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.
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6A sounds noble. 6A sounds fair. 6A sounds just. Is it? I agree with most of the text of 6A except for the actual epistemology of two words; upon which 6A collapses into rubble. What is an "impartial jury"? Can an "impartial jury" truly exist in a kosmos of knaves? Let's throw in race, gender, religion, nationality, ethnic origin, political affiliation, et cetera. If the accused is in a court of law and the jury has othered them, the right to a speedy and public trial does not ensure that the outcome will be just or equitable. How many people have been left hanging on the decision of an "impartial jury of the State and district wherein the crime shall have been committed"? How much strange fruit has been left to rot upon the tree?
In principle the idea that someone should not be imprisoned without lawful judgment of their peers, was already on the books some 576 years before the US Constitution adopted it and not quite two hundred years before any English people had ever set foot in America.
http://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_39
No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.
- Clause 39, Magna Carta (1215)
This means that effectively, the right already existed in English law and by extension in American law.
In Australian, we incorporated the principle contained in 6A and in fact what had already existed in various pieces of English Statute Law, as Section 80 of our Constitution:
http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s80.html
Trial by jury
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
- Section 80, Australian Constitution (1900)
Note that Section 80 differs from 6A in that 6A frames this as a right which is owned by the individual, rather than a directive imposed as the operation of law. Again we need to ask what the Constitution is for: where in Australia it is the set of rules by which parliaments make rules, whereas in the United States it is repeatedly unsure as to what it is supposed to be. It does not understand its own epistemology nor its own telos.
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.
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On the face of it, 7A sounds reasonably reasonable. In 1789 twenty dollars was a lot of money. A day labourer could expect to earn about $1.50 a week. $20 would have been about six weeks' wages or probably the equivalent of at least ten thousand dollars now. The amount is large enough so that ordinary people would have felt pain upon its injury but not so large that the very rich would much be affected by its absence. The idea that "the right of trial by jury shall be preserved" sounds like a good idea for equity's sake but the next part comes with an awful awful sting.
The demand that no fact tried by a jury shall be otherwise re-examined in any Court of the United States, was allegedly put there to preserve the sanctity of the jury system. While that might be true, the halt upon all facts being re-examined in any Court of the United States, is quite nasty.
7A is an excellent way to ensure that people with money and power, can preserve it. There is no restraint upon the makeup of juries, nor any thought about what happens if a jury is packed, and this 'right' prevents any and all future courts from looking at the material of the case. This is excellent if you have money and power and the means to pay off a jury because it means that having shut down a case, future courts can no longer rule on it.
This is especially excellent when the thing itself "where the value in controversy shall exceed twenty dollars" is a chattel good which might have escaped. That same chattel good might also have zero ability to dispute the means that they became a chattel good; and now no longer have the right to have any facts being re-examined in any Court of the United States. Yes, slaves were considered to be chattel goods. 7A actively defends this evil.
7A reads as though there is the assumption that a jury and its members are reasonably reasonable. Do you really honestly believe that in 1789 that an all-white jury would be reasonably reasonable, or fair, or just, to a black slave? Run the clock forwards through the Civil War, the whole period of Jim Crow, and the current iteration where people have been re-invigorated and can now add other factors of identity politics to their bow on both sides of the idiotic identity spectrum in the United States and 7A looks just as cruel and monstruous now as it did when it was added. 6A's promise of an impartial jury is equally as false and idiotic as it is here in 7A.
Amendment VIII.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
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8A is an okay thing to write down. The problem in principle with 8A is that it is both vague and reductive.
Exactly who is to say what "Excessive bail" is? Exactly who is to say what an "excessive fine" is? Exactly who to say what "cruel and unusual punishments" are? In all three cases, the power, authority, and responsibility, to decide these things, lays with minor courts and SCOTUS.
If SCOTUS was to demand bail, are they really going to say that their own bail demand is "Excessive"? If SCOTUS was to impose a fine, are they really going to say that their own fine demand is "excessive"? If SCOTUS was to prescribe and meter out a punishment, are they really going to say that that punishment is "cruel and unusual"?
Have I made the point yet? 8A contains not only a vague and reductive directive but a directive which creates an internal conflict of interest.
Amendment IX.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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So?
So what?
I have a massive problem with 9A on the basis that it and in fact most of the enumeration of certain rights, in principle, is stupid.
In his commentaries on English Law, which mostly looks into the nature of what pieces of legislation were on the books as well as the corpus of active common law, said that:
"An Englishman is free to do whatever the bloody hell he likes, as long as the law doesn't put up a fence which barres him to enter."
- William Blackstone, Commentaries On The Laws Of England (1769)
In other words, the rights of "An Englishman" are assumed to be otherwise unlimited unless the law says something different. American Law, where people often say "it's a free country, I can do what I like", then act as if that were true, doesn't quite make it to Blackstone's assumption. 9A would like to pretend that people have unlimited rights, but the mere existence of law and the monopoly of force behind it, immediately concedes the point that Blackstone was right. The law is a series of fences and boundaries; as it should be.
In the American conception of a right in American law, the blinkers which people seem to have with regards rights are such that general conception of what rights are, is that they only exist insofar as much the empower a person to do a thing, and nothing else. This is in star contrast where a right is a claim at law to do a thing, to own a thing, to have an interest in a thing. Americans generally understand at law that a property right is a claim to own some piece of real or unreal property, but not to be able to make claims upon the state itself to provide a thing. That seems stupid. The very point of government is to provide governance. Every citizen can and should have and be able to make claims upon the state itself to provide things.
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.
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If a right is a claim at law to do a thing, then why does it not follow that in order to do a thing one needs the power to be able to do that thing? Yes, there are a wealth of cases at law where people have made 10A claims but those same cases could have been easily made under 9A. 10A is the Department of Redundancy Redundancy Department for Redundancies.
I spoke to a client of ours who is a KC and he thought that any competent reading of 10A would be identical in outcome to that of 9A. Even the internal reading of 10A is somewhat dim. Of course the powers not delegated to the United States by the Constitution must be held by someone else and if not the States then whom else but the people?
Actually I find it kind of repulsive that in the discussions during the Constitution Conventions and the subsequent agitation for these amendments, that 10A was specifically argued for on the basis that the several states should have the right to write their own separate legislation to do with slavery. The Southern War of Aggression which would kick off in 1861, is always invariably touted as a "states' rights" issue but as the question of "states' rights to do what?" relates to slavery, then the motivation for the inclusion of 10A seems pretty cussing evil to me.
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