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NIA #58
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3 Founded By: 3 : Network Information Access : 3 Founded By: 3
3 Guardian Of Time CD6 10OCT90 :D4 Guardian Of Time 3
3 Judge Dredd 3 : Eric Postpischil : 3 Judge Dredd 3
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I have prepared a new version of the Bill of Rights Status Report that
I posted previously. This version, appended to this message, includes
a good deal of new information and is annotated with over 40 sources.
I prepared this new version for possible publication, since several
people recommended it. Therefore, I would appreciate feedback on what
you think of the article. Please note that I am not planning to do
more research, aside from a couple of leads I am still looking into.
So I am seeking comments on clarity and presentation, not suggestions
for new material. Please send me whatever criticisms you think might
be helpful.
The version that follows is plain text, without bold or italics. The
Postscript version is much nicer. Send mail if you would like me to
send or post the Postscript. (I might also send physical copies to a
limited number of people; send mail if you would like one.)
-- edp (Eric Postpischil)
Bill of Rights Status Report
Eric Postpischil
6 Hamlett Drive, Apt. 17, Nashua, NH 03062
[email protected]
24 September 1990
Permission is granted to copy this article and to convert it as
needed for copying and/or transmission in other forms of media,
including radio, television, computer mail, and print.
I would like to thank the numerous people who enter reports on
Usenet and the dozens who provided me with information. Without
their efforts, I would not have had the volume of information
that made this article possible.
ii
Bill of Rights Status Report
Introduction
How many rights do you have? You should check, because it might
not be as many today as it was a few years ago, or even a few
months ago. Some people I talk to are not concerned that police
will execute a search warrant without knocking or that they set
up roadblocks and stop and interrogate innocent citizens. They
do not regard these as great infringements on their rights. But
when you put current events together, there is information that
may be surprising to people who have not yet been concerned: The
amount of the Bill of Rights that is under attack is alarming.
15 December 1991 will be the two-hundredth anniversary of the
ratification of the Bill of Rights. How has it stood up over two
hundreds years? Let's take a look at the Bill of Rights and see
which aspects are being pushed on or threatened. The point here
is not the degree of each attack or its rightness or wrongness,
but the sheer number of rights that are under attack.
Amendment I
Congress shall make no law respecting an establishment of re-
ligion, or prohibiting the free exercise thereof; or abridg-
ing 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.
Establishing religion: While campaigning for his first term,
George Bush said "I don't know that atheists should be consid-
ered as citizens, nor should they be considered patriots."[1]
Bush has not retracted, commented on, or clarified this state-
ment, in spite of requests to do so. According to Bush, this
is one nation under God. And apparently if you are not within
Bush's religious beliefs, you are not a citizen. Federal, state,
and local governments also promote a particular religion (or,
occasionally, religions) by spending public money on religious
displays. Governments also establish religion via blue laws,
___________________
[1] "Bush on Atheism," Free Inquiry 8, no. 4 (Fall 1988): 16.
1
Bill of Rights Status Report
which set Sunday as a special day on which business is prohib-
ited or limited.
Free exercise of religion: Robert Newmeyer and Glenn Braunstein
were jailed in 1988 for refusing to stand in respect for a
judge.[2] Braunstein says the tradition of rising in court
started decades ago when judges entered carrying Bibles. Since
judges no longer carry Bibles, Braunstein says there is no
reason to stand - and his Bible tells him to honor no other
God. For this religious practice, Newmeyer and Braunstein were
jailed and are now suing.
Free speech: We find that technology has given the government
an excuse to interfere with free speech. Claiming that radio
frequencies are a limited resource, the government tells broad-
casters what to say (such as news and public and local service
programming) and what not to say. This includes prohibitions on
obscenity, as defined by the Federal Communications Commission
(FCC). The FCC is investigating Boston PBS station WGBH-TV for
broadcasting photographs from the Mapplethorpe exhibit. Also,
a broadcaster that supported legalization of drugs would be in
danger of violating FCC rules.
Free speech: There are also laws to limit political statements
and contributions to political activities. In 1985, the Michi-
gan Chamber of Commerce wanted to take out an advertisement
supporting a candidate in the state house of representatives.
