The Smallest Minority

Remember those? They came into effect today, Dec. 15, 1791. They are as follows:

Amendment 1: 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.

That freedom of speech and assembly thing? Not so much.

Amendment 2: 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.

We’re doing somewhat better on this one, but McDonald v. Chicago will tell us whether that will continue, I think.

Amendment 3: 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.

Not a lot of applicability with this one, but it has at least received an “incorporation” decision – the 2^nd Circuit’s Engblom v Carey in 1982.

Amendment 4: 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.

The War on (Some) Drugs has pretty much gutted this one. “Asset forfeiture,” warrantless searches, etc.

Amendment 5: 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 offense 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.

Ah, yes. “Public use.” Shall we discuss the Kelo decision?

Amendment 6: 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 defense.

“Speedy”? It often takes years for cases to come to trial. “Impartial jury”? Yeah, right. Pull my other one – it has bells on it. As for the rest of it, can you say “Mike Nifong“? “Patrick Fitzgerald“? How many haven’t been caught abusing the system?

Amendment 7: 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 the common law.

Lawsuits. Oy veh. Can you say “Tort reform”? Good idea, but abused to incredible extents.

Amendment 8: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Several somebodies have somehow decided that the death penalty is “cruel and unusual,” even though the 5^th Amendment includes deprivation of life through due process of law. Now I’m not a fan of government, believing that pretty much everything it does, it does poorly, but there are those cases that are so heinous and guilt so unquestionable that I have absolutely no problem with taking the perp out behind the courthouse and blowing his damned head off upon the announcement of “guilty!” by the jury. Still, can’t argue with the Amendment itself, and we haven’t screwed this one up too badly.

Amendment 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Ah, the “inkblot.” Madison’s nice idea to cover James Irdell’s objections, but it hasn’t worked out all that well. We have emanations from Constitutional penumbras producing some rights, but we have had to fight for decades to preserve an enumerated one. As Ninth Circuit judge Alex Kozinski has put it,

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet…and that “persons, houses, papers, and effects” also means public telephone booths….When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text. But…when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

Madison’s attempt has not been particularly successful at preserving our unenumerated rights.

Amendment 10: 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.

And this one has failed totally. As Professor Randy Barnett has put it, America has gone from a sea of liberty with islands of government power, to a sea of government power with sinking islands of liberty. The Federal government has seized powers not delegated to it, and in some cases even prohibited to it.

As Alexis de Tocqueville warned, once the Congress learned it could bribe the public with the public’s money, it was all over.

Happy Bill of Rights day!

Sorry about the rant. I’m just in that kind of mood.