What does that say? Seymour Bu... Dammit Madison!
The Constitution. All the rage right now. Largely on the back of the tiny American flag waving subset, the Constitution has seen a huge popular resurgence in the past year or so, capping with members of Congress reading it on the floor of the House to open their latest session. Without a doubt it is one of the most influential governing documents in the history of civilization, triggering a far-reaching shift from rule by monarchy to one by democratically elected representatives. To that end, its importance can’t be overstated. (Unless you claim something cuckoobananas, like the Constitution and John Wayne marched around Europe armed to the teeth, overthrowing dictatorships and bedding fancy ladies who smelled of jasmine. Then you could overstate it.)
But as a very impressive and knowledgeable law student (*shines apple on lapel*), it dawns on me that not everyone actually knows the extent of the freedoms the Constitution grants. Sure it’s easy to quote songs and passages about freedom and liberty, but what do the words in the Bill of Rights actually guarantee us, and what has been bastardized by decades of cop dramas where Clint Eastwood just shoots anyone whose last name ends in a vowel? Well, don’t you worry. I’m here to help. What follows is a basic primer on the Bill of Rights, and how they apply to you.
Note: A few years of law school have bred a fear of actually saying anything into me, so here’s a brief disclaimer. This is a humor article giving a very simplistic view the first ten amendments. None of it should be taken as actual legal advice. Christ, I wouldn’t even take my legal advice. I mean, I did get an A- in Constitutional Law, so, you know, go me… but if you have a real legal issue, contact a real lawyer. Preferably not one who just referenced the Constitution sleeping with European prostitutes.
Amendment I
Congress shall make no law 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.
This is the big one, people. The First Amendment guarantees our freedoms of speech, religion, assembly, and the press. It’s too easy to take these for granted now. This means we can’t be imprisoned for disagreeing with the government, or for saying things that are merely unpopular. Without it, all the loudmouth talking heads on the 24-hour news networks would have been locked up with the key thrown away years ago, and… and… well look, that part wouldn’t be so bad. But it means that you can voice YOUR opinion without fear of retribution. And as much as people say Bush was a Nazi, or Obama is a totalitarian threat, keep in mind that you can shout your opinion up and down the street without any serious repercussions besides people thinking you’re a jack-ss. Ask someone in Iran or North Korea how that would work out for them.
One important note on free speech: the freedom of speech does not mean you can say whatever you want in any situation without facing consequences. Example: f-ck, assh-le, c-cknose. Had I not censored those words, I’d have been in deep sh-t with the Uproxx bosses, and might have lost my sweet sweet stream of blogging income. Rather, the freedom of speech only means that the government can’t punish you for speech (except in extreme circumstances, like yelling “Fire!” in a crowded theater, or speaking ill of The Sandlot once I’m in charge).
So when Dr. Laura Schlessinger threw the N-word around on her radio show like butter in a Paula Deen recipe, and the resulting uproar led to her leaving the show, that wasn’t her First Amendment rights being infringed. Technically, that was her precious free market distancing itself from unpopular ideas. Likewise, people protesting the construction of a Muslim gathering center near Ground Zero are perfectly within their rights. Just as the people are to build it. No one’s freedom of religion or assembly is being violated unless the government steps in and take action.
I guess what I’m really saying is this: you have the RIGHT to say what you want, but maybe you SHOULD shut up a little more.
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Preferably not one who just referenced the Constitution sleeping with European prostitutes.
I’m pretty sure that was Benjamin Franklin’s original intent.
Did you forget to index The University of Pheonix School of Law?
Not to be a dick, but the Constitution does not grant us dick – it specifically outlines the powers granted to government, by us.
The Bill of Rights enumerates certain rights, but does not grant them to the people. That is why they are all stated as “…the people’s right shall not be infringed…”, etc.
@ Dave –
I know what it says. I chose to explain things in a manner that was more easily understandable. And what could possibly be construed as dickish about nitpicking over word choice in an article intended to humorously explain people’s Constitutional rights in the most basic manner possible?
In Dave’s defense, those two clarifications state a couple of centrally important themes to the philosophical revolution that ultimately caused the United States’ existence. And hey, the world needs dicks, don’t be shy about it.
Since I became an attorney I’ve had the pleasure of getting calls from my idiot friends, post-arrest. My instructions: “don’t say a goddamn word, I’ll be there as soon as I can”. That never happens. The cops are very adept at out-smarting drunk dudes and getting them to sing like a canary. If you get arrested just repeat “I won’t answer questions without my attorney present”. It’s that simple.