But a 1976 Michigan law prohibits a corporation from using its
general treasury funds to make independent expenditures in a
political campaign. In March 1990, the Supreme Court upheld that
law. According to dissenting Justice Kennedy, it is now a felony
in Michigan for the Sierra Club, the American Civil Liberties
Union, or the Chamber of Commerce to advise the public how a
candidate voted on issues of urgent concern to their members.[3]
___________________
[2] Steve Green, "Courtroom Respect Case Goes to Trial," United
Press International (UPI) (circa 9 August 1990).
[3] "If Corporations Are Silenced in Political Debate, Who's
Next?", Wall Street Journal, 5 April 1990.
2
Bill of Rights Status Report
Free press: In an apparently unprecedented order, New York
Supreme Court Justice Michael J. Dontzin issued an order for
prior restraint against the publication of a book by a former
member of Mossad, an Israeli intelligence service. Further,
Dontzin issued this order with only scant information about the
alleged menace represented by the book. The justice made the
ruling based upon lawyers' descriptions of material in a sealed
affidavit in Ontario, Canada - material the justice had not
seen.[4]
Free press: As in speech, technology has provided another excuse
for government intrusion in the press. The government is not
recognizing that a person who distributes a magazine electroni-
cally and does not print copies should have the same protections
courts have extended to printed news. The equipment Craig Nei-
dorf used to publish Phrack, a worldwide electronic magazine
about phones and hacking, was confiscated after Neidorf pub-
lished a three-page document copied from a Bell South computer
and entitled "A Bell South Standard Practice (BSP) 660-225-104SV
Control Office Administration of Enhanced 911 Services for Spe-
cial Services and Major Account Centers, March, 1988."[5] All of
the information in this document was publicly available in other
documents and could be ordered by calling a toll-free 800 num-
ber.[6] The government has not alleged that Neidorf was involved
with or participated in the copying of the document, only that
he published it.[7] The person who copied this document from
telephone company computers also placed a copy on a bulletin
___________________
[4] Roger Cohen, "Judge Halts Publication of Book by Ex-Israeli
Intelligence Agent," New York Times, 13 September 1990, sec.
A, 1, and sec. C, 24.
[5] John Perry Barlow, "Crime and Puzzlement," Whole Earth Review
68 (Fall 1990): 44-57.
[6] Jef Poskanzer of Electronic Frontier Foundation (EFF), computer
mail to author, 17 September 1990. EFF provided litigation sup-
port to Neidorf.
[7] "Legal Case Summary," Electronic Frontier Foundation, 10 July 1990
3
Bill of Rights Status Report
board run by Rich Andrews. Andrews forwarded a copy to AT&T of-
ficials and cooperated with authorities fully. In return, the
Secret Service (SS) confiscated Andrews' computer along with all
the mail and data that were on it. Andrews was not charged with
any crime.[8]
Free press: In another incident that would be comical if it were
not true, on 1 March 1990 the SS ransacked the offices of Steve
Jackson Games (SJG); irreparably damaged property; and confis-
cated three computers, two laser printers, several hard disks,
and many boxes of paper and floppy disks. The target of the SS
operation was to seize all copies of a game of fiction called
GURPS Cyberpunk. The Cyberpunk game contains fictitious break-
ins in a futuristic world, with no technical information of
actual use with real computers, nor is it played on computers.
The SS never filed any charges against SJG but still refused to
return confiscated property.[9]
Peaceable assembly: The right to assemble peaceably is no longer
free - you have to get a permit. Even that is not enough; some
officials have to be sued before they realize their reasons for
denying a permit are not Constitutional.
Peaceable assembly: In Alexandria, Virginia, there is a law
that prohibits people from loitering for more than seven minutes
and exchanging small objects. Punishment is two years in jail.
Consider the scene in jail: "What'd you do?" "I was waiting at a
bus stop and gave a guy a cigarette." This is not an impossible
occurrence: In Pittsburgh, Eugene Tyler, 15, has been ordered
away from bus stops by police officers.[10] Sherman Jones, also
15, was accosted with a police officer's hands around his neck
after putting the last bit of pizza crust into his mouth. The
police suspected him of hiding drugs.[11]
___________________
[8] Barlow.
[9] Ibid.
[10] Dan Donovan and Ellen Perlmutter, "Teens Say Drug Tactics
Hassle the Innocent," Pittsburgh Press, 10 July 1990.
