The Way We Were
by Edgar J. Steele
Memories...light the corners of my mind,
Misty, water-colored memories,
of the way we were...
      - "The Way We Were," Hamlisch and Bergman (1974) 

November 13, 2001

Many consider the rights enumerated within the first ten amendments to the US Constitution (generally referred to collectively as the "Bill of Rights") as being an afterthought and, therefore, of lesser import than the basic Constitution itself.  Nothing could be further from the truth.  The truth is that the founders considered those rights to be so fundamental as to supercede the governing document they were then formulating.  They said so in length...repeatedly.

The framers of the Constitution hotly debated whether to incorporate the elements of the Bill of Rights into the initial Constitution but decided against it, precisely because they felt that would make them targets for future lawmakers who wished to inhibit their impact.  The Constitution, you see, is a document that enumerates what the central government can do, not what it cannot. 
The idea was, if a power wasn't specifically granted the feds by the Constitution, then it was reserved to the people and/or the states.  Remember, at that time, the federal government was so weak that it was little more than an early-American NATO.  The states were the political entities about which people felt so strongly.  Nowadays, even the word "state" has been co-opted by the feds, of course.
Once the Constitution was sent round the states for ratification, many had second thoughts and decided that it would be best to run the risk of enumerated rights being made targets, so as to ensure that some future federal government would not attempt to deny those rights altogether to the people.  In fact, to gain ratification sufficient to be adopted, many states required the addition of the amendments now known as the Bill of Rights.
Both sides, as it turns out, were right.
The "rights" contained within the Bill of Rights have been whittled away to near nothing.  The ludicrously-named "Patriot Act signed into law last week by Bush the Second puts the finishing touches to subverting our founding fathers' intent by denying those rights to us altogether.
Like a middle-aged man, reach still driven by testosterone, but whose grasp is limited by physical reality, we Americans only think we are still the people we once were.  No fool like an old fool.
Top Ten List of The Ways We Were:
Number 10:  (All powers not given the federal government reserved to states and people, Tenth Amendment)  - Now, clearly it has become the rights granted by government, particularly the Federal government, which exist, with all else reserved to itself.
Number 9:  (Unenumerated rights to be retained by the people, Ninth Amendment) - Other rights?  Why, even the enumerated rights have been taken away.
Number 8:  (Cruel and unusual punishment, no excessive bail, Eighth Amendment) - Before the Patriot Act, I used to ask, "10 years for smoking marijuana rather than drinking beer?" by way of explaining how this one has disappeared.  Now, indefinite incarceration without trial or, even, formal charges, is possible merely by calling another a "threat to national security."  As regards bail, judges routinely approve bail in amounts pegged by prosecutors in amounts designed to guarantee the accused is not released on bail.  Note the comments in number 5, below, about the use of drugs and torture to extract information, a means to an end which is in itself a severe punishment unknown in this country for over two hundred years.
Number 7:  (Trial by jury in civil cases, rule of common law, Seventh Amendment) - Juries are routinely denied in case after case that I see nowadays.  Certainly, nothing in common law, either British or American, justifies the provisions of the Patriot Act.  Besides, what trial, if you are deemed a "threat to national security?"
Number 6:  (Rights of the accused, to witnesses, confrontation, legal aid and, especially, to a speedy trial, Sixth Amendment) - Be classified as a "threat to national security"and go to jail indefinitely, even forever, without trial or formal charges.  Even before the Patriot Act, how do you hire a decent lawyer after the government confiscates all your assets or spends you into bankruptcy defending yourself in audits and the like?  The Patriot Act broadens the definition of "domestic terrorism," such that those who engage in acts of political protest can be subjected to wiretapping and enhanced penalties.  Of course, this all means you can be jailed indefinitely, without trial, merely for politically disagreeing with the authorities.
Number 5:  (Due process of law for taking one's liberty or private property; right against self incrimination, Fifth Amendment) - The Patriot Act allows the Attorney General to have anybody thrown in jail indefinitely, without trial, by the simple expedient of declaring them to be a "threat to national security."  Previously, government has been taking what it wants, when it wants, via civil forfeiture, with nothing in the way of due process being observed.  Law enforcement now has a stake in the drug trade.  It’s easier to broker drug deals than to conduct genuine investigations.  If the cops arrest a burglar right away, they have to return your property.  If they don't take any action till he sells your property and buys drugs, they get to keep the cash.  Furthermore, there is now talk of the Attorney General wanting to use drugs and torture to extract information from terrorism suspects in custody.  According to Kenneth Starr, five justices of the U.S. Supreme Court have signaled that they would give "heightened deference to the judgments of the political branches with respect to matters of national security," and thus, would be willing to bend the constitutional rules in a case involving terrorism.  In 1936, the Supremes opined that  beatings and other forms of physical and psychological torture were so offensive to a civilized system that they must be condemned under the Due Process Clause of the Fifth and 14th Amendments (Brown v. Mississippi).  Then, in 1966, they demanded that, before the government may punish someone, it must "produce the evidence against him by its own independent labors, rather than the cruel, simple expedient of compelling it from his own mouth" (Miranda v. Arizona).
