Origins of the First Amendment, Freedom of Religion: Early writings to 1787 (Part 7)

As discussed in part one of the origins of the Bill of Rights British tyranny had a lot of influence on what would eventually become the First Amendment in the Bill of Rights. Partially out of this tyranny and partially out of philosophy. Many writings occurred in the decades, even centuries before the American Revolution that expressed opinions which are found in the First Amendment.

A sample of these will be discussed since are well too many to going to depth on all of them, but a sample across decades and centuries will be explored here into the American Revolution.

We will look at the First Amendment in four different areas, freedom of religion, freedom of speech and the press, freedom of Association and freedom to petition. The reason for this is these can be distinctly referenced to in their specific areas though in all writings they may not be combined together.

United States vs Jones (Unwarranted GPS tracking of an individual)

I touched on this decision in Quick Thoughts as a victory for the Fourth Amendment (Fourth Amendment Victory (Quick Thoughts) in regards to unwarranted GPS tracking of an individual. Now I want to dive a little bit deeper into it, in regards to the Founding influences and how they were applied to this case. You can read the Supreme Court of the United States (SCOTUS) opinion and additional concurrence opinions here¹ (Cornell University Law School).

The Supreme Court's opinion was written by Justice Scalia and is the main one of focus here. Additional concurrence opinions were also written by Justices Sotomayor and Alito who had differing reasons based on precedent however, reaching the same conclusion.

Synopsis

The Government obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on a vehicle registered to respondent Jones’s wife. The warrant authorized installation in the District of Columbia and within 10 days, but agents installed the device on the 11th day and in Maryland. The Government than tracked the vehicle’s movements for 28 days. It subsequently secured an indictment of Jones and others on drug trafficking conspiracy charges. The District Court suppressed the GPS data obtained while the vehicle was parked at Jones’s residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when the vehicle was on public streets. Jones was convicted. The D. C. Circuit reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment. (sic from SCOTUS ruling)

Fourth Amendment Victory (Quick Thoughts)

Today the Supreme Court of the United States (SCOTUS) rules law enforcement agencies may not track your privately owned vehicle with a GPS device, unless authorized by a warrant. The decision was unanimous and correct. For starters the Fourth Amendment was designed as a method to prevent the government from intruding into the private matters or property of individuals or groups unless proper cause could be justified BEFORE hand in a warrant, not the other way around.

To often the Bill of Rights has been viewed as the limit of individual or group rights, defining the limit up to what government can do, but it was not designed to do this. The Bill of Rights was designed to specifically prohibit certain actions to further limit what government may do. The Federal Government was bound by certain limits in the Constitution, and a strong argument against the Bill of Rights was that it may end up expanding Government powers, by claiming what was not specifically protected, such as this case. (see Bill of Rights or limitations).

Even though the exact specification of tracking citizens is not specifically prohibited by name in the Fourth Amendment, the concept of it being prohibited is. A person or group CAN NOT be secure in their persons, houses, papers, and effects if every move that person or possession is tracked. You vehicle is your effect, and you are guaranteed to be secure in it from unwarranted searches or seizures. By monitoring its every move in such a manner it is to make the effect and person unsecure from the government, effectively a search of the effect and person.

Not only is government prohibited from warrantless searches and seizures specifically in the Fourth Amendment, but this also has Ninth Amendment implications as well, that to be free from government monitoring is one of the "other rights retained by the people". This Amendment was designed to prevent such a move by the government that usurps the intention and motivation of the Bill of Rights, to protect every right retained by all people not just those specifically cited in the previous eight Amendments.

British Tyranny, the Ninth and Tenth Amendments, The Origins of the Bill of Rights (Part 6:)

The ninth and 10th amendment to the Constitution of the United States have very deep roots. Roots that go back to the principal of what the structure of power is. The belief of the founders was a structure power went from the creator, to the people, to government in that order. A lot of world history and specifically Western history influence founding fathers, from the Greek and Roman empires Socrates and Aristotle, to John Locke and Charles Montesquieu. Though British tyranny did have influence in the development of the ninth and 10th amendments you have to go back to philosophy to understand the meaning behind the motivation of the ninth and 10th amendments. It can be summed up with natural rights and the proper order power. These basic values are the principal motivators behind the ninth and 10th amendments.

Here we will look at specifically natural rights and the order of power, without going through the entire genesis of human history, this will start with John Locke and his Second Treatises of government, and also Spirit of Laws by Montesquieu. Both authors and philosophers influence can be seen on founding fathers pre-revolutionary colonial history and writings, revolutionary history writings, early state governments, early charters, the Articles of Confederation, and the Constitution of the United States. These philosophers had a profound impact on the founding fathers just in themselves, and British tyranny and oppression only made these beliefs stronger.

British Tyranny, the Seventh and Eighth Amendments, The Origins of the Bill of Rights (Part 5:)

Both the seventh and eighth amendments to the United States Constitution deal of trials, one criminal and one civil. Just like the previous amendments to the Constitution the seventh and eighth amendment could also find their legacy in the British monarchy and how it dealt with the American colonies. Just as with each of the previous amendments the Genesis can directly be traced to tyranny, and are listed as grievances in the Declaration of Independence against King George.

The Seventh Amendment:

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 the common law.

As mentioned in Part 4 in regards sixth amendment, the right to trial the jury has a long history. But the seventh amendment deals lawsuits where the value of the dispute is greater than $20, not criminal trials. The Constitution ensures the right to trial by jury in criminal cases in Article  III Section 2 and is reinforced sixth amendment to Civil cases. But no guarantee had been given that trial by jury would also be guaranteed in civil cases.