[11] Ibid.
4
Bill of Rights Status Report
Petition for redress of grievances: Rounding out the attacks
on the first amendment, there is a sword hanging over the right
to petition for redress of grievances. House Resolution 4079,
the National Drug and Crime Emergency Act, tries to "modify"
the right to habeas corpus. It sets time limits on the right of
people in custody to petition for redress and also limits the
courts in which such an appeal may be heard.[12] And on 5 March
1990, the Supreme Court limited the ability of state prison
inmates to obtain Federal court review of their convictions and
sentences. By ruling that prisoners cannot make appeals based
on favorable court rulings issued in other cases since their
own convictions, the Supreme Court permitted states to execute
people even though their death sentences would not be permitted
today in light of subsequent rulings.[13] If a state imposed
a death sentence in "good faith," but it turns out the state
was mistaken, the Supreme Court has given the okay to refusing
to hear the prisoner's petition for redress of grievances. The
defendant will be killed even though the state made a mistake.
Amendment II
A well regulated Militia, being necessary to the security of
a free State, the right of the people to keep and bear Arms,
shall not be infringed.
Right to bear arms: This amendment is so commonly challenged
that the movement has its own name: gun control. Legislation
banning various types of weapons is supported with the claim
that the weapons are not for "legitimate" sporting purposes.
This is a perversion of the right to bear arms for two reasons.
First, the basis of freedom is not that permission to do le-
gitimate things is granted to the people, but rather that the
___________________
[12] House of Representatives, House Resolution 4079, 101st
Congress, 2d session, 1990, pp. 37-43
[13] Linda Greenhouse, "Justices Limit Path to US Courts for State Pris-
oners on Death Row," New York Times, 6 March 1990, sec. A, 1 and
20.
5
Bill of Rights Status Report
government is empowered to do a limited number of legitimate
things - everything else people are free to do; they do not
need to justify their choices. Second, the purpose of the sec-
ond amendment is not to provide arms for sporting purposes. The
right to bear arms is the last line of defense of our rights.
In case there is an emergency, in case the people running the
government get out of control, guns in the hands of the people -
all the people - are the last chance to defend our freedom.
Some people contend the second amendment forbids Congress to
prohibit the maintenance of a state militia. If so, this amend-
ment is threatened by an incident described below, at the tenth
amendment, in which the Federal government took control of the
state militias.
Firearms regulations also empower local officials, such as po-
lice chiefs, to grant or deny permits. This gives local offi-
cials power to grant permits only to friends of people in the
right places or to deny permits on sexist or racist bases -
such as denying women the right to carry a weapon needed for
self-defense.
Amendment III
No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in
a manner to be prescribed by law.
Quartering soldiers: This amendment is fairly clean so far,
but it is not entirely safe. Recently, 200 troops in camouflage
dress with M-16s and helicopters swept through Kings Range Na-
tional Conservation Area in Humboldt County, California, in a
militarized attack involving the California National Guard, the
Army, and seven other federal agencies.[14] In the process of
searching for marijuana plants, soldiers assaulted people on
___________________
[14] Eric Brazil, "Troops Raid Humboldt Pot Farms," San Francisco
Examiner, 31 July 1990, sec. A, 1 and 16.
6
Bill of Rights Status Report
private land with M-16s and barred them from their own prop-
erty.[15] This might not be a direct hit on the third amendment,
but the disregard for private property is uncomfortably close.
Amendment IV
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirma-
tion, and particularly describing the place to be searched,
and the persons or things to be seized.
Right to be secure in persons, houses, papers, and effects
against unreasonable searches and seizures: The RICO law is
making a mockery of the right to be secure from seizure. Entire
stores of books or videotapes have been confiscated based upon
the presence of some sexually explicit items. Bars, restaurants,
or houses are taken from the owners because employees or tenants
sold drugs. In Volusia County, Florida, Sheriff Robert Vogel
and his officers stop automobiles for contrived violations. If
large amounts of cash are found, the police confiscate it on the
presumption that it is drug money - even if there are no drugs
or other evidence of a crime and no charges are filed against
the car's occupants.[16,17] The victims can get their money
back only if they prove the money was obtained legally. One
couple got their money back by proving it was an insurance
settlement. Two other men who tried to get their two thousand
dollars back were denied by the Florida courts.
