a bear pit and one wonders if a meek and mild shepherd, would last long. This is compounded by the fact that any church's first job is to be ambassadors of their religion and their God/god/s or lack thereof. This isn't to say that the church shouldn't have a voice in parliament but I'd suggest that the elected members should better accurately reflect the people that they purport to represent.
The argument for so called separation of church and state I think is quite weak because the House of Lords as an august institution has proved if nothing else that sometimes, legislation desperately needs a conscience but by the same token, the separation state and church is more important because the state really should have no business in how churches operate or impose restrictions or prohibitions on the free exercise thereof except where real harm may come to people.

The right to free speech I think is pretty fundamental to a society but again I draw from one of my favourite cases in Australian law:
"'Free' in itself is vague and indeterminate. It must take its colour from the context. Compare, for instance, its use in free speech, free love, free dinner and free trade. Free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law."
- James vs Commonwealth of Australia 1936

I do think that people should have the right to say pretty well whatever they like and be judged upon that basis. Whilst I also think that there is no right not to be offended by free speech, there is also no right to force someone to consume your free speech and it is on that basis that I think that censorship of harmful material is a perfectly sensible outcome.

The right to assembly and and to petition the Government for a redress of grievances is I think, pretty fundamental to a working democracy. Granted that police have a duty to maintain public order, but I still think that the whole right to protest and even as we've seen this week, occupy public space peaceably, is also important.

Amendment I - Tick

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.

America which was a series of British Colonies already had the right to bear arms, some 87 years before the founding of the United States itself. The Bill of Rights (1689) has this to say:
That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.
- Bill of Rights Act (1689)
"Protestants" at English law had already been determined through other legal determinations to include all subjects.

Given that America was a fledgling nation, it made sense at the time that a militia would be needed to defend the nation. The problem is that in 2014, the whole entire first half of the amendment is more or less totally ignored and only the last part is ever properly considered.

Granted that in Federalist Paper No.46, James Madison does talk about the militia standing in opposition to the standing army and that the United States Armed Forces still actually do compromise one twenty-fifth part of the number of the United States' population, I'm pretty sure that neither Madison nor Jefferson who was largely responsible for the Constitution and Bill of Rights ever foresaw the use of machine guns and high-powered rifles in the hands of a largely unregulated rabble.
It really makes me wonder whether the words in the 1689 act of "suitable to their Conditions and as allowed by Law" are actually more compatible with a society which changed from being largely rural to urban.

Is the right of the people to keep and bear arms even necessary to the security of a free state any more? If not, the question becomes one of utility and fitness of purpose. Just because something happens to be is permissible, allowable and lawful does not mean that it is expedient, profitable or good.
If the law itself is not fit for purpose, then what happens but the selfishness of mankind comes fully into display; the law though consequence and operation must soever be a Bad Thing.

Amendment II - Fail

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.

This is where most students of United States Constitutional Law will gloss over because (and let's be perfectly honest about this) it is patently dumb.
The Third Amendment though, sits in context with the Quartering Act of 1774 which required that  British troops should be accomodated wherever necessary, including in people's private homes.

This is one of those things which should have been in separate legislation or simply put into a Repeal Act. Instead this now hangs in a treasured place in the Bill of Rights but everyone is too scared as a dormouse to remove it.
In 1776, this made perfect sense but now it just sort of looks idiotic.

Amendment III - Fail

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

General warrants to search for stolen property were apparently relatively easy to obtain before the advent of a modern police force. The power of entry into people's real property via the instrument of a general warrant came into serious disrepute when then then Prime Minister John Stuart, 3rd Earl of Bute, was attacked in a satirical newspaper called The North Briton. The publisher, a John Wilkes MP, was arrested, had his house searched, paper seized and charged with sedition and libel all on the basis of a general warrant in April 1763. Forty-nine people were arrested in raids across London in connection with the case but Wilkes was later convicted and spent 22 months in prison.
Mostly Wilkes was arguing over the freedom of the press and the right to publish the transcripts of parliament and eventually governments were forced to back down on the issue.