Hillbillies–please note that the 2nd amendment is the only one that starts with a disclaimer indicating the limitations of its applicability. So suck on that Shooty McGee!
The power and terrifying nature of modern weaponry pales in comparison to the exponential growth in threat to the security of that there free state.
Or so the needlepoint above the pantry of our survivalist compound has always told me.
I heard if a lawyer takes Viagra, it just makes him taller. And I like that.
Larry seems to be unfamiliar with actual legal rulings about what he thinks is a disclaimer.
DG, nice summary. Re the 2nd ammdt, Jefferson’s recorded argument was that the citizenry should not be denied whatever tools or weapons needed to overthrow the government. Given what that means today (SAMs, tanks, missiles, etc), yeah, it’s scary. But then so is an unarmed mob of zombies running after you.
Wait, which amendment did you say protects abortion rights? Oh, none of them? That’s strange, could have sworn the Supreme Court said that was in there somewhere.
“Wait, which amendment did you say protects abortion rights?”
Congratulations, retard. You just broke the whole internet with that comment.
Damnit Guerrero, you elitist jerk
Danger Guerrero, could you answer a question for me regarding a potential inflammatory topic? Concerning the ‘detainees’ in Gitmo Bay, aren’t there Fifth, Sixth, and Eighth rights being violated? At least when it concerns American citizens being held? And do non-citizens have these rights as well, considering the amendments say “people” and not citizens? I’m just curious; I’ve long held that citizens being detained illegally in Gitmo Bay (and there were early on; don’t know if any are now)but it seemed that the press did little to cover this violation and I found that rather odd.
Interesting and informative. You slid over the freedom of religion issue quickly. I don’t blame you, because that could have taken weeks to write about, but it’s probably the one more people misunderstand. So many mix up freedom of religion with majority rule, and want religion in government affairs …as long as it’s THEIR religion.
@ Learned Handjob
1) That is one of the more legal-nerd hilarious username’s I’ve ever seen.
2) Regarding abortion: CHECK YO PENUMBRAS, SON
@ ThatJeff
Yeah, that’s a sticky one, and you pretty much hit the big points. The other argument is that they’re “enemy combatants” (a loaded legal term) in the War on Terror, and that status means they don’t have to be extended full Constitutional rights.
Then one side of the argument calls the other Nazis, and a fistfight breaks out.
One of the most important things about reading the Bill of Rights is that once you do it, you can see just how idiotic the strict constructionist approach is. The Bill of Rights is intentionally full of vague language, because the Founders wanted it to be adaptable from one generation to the next.
They didn’t tell us what would be an “unreasonable” search, or a “probable” cause, or an “infamous” crime, or “due” process, or an “excessive” bail, and on and on and on, because they wanted the document to grow with the times.
Which is why anyone who wonders why a modern-day medical procedure like abortion isn’t specifically mentioned in there is a complete moron.
ThatJeff – only one American citizen has been held at Guantanamo, and that was because he was raised in Saudi Arabia (but born in the U.S.) and no one knew he was a citizen. Once that was realized, he was sent back to Saudi Arabia on the stipulation that he renounce his American citizenship.
“People” is used instead of “citizens” because protections are extended to resident aliens and other people with a significant connection to the U.S., but who may not have citizenship. One must have a significant connection to the U.S. to get constitutional protections though, so Afghans fighting against the U.S. who have been detained cannot claim Sixth Amendment rights.
/another law student
//for informational purposes only; not to be construed as legal advice
///dick joke
Ahh, the right to privacy. Not explicit, but surely a philosophical underpinning of the 1st, 2nd, 3rd, 4th, 5th amendment, yes?
Or maybe the 14th? Take it away the one they call “BRANDEIS” “[The phrase] right to privacy … deprive any person of life, liberty or property without due process of law.”
Or perhaps years of precedent, starting with Griswold? Or the legal theory of penumbra rights? I think privacy extends to abortion rights in Roe, right?
Danger,
If the 2nd Amendment gets a caveat that the founders could not envision advances in weapons doesn’t the same caveat apply to the 1st? It is unreasonable to think they could foresee the internet, tv, cell phones etc.
/Lawyers arguing over Con Law = Internet Gold
@Otto: I see your argument re the founders including adaptable language for things like the amount of bail that is considered unreasonable. I think strict constructionalism (and its more sophisticated cousin originalism) stand on stronger ground when it comes to implicit rights (eg Abortion, right to Sodomy etc.). The founders also included a means to add new rights (which as Dave pointed out is really more carving areas out from Gov’t control) via Amendment, which is hard to do by design. If people want these rights recognized they can amend the Constitution to make it explicit.