___________________
[15] "Bush League Weed Busters Invade California," California NORML (circa
5 August 1990). California NORML is an independent affiliate of
National Organization for Reform of Marijuana Laws.
[16] Jacob Sullum, "Little Big Brothers," Trends, Reason 21, no.
10 (March 1990): 14.
[17] 20/20, American Broadcasting Corporation, January 1990.
7
Bill of Rights Status Report
Right to be secure in persons, houses, papers, and effects
against unreasonable searches and seizures: A new law goes into
effect in Oklahoma on 1 January 1991. All property, real and
personal, is taxable, and citizens are required to list all
their personal property for tax assessors, including household
furniture, gold and silver plate, musical instruments, watches,
jewelry, and personal, private, or professional libraries. If a
citizen refuses to list their property or is suspected of not
listing something, the law directs the assessor to visit and
enter the premises, getting a search warrant if necessary.[18]
Being required to tell the state everything you own is not being
secure in one's home and effects.
No warrants shall issue, but upon probable cause, supported
by oath or affirmation: As a supporting oath or affirmation,
reports of anonymous informants are accepted. This practice has
been condoned by the Supreme Court.
Particularly describing the place to be searched and persons
or things to be seized: Today's warrants do not particularly
describe the things to be seized - they list things that might
be present. For example, if police are making a drug raid, they
will list weapons as things to be searched for and seized.
This is done not because the police know of any weapons and
can particularly describe them, but because they allege people
with drugs often have weapons.
The two items immediately above both apply to the warrant the
Hudson, New Hampshire, police used when they broke down Bruce
Lavoie's door at 5 a.m. with guns drawn and shot and killed him.
The warrant claimed information from an anonymous informant,
and it said, among other things, that any guns found were to be
seized.[19] Although there was no reason to suspect Bruce Lavoie
___________________
[18] Don Bell, "Supreme Court Dictatorship in America," The CDL
Report 129, June 1990, quoting the text of the bill as printed
in The Christian World Report, 16 May 1989.
[19] Hudson Police Shooting, Investigation report case I-89-220,
Concord: New Hampshire State Police, 13 August 1989, 243.
8
Bill of Rights Status Report
had guns, the mention of guns in the warrant was used as reason
to enter with guns drawn. Bruce Lavoie had no guns. Bruce Lavoie
was not secure from unreasonable search and seizure - nor is
anybody else.
Other infringements on the fourth amendment include roadblocks
and the Boston Police detention and deliberate harassment of
known gang members.[20] Gang membership is known by such things
as skin color and clothing color. And in Pittsburgh again, Eu-
gene Tyler was once searched because he was wearing sweat pants
and a plaid shirt - police told him they heard many drug dealers
at that time were wearing sweat pants and plaid shirts.[21]
Amendment V
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of
a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time
of War or public danger; nor shall any person be subject
to the same offence to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty,
or property, without due process of law; nor shall private
property be taken for public use without just compensation.
Indictment of a grand jury: Kevin Bjornson has been proprietor
of Hydro-Tech for nearly a decade and is a leading author-
ity on hydroponic technology and cultivation. On 26 October
1989, both locations of Hydro-Tech were raided by the Drug
Enforcement Administration. National Drug Control Policy Di-
rector William Bennett has declared that some indoor lighting
and hydroponic equipment is purchased by marijuana growers,
___________________
[20] Jerry Thomas, "Police Sweep of Gangs Deemed a Success," Boston
Globe, 21 May 1989, 40.
[21] Donovan and Perlmutter.
9
Bill of Rights Status Report
so retailers and wholesalers of such equipment are drug prof-
iteers and co-conspirators. Bjornson was not charged with any
crime, nor subpoenaed, issued a warrant, or arrested. No illegal
substances were found on his premises. Federal officials were
unable to convince grand juries to indict Bjornson. By February,
they had called scores of witnesses and recalled many two or
three times, but none of the grand juries they convened decided
there was reason to criminally prosecute Bjornson. In spite of
that, as of March 1990, his bank accounts were still frozen and
none of the inventories or records had been returned.[22] Grand
juries refused to indict Bjornson, but the government is still
penalizing him.
