Month: November 2017

Bill of Rights, Part Four

Bill of Rights, Part Four

The Bill of Rights – Part Four


In this series we explore 1) the Source of the Bill of Rights, 2) Who’s rights are protected 3) Whom are the rights protected from, and 4) What rights are protected.


In the final part of this series we address what rights are protected by the Bill of Rights.


In order to appreciate the scope of the rights protected by the Bill of Rights it helps to understand there are two major categories. The first are “Enumerated” Rights and the Second are “Unenumberated” Rights.


The Bill of Rights is traditionally understood to comprise the First Ten Amendments to the Constitution. Those amendments are essentially a list of rights. They are “Enumerated.” And include the most venerated of our rights, rights that were clearly on the mind of our framers as human rights that needed protection from overreaching by the new powerful government of the United States.


Freedom of Speech, Freedom of Religions, the Right to Bear Arms, the Right to be Free from Illegal Search and Seizure, the Right against Self Incrimination, the Right to Counsel, to a Public Trial and the Right not to be subjected to Cruel and Unusual Punishment all are explicitly set out as a list of enumerated rights.   But that isn’t the end of the story.


As my previous posts explained the Ninth Amendment states “The Enumeration in the Constitution of certain rights shall not be construed to deny or disparage OTHERS retained by the People.” (emphasis added.) This language is the primary source for “Unenumerated” Rights, which though not expressly listed, are protected by the Bill of Rights.


Essentially the Supreme Court has held that there are, in Justice Cardozo’s words, certain “principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and that “neither freedom or justice would exist if there are sacrificed.” And the concern that no list could encompass them all lead to the inclusion of the Ninth Amendment and its reference to “other” rights.


The recognition of “Unenumerated” rights was given modern impetus by Justice Douglas’s writing in Griswold v. Connecticut. In that case he stated “Our cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create a Zone of Privacy.” “Penumbras” to Douglas represented shadows that exist in the other Amendments that taken together give rise to a Right of Privacy.


Over the years since Griswold was decided in 1965, the Right to Privacy has been expanded by the Supreme court into an umbrella of concepts under which exists the right to Abortion, the Right to Interstate Travel, the Right of Adults to engage in any consensual sexual activity they choose, and the right of Gay couples to marry, among others.


The latest case in this rapid expansion of “Unenumerated” rights (Oberegefell concerning Same Sex marriage) seems to be a harbinger of a new generation, an even wider array of previously unrecognized rights. In that opinion, Justice Kennedy observed, “New insights and societal understandings can reveal unjustified inequality within our fundamental institutions that once passed unnoticed and unchallenged.” He went on to say, “The nature of injustice is that WE MAY NOT ALWAYS SEE IT IN OURSELVES. The generation that wrote the Bill of Rights did not presume to know the extent of freedom in all its dimensions, and so ENTRUSTED TO FUTURE GENERATIONS a charter protecting the rights of all persons to enjoy liberty AS WE LEARN IT’S MEANING.” (emphasis added.)


Fair enough, but one is left to wonder if the framers meant to leave such determinations to a “future generation” of unelected, unaccountable committee of nine judges instead of the larger society of a practicing democracy—you know—that portion of the future generations which includes the rest of us.




Bill of Rights – Part Three

Bill of Rights – Part Three

The Bill of Rights – Part Three


In this series we explore 1) the Source of the Bill of Rights, 2) Who’s rights are protected 3) Whom are the rights protected from, and 4) What rights are protected.


In Part Three we discuss from Whom are the rights in the Bill of Rights protected.


In short the Constitution protects us from the Government. Private conduct, generally, is not the subject of the protections afforded by the Bill of Rights. We can be as foolish, cruel, or nasty to our fellow men and women as our nature dictates for the worst reasons or no reason at all without running afoul of the Constitution.


(That is not to say that the law will completely ignore private conduct in all instances. Civil Rights legislation both at the Federal and State levels does reach what would in other instances be private conduct. But that legislation can be changed without the arduous process of amending the Constitution, the Supreme Law of the land.)


For most of the life of the Republic the Bill of Rights only protected from actions of the Federal Government. For example, the First Amendment reads “Congress shall make no law” abridging Freedom of Speech or Religion. It says nothing about whether the States can pass laws abridging Freedom of Speech or Religion. To be sure, States have always had their own constitutions that protected specific rights, but the coverage of U.S. Constitution was limited to the Federal government.


