Interpreting the Bill of Rights

A lot of people living in this country know that one of the most important things the President of the United States does, maybe THE most important thing, is to appoint justices to the United States Supreme Court. The reason is simple. Presidents may serve only two terms, whereas Supreme Court Justices serve for life. So, whereas the President can serve eight years at the most, Supreme Court Justices can serve twenty, thirty, or even forty years or more. This is crucial because the Supreme Court decides the law of the land by interpreting the Constitution in general and the Bill of Rights, the first ten amendments to the Constitution, in particular.

Most of us who pay attention to the law repeatedly hear criticisms of appeal courts and, especially, the Supreme Court, for "making" law rather than "interpreting" law. These criticisms are most often leveled at courts that are considered too "liberal" and hardly ever at courts considered to be conservative. Maybe this is something we should reconsider.

In this column over the next two weeks, I want to examine certain words contained in seven of the ten amendments and allow you to draw your own conclusions as to which kind of court is more often guilty of "making" law rather than "interpreting" existing law.

AMENDMENT ONE

"Congress shall make no law (bold italics mine) respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

As I noted above, the first amendment says "no law." So the first part of the First Amendment clearly gives the people the right to either worship or not worship based on their own personal preferences by prohibiting Congress from giving one particular religion legal precedent and authenticity over another. Just as important, this amendment prohibits abridging the freedom of speech or of the press, or the right of the people to peaceably assemble. And yet we have a whole raft of laws that do exactly that. We frequently see cases that are appealed all the way to the Supreme Court and upheld that limits the practice of the above, based on the judicial concept that not ALL speech is protected and not ALL press is protected. But that's not what the First Amendment says. The First Amendment neither mentions nor dictates any exclusions to these freedoms at all. Activist courts have done that; the Constitution didn't. We also have laws prohibiting the freedom to assemble by allowing jurisdictions to require permits for such a purpose with the ability to deny permits to certain groups. Again, the First Amendment mentions no exclusions or exceptions to this freedom, as long as the assembly is peaceful.

AMENDMENT FOUR

"The right of the people to be secure in their persons, houses, papers, and effects, (bold italics mine) against unreasonable (bold italics mine) searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, (bold italics mine) supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I have placed in bold type, the word "effects" because there is much disagreement as to what this means. Some believe it to mean anything that isn't covered by "persons, houses, and papers" since the Constitution was written long before we had trains, cars, buses, and automobiles. This leads us to the second and third bold type notations, "unreasonable" and "but upon probable cause." Again, many interpret this entire amendment as a firm and fixed prescription to the government to stay out of the lives of private citizens unless there is a sound, legal reason to intervene. But it wasn't until the early 1900s in "Weeks v. United States" (1914) at the federal level and much later, "Mapp v. Ohio"(1961) at the state level that this prohibition was upheld by the United States Supreme Court. Later decisions have skirted the issue of "effects" "unreasonable" and "probable cause" by allowing sobriety check points, driver's license and proof of insurance check points, automobile safety check points, etc. as long as the police stop EVERYONE, rather than singling out certain vehicles. Even though most people do not object to these check points if it aids in getting law breakers off the highways, there is no provision for this kind of behavior in the Bill of Rights. In fact, it is expressly prohibited. This provision starts us down a slippery slope because, based on this precedent, there is nothing to prevent law enforcement from stopping and frisking people who are doing nothing but walking down the street, as long as they stop and frisk EVERYONE. There is also nothing to prevent law enforcement from searching your house without a warrant, as long as they search EVERYONE'S house in a particular neighborhood or area. If law enforcement isn't required to have a warrant or probable cause to stop and detain you in your vehicle when you have done nothing illegal or suspicious to warrant such a stop, then it seems reasonable that law enforcement could make a case for the latter two examples as well.

That could never happen in the United States you might say.

Of course it could. To quote Baron Acton, "power corrupts and absolute power corrupts absolutely." The more power people are given, the more they desire.

Amendments five, six, eight and ten will be discussed next week.

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My book, "Thoughts About Love; You Take My Breath Away" is available at the Book End and Accents, Etc. 307 Norris Ave, 308-345-4065 in McCook.