Twice put in jeopardy of life or limb: Raymond Buckey was put
on trial a second time for child molesting in the McMartin
Preschool case, after a first trial lasting three years ac-
quitted him of 40 charges but deadlocked on 13 other counts.[23]
Anthony Barnaby was tried for murder three times before New
Hampshire let him go,[24] even though there was virtually no
physical evidence linking him to the scene of the crime.[25] A
legal-minded person might point out that these were mistrials
rather than not guilty verdicts. But they were not mistrials
caused by accident (such as a juror falling ill) or incorrect
procedure (such as misconduct by a prosecutor). The facts here
are that the prosecutors did not convince the juries that the
defendants were guilty, yet the defendants were tried over and
over again.
___________________
[22] Amy Swanson, "Libertarian Activist in Northwest Victim of
Bennett's Drug War," Libertarian Party News 5, no. 3 (March
1990).
[23] "2d Trial Opens in Preschool Molestation Case," New York
Times, 8 May 1990, sec. A, 13.
[24] Pendleton Beach, "Barnaby 'Ecstatic' at Release," Nashua Telegraph,
11 July 1990, 1.
[25] Carolyn Magnuson, "Caplin Shadows Barnaby Trial," Nashua Telegraph,
8 October 1989, sec. A, 1 and 4.
10
Bill of Rights Status Report
Compelled to be a witness against himself: Oliver North was
forced to testify against himself. Congress granted him immunity
from having anything he said to them being used as evidence
against him, and then they required him to talk. After he did
so, what he said was used to develop other evidence which was
used against him.[26]
Compelled to be a witness against himself: In the New York
Central Park assault case, three people were found guilty of
assault. But there was no physical evidence linking them to
the crime; semen did not match any of the defendants. The only
evidence the state had was confessions. To obtain these con-
fessions, the police questioned a 15-year old without a parent
present - which is illegal under New York state law. Police also
refused to let the subject's Big Brother, an attorney for the
Federal government, see him during questioning. Police screamed
"You better tell us what we want to hear and cooperate or you
are going to jail," at 14-year-old Antron McCray, according to
Bobby McCray, his father. Antron McCray "confessed" after his
father told him to, so that police would release him.[27] These
people were coerced into bearing witness against themselves, and
those confessions were used to convict them.
Compelled to be a witness against himself: Your answers to Cen-
sus questions are required by law, with a $100 penalty for each
question not answered. But people have been evicted for giv-
ing honest Census answers. According to the General Accounting
Office, one of the most frequent ways city governments use cen-
sus information is to detect illegal two-family dwellings. This
___________________
[26] "Say Goodnight, Mr. Walsh," Review & Outlook, Wall Street
Journal, 10 September 1990, sec. A, 14.
[27] Peg Byron, "Father Says He Told Son to Lie After Police Lied
to Him," UPI (circa 30 July 1990).
11
Bill of Rights Status Report
has happened in Montgomery County, Maryland; Pullman, Washing-
ton; and Long Island, New York. In this and other ways, Census
answers are used against the answerers.[28]
Compelled to be a witness against himself: Drug tests are being
required from more and more people, even when there is no prob-
able cause, no accident, and no suspicion of drug use. Requir-
ing people to take drug tests compels them to provide evidence
against themselves.
Deprived of life, liberty, or property without due process
of law: This clause is violated on each of the items life,
liberty, and property. Incidents including such violations
are described elsewhere in this article. Here are two more:
On 26 March 1987, in Jeffersontown, Kentucky, Jeffrey Miles
was killed by police officer John Rucker, who was looking for a
suspected drug dealer. Rucker had been sent to the wrong house;
Miles was not wanted by police.[29] He received no due process.
In Detroit, $4,834 was seized from a grocery store after dogs
detected traces of cocaine on three one-dollar bills in a cash
register.[30]
Private property taken for public use without just compensation:
RICO is shredding this aspect of the Bill of Rights. The money
confiscated by Sheriff Vogel goes directly into Vogel's budget.
Federal and local governments seize and auction cars and boats.
Vehicles are seized even if the owners are not present or re-
sponsible for the presence of drugs. One car was seized because
an inspector believed the smell of marijuana was in it.[31]
___________________
[28] James Bouvard, "Honesty May Not Be Your Best Census Policy,"
Wall Street Journal, 8 August 1989.
[29] John Dentinger, "Narc, Narc," Playboy 37, no. 4 (April 1990):
49-50.
