September 17 of every year is Constitution Day. You probably didn’t know that. It’s almost never mentioned, even by conservative media sources. But every year some university, or a “think tank” like the Pew Research Center, does a survey to see how much Americans really know about their Constitution.
The results are invariably appalling. On average, only 37 percent of those surveyed can name all three branches of our federal government. Even worse, 31 percent can’t name even one branch.
Think about that. Sixty-three percent of our population—two out of three Americans—don’t know how our government is structured.
When we get to the Bill of Rights, the results are even more frightening. The first ten Amendments to the Constitution contain very clear and specific limits on the power of the federal government. If we’re to remain a free people, it’s essential that we know what freedoms our Constitution guarantees us. And yet—a full 36 percent of those surveyed can’t correctly name a single freedom guaranteed by the Bill of Rights.
The other 64 percent are almost as bad. They’re able to correctly name an average of two of the freedoms guaranteed by the Bill of Rights—but they also list a number of things they think are guaranteed but aren’t, including:
- Separation of church and state.
- The right to home ownership.
- The right to earn a “living wage.”
- Equal pay for equal work.
- The right to an abortion.
- The right to remain silent when questioned by a law-enforcement officer. (We’ll talk more about that later.)
How can we expect to keep our rights if we don’t even know what they are? What follows is a brief discussion of each of the first ten Amendments to the Constitution, the Bill of Rights.
The first three Amendments contain what Constitutional scholars call the “Safeguards of Liberty.” Amendment One guarantees five things: freedom of religion, freedom of speech, freedom of the press, the right to peaceably assemble, and the right to petition the government.
- For an in-depth discussion of freedom of religion, see my Commentary No. 4, dated October, 2010. The First Amendment contains the Establishment Clause, which prohibits the federal government from establishing an official national religion, and the Free Exercise Clause, which prohibits the federal government from requiring or prohibiting any particular religious practice or belief.
- The right of freedom of speech is presently being challenged by several groups on the political left. According to these groups, any speech they disagree with is “hate speech” and is not protected by the First Amendment. In fact, freedom of speech is guaranteed specifically so that conflicting opinions can be expressed.
- Freedom of the press is self-explanatory, and isn’t presently being challenged in any significant way. The majority of the American media is voluntarily acting as the propaganda arm of the political left, but the right to do that is what the First Amendment guarantees.
- The right to peaceably assemble is being strained nowadays. We’re seeing “demonstrations” and “protests” all around the country, organized for a variety of causes, that start out as peaceful gatherings then deteriorate into looting, burning, assault, and wanton destruction of property. I’ll have more to say about that in a future commentary. For now, what we need to understand is that peaceable demonstrations are protected by the First Amendment. Rioting and violence are not.
- The right to petition the government is what gives us the freedom to write letters to our government representatives (local, state, and federal), call them on the phone, and attend their “town hall” meetings and voice our opinions—even if those opinions are critical of them.
This might be a good place to point out that the First Amendment begins with the words, “Congress shall make no law…” (emphasis added). The federal government can’t restrict your freedom of speech—but your employer can. If he says you may not discuss politics during working hours and you do anyway, thinking you’re protected by the First Amendment, he has every legal right to fire you.
Here’s another example—if you’re a professional football player and the owner of your team says you must stand during the National Anthem…and you refuse…he can bench you or take any other disciplinary action your contract allows. You have no First Amendment protection.
Amendment Two is presently under assault by various governmental and non-governmental groups. It’s the Amendment that gives law-abiding citizens the right to keep and bear arms. That assault has been going on for more than half a century, and unfortunately, I see no reason to believe it’s going to stop in the predictable future.
When you study the history of tyranny, whether it’s Hitler in Germany, Stalin in Russia, or Pol Pot in Cambodia, you see that one of the first steps a tyrant takes is to disarm the populace. Tyranny cannot coexist with an armed population. In fact, in his book Mein Kampf, Hitler wrote, “If you would conquer a people, first you must disarm them.”
For an in-depth discussion of the Second Amendment see my Commentaries No. 13, dated November, 2013, and No. 22, dated August, 2016.
