Amendments 1 - 10: The Bill of Rights
Part 3: Amendments 5 through 8; more limitations on government in favor or protecting the property of individuals
The title of this essay tells
us the central theme of these four amendments to the Constitution. For those short of time, re-read the
title. Should you have time for the
details, read on! In our last article we
spoke about some aspects of the 5th Amendment; we shall look at this
amendment again in light of its relation to the next three. Amendments 5 through 8 address the rights of
persons in criminal cases, during trials, in civil cases, and in the areas of
bail, fines, and punishment. Badnarik
notes that particular attention was paid to these areas because it is so easy
to be falsely accused, and your rights are at risk of being violated in these
circumstances.
The 5th Amendment addresses the rights of persons charged in “capital or infamous crimes.” The very first phrase shows that, unlike what some have claimed, the Framers had no trouble with the concept of capital punishment. Their concern was that these cases be handled according to the rule of law, and that no one be so charged illegally.(1) This Amendment guarantees that a Grand Jury must pass initial judgment in capital or infamous cases, stating in public record that there is sufficient suspicion and corroborating evidence to warrant a full, public, jury trial. The word of one judge, governor, or any other single individual is insufficient cause for prosecution. The police may hold a person for up to 48 hours - to give them time to obtain an indictment from a grand jury.
The amendment sets aside military cases, as those are subject to the rules of Courts Martial under the 3rd Article of the Constitution.
This Amendment further prohibits persons to be tried on multiple occasions for the same offense – another common tactic of the Crown against those it deemed undesirable or troublesome, as one in defiance of the Crown could be financially bled to death by multiple prosecutions for the same "crime." People are further protected against being forced to testify against their own interests in public court. This has been expanded under court rulings to include words that were spoken - possibly under coercion or before charges were brought - by persons who might not even have yet been in custody, and not aware they were under suspicion. Those words are not admissible evidence, as they are also considered self-testimony even if actually spoken, in court, by officers of the law. "...the principle of non-incrimination. This is disregarded on the whole of the European continent. The free range of police power, the mean tricks resorted to by the "instructing" judge or officer, before the trial, in order to bring the prisoner to confession, are almost inconceivable, and they are the worse, because applied before the trial, when the prisoner is not surrounded by those protections which the trial itself grants."(3)
We need also address once again the issue of jury nullification. As was presented in the last article, let me repeat: Trial by jury is yet another level of protection from tyranny in government, and the government does not want you to know about the extent of that protection. Despite judges' orders to the contrary, juries are empowered to determine both fact and law! From the 1828 Webster's dictionary definition of the term "jury" we read, "...Petty (i.e., "normal" juries, as opposed to grand juries) juries, consisting usually of twelve men, attend courts to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions..." (emphasis added). The jury can find that the law in question (a) does not apply to the case (or has been applied to someone unfairly singled out, as an "example" to others equally guilty but uncharged), (b) is not Constitutional and therefore null and void, or (c) is unreasonable or unjust and therefore unenforceable. These powers are based in old English common law and date back many centuries. The jury, in any of the cases above, must find the person on trial "not guilty" (at least - there is far more they can do). For more information, see extensive resources from the Fully Informed Jury Association.(2)
The last one-third of the 5th Amendment reverts to Locke’s original wording of “life, liberty, or property” in listing the items of which a person MAY NOT be deprived without due process of law. You may recall that "due process" has a specific meaning in law, which goes back before the signing of the Magna Carta in 1215. It means judicial proceedings where a case is presented to a jury of the accused's peers, and decided by that jury, under the supervision of a judge to ensure legal standards are kept. The last clause of the Amendment ensures that in those very RARE cases where private property must be taken for public use (not “public good” such as the travesty of the incorrect and unConstitutional Kelo v. New London decision; but “public USE” such as the expansion of wharfs and docks, widening of roads necessary for commerce, a new Post Office building to accommodate the needs of a city grown larger, and such like), the owner is protected to the extent that they receive “just compensation” by which the Framers meant sufficient compensation to replace their loss. That replacement could be in the form of similar property elsewhere, funds to rent or lease the lost function from others, or any other means of just and equitable compensation. There is no prohibition against including compensation for sentimental value, either. Acreage is relatively easy; the homestead that grandpaw staked out 80 years ago cannot be swapped out without intrinsic loss.