In the age of the pamphleteer, small run monographs were being written and circulated much like the internet and blogs of today. This required the use of printing presses and so naturally, governments who didn't particularly like things being written against them, would have like the idea of using a general warrant to search and seize property.
The Fourth Amendment with the advent of modern policing also protects against police simply entering premises with similar nefarious intent as the people of oh so long ago. This is useful and fair.

Amendment IV - Tick

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 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.

This amendment says several thing. It that "infamous" cases shall be tried in a Grand Jury, it introduces the concept of double jeopardy at law and protects individuals from being forced to incriminate themselves. It also sets about to protect people's property with due process.

This amendment is compact and does in a few sentences which would normally take reams of legislation should do. The problem is that it exists in a Bill of Rights, where it should be held in the main body of the constitution itself as limiting clauses on the powers of government.
This is an otherwise excellent piece of law.

Amendment V - Tick

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.

Like the third amendment, this particular amendment states what should be obvious. I note that Article III, Section 2 of the Constitution requires defendants be tried by juries and in the state in which the crime was committed; and so I really wonder why most of this was here at all. This belongs in The Department Of Redundancy Department. If this was removed, no-one would even know of its passing.

Amendment VI - Fail

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 re-examined in any Court of the United States, than according to the rules of the common law.

This is fairly self explanatory except that $20 in 1789 probably buys the equivalent of $100,000 now, Either the framers deliberately allowed for inflation, such that the dollar amount required to have a jury would gradually decline in real terms or they intended to review it. Most of this makes sense apart from this little detail.

Amendment VII - Tick - but mostly pointless

Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Students of law in the United States might argue that because Guantanamo Bay isn't technically US soil, that the Eighth Amendment doesn't apply there and so cruel and unusual punishments have been inflicted there and without reference to either the Fifth or Sixth Amendments.
Having said that, this should be upheld and the fact that the United States chooses not to in some cases isn't the fault of the law but the enforcement of it.

This was pretty well much lifted verbatim from the Bill of Rights Act 1689:
That excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.
- Bill of Rights Act (1689)

This amendment requires interpretation as to what cruel and unusual punishments are; which might be subject to change but I still think that that's the job of courts anyway,

Amendment VIII - Tick

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

If there was no specific Bill of Rights, then this provision under common law would be absolute. Under common law principles, people are disposed to do as they see fit unless hemmed in by legislation.
I think that the fact that the Bill of Rights exists at all, limits people's vision and blinkers their thinking to the extent to what is written down instead of allowing people to be free unless their actions cause harm to others. The Ninth Amendment is what Mill's "On Liberty" discusses at length in the third chapter. The amendment is bad because it exists but the intent is possibly the mos important of the ten,

Amendment IX - Tick

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.

Mostly the actions of this clause have been by the States, passing legislation to hack away at the Federal Government's power. Article Six, Clause 2 of the United States Constitution provides that Federal Law is the supreme law of the land but states have still taken legislative action to protest against what the Federal Government is doing.
This is mostly pointless but the states would kick up a stink at its passing; so it has to stay.

Amendment X - Tick

My Answer to the question:
So you are saying that the United States Bill of Rights, part of the original amendments to the Constitution, is totally obsolete?
Not totally.
Some of them are pointless, one is archaic, one is barbaric and the rest are fine.

Actually in compiling this, I think I've come to the conclusion that a Bill of Rights is monumentally foolish. I think that even having a Bill of Rights detracts from the position of parliament as the people's representative when it comes to the making law, by placing more power into the hands of unelected judges. If judges are elected, then that politicises what should be impartial positions; which is precisely what happens in America.
Not having a Bill of Rights is probably a better solution but in the interim, they still require a clean up but US politics being such that it is, ensures that that will never happen.

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