Amendment Three prohibits the federal government from forcing American citizens to provide food and lodging for military personnel. During the Revolutionary War, the British Parliament passed the Quartering Act, which gave British troops the right to take over private residences for their lodging, and use the civilian residents as servants to prepare and serve their food, clean their uniforms, shine their boots, and provide other menial services. The Third Amendment reflected America’s lingering resentment over the Quartering Act.
The next five Amendments are known as the “Safeguards of Justice.” Amendment Four protects citizens against unreasonable searches of their person or property, and unreasonable seizure of their property.
The key word in the Fourth Amendment is “unreasonable.” The Amendment says the government must have “probable cause” to believe a crime has been committed, but what constitutes probable cause has been debated in our courts almost every day since the Amendment was ratified in 1791.
For example, if a policeman stops you because you ran a stop sign, that does not give him a legal right to search your vehicle. But if he smells marijuana smoke, or sees an open container of liquor, he then has probable cause to believe a crime has been committed (possession of a controlled substance or driving under the influence). He can legally search your car without having a search warrant.
But a law-enforcement officer (from any agency—local, state, or federal) can’t simply knock on your door and say he’s there to search your house. He must have a search warrant signed by a judge. Furthermore, the warrant must say specifically what he’s allowed to search for. If he’s there to search for evidence regarding a murder, and finds evidence regarding a robbery, the robbery evidence isn’t admissible in court because it wasn’t specified in the search warrant.
Thanks to our television and movies, the Fifth Amendment is probably the most misunderstood Amendment in the Bill of Rights. Ask any ten citizens what right the Fifth Amendment confers, and probably seven or eight of them will say, “The right to remain silent.” In fact, that’s wrong.
The provisions of the Fifth Amendment are arguably the basis of our entire system of personal justice. The Fifth Amendment provides that:
- A person may not be compelled to give any information that might later be used against him in court.
- A person may not be tried for a felony (a major crime, the punishment for which is imprisonment for a period of a year or more) unless the evidence has been heard by a Grand Jury and the Grand Jury has returned an indictment.
- If a person is tried for a crime and a verdict of guilt or innocence returned, the government may not try him again for the same crime. That’s known as “double jeopardy.”
- A person may not be imprisoned without “due process of law,” i.e., a fair and impartial trial. This is again a reaction to British law, which allowed a person to be arrested on “suspicion” of having committed a crime, and imprisoned for months or even years without ever being brought to trial.
- The government may not take private property for public use without paying the owners of the property a fair price for it.
Now we come to the issue of “the right to remain silent.” An individual may not be compelled to give any information that might later be used against him in court. Decades ago, that led to the creation of what is now known as the “Miranda warning,” which begins, “You have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law.”
We’ve heard TV and movie cops say that so many times that we’ve come to believe that our Constitution gives us “the right to remain silent,” i.e., not answer any questions posed by a law enforcement officer. That belief is particularly held by an anarchist group who call themselves “sovereign citizens.”
The Fifth Amendment doesn’t give us the right not to answer questions posed by a law enforcement officer. It merely gives us the right not to incriminate ourselves. If the officer asks, “Did you rob that bank?” we’re not obligated to answer. But if he asks our name, we must identify who we are.
Every state has a law that says people must identify themselves to law enforcement officers when the officer is investigating a possible infraction—including a traffic violation. That’s for the officer’s protection, as well as the public’s. If the officer stops a car for running a stop sign and the driver has an outstanding arrest warrant and is considered armed and dangerous, the officer’s life (and the lives of others in the vicinity) may depend on his knowing that.
So when the driver refuses to furnish any kind of identification and refuses to give the officer his name and birth date because he thinks he has a “right to remain silent,” the officer is going to assume the driver is a fugitive. The driver is going to be arrested and taken to jail. He’ll probably spend at least a day and a night in jail, pay a fine, and end up with a misdemeanor police record, all because of a right he thought he had but didn’t.
The Sixth Amendment provides several additional protections to a person accused of a crime.
- The accused has a right to a speedy trial by “a jury of his peers.” Here again we see a rejection of the system of British law that was in place at the time. Under British law, commoners were often tried by a jury of aristocrats or nobles, many of whom thought that commoners were accorded too many rights already.
- The accused has a right to a public trial. This was also a rejection of the British legal system, in which the family and friends of the accused, and other members of the general public, were not allowed to be present at the trial.