That changed with the passage of the Fourteenth Amendment after the Civil War. The Fourteenth Amendment Due Process clause provides “nor shall any State deprive any person of Life, Liberty, or Property without Due Process of Law.”


We already had a Due Process clause (see the Fifth Amendment), but the Fourteenth Amendment specifically applies to the States. And it is that word “Liberty” that opened up a pathway for the Supreme Court.


In a series of decisions over a number of decades The Court held that most of the Bill of Rights were individual “Liberties” and the Due Process clause applied to protect our these “liberties” of our citizens from not only the Federal Government, but the State Governments and all their political subdivisions, including Counties, Cities, School Districts and other governmental entities.


This is the Selective Incorporation Doctrine. It is Selective because it took a while and was not wholesale. Between 1896 and 1972, one by one, case by case, all but a few of the provisions of the Bill of Rights were incorporated into the Fourteenth Amendment Due Process clause and made applicable to the States.


Included are the First Amendment (Speech and Religion), Second (Arms), Fourth (Arrest, Search and Seizure), Fifth (Self-Incrimination, but not the guarantee of Grand Jury Indictment), Sixth (Counsel and Trial), Eight (Cruel and Unusual punishment, but not excessive fines or bail.)


Lastly, as we will more thoroughly discuss in the next segment, certain “unenumerated” rights, that is those that are not specified in the Constitution, but which the Supreme Court has defined as “Liberties” such as Privacy (abortion, sexual practices, Gay marriage) are also protected from encroachment by all levels of government.







Bill of Rights – Part Two

Bill of Rights – Part Two

The Bill of Rights – Part Two


In this series we explore 1) the Source of the Bill of Rights, 2) Who’s rights are protected 3) Whom are the rights protected from, and 4) What rights are protected.


In Part Two we consider who is protected by the Bill of Rights.


Though the scope of the issue is too broad for one blog post, it is possible to get an overall appreciation for the reach of the Bill of Rights by looking at classes of persons who may be protected by the Bill of Rights as being arrayed along a spectrum.


At one end is the easiest category to define: citizens of the United States residing within the jurisdictional borders of the United States.


At the other end of the spectrum is a class of persons who are neither citizen nor reside within the jurisdictional borders of the United States.


Between those extremes are other classes of persons with varying degrees of citizenship and connections to the country.


As one studies how the Supreme Court addresses each category of persons never far below the surface is the concept of Natural Law which I discussed in Part One. If, as many of the Framers believed, Fundamental Rights are bestowed on us by our creator and exist separately from any man-made law including the Constitution, the population protected by the Bill of Rights is not limited by the concepts of citizenship or physical location.


A couple of real life examples put this in context:


Al Awaki was an American Citizen living in Yemen who broadcast Muslim jihadist screeds urging attacks against the United States. He was intentionally killed in a drone strike ordered by the American government. In an existential sense that was a very good thing. He was an enemy combatant and did not deserve the niceties of Due Process and Trial by Jury. And he certainly wasn’t afforded them.


Similarly, just this week, a recent immigrant influenced by the same religious philosophy, murdered innocent American citizens on the Streets of New York. He was shot, unfortunately lived, and now is in custody. Is he protected by the full panoply of our Bill of Rights? Or, if he is declared an enemy combatant like Al Awaki, can he be denied those rights and as President Trump initially suggested be sent to Guantanamo Bay?


Modernly, a good place to start looking for answers is by examining how The Supreme Court defines the word “People.”


The Preamble to the Constitution states the Constitution is ordained and established by “the People of the United States.” The words “the People” can be found in the Second Amendment (bear arms), Fourth amendment (search and seizure), but not the Fifth Amendment (due process and self incrimination), and Sixth amendment (fair trial, counsel). By contrast those later amendments use the words “Person” or “Accused.”


Significantly, however, the phrase “the People” is also found in the Ninth Amendment (“other” rights retained by “the People” – see previous post in this series) and the Tenth Amendment (all other “Powers” retained by “the States or People”).


So who are “the People”?


Let’s return to the far end of my fictional spectrum. Does the Bill of Rights apply to a non-citizen residing outside the United States.


In United States v. Verdugo-Urquidez, (1990) the defendant was a leader of a violent drug cartel in Mexico. He was also a citizen of Mexico, who lived in Mexico. The United States Drug Enforcement Administration obtained a warrant for his arrest. After he was captured in a raid on his residence in Mexico by Mexican police he was transported him to the border where he was turned over the U.S. authorities. The DEA then, working again with local Mexican authorities, searched his property in Mexico for evidence of his drug dealing.