Don’t get me wrong, I think most of those implicit rights are great and should be protected, but the Constitution is not just a wish-list of all good things.
Kenny’s Kidney: I believe one of the network news shows (Dateline?) said that there were seven naturalized citizens in Gitmo at one point, but I could be wrong. As for shipping him to Saudi Arabia and forcing him to renounce citizenship, our federal government can do that? It can actually require an American citizen to give up citizenship?
Danger Guerrero: I can understand folks in the government pulling the “Enemy Combatant” line, but again, I thought “Enemy Combatant” had a specific definition in the Geneva Convention which would bring up a whole host of other problems. What jurisdiction does the federal government have when dealing with people who are not citizens?
I guess my overall problem with the whole Gitmo Bay deal is that on the whole, it seems to be running roughshod over some basic principals our founders outlined, and I find that very disturbing. Add to this that Kenny up above is stating the possibility of the government taking away a basic right (ie: denying citizenship to an American citizen) and it’s starting to sound a little scarier than what I thought the past administration has done. I’m not siding with the suspects here–I will admit I think that they’re most likely guilty–but I don’t like the way it was handled. To take the Nazi line of thought here, if you capture Hitler, fine and good: you bring him to an international court and prosecute him to the fullest–you don’t stick him in a hole somewhere and pretend he doesn’t exist. That line of thinking undermines our core beliefs as a nation.
Sorry, but originalism is bullshit.
It’s nothing more than a smokescreen that conservatives wave around whenever it suits their purposes and immediately discard when it doesn’t get them the results they want.
For just one example of many, consider the Citizens United opinion of the so-called originalists: [www.acslaw.org]
First of all, the Founding Fathers didn’t want the Constitution to be a ouija board, something we use to divine what our godlike predecessors would have done way back in 1789.
Second, originalists assume that there was some sort of singular interpretation that held sway over all the Founders. There wasn’t. There’s a reason the Federalists and Anti-Federalists wrote all those pamphlets, and there’s a reason Aaron Burr and Alexander Hamilton wound up dueling.
The Founders disagreed wildly over the scope of the federal government’s power, the function of tariffs and taxes, the role of religion in public life, the proper foreign policy, the status of racial minorities, etc. etc. Anyone who goes looking back to the Founders for a single answer will always find someone who agrees with the answer he wants to get — as long as he ignores all the other Founders who disagreed vehemently with him.
The one thing the Founders agreed upon was that future generations should think for themselves. Originalists want to abandon that, claiming we need to look to get justification for the opinion they’ve already formed.
It looks like Uproxx ate my last post but the gist is while I don’t know if originalism is the right answer the right answer needs to have some sort of objectiveness and predictability. Also the fact that their is an amendment procedure built into the Constitution argues against the idea that they intended it to be a purely malleable document, because if that was the intent why set up a formal means to change it (and make it hard to do)? As for intent, yes it is hard to determine, but the same is true of what a particular Congress meant when it passed a law but courts use legislative intent as a tool all the time.
Is originalism the one true way? Who knows, but it has certain advantages over other popular schools, including the fact that at least in theory (query how often in practice) the outcome is based on more than the politics of five justices.
/Balls
Originalists are absolutely ridiculous. The Founding Fathers were pretty aware of the fact that they were fallible. I also think it’s ironic that the most hardcore “originalists” are also fervent conservative Christians. Never mind the fact that they are putting up our founders as false Gods whose every word should be heeded as gospel. The genius of the Constitution is the fact that it is a “living document” and lays out the framework while still allowing flexibility and room for change. Unfortunately, some people are just dumb.
ThatJeff – It was really more akin to a plea deal than the government taking his citizenship away. His choices were basically retain his U.S. citizenship and go to the American court system and face almost certain conviction and life in prison or the death penalty, or he could “choose” to renounce his citizenship and go back to Saudi Arabia. The government couldn’t just revoke his citizenship. This deal happened after the Supreme Court decided that the government couldn’t hold him indefinitely without charge after he had been transferred to the U.S. That case was Hamdi v. Rumsfeld if you’re interested. It was a big case in this area, and is a pretty interesting read.
I don’t know about any other citizens held there (though that does not mean it hasn’t happened; I just haven’t heard of it). Please don’t construe any of this as a defense of Guantanamo though, because it certainly isn’t. I completely agree that they should be in court.
