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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, $4,834 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
$10,000.
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 $2,500 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.