[30] Sullum.
[31] Jon Nordheimer, "Tighter Federal Drug Dragnet Yields Cars,
Boats and Protests," New York Times, 22 May 1988, sec. A, 1
and 16.
12
Bill of Rights Status Report
Under RICO, the government is seizing property without due pro-
cess. The victims are required to prove not only that they are
not guilty of a crime, but that they are entitled to their prop-
erty. Otherwise, the government auctions off the property and
keeps the proceeds.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been com-
mitted, which district shall have been previously ascertained
by law, and to be informed of the nature and cause of the ac-
cusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining Witnesses in his favor,
and to have the assistance of counsel for his defence.
The right to a speedy and public trial: Surprisingly, the right
to a public trial is under attack. When Marion Barry was be-
ing tried, the prosecution attempted to bar Louis Farrakhan
and George Stallings from the gallery. This request was based
on an allegation that they would send silent and "impermissi-
ble messages" to the jurors. The judge initially granted this
request.[32] One might argue that the whole point of a public
trial is to send a message to all the participants: The message
is that the public is watching; the trial had better be fair.
By an impartial jury: The government does not even honor the
right to trial by an impartial jury. US District Judge Edward
Rafeedie is investigating improper influence on jurors by US
marshals in the Enrique Camarena case. US marshals apparently
illegally communicated with jurors during deliberations.[33]
___________________
[32] Sandra Sardella, "ACLU Says Farrakhan, Stallings Can Attend
Barry Trial," UPI (circa 5 July 1990).
[33] Carol Baker, "Camarena Judge Vows to Get to 'Bottom' of Mis-
trial Motion," UPI (circa 9 August 1990).
13
Bill of Rights Status Report
Of the state and district wherein the crime shall have been
committed: This is incredible, but Manuel Noriega is being tried
so far away from the place where he is alleged to have committed
crimes that the United States had to invade another country
and overturn a government to get him. Nor is this a unique
occurrence; in a matter separate from the jury tampering, Judge
Rafeedie had to dismiss charges against Mexican gynecologist
Dr. Humberto Alvarez Machain on the grounds that the doctor was
illegally abducted from his Guadalajara office in April 1990 and
turned over to US authorities.[34]
To be informed of the nature and cause of the accusation: Steve
Jackson Games, nearly put out of business by the raid described
previously, has been stonewalled by the SS. "For the past month
or so these guys have been insisting the book wasn't the target
of the raid, but they don't say what the target was, or why
they were critical of the book, or why they won't give it back,"
Steve Jackson says. "They have repeatedly denied we're targets
but don't explain why we've been made victims."[35] Attorneys
for SJG tried to find out the basis for the search warrant that
led to the raid on SJG. But the application for that warrant was
sealed by order of the court and remained sealed at last report,
in July 1990.[36] Not only has the SS taken property and nearly
destroyed a publisher, it will not even explain the nature and
cause of the accusations that led to the raid.
To be confronted with the witnesses against him: The courts
are beginning to play fast and loose with the right to confront
witnesses. Testimony via videotape or one-way television is
being used for former Presidents and children. Such procedures
reduce the information a jury receives. First, the lack of the
physical presence of the witness makes it more difficult for
___________________
[34] "Order to Return Doctor to Mexico Appealed," Chicago Tribune
Wires (18 August 1990).
[35] "CyberPunk Could Prove End of Steve Jackson Games," UPI (10
May 1990).
[36] "Legal Case Summary," Electronic Frontier Foundation, 10 July 1990
14
Bill of Rights Status Report
the jury to judge the witness' veracity and get an accurate
impression of what the witness is saying. Second, the cumbersome
procedures involved reduce the ability for either prosecution or
defense to cross-examine the witness - a step which is essential
to bringing out the truth in difficult situations.
To have compulsory process for obtaining witnesses: When John M.
Poindexter subpoenaed Ronald Reagan as a witness in Poindexter's
trial, Reagan fought the subpoena.[37] The White House and the
Justice Department also opposed providing documents in response
to subpoenas of Oliver North.[38] Without the disputed papers,
Federal District Judge Gerhard A. Gesell had to dismiss the
main criminal charges against North.[39] The government said the
documents were being withheld for reasons of national security.
