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.
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One of the tests of how good or bad a piece of legislation is, is the number of cases that have been brought upon its basis. The number of number of cases that have been brought to the Supreme Court of the United States on the grounds of 3A, is exactly nil.
0
Zero.
This either says that this piece of law is either:
a - perfect,
b - useless, and/or
c - both.
The fear which is hinted at within the text of 3A is perfectly reasonable to understand. The first proper police force in the world, that is one that had been trained from the outset to enforce and prosecute the law, was founded in London by the Peel Government in the 1830s. This is why Robert Peel's police force subsequently became known as "Bobbies" or "Peelers". Given that 3A exists roughly four decades before this, then who acted as the de facto police force? Soldiers.
Just as they had been since the days of the Greek City-states, 2300 years before, it was soldiers who became the de facto sheriffs and prosecuting magistrates of the land. The British American colonies operated practically identically to the conditions back home in England; which meant that policing in the 1770s up until the outbreak of the unpleasantness was done by the redcoats; thence after by various minutemen in America.
The actual clause in question from the Quartering Act 1774 which was probably still in the memory of the people who agitated for this to be pinned to the Constitution, reads thusly:
https://avalon.law.yale.edu/18th_century/quartering_act_1774.asp
That, in such cases, it shall and may be lawful for the persons who now are, or may be hereafter, authorised be law, in any of the provinces within his Majesty’s dominions in North America, and they are hereby respectively authorised, impowered, and directed, on the requisition of the officer who, for the time being, has the command of his Majesty’s forces in North America, to cause any officers or soldiers in his Majesty’s service to be quartered and billetted in such manner as is now directed by law, where no barracks are provided by the colonies.
- Clause 1, Quartering Act (1774)
Astute observers will note that this specifically related to "his Majesty’s dominions in North America" and that neither the Quartering Act 1765 which this act replaced or the Quartering Act 1774 had any force outside of North America. It is also worth nothing that the "such manner as is now directed by law, where no barracks are provided by the colonies" in order to quarter and billet soldiers, required a writ and that the owner of the public house be paid at five shillings in the pound higher rates than the usual asking price.
Even more astute observers will note that 3A doesn't actually give rise to a right but an imposition on government which of itself is neither here nor there; but does mean that the common soubriquet of the "Bill of Rights" is a misnomer. Should this have been simple legislation? Probably. Did this need to be attached as an Amendment? Almost certainly not.
My conclusion is that 3A meets the criteria of Condition C (both perfect and useless) and that it isn't likely to be looked at because although it is on the books as a fun little appendix, it has no practical effect whatsoever.
3A in principle demonstrates why attaching rights to the Constitution is a stupid idea. The so-called "Bill Of Rights", which isn't even called that within the legislation, was a list of demands to government at one particular time in history. Its existence has very much blinkered Americans' perception of what rights actually are, for more than 230 years. Legislatively they have a hideously myopic view about what rights are and what in fact the Constitution itself is supposed to do.
3A was written in response to the memory of the Quartering Acts; which empowered British Troops to be quartered in public houses by writ; which was without the consent of the Owner. The reason why you want troops in a public house, was to enable the quick and easy setting up of court houses in lieu of public buildings. The truth is that the Quartering Acts could have all been repealed by simple legislation but a Constitutional Amendment can not. Thus there is an appendix which has literally had zero effect which forms part of the United States Constitution but more important things such as health care, education, equal rights on the grounds of sex and race, and even the franchise itself are not explicit rights.
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.
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4A says that if government wants to look into peoples' houses, papers, and effects, they need a warrant. Get it? Got it? Good. Again we need to ask if this should this have been done with simple legislation? Probably. Did this need to be attached as an Amendment? Almost certainly not.
Where I live in New South Wales, the current version of the Search Warrants Act in NSW hedges in the common law powers of the officers of the law; and does so by equally striking off the power to search and seize without a warrant:
http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/repealed_act/swa1985175/
Any common law power conferred on a justice of the peace or any other person to issue a warrant authorising a person to enter premises for the purpose of searching for stolen goods or any other thing is abolished.
