Happy Monday everyone! As always, a big thank you to Stephen Hall for today’s post.
A great deal of attention is paid to the first two Amendments to the Constitution, far too much in my far from humble opinion.
When in law school, I had considered signing up to that Constitutional Law II, having completed the required Constitutional Law, and found it somewhat interesting. While several things emerged from this line of inquiry, the first thing which caught my attention was that Con Law II was entirely devoted to case law involving the First Amendment.
That seemed to me an incredibly narrow focus for an entire semester long law course on a mere 45 words, nearly half of which (22 of the 45) are merely articles, conjunctions, and prepositions. But then, in comparison, as I have discussed previously, most of the field of “civil rights” law is built around interpreting a meager four words, in two two word phrases. (One of which will become relevant shortly.)
Sometimes it is most enlightening to step back and look at that with which we are already familiar and well acquainted from a broader perspective. I would like, at this time to encourage you to take such a view of the oft cited and familiar Bill of Rights.
Go on, take a moment . . . I’ll wait.
Did you see it? The vast importance the Founding Fathers placed upon it? Look again.
Ten amendments, but of course the last two simply and humbly state, paraphrased, that in the 9th, “this is not all rights, just a partial list”, and in the 10th, “just in case you didn’t hear us the first time, the feds do not have one iota more power than we specifically give them in this document.”
So, as you can see, five-eighths (5/8), or 62.5% of the remaining amendments, or half of the total amendments of the Bill or rights, amendments four through eight, concern matters which can collectively be thought of as legal procedural rights.
They include, but as the 9th immediately points out are not limited to: search & seizure; warrants; Grand Jury indictments; double jeopardy; due process of law; taking of property; speedy and public trial; impartial jury of a local nature; told the accusations; confrontation of accusers; compulsion of favorable witnesses; right of counsel; jury trials, even in most civil matters; jury factual supremacy; and various prohibitions of excesses by the government.
Much lauded esteem has been heaped upon the First Amendment by the press, because the press is specifically mentioned in the amendment. ‘Tis a good bit of self-serving narcissism if you ask me. Upon this is built much legal case law, and much attention devoted to study.
People feign to know that the Founding Fathers held the First Amendment in preeminence simply because it is the first.
Much contention has also been heaped upon the Second Amendment, simply because being second, some think it of less importance and significance than the first.
However, the Right of Legal Process, in sheer volume, dwarfs and eclipses those meager first two amendments, filling up half of the Bill of Rights, naming more than a dozen legal processes and safeguards which they found to be so very important as to enshrine them in the Constitution itself.
Why?
Quite simply, because they had just lived through a government which had systematically denied them these very fundamental protections. These abuses of power by the state are listed in the Declaration of Independence as causes and reasons for the late War of Independence.
How are they holding up as Constitutionally protected rights? Warrants to search your documents and correspondence?
Was that not what Mr. Snowden was pointing out that the government was rubber stamping secret warrants for wire taps? Does not our government regularly spy on communications of non-citizens? How would you know if they were spying on us? Was not that an issue with Obama spying on Trump as a political opponent of his chosen successor?
How about those jury trials in civil matters? Except that “civil rights” cases are often heard before an ALJ (Administrative Law Judge, except that they are often not judges, being neither elected nor appointed, rather state agency employees) and not a jury, and even subsidized on one side by the state making it more of a quasi-criminal matter rather than a civil matter.
How did that “double jeopardy” prohibition work out for those LA police officers in the Rodney King case when once acquitted of the state crimes, were retried in federal court for the very same acts, based on different but highly duplicative federal statutes?
Together these amendments map out some of the basics which every citizen ought to expect from their government, summed up in the phrase due process, a phrase so important that it makes another appearance in the Fourteenth Amendment.
No nation can be free which does not have a legal system which earns the faith and support of the citizenry, which does not guarantee the individual those rights to present their side of the story in front of their fellow citizens, and have their fellow citizens help keep that government in check, bound by the constraints of legal process which is open, visible, complete, and honest.
That is the process has to be honest, no one expects every individual to be honest. Tiresias himself looked in vain for an honest man. However, the process, not the results, and not the participants, is within our control to demand. It ought to be the one of, if not the, primary concerns of every branch of government at every level.
The Founding Fathers are typically viewed in light of their political contributions to America, but are often shortchanged on their philosophical contributions to the Age of Enlightenment.
One should view these five amendments collectively as the first steps towards attempting to articulate a general concept or precept of an inherent right of just treatment by any state towards the individual in their courts of law, a Right of Legal Process.
I have previously stated that the inherent nature of the word “right” is a prohibition of the state from interference with the individual; more specifically that a person can have a right “of” something, but never a right “to” something.
This general construction runs up against the “right to a speedy and public trial” in the Sixth Amendment, which is part of this list of five amendments collectively trying to articulate the general principle which really has not to this day developed a singular name and well articulated concept.
We can create new words for trivial fluff upon the electronic communications of the day, but find it difficult to even talk about the important philosophical foundations of our very society, much less reduce such concepts to a single word or phrase which would make them more readily understood and accessible.
While I propose the phrase, “right of legal process”, to collectively express the penumbra of these amendments, I also recognize just how inarticulate and awkward such a phrase can be. The employment of the word “legal” seems to imply that it is a creation of the state, which no right can reasonably be, just as the word “process” seems to imply that it is mere procedure and of lesser importance than it is.
Perhaps, the phrase “Right of Just Dignity” would work, or perhaps you can think of something far better. Regardless of the phrase, thought the phrase be important, a man has the right to not be shuffled aside or discarded for the mere convenience of those in power or the ease of mind of majority.