@Otto and Mainer, the Constitution is a contract between the states that creates a federal government. As with all contracts it must be interpreted using the parlance in use at the time it was written and agreed upon. Can we agree that the spirit of a contract and contractual obligations and requirements do not change with common word usage? If so then we must agree that the constitution means exactly what it says in the common tongue of the late 18th century. If not I’m going to go through my mortgage contract using the Urban Dictionary to see if I can’t get out of paying for my house and sue the bank.
In one respect you’re right. The framers/ratifiers did know they were not perfect. That is the reason they gave us a method to change the document – the amendment process. We could change the US into the USSR overnight if all it took was redefining a few words.
You also have to take into account the words of the people who were there and did the work. Most of them were very clear about what they meant and the deliberations that led to what they gave us.
Question for Mainer: What does living document mean exactly? Who determines how the living document evolve? Why should the Supreme Court, an undemocratic, counter-majoritarian institution (be design) determine when the Constitution has changed rather than Congress or the people via plebiscite? And if the Constitution is living why have amending it be so hard (again, by design)?
Not trying to be confrontational, just want to see the rational.
And I totally agree that the founders were fallible (they allowed slavery for God’s sake) but they realized it too, and provided a way to correct it via amendment. Its not that Originalism or Textualism or the other non-living document schools give you the morally right outcome since the Constitution is a morally neutral document, but it provides some predictability that can be worked around via amendment, rather than guessing what five justices are going to think.
Regarding my paragraph about the Second Amendment:
I said, “On one hand,” then “On the other hand,” then “On the other hand” AGAIN. This is because I have three hands. I apologize if this confused all of you who only have two.
Kenny: Thanks for the info. I’ll have to look up that case. I guess my problem is that to me, the whole deal with Gitmo seemed extremely unconstitutional overall, but it seemed like none of the network news programs cared or gave it much thought. Of course, I also thought it was odd that we were detaining them in a country that we have no diplomatic ties to until a friend explained to me that Cuba and the US signed a deal decades ago for the US to have a spot of land on their island. Still weird, but there you go.
Hello.This post was really motivating, particularly since I was browsing for thoughts on this topic last Saturday.the-perfect-dog.info
Regarding the 2nd Amendment, you stated “it’s hard to imagine the Founders could have conceived of the types of weapons available today”. It is just as hard to imagine the Founders could have conceived of the types of communication available today. Therefore, should we place new limits the First Amendment?
@ Jack
As I mentioned, this was intended a humorous, VERY simplistic look at things. I tried to get into and out of each Amendment in under three paragraphs. You could write a thirty page article on the Second Amendment, easy. So look, was it the strongest argument for gun control ever? No. There are much better ones out there that require a more in-depth analysis (including the one mentioned in the comments about it being the only one that leads with a qualifier — and we all know how HILARIOUS a discussion of sentence structure can be).
But, in my defense, it did set up that video of the leather-clad woman shooting a flamethrower. So I guess what I’m really saying is you’re welcome.
@ Danger
But I love discussing sentence structure! Surely we could somehow make that fun
What a difference a comma can make!
Seriously though, it’s nice to see a post like this (discussion of the Bill of Rights). Getting the Bill of Rights in front of people can only be a good thing. Plus it’s fun to watch folks get nit-picky about it.
Flamethower girl was nice as well.
Because I can’t let it die. Has anyone noticed that the “the founders couldn’t forsee flamethrowers” argument is one of the few times liberal legal scholars embrace originalism?
I for one think this article prompted some great discussion, better then many actual legal blogs.
The US gov CAN remove your citizenship but under extremely rare circumstances. Typically the enemy combatant or terrorist situations. And according to international UN conventions no country can strip you of citizenship if it will leave you stateless (no citiznship). So they booked him to Saudi made sure he was a citizen there. Torched the blue passport and probably put that dudes name on a few Black lists.
(On the second) Perhaps it is a naive view point but its not possible that both the structure and words used were written in such a way to cause this sort of a debate? Not to say that the founders simply gave up on the argument but rather created tools so that answers not easily reached or give could one day be applied and that until then the reasonable gray would work as a guide? Not to say this is the case but just a thought.
Flame thrower always nice. I would like to know what was going on in the rest of that video?
Rather, the freedom of speech only means that the government can’t punish you for speech (except in extreme circumstances, like yelling “Fire!” in a crowded theater, or speaking ill of The Sandlot once I’m in charge).
Okay, but try saying “FU” to a cop and see if you suffer.