Last Friday, while the rest of the country continued the seemingly endless debate over which sixth of the population’s votes actually reflected “the will of the people” in the last presidential election, most libertarians took a moment to commemorate the Bill of Rights — the first 10 amendments to the U.S. Constitution. And on the 209th anniversary of the adoption of that inspired and inspiring document they eulogized the freedoms it sought in vain to protect.
After two centuries of “interpreting,” only one of the ten has actually survived completely unscathed. Taking them in no particular order, see if, by process of elimination, you can guess which one it is.
Lets start with Amendment VII. This one guarantees the right to a jury trial in all civil matters where the amount in dispute is more than $20, and that the legal system shall be governed according to the principles of common law.
Under the Coinage Act of 1794 (one of the very first acts of the nascent congress) the “Eagle,” or “$10 piece,” was precisely defined as 270 grains of standard gold. Thus, until the creation of the Federal Reserve System early in the 20th century, our money was fixed; our monetary system was, quite literally, “as sound as a dollar.”
Unfortunately, the subsequent inflation made possible by the issuance of printing-press money — the “Federal Reserve Notes” that completely supplanted our specie-backed “United States Notes” over the last hundred years — has rendered the original $20 minimum absurd.
As for common law, it’s principles still hold some sway in criminal matters, but are otherwise regarded as the quaint affectations of a bygone era, their necessity in civil law having been preempted by the licensing and regulatory state.
Well, then, how about Amendment II – the fabled “right to keep and bear arms”?
This amendment undoubtedly has more ardent defenders and detractors than any of the other nine. Nevertheless, despite the hand-wringing of gun control advocates over what is left of it, I wouldn’t advise walking around with a .357 in your pocket and waving a copy of the Constitution as your “gun permit.”
The reason there is so much confusion about the intent of the Second Amendment is because most people today don’t realize that in the eighteenth century it was their government that Americans didn’t trust — not their fellow citizens.
Maybe it’s Amendment IV? This is the one that is supposed to protect us from “unreasonable search and seizure” and require “probable cause” for a search or arrest.
The framers insisted on these protections because they remembered bitterly the “Writs of Assistance” — basically, general search warrants — issued by the British Crown prior to the revolution in a (futile) effort to clamp down on smuggling.
Search warrant requirements have now been all but eliminated in order to wage the “War on Drugs,” i.e., in a (futile) effort to clamp down on smuggling. Ironic, isn’t it?
And “probable cause”? Nowadays, simply matching a police profile is considered sufficient.
Okay, but surely the First Amendment continues to serve.
“Free speech”? Ask the tobacco companies, prohibited by the federal government from advertising their (perfectly legal) product on radio and television, about the state of free speech.
“Free exercise of religion”? Native American ceremonies pre-dating the United States by centuries have been criminalized — another sacrifice on the altar of the drug jihad.
And “peaceable assembly”? Only with a government granted permit.
Well, how about Amendments IX and X? These two were included to make it absolutely clear that no additional, central government powers should be inferred from the omission of specific restrictions in the Bill of Rights. They formally retain any powers not expressly given the federal government to the individual states or to the people themselves.
But today, our federal government does precisely what these amendments explicitly proscribed — taking for granted the authority to do anything not expressly barred by the Constitution.
Could it be Amendment VI, the one that guarantees a speedy and public trial by an impartial jury of your peers?
Intended to guard Americans against persecution under unjust laws, it has been stood on its head by the courts which now instruct juries that the judge will define and rule on the appropriateness and application of the law, restricting the jury to mere trier of fact. This, of course, renders moot the original purpose — representing the conscience of the community — of even having a jury.
How about Amendment VIII that ostensibly prohibits both “excessive fines and bail” and “cruel and unusual punishment”?
It has become yet another casualty of the all-corrosive drug prohibition.
What would the drafters of the Bill of Rights have thought about forfeiting your home because your teenager was discovered growing some marijuana plants in the backyard without your knowledge? How is that for “excessive”? What about life in prison for mere possession of certain quantities of refined, aggricultural products? Since we don’t have capital punishment in Michigan that is the severest penalty possible under law — the same as for premeditated murder. Certainly “cruel and unusual” by any, rational standard.
Maybe it’s Amendment V — the one that requires “due process of law” and prohibits both “double jeopardy” and “self-incrimination”?
Please! Today the IRS can take your bank account, the coast guard can take your boat, the welfare authorities can even take your children, prior to any process at all — “due” or otherwise.
And “double jeopardy”? It has become a routine tactic for prosecutors to argue that, for instance, a murder for which the defendant was acquitted under state law also represented a violation of the victim’s “civil rights,” bringing new charges for precisely the same act, only under federal purview.
And “Self-incrimination”? I have yet to hear an explanation of how one can comply with the Internal Revenue Code without waiving this right.
So that leaves only one of the original ten amendments that comprise the Bill of Rights still intact. If you guessed Amendment III, you win!
So just what protection has actually survived more than two centuries of statist assault?
If you don’t know, I think I’ll leave it to you to look it up. And, perhaps, in the process you’ll reflect on this historic anniversary — for just a moment or two — on the nine that have been lost.
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More on constitutional law:
- Term limits redux
- The court of public policy
- Selling us a sales tax bill of goods (add 6%)
- Freedom of speech
- Keep your government even closer
- No census con
- Drunk with power
- Down the sewer
- Highway robbery in the dead of night
- Term limits — A baby step in the right direction
- Honoring Headlee
- Prohibition — No nobler the second time around