The 6th Amendment addresses problems that were endemic under the reign of the British Crown. Those problems included:
In the 7th Amendment, we are reserved the right to demand a jury trial when the value of the contest exceeds $20.00. It also reiterates that a trial settled by a jury may NOT be re-opened (re-tried) in any court of the United States – other than according to the rules of common law. Common law is the unwritten law of Britain that goes back to Saxon times (today’s bankruptcy laws come in direct descent from Anglo-Saxon bankruptcy settlement rules). See William Blackstone's "Commentaries on the Laws of England" originally published from 1765 - 1769 for an exhaustive treatment of these (our Founders and Framers were also well-versed in Blackstone). Most of today’s courts are “statutory” courts, run according to the rules of “case law” and “statute” rather than common law. Under the Constitution, and specifically this Amendment, we still have the right to common law courts – IF we can find them. Cases may be overturned if it is found that your rights were violated in the original proceeding.
The 8th Amendment prevents the ruination of an accused person by preventing “excessive” bail – but unfortunately neglects to define “excessive,” which has caused great controversy over the years (see cites noted below under footnote 4). This Amendment also prohibits “cruel and unusual” punishments – and again does not define those. We already know that this category does NOT include capital punishment (the death penalty) in those cases where it is appropriate. It certainly does encompass the death penalty as, say, punishment for jay-walking – as that level of punishment certainly exceeds what the “crime” warrants. Overall, this amendment's well-meant but insufficiently defined wording has led to an area of law that is messy, complex, and still without guidelines which are widely agreed-upon. Excessive fines have even been found to apply to denial of second-class mail rates. Divestiture of citizenship has been considered overly cruel by one court. English history going back to their 1689 Bill of Rights lists its own concerns with disproportionate punishments - yet this document left the definition of "disproportionate" to be determined elsewhere. Unfortunately, this amendment really does not provide protection for people except from the most egregious cases of punishment involving serious cruelty or wild disproportion.(5)
In our next essays, we will look at the 9th and 10th Amendments; the last two of the Bill of Rights. They are crucial in our understanding of the principles of the Constitution and how those principles are to be applied in governance.
Footnotes and References:
1. Side note: conservatives are accused of hypocrisy in being, generally “pro-life” and yet in favor of the death penalty. There is no hypocrisy here: protecting the lives of those they see as innocent is entirely separate from acknowledging that there are actions a grown, mentally competent, individual can take which nullify their right to a continued existence – even one permanently separated from others, as by a sentence of "life without parole."
2. Fully Informed Jury Association www.fija.org -- see especially the Jurors' Handbook at www.fija.org/docs/JG_Jurors_Handbook.pdf . Please note that you are under oath during pre-trial questioning and IF ASKED you must admit you know about "jury nullification" -- however you may otherwise assume that the court officials will obey the Constitution that they were required to take an oath to uphold, and not *volunteer* the information. If they know you believe in jury nullification, you will be dismissed; they don't want "your kind" on their juries. Also see the brief article "Jury Nullification in Criminal Trials in Federal District Court" at http://publiushuldah.wordpress.com/?s=punishment --you will need to scroll down past several other articles to arrive at this one.
3. Francis Lieber, On Civil Liberty and Self-Government, 3rd revised edition, ed. T. D. Woolsey (Philadelphia: J.B. Lippincott & Co., 1883). Via Online Library of Liberty at http://oll.libertyfund.org/title/1943/119963/2423896
4. Numerous cites on the topic of excessive bail can be found at http://law.justia.com/constitution/us/amendment-08/01-excessive-bail.html . Wikipedia also has some historical information on the topic, from its history in the UK.
5. http://constitution.findlaw.com/amendment8/amendment.html has a discussion and further resources on this topic.
6. Michael Badnarik, "Good To Be King," The Writers Collective, 2004 available only at www.constitutionpreservation.org
7. Publiushuldah.wordpress.com
8. Wikipedia.com
9. 1828 Webster's Dictionary at http://1828.mshaffer.com
10. US Constitution and Declaration of Independence
12. W. Cleon Skousen, "The 5,000 Year Leap," National Center for Constitutional Studies, 1981
13. www.constitutiondecoded.com
©2013 by the author
The 5th Amendment addresses the rights of persons charged in “capital or infamous crimes.” The very first phrase shows that, unlike what some have claimed, the Framers had no trouble with the concept of capital punishment. Their concern was that these cases be handled according to the rule of law, and that no one be so charged illegally.(1) This Amendment guarantees that a Grand Jury must pass initial judgment in capital or infamous cases, stating in public record that there is sufficient suspicion and corroborating evidence to warrant a full, public, jury trial. The word of one judge, governor, or any other single individual is insufficient cause for prosecution. The police may hold a person for up to 48 hours - to give them time to obtain an indictment from a grand jury.