Some of the documents had already been made public by release to
a private institute in another court case. The prosecution knew
this but still told the court the documents were secret.[40] And
one wonders if the government would go to the same lengths to
obtain witnesses for Manuel Noriega as it did to capture him.
To have the assistance of counsel: The right to assistance of
counsel took a hit recently. Connecticut Judge Joseph Sylvester
is refusing to assign public defenders to people accused of
drug-related crimes, including drunk driving.[41]
___________________
[37] "Reagan Fighting a Subpoena," New York Times, 3 January 1990,
sec. A, 16.
[38] Philip Shenon, "North Subpoenas Face Fight by White House," New
York Times, 1 January 1989, 12.
[39] Michael Wines, "Key North Counts Dismissed by Court," New York Times,
14 January 1989, 1.
[40] David Johnston, "Trial of North Stalled Again; Defense Moves for
Dismissal," New York Times, 1 March 1989, sec. A, 1 and 20.
[41] "Drug Suspects Barred From Public Defenders," New York Times,
12 July 1990.
15
Bill of Rights Status Report
To have the assistance of counsel: RICO is also affecting the
right to have the assistance of counsel. The government confis-
cates the money of an accused person, which leaves them unable
to hire attorneys. The IRS has served summonses nationwide to
defense attorneys, demanding the names of clients who paid cash
for fees exceeding $10,000.[42]
Amendment VII
In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury, shall be otherwise
reexamined in any Court of the United States, than according
to the rules of common law.
Right of trial by jury in suits at common law: There are several
ways this right can be taken from somebody. If a person is
not careful about knowing when to ask for a jury trial, the
government might refuse to grant the right. Under the Federal
Rules of Civil Procedure, failure to demand a trial by jury in
time constitutes a waiver of the right.[43] The rules courts
are using allow judges to direct a jury to return a particular
verdict. Or the judge can decide, after a jury has returned a
verdict, that the jury is wrong, according to the evidence.[44]
In Slocum v. New York Life Insurance Company, the Supreme Court
decided that in a case where the judge allowed the jury to
deliberate, the matter could not be changed by directing the
verdict, because of the seventh amendment, but it was okay to
declare a mistrial and order a new trial in which the judge
___________________
[42] "Lawyers Squeezed Over Cash Clients," Associated Press (circa
8 March 1990).
[43] Library of Congress Legislative Reference Service, The Con-
stitution of the United States of America: Analysis and
Interpretation, edited by Johnny H. Killian and Leland E.
Beck, 99th Congress, 1st session, 1987, Senate document 99-16,
1376.
[44] Ibid, 1382.
16
Bill of Rights Status Report
could direct the jury verdict.[45] This sidesteps the seventh
amendment and removes the power to decide justice and facts from
the people of a jury.
Amendment VIII
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
Excessive bail and fines: Tallahatchie County in Mississippi
charges ten dollars a day to each person who spends time in the
jail, regardless of the length of stay or the outcome of their
trial. This means innocent people are forced to pay. Marvin
Willis was stuck in jail for 90 days trying to raise $2,500 bail
on an assault charge. But after he made that bail, he was kept
imprisoned because he could not pay the $900 rent Tallahatchie
demanded. Nine former inmates are suing the county for this
practice.[46]
Cruel and unusual punishments: House Resolution 4079 sticks its
nose in here too: "... a Federal court shall not hold prison
or jail crowding unconstitutional under the eighth amendment
except to the extent that an individual plaintiff inmate proves
that the crowding causes the infliction of cruel and unusual
punishment of that inmate."[47]
Cruel and unusual punishments: A life sentence for selling a
quarter of a gram of cocaine for $20 - that is what Ricky Isom
was sentenced to in February 1990 in Cobb County, Georgia.
It was Isom's second conviction in two years, and state law
imposes a mandatory sentence. Even the judge pronouncing the
sentence thinks it is cruel; Judge Tom Cauthorn expressed grave
reservations before sentencing Isom and Douglas Rucks (convicted
___________________
[45] Ibid.
[46] "Ex-inmates Take Issue with Jail Cell Fees," Insight (16 April
1990): 55.
[47] House Resolution 4079, 8-9.
17
Bill of Rights Status Report
of selling 3.5 grams of cocaine in a separate but similar case).
Judge Cauthorn called the sentences "Draconian."[48]
Amendment IX
The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the
people.
