This is a rather quick recap of how I see the Bill of Rights today.
It doesn't look that healthy. See also the
Constitution Society Home Page for more commentary Thanks to
Bill St. Clair for additional comments,
some of which I snarfed almost verbatim.
- 1st Amendment (Religion, Speech, Press, Right to Assemble): see State of the First Amendment, 1999: A survey of public attitudes. Also note that the first amendment does not forbid prayer in schools or at football games. But it does forbid the government from declaring a national church. And that can make government-sanctioned-prayer troublesome. But Free Speech took a definite hit with the anti-terrorism legislation that followed the Sept 11, 2001 attacks on NYC and the Pentagon.
- 2nd Amendment (Right to Keep and Bear Arms): See US v. Miller and Volokh testimony on 2nd Amendment The National Firearms Act of 1934, it is argued, has nullfied this right. At a minimum, the current Militia Act, enacted in 1956 and derived from the original 1792 Militia Act, defines the militia as including all able-bodied male citizens from 17 to 45, which seems to contradict the restrictions placed on civilians by the Firearms Act of 1934. The Embarrassing Second Amendment has pretty good commentary, as well. US v. Emerson says that Second Amendment rights are individual rights, which is another step in the right direction.
- 3rd Amendment (Conditions for quarters for soldiers): Seems to still be healthy. In fact, save for the curious case of Engblom v. Carey, 677 F. 2d 957 (2d Cir. 1982), on remand, 572 F. Supp. 44 (S.D.N.Y.), aff'd. per curiam, 724 F.2d 28 (2d Cir. 1983), there has been no judicial explication at all.
- 4th Amendment (Protection from unreasonable search & seizure): Drug-forfeiture laws & no-knock searches have whacked this one pretty hard. Environmental law also has eroded the 4th amendment (see the Reason Foundation news release Environmental Enforcement Fails To Improve The Environment). Electronic surveillance in general has been said to be unconstitutional by some, but the Supreme Court ruled in 1928 (Olmstead v. U.S., 277 U.S. 438 (1928)) that wiretapping was constitutional.
- 5th Amendment (due process, double-jeopardy, self-incrimination, private property not to be taken without compensation) : Drug forfeiture (taking) and environmental law (taking, self-incrimination, due process) again, as well as electronic surveillance and government mandated drug-testing (self-incrimination).
- 6th Amendment (speedy trial, witnesses, etc): I doubt anyone would call the current legal system speedy. And the PATRIOT legislation introduced after the events of 9/11/2001 now allows for secret trials and includes gag-orders for merchants whose records are being searched. So, for example, if you toddle down to the local bookseller and charge (or use your discount card) a copy of some "dangerous" book, the government can get that record without telling you, and even prevents the bookseller from telling you that they had to produce the record.
- 7th Amendment (trial by jury): Seems okay at first glance. Except for the fact that judges continually allow prosecutors to disqualify well-informed jurors. And double-jeopardy seems to be pretty standard procedure in many cases now. If prosecutors can't get a conviction at the local or state level, they'll try the federal courts. If that fails, maybe there's a civil suit that can be brought. Lysander Spooner's An Essay on the Trial by Jury is good reading on the subject.
- 8th Amendment (excessive bail, cruel & unusual punishment): It could be argued that drug forfeiture laws are the equivalent of excessive bail, since they leave a defendant without any money to post bail. Ditto for environmental law. Forfeiture laws could also be argued to be excessive fines.
- 9th Amendment (construction of Constitution): The enumeration in the Constitution of certain rights shall not be construed to deny or disparage other retained by the people. I guess you could argue that we the people haven't retained a lot of our rights, but there are quite a few things the framers would have considered rights that have been ruled illegal. And that ain't right.
- 10th Amendment (States Rights): The civil war took care of the cession, and we've had a strong Federal government since. Specifically, environmental law (again) and drug laws are big current offenders. It has also been argued (Collector v. Day 78 US 113 (1870)) that income tax could not be levied upon state officers. This was overruled in 1939. Even the prohibition of the transportation of women for immoral purposes has been ruled constitutional, which seem irreconcilable with Hammer v. Dagenhart, 247 US 251 (1918), which was the ruling most favorable to the 10th. Finally, Under Garcia v San Antonio MTA, 469 US 528 (1985), the Court's most recent ruling directly on point, the Tenth Amendment imposes practically no judicially enforceable limit on generally applicable federal legislation, and states must look to the political process for redress. Color it dead.
If you have any comments, especially citations I should add, please comment.