The amendment sets aside military cases, as those are subject to the rules of Courts Martial under the 3rd Article of the Constitution.
This Amendment further prohibits persons to be tried on multiple occasions for the same offense – another common tactic of the Crown against those it deemed undesirable or troublesome, as one in defiance of the Crown could be financially bled to death by multiple prosecutions for the same "crime." People are further protected against being forced to testify against their own interests in public court. This has been expanded under court rulings to include words that were spoken - possibly under coercion or before charges were brought - by persons who might not even have yet been in custody, and not aware they were under suspicion. Those words are not admissible evidence, as they are also considered self-testimony even if actually spoken, in court, by officers of the law. "...the principle of non-incrimination. This is disregarded on the whole of the European continent. The free range of police power, the mean tricks resorted to by the "instructing" judge or officer, before the trial, in order to bring the prisoner to confession, are almost inconceivable, and they are the worse, because applied before the trial, when the prisoner is not surrounded by those protections which the trial itself grants."(3)
We need also address once again the issue of jury nullification. As was presented in the last article, let me repeat: Trial by jury is yet another level of protection from tyranny in government, and the government does not want you to know about the extent of that protection. Despite judges' orders to the contrary, juries are empowered to determine both fact and law! From the 1828 Webster's dictionary definition of the term "jury" we read, "...Petty (i.e., "normal" juries, as opposed to grand juries) juries, consisting usually of twelve men, attend courts to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions..." (emphasis added). The jury can find that the law in question (a) does not apply to the case (or has been applied to someone unfairly singled out, as an "example" to others equally guilty but uncharged), (b) is not Constitutional and therefore null and void, or (c) is unreasonable or unjust and therefore unenforceable. These powers are based in old English common law and date back many centuries. The jury, in any of the cases above, must find the person on trial "not guilty" (at least - there is far more they can do). For more information, see extensive resources from the Fully Informed Jury Association.(2)
The last one-third of the 5th Amendment reverts to Locke’s original wording of “life, liberty, or property” in listing the items of which a person MAY NOT be deprived without due process of law. You may recall that "due process" has a specific meaning in law, which goes back before the signing of the Magna Carta in 1215. It means judicial proceedings where a case is presented to a jury of the accused's peers, and decided by that jury, under the supervision of a judge to ensure legal standards are kept. The last clause of the Amendment ensures that in those very RARE cases where private property must be taken for public use (not “public good” such as the travesty of the incorrect and unConstitutional Kelo v. New London decision; but “public USE” such as the expansion of wharfs and docks, widening of roads necessary for commerce, a new Post Office building to accommodate the needs of a city grown larger, and such like), the owner is protected to the extent that they receive “just compensation” by which the Framers meant sufficient compensation to replace their loss. That replacement could be in the form of similar property elsewhere, funds to rent or lease the lost function from others, or any other means of just and equitable compensation. There is no prohibition against including compensation for sentimental value, either. Acreage is relatively easy; the homestead that grandpaw staked out 80 years ago cannot be swapped out without intrinsic loss.
The 6th Amendment addresses problems that were endemic under the reign of the British Crown. Those problems included:
- lengthy incarceration (while your family tried to exist without your income and work – remember 90% of the population were farmers at this time) before your case came to trial,
- non-public trials (“star chambers”) where proceedings were secret and not subject to appeal,
- trials presided over and decided by a judge whose own life/livelihood/future is dependent upon pleasing those who wish you prosecuted and found guilty,
- trials with the verdict rendered by a jury who had decided the case before hearing any evidence on it – or who considered all Colonials guilty of *something* and the specifics of the charges did not much signify,
- trials that took place in Britain, 3,000 miles from home with the sole transport being sailing ships,
- trials where one was not allowed to know what law one was accused of breaking!