Other rights retained by the people: Other rights retained by
the people include the right of a citizen to work in or for a
political party and the right to marital privacy.[49] Those are
some of the rights the authors of the Constitution were trying
to protect by telling us in this amendment that the other parts
of the Constitution were not to be interpreted as a complete
list, that people have fundamental rights other than those
explicitly listed, and those rights should not be infringed.
But still the government tries. The Hatch act limits political
activities of people who are employed by the government. Various
states attempt to regulate marital relations. Another right
considered fundamental is the right to travel, including travel
abroad across borders in either direction and travel within
the country.[50] Yet the Federal government limits travel to
Cuba and other countries, and states establish roadblocks to
question and examine citizens. And aspects of our private lives
are increasingly regulated. At home, recreation, and work, laws
and regulations dictate what the government thinks is good for
us.
___________________
[48] Mark Curriden, "Man Gets Life for $20 Sale of Cocaine," At-
lanta Journal, 22 February 1990.
[49] Constitution: Analysis and Interpretation, 1412-1413.
[50] Milton R. Konvitz, Bill of Rights Reader: Leading Constitutional
Cases, 5th ed. (New York: Cornell University Press, 1973): 518.
18
Bill of Rights Status Report
Amendment X
The powers not delegated to the United States by the Consti-
tution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.
Powers reserved to the states or the people: Until 1937, this
amendment was used to keep Congress within limits in such things
as regulation of commerce, enforcement of the fourteenth amend-
ment, and laying and collecting taxes.[51] Today, this protec-
tion has eroded. The Federal government exercises much power
through purse strings, by denying money to states that do not
conform to Federal rules and giving money to states that do. By
controlling money, the Federal government coerces obedience from
the states in setting speed limits, defining crimes, and setting
criminal sentences and penalties. In 1984, Reagan signed a law
ordering millions of dollars withheld from states not raising
their drinking age to 21.[52] South Dakota objected to this and
sued, with support from eight other states.[53] On 23 June 1987,
the Supreme Court ruled against the states.[54] On the same day,
the Supreme Court overturned an 1861 decision prohibiting Fed-
eral courts from ordering states to extradite criminal suspects
to other states.[55] That power of a state to refuse extradition
saved a free black person from being extradited in 1861 from
Ohio to Kentucky to face trial for the crime of helping a slave
to escape, but the power is now gone.
___________________
[51] Constitution: Analysis and Interpretation, 1418.
[52] Steven R. Weisman, "Reagan Signs Law Linking Federal Aid to Drink-
ing Age," New York Times, 18 July 1984, sec. A, 15.
[53] Dick Pawelek, "Resolve Two Federal-State Conflicts," Scholastic
Update 119, no. 10 (26 January 1987): 21-22.
[54] Stuart Taylor, Jr., "Justices Back Use of Aid to Get States to Raise
Drinking Age," New York Times, 24 June 1987, sec. A, 20.
[55] Ibid.
19
Bill of Rights Status Report
Powers reserved to the states or the people: Article I, section
eight of the Constitution reserves to the states the authority
of training the militia. In 1986, Minnesota and eleven other
states refused permission for their National Guard units to be
sent to Honduras for training missions. A Federal judge denied
the states this authority.[56]
Summary
Out of ten amendments, all are under attack. All of the indi-
vidual parts of each amendment are threatened. Many of them are
under multiple attacks of different natures. If this much of the
Bill of Rights is threatened, how can you be sure your rights
are safe? A right has to be there when you need it. Like insur-
ance, you cannot afford to wait until you need it and then set
about procuring it or ensuring it is available. Assurance must
be made in advance.
The bottom line here is that your rights are not safe. You do
not know when one of your rights will be violated. A number
of rights protect accused persons, and you may think it is not
important to protect the rights of criminals. But if a right
is not there for people accused of crimes, it will not be there
when you need it. With the Bill of Rights in the sad condition
described above, nobody can be confident they will be able
to exercise the rights to which they are justly entitled. To
preserve our rights for ourselves in the future, we must defend
them for everybody today.
___________________
[56] "States Lose Suit on the Guard's Latin Missions," New York
Times, 5 August 1987, sec. A, 10.
20
-- edp (Eric Postpischil)
"Always mount a scratch monkey."
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