When brought to trial he invoked the Fourth Amendment in an attempt to suppress the evidence gathered against him. He alleged as a citizen of Mexico, he enjoyed the protections of our Bill of Rights concerning searches of his property in that foreign nation.


In rejecting his claim, Chief Justice Rehnquist wrote that the phrase “the People” as used by the framers was a “word of art.” That it refers to “a class of persons who are part of the national community or who have otherwise developed sufficient connection with this country to be considered part of this community.”


He went on to say “The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action of their own government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory . . . . “


In a dissent in that same case, Justice Brennan joined by Justice Thurgood Marshall made an enduring statement that encapsulates the idea of Natural law.


In discussing the drafting of the Constitution and the Bill of Rights he said, “Americans vehemently attacked the notion that rights were matters of “favor and grace,” given to the People by their government. Thus the Framers of the Bill of Rights did not purport to “create” rights. Rather they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing.” He went on to argue “it is thus extremely unlikely that the framers intended the narrow construction of the term, “the people” presented today by the majority.”


Inching forward on the spectrum, in Hamdi v Rumsfeld, (2004) Justice Sandra Day O’Connor wrote an opinion confirming that an American Citizen who was captured in Afghanistan fighting for the Taliban, could be held at Guantanamo Bay as long as he was given a means to challenge his classification as an enemy combatant. Albeit he did not have to be granted the full benefit of the normal array of rights afforded an accused. For example the determination could be done by a military tribunal and rules of hearsay and other evidentiary protections could be suspended.


Traveling further along the spectrum,


The protections of the Bill of Rights apply differently even to certain classes of citizens residing in the United States. For example, juveniles in public schools do not enjoy the same range of protections as adults.


As we get along toward the middle of the spectrum we encounter non-citizens, aliens, residing in this country illegally. The courts are struggling everyday with this issue. Generally, all that can be currently said is that if they are here when they come into contact with the government, and are not deported, they are going to be granted the protection of certain rights mainly in the criminal justice arena.


Moving on along the spectrum, we find an interesting case the Supreme Court has been struggling with. It involves a young male citizen of Mexico who while standing on the Mexico side of the border was shot by a border patrol officer from the American side. Can he invoke the Bill of Rights? We expect a ruling this term.


Which brings us to a unique but often overlooked point on our spectrum: corporate entities. Does the Bill of Rights extend to a “for profit” corporation? Are Corporations “People” protected by the Bill of Rigths? And, if so, what does such a concept do to the theory of Natural Rights: that our rights are bestowed upon us by God?


In the famous “Citizen’s United” case, The Supreme Court held that the First Amendment Freedom of Speech provisions applied to an association that paid for broadcasts of a film critical of Hillary Clinton in violation of campaign finance laws.


Similarly, in the Hobby Lobby case the Court held that a closely held for profit corporation could invoke the Free Exercise of Religion clause of the First Amendment to refuse the requirement of the federal government that they provide access to abortion services in its employee’s health program.


Both of these cases were 5-4 decisions, but were frankly consistent with precedent.


Although broader societal issues get the most discussion, the foundation for both decisions rest on a legal fiction that Corporations are “People”. Courts, including the Supreme Court, have resorted to the device countless times.


For example the analysis in the Citizen’s United case that gets little notice is the Court’s discussion of how to protect the Freedom of Speech rights of Media Corporations. The talking head we see on T.V. isn’t the only one who needs the Bill of Rights protection. They are largely empty suits and interchangeable anyway. The newsgathering and reporting business is big business ran by huge corporate entities and for the First Amendment to survive, Freedom of Speech and the Press must apply to them.


Natural law as I wrote in my previous post had and continues to have a huge influence on how the Supreme Court approaches the Bill of Rights. And, admittedly, it is an attractive notion that each person has these God given rights even if not enumerated in the Bill of Rights. However, real life experience cautions that Natural Law is also something of a romantic notion that in practicality doesn’t hold up when the logic of Natural Law is extended to the logical ends of my imaginary spectrum.


Although my opinion vacillates from time to time, as is my right as an old broken down retired D.A. and erstwhile college professor, I currently hang my hat with those of our framers who insisted our Bill of Rights be enumerated and preserved as part of our constitutional legacy.


For more essays and other writings I invite you to visit my web site at