Number 4:  (No unreasonable search and seizure, no warrants without probable cause, Fourth Amendment) - Before this, you or your car could be searched anytime a cop wanted.  At worst, he could always claim he saw you do or drop something suspicious.  Search warrants required merely the flimsiest of affidavits, often perjured, and a friendly magistrate.  Now, even those limitations have been removed.  No showing of probable cause is required, which means you and your home or business can be searched at any time, for any reason - for no reason, in fact. The new law effectively eliminates judicial supervision of telephone and Internet surveillance by law enforcement authorities in anti-terrorism investigations and in routine criminal investigations unrelated to terrorism - that means anything they want to find out about, they can.  Where warrants are still required, they must be signed upon request.  What's really scary is that now the authorities can come search in your absence and never even tell you about it.  Of course, the ADLled FBI has been doing that for years, but now they can do it legally.
Number 3:  (Quartering soldiers, Third Amendment) - eliminated by one of Clinton's Executive Orders, as will be seen when and if martial law is ever declared.  Of course, there is no need for a formal declaration, since all elements save the complete abrogation of the Posse Comitatus Act have been adopted already by edict of the Executive Branch.  Incidentally, Posse Comitatus is about to be eliminated at the specific request of Attorney General Ashcroft and Bush the Second.  Posse Comitatus laws prohibit the used of armed forces personnel in domestic police activity, because the army just knows how to get a result, while police must be particularly concerned with the method to be employed.  We learned the folly of ignoring Posse Comitatus laws at Kent State in the Sixties, when student protestors were shot and killed by nervous National Guardsmen.  Have you noticed the armed National Guardsmen in America's airports today? 
Number 2:  (Right to bear arms, Second Amendment) - already so limited that it does not exist in most places.  Severely restricted in all others.  Rapidly on the way out the door altogether.  Confiscation of weapons has begun in many locales, particularly California.
And, the Number 1 Way We Were: (Right to free speech, free exercise of religion, right to assemble, right to petition for redress of grievance, First Amendment) - Perhaps the only amendment with some life left in it, but the Internet is the only place that free speech still exists and that is very limited and only for a little while longer.  Today, those who dare to criticize the government or its real masters, largely composed of the Chosen, are quickly acquainted with reality as their professions are denied them, their businesses destroyed, their internet access extinguished.  I have written much on this area and will write much more, in other places, so choose to give it short shrift today.  One need only look at the movement afoot to adopt a national set of "hate laws" to see how far gone this amendment is.  It isn't dead just yet, but it is lying prone on the floor and breathing shallowly.
Just for fun, let's look in on the next few amendments, too, to see how they are doing -
11th (suits against states) - I just had a judge throw out a client’s main cause of action against the local county because, by statute, the county and its minions are incapable of being negligent.  Tried to sue the Federal government lately?  Even if you have a viable cause of action, good luck at getting a lawyer to take that case.  I had lunch the other day with a fellow in Montana who did that and he was recently disbarred on ludicrously trumped-up charges.
12th (election of President) - Yeah, right.  As if Bush/Gore/McCain/Bradley was really a choice.
13th (slavery, punishment without conviction) - I used to say this one was pretty much still intact, unless you viewed working for half the year to pay taxes as slavery.  Now, being jailed indefinitely without charges certainly seems to wipe this amendment totally off the board.
14th (equal protection) - As George Orwell observed in Animal Farm, some are “more equal than others.”  They are now the judicially-enumerated “protected classes”:  race (only if non-white), sex (female only), religion (state approved only).  The parenthetical comments are those made by the judges, not me.  This is also where six guys can be involved in a drug deal, five are cops and one goes to jail.  And, don't forget that only white guys can be guilty of a hate crime.  Affirmative action has become so embedded in society that it is now being administered by the very class of people that it was designed to protect.  Think they're going to give it up any time soon?
What previously set America apart from other republics-cum-democracies was its specific guarantee of individual rights.  Today, America finally joins Canada, Britain, Germany, France and many others in the pantheon of oligarchic neo-fascism.  In so doing, America takes its place at the head of the table.  The stage now is set for imposition of a world-wide government, the so-called New World Order, over a hundred years in the making, brought to you live and in living color by the same folks that brought you Waco.
Historically, a man in the grip of a midlife crisis buys a red Corvette and heads for the coast with his secretary, in an attempt to recapture the way he used to be.  What do you suppose the national equivalent of a red Corvette might be?  And, for whom do you suppose we could trade in this rampaging dowager that we wake up next to each morning?  It's time for a change, fellow lemmings.  A serious change.


"I didn't say it would be easy.  I just said it would be the truth."
            - Morpheus

Copyright © Edgar J. Steele, 2002

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