- trials where testimony was presented anonymously and could not be rebutted (no cross-examination to find faults in the evidence presented),
- inability to have witnesses in one’s favor brought forth (either because they refused or because one had insufficient funds to transport them to Britain and house them there until the trial), and
- trials where one faced a judge and jury with no representation or assistance of counsel (attorney or counselor at law) either due to lack of money, or lack of anyone willing to represent you.
In the 7th Amendment, we are reserved the right to demand a jury trial when the value of the contest exceeds $20.00. It also reiterates that a trial settled by a jury may NOT be re-opened (re-tried) in any court of the United States – other than according to the rules of common law. Common law is the unwritten law of Britain that goes back to Saxon times (today’s bankruptcy laws come in direct descent from Anglo-Saxon bankruptcy settlement rules). See William Blackstone's "Commentaries on the Laws of England" originally published from 1765 - 1769 for an exhaustive treatment of these (our Founders and Framers were also well-versed in Blackstone). Most of today’s courts are “statutory” courts, run according to the rules of “case law” and “statute” rather than common law. Under the Constitution, and specifically this Amendment, we still have the right to common law courts – IF we can find them. Cases may be overturned if it is found that your rights were violated in the original proceeding.
The 8th Amendment prevents the ruination of an accused person by preventing “excessive” bail – but unfortunately neglects to define “excessive,” which has caused great controversy over the years (see cites noted below under footnote 4). This Amendment also prohibits “cruel and unusual” punishments – and again does not define those. We already know that this category does NOT include capital punishment (the death penalty) in those cases where it is appropriate. It certainly does encompass the death penalty as, say, punishment for jay-walking – as that level of punishment certainly exceeds what the “crime” warrants. Overall, this amendment's well-meant but insufficiently defined wording has led to an area of law that is messy, complex, and still without guidelines which are widely agreed-upon. Excessive fines have even been found to apply to denial of second-class mail rates. Divestiture of citizenship has been considered overly cruel by one court. English history going back to their 1689 Bill of Rights lists its own concerns with disproportionate punishments - yet this document left the definition of "disproportionate" to be determined elsewhere. Unfortunately, this amendment really does not provide protection for people except from the most egregious cases of punishment involving serious cruelty or wild disproportion.(5)
In our next essays, we will look at the 9th and 10th Amendments; the last two of the Bill of Rights. They are crucial in our understanding of the principles of the Constitution and how those principles are to be applied in governance.
Footnotes and References:
1. Side note: conservatives are accused of hypocrisy in being, generally “pro-life” and yet in favor of the death penalty. There is no hypocrisy here: protecting the lives of those they see as innocent is entirely separate from acknowledging that there are actions a grown, mentally competent, individual can take which nullify their right to a continued existence – even one permanently separated from others, as by a sentence of "life without parole."
2. Fully Informed Jury Association www.fija.org -- see especially the Jurors' Handbook at www.fija.org/docs/JG_Jurors_Handbook.pdf . Please note that you are under oath during pre-trial questioning and IF ASKED you must admit you know about "jury nullification" -- however you may otherwise assume that the court officials will obey the Constitution that they were required to take an oath to uphold, and not *volunteer* the information. If they know you believe in jury nullification, you will be dismissed; they don't want "your kind" on their juries. Also see the brief article "Jury Nullification in Criminal Trials in Federal District Court" at http://publiushuldah.wordpress.com/?s=punishment --you will need to scroll down past several other articles to arrive at this one.
3. Francis Lieber, On Civil Liberty and Self-Government, 3rd revised edition, ed. T. D. Woolsey (Philadelphia: J.B. Lippincott & Co., 1883). Via Online Library of Liberty at http://oll.libertyfund.org/title/1943/119963/2423896
4. Numerous cites on the topic of excessive bail can be found at http://law.justia.com/constitution/us/amendment-08/01-excessive-bail.html . Wikipedia also has some historical information on the topic, from its history in the UK.
5. http://constitution.findlaw.com/amendment8/amendment.html has a discussion and further resources on this topic.
6. Michael Badnarik, "Good To Be King," The Writers Collective, 2004 available only at www.constitutionpreservation.org
7. Publiushuldah.wordpress.com
8. Wikipedia.com
9. 1828 Webster's Dictionary at http://1828.mshaffer.com
10. US Constitution and Declaration of Independence
12. W. Cleon Skousen, "The 5,000 Year Leap," National Center for Constitutional Studies, 1981
13. www.constitutiondecoded.com
©2013 by the author