- The accused has a right to legal counsel.
- The accused has a right to present witnesses on his behalf, and to cross-examine the witnesses presented by the prosecution.
- The accused has the right to know what the specific charges are against him, and who brought those charges.
Generally speaking, the Seventh Amendment is of interest only to lawyers and judges. It deals with the circumstances under which an accused can demand a jury trial. Various Supreme Court rulings over the past two-hundred-plus years have gradually expanded the interpretation of the Seventh Amendment to the point that in most states, an accused can demand a jury trial for anything.
If a policeman wrote you a ticket for running a stop sign and you believe there were extenuating circumstances, you can plead your case to the traffic judge and accept his ruling—or you can demand a full-on jury trial, with lawyers, prosecutors, witnesses, and all the accoutrements. The Seventh Amendment gives you that right.
The Eighth Amendment deals partially with the rights of the accused, but mainly acknowledges that even people who have been tried and found guilty of crimes still have certain rights. The additional right of the accused (which probably should have been included in the Sixth Amendment) is the right to be released from jail until trial, on the payment of a reasonable appearance bond.
The key word here is “reasonable.” British law had a provision for appearance bonds, too, but the bond amounts were typically set so high that commoners couldn’t pay them, and were forced to languish in jail for months or years before their case came to trial.
Protections for people who have been tried and found guilty of crimes include:
- Prohibitions against cruel and unusual punishment.
- Prohibitions against punishments that are disproportionate to the crime, e.g., sentencing a man to hang for stealing a loaf of bread.
- Confinement in unsanitary or overcrowded conditions.
- Failure to provide adequate medical care for injuries or illnesses.
- Failure by prison officials to protect prisoners from each other.
The background of the Ninth and Tenth Amendments is interesting. In the intense debate that preceded the ratification of the Constitution, the Anti-federalists demanded a specific listing of things the federal government would be prohibited from doing. The Federalists opposed such a listing, arguing that any such list would be incomplete, and the federal government could later claim that it had any power not specifically prohibited by the list.
In the end, the disagreement was settled with a compromise. The Ninth Amendment deals with the “unenumerated rights” and the Tenth Amendment with the “reserved powers.”
Specifically, the Ninth Amendment says:
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
The Ninth Amendment has probably been the source of more litigation, and more Supreme Court rulings, than the first eight Amendments combined. The reason is obvious. Even phrases like “a jury of his peers” and “cruel and unusual punishment” can have only a limited range of interpretation. But “…others retained by the people?” That’s a phrase that’s wide open to interpretation.
If you think about it, many of the things we think of as God-given rights fall under the protection of the Ninth Amendment. For example:
- The right to live wherever we choose.
- The right to work at whatever job we want.
- The right to travel from one place to another without government permission.
- The right to go to whatever doctor or hospital we choose.
Many or the things being discussed today could be argued to fall under the Ninth Amendment. Is free, government-furnished health care a right “…retained by the people?” How about free, government-furnished college? How about a minimum wage? How about a minimum national income?
Many of these questions could be answered by cross-referencing them against the Tenth Amendment, except that the Tenth Amendment has already been violated so many times and in so many ways that it is essentially meaningless.
The Tenth Amendment says:
“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.”
Let me rephrase that in simple, Twenty-first Century English:
“Any power that the Constitution doesn’t (A) specifically assign to the federal government, or (B) specifically prohibit the states from exercising, is hereby assigned to the states, or to the people. The federal government is prohibited from exercising that power.”
The Constitution, as ratified in 1789, did not give the federal government the responsibility for the health care of its citizens, nor did it prohibit the states from providing citizens with health care. Therefore, the health care of the citizens is the responsibility of either the states or the people. The federal government may not legally provide it.
But Obamacare is the law of the land. The Supreme Court has said so.
Nothing in the Constitution guarantees citizens the right to an abortion, but Roe v. Wade is the law of the land. The Supreme Court has said so.
Healthcare and abortion are just two of the dozens—perhaps hundreds—of issues that the federal government has seized power over, in direct violation of the Tenth Amendment.
We’ve already lost the rights of the Tenth Amendment. Various governmental and non-governmental groups are trying to take away our Second Amendment rights. Four of the five rights conferred by the First Amendment are under daily assault. How much more are we going to allow?