Is This Still A Free Country?

A brief review of the Bill of Rights, the first ten amendments to the Constitution, brings up several interesting thoughts, realizations and questions. (Read the Bill of Rights in full here.) 

The first is about freedom of speech, religion, assembly and the press. It should mean that people are allowed to say and write what they want within broad limits. Others can raise reasonable objections and counter arguments, or at least accept apologies. But today we find that  speakers are banned from campuses or shouted down by those who believe words are the same as weapons. We have large, powerful social media corporations expected to censor comments and pictures posted by private citizens based on arbitrary standards. We have Ellen DeGeneres scorned for attending a football game in the company of George W. Bush. Say the wrong thing, even in the form of a question and risk personal attack, silencing, losing a job or boycotts of your product.

The Second is about the right to bear arms. That really means the right to carry them not even to own them. Today arms means guns and the nation is split. Clearly the right to carry has been infringed at various levels in various places.

Some states have passed a Red Flag Law, Extreme Risk Protection Order (ERPO), with strong approval of the electorate. If a person is considered a danger to himself or others, authorities can show up and confiscate weapons for one week, no questions asked. A judge can extend this for up to six months where there is “good cause.” At that point the accused can finally respond at a hearing, but has no legal right to representation. In Maryland, for example, the initial complaint can come not only from law enforcement, physicians, and mental health workers, but also from family members, housemates or dating partners. The list in other states is more inclusive, and the gun owners have no recourse in cases of false accusations.

The Third is about housing soldiers without consent – no problem there.

The fourth prohibits unlawful search and seizure. This is about privacy; but with the social media-driven desire to be famous, Americans are becoming more casual about their own privacy and take for granted the idea of being constantly under surveillance. Compound that lax attitude with new technology: facial recognition software and proliferating security cameras; possible leaks through computer cameras and microphones; personal assistants listening in on conversation; ISPs and grocery stores tracking our on-line activity and purchases; and other examples – privacy is ebbing away. (For an interesting description of possible future threats, see the book, Eyes in the Sky.) 

The Fifth Amendment is well known for protection against self-incrimination and the right to due process, but the public tends to decide guilt or innocence based on news reports and political affiliation. “No comment” is often assumed to be an admission of guilt. 

Consider also the current practice of Civil Asset Forfeiture where authorities can confiscate personal property on the basis of accusation, not conviction. There are many horror stories of abuse where innocent people must fight the system to reclaim seized property.

The first part of the Sixth Amendment guarantees a speedy trial. Many of the convictions on the local news are for crimes committed in years past. The right to “be confronted with the witnesses against him” seems to fly in the face of the idea of being attacked from a distance as rumors spread on social media. Transgressors of cultural values don't even get a trial, no less a speedy one.

The Seventh, the right to a jury trial in certain civil cases seems OK, but the complexity of modern cases and the lack of economic understanding continues to result in unreasonably high awards or settlements driven by the threat of litigation in front of a "compassionate" jury. 

The Eighth prohibits excess bail, which has been a matter of some discussion lately. Excessive is not the same for everyone. Poor people who are not a flight risk can spend months behind bars waiting for a trial, a handy tool to coerce them into pleading guilty. Like Civil Asset Forfeiture, this practice is a boon to the authorities at the expense of the innocent.

Nine and Ten are instructive. The Tenth addresses the idea of “Undelegated Powers [being] Kept by the States and the People.” The word delegated implies that the states and people are in a superior position to the Federal Government. They hand down powers to them! That certainly isn’t the way it works today!

One problem with these rights is that they apply to the government not depriving people of them. That’s the excuse used when one citizen or group tries to shut up or railroad those they disagree with. That punitive attitude is true to the letter, but contrary to the spirit.

Another problem is that they are so easy to take for granted or ignore. These are not obsolete ideas; they must be respected. Freedom is always linked to responsibility.