- Section 24, Search Warrants Act (1985)
Note that this version of the Search Warrants Act which replaced and repealed previous versions of the relevant legislation, only dates from 1985. Does that mean that the government had the ability at law to look into peoples' houses, papers, and effects, without a warrant before 1985? Far from it. What the 1985 legislation demonstrates though, is that law should always be up for review and be dynamic enough to change as society changes.
Yet again the clauses within 4A about needing a warrant, don't really define a right but rather they define a set of limits which are placed upon the officers and administrators of the law; which simple legislation could have done. Moreover in an age of electronic surveillance, and property that might be only found in digital form, having law which can dynamically change, is far more useful than crystallised echoes of the long since dead.
If 3A didn't demonstrate the point, then 4A's inclusion very much does demonstrate the point that even in the 1780s and 1790s, the United States' Constitution wasn't really doing what a Constitution was supposed to do; including when compared to the constitutions and charters of other companies.
If the base assumption is that you are free to do whatever you like unless that is hedged in by law (which by the way existed in English Common Law long before this Constitution was written), then this whole thing is redundant. 'The right to be left alone' and 'the right to quiet enjoyment of one's property' are both rights which have been proven to exist at law in Australia but which would have never have been thought of in the United States and now, can not be thought of due to the blinkering effect of the Constitution.
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.
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Broadly speaking, where I live in Australia (both at state and federal level), if you believe you are a suspect in an ongoing criminal investigation, then you have you right to refuse to answer any questions which relate to the alleged offence.
The right to speak or not to speak, which is the basis of the United States "Miranda Rights", already sat within the bounds of the right to free speech and the right not to exercise same. In Australia, while there is no compulsory reminder to someone that they have right to remain silent, this is more than tempered by the fact that Australian law actively protects an accused person in court from any inference that exercising their right to silence is an admission of guilt. Juries are even directed as part of their instruction, to refuse to consider silence as an admission of guilt (though what actually happens inside a Jury Deliberation Room is subject to absolute secrecy).
In most situations, this means that a jury would need to determine the innocence or guilt of a party from the facts of the case. If someone chooses to exercise their right to silence, then it is incumbent on the presiding judge to direct the jury that they can not interpret that silence as an admission of guilt.
At least in New South Wales, this has even found its way into statute law:
http://classic.austlii.edu.au/au/legis/nsw/consol_act/ea199580/s128.html
128 Privilege in respect of self-incrimination in other proceedings
(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness--
(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or
(b) is liable to a civil penalty.
- Section 128, Evidence Act (1995)
The common law privilege against self-incrimination entitles a person to refuse to answer any question, or produce any document, if the answer or the production would tend to incriminate that person. Although broadly referred to as the privilege against self-incrimination, the concept encompasses three distinct privileges: a privilege against self-incrimination in criminal matters; a privilege against self-exposure to a civil or administrative penalty (including any monetary penalty which might be imposed by a court or an administrative authority, but excluding private civil proceedings for damages); and a privilege against self-exposure to the forfeiture of an existing right (which is less commonly invoked).
Section 128(1) of the uniform Evidence Acts applies where a witness objects to giving particular evidence that ‘may tend to prove’ that the witness has committed an offence under Australian or foreign law, or is liable to a civil penalty. Under Section 128(2):
Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness:
(a) that he or she need not give the evidence; and
(b) that, if he or she gives the evidence, the court will give a certificate under this section; and
(c) of the effect of such a certificate.
So what does any of this have to do with 5A? This is the third time in a row, that in my not very well paid opinion, that a thing which has been included as a 'right' should not be included as a right. Yet again we are forced to ask what a Constitution is supposed to do? If it is the set of rules that tell you how to make rules, then it makes no sense to include second order rules in the Constitution. Why is this in particular a fundamental right at law but the right to life and the right to vote are not?
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