The seventh amendment carries two parts, one in regards to trials by jury in civil suits, and the second the decisions of the jury shall not be dismissed other than to the rules of common law.

More than just a Declaration of Independence

July 4 is a day of celebration in the United States, it is the anniversary of the Declaration of Independence, even though the actual vote for Independence took place two days before (July 2, 1776: The United States decides to Declare Independence). It is noted as the day the United States declared it will decide its own course, make its own rules, govern itself and would no longer hold or honor any allegiances to Britain or its crown. This was done with a magnificent piece of work written primarily by Thomas Jefferson with the assistance of  Benjamin Franklin, John Adams, Robert Livingston and Roger Sherman (June 11, 1776 the Committee of Five), the Declaration of Independence.

Besides declaring, “That these United Colonies are, and of right ought to be, FREE AND INDEPENDENT STATES” dissolving the bonds between the United States and Great Britain, the Declaration states so much more, on the nature or power, the role of government and rights of the people. These declared principles in regards to each, will have a direct influence on the structure and power in the Articles of Confederation and Constitution (Declaration of Independence influence on the Constitution).

British Tyranny, the Fifth and Sixth Amendments, The Origins of the Bill of Rights (Part 4:)

Unlike the first four amendments, the Fifth and Sixth Amendment is constructed of numerous parts. The First Amendment also contained several aspects, but is centered on protecting freedom of expression, and government interference in the right of conscience. Both the Fifth and Sixth Amendments are designed to protect the rights of a person accused of committing a crime, however the Fifth Amendment includes a clause concerning eminent domain.

Many of the aspects of both Fifth and Sixth Amendments have direct ties to tyrannical practices of the British during Colonial rule, just as the other amendments in the Bill of Rights. The lack of due process in Colonial times has a long history and affects more than just the Fifth and Sixth Amendments. The lack of due process also is apparent in the Fourth Amendment as a result of the Writ of Assistance to broad unspecific search warrants (The Origins of the Bill of Rights (Part 3: British Tyranny, the Fourth Amendment)).

American Protections of the accused (Quick Thoughts)

A series being run by the National Geographic Channel is called "Locked up abroad". Perhaps you have seen an episode or two, and if you have not I would encourage you too. It is not necessarily the often harsh conditions seen in foreign penal systems, even by other modern western countries, but it more the stark differences between the protections we afford to the accused compared to these stories.

Whether the story is taking place in Peru, Japan, Spain or some other nation, I often find myself while watching these hour long episodes focusing on what we take for granted here in the United States, and experiences of others who are not protected like we are here. Many times the individuals the subject of the show are actually guilty of some crime, but some happen to be in the wrong place at the wrong time. It is often times too easy to condemn people we see on TV accused of heinous crimes, with what we are shown by the media. But even in these instances these people the public condemns have the same protections as any other person in our criminal system, regardless if they are guilty with massive evidence against them or the wrongfully accused.

British Tyranny, the Fourth Amendment The Origins of the Bill of Rights (Part 3:)

Much like the first three Amendments, the Fourth Amendment can be directly related to the conduct of the British during Colonial Rule. Through much of the Colonial time warrants from a judge were required to search a person or their property, similar to today. But this was not always the case, at times a broad warrant would be issued not specifying a person, place or even subject matter for the reason of a search or seizure. The Fourth Amendment was designed to prevent this.

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 affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

British Tyranny, the Second and Third Amendments, The Origins of the Bill of Rights (Part 2:)

The Origins of the Bill of Rights (Part 1: British Tyranny, the First Amendment)

During Colonial rule, the British Crown and Colonial Governors were not shy about using the British Army or Navy against the Americans. The British Army was used to intimidate, seize property, enter homes or be quartered among the populace to present a posing threat. It was not only the Army that was used against the Colonists, but other Government forces or powers that were used against the Colonists, but Police, Tax Collectors, Justice of the Peace and on. The British Army or the other British Government Forces use against the populace is not short or limited even if not by direct force, just intimidation, and eventually led to the fighting to begin in 1775. This use of the Armed Forces directly led to two Amendments to the Constitution, the Second and Third.

Second Amendment

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.

No one instance can be pin pointed as the need or desire for the Second Amendment, rather it is the entire scope of the American Revolution itself. The abuse of power by government against the people, the use of the military against the people, and the desire and unalienable right of the people to control their own destiny are at the root of the Second Amendment. This view is expressed in the Declaration of Independence;

But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

British Tyranny, the First Amendment, The Origins of the Bill of Rights (Part 1:)

The Bill of Rights when submitted to the States in 1789 contained 12 approved Articles by Congress, 10 of which would be ratified by the required States on December 17, 1791, and an additional one would eventually be ratified in 1992 and is now the 27^th Amendment. But it is the first 10 Amendments that will be explored here.

Why where these specifics things chosen to be protected? What caused them to be so important? Who and what where the driving factors in having a Bill of Rights at all? These things and more will be explored through the course of this discussion.

The first thing to look at is the root motivation of the clauses. What happened in the past that caused it to be so important to specifically protect these rights? What lessons in history were learned leading to the inclusion of these Rights. To answer these questions we need to go back to even before the American Revolution even started, to when the British Ruled the continent.

Each amendment will be broken up into individual components for analysis.

THE FIRST AMENDMENT

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.

Which Document did it come from?

Where did the phrase come from? » online testing

Quick Thoughts: The Bill of Rights does not enumerate the People’s Rights!

 

On May 17, 2011 a Federal District Court Judge made a ruling that caught my interest, not the subject itself completely (though the subject still did catch my interest) but rather the rationale in the decision made. This decision was not based directly off of the Constitution itself for what it says, but rather off of previous courts decisions alone, using stare decisis. As I discuss in an article of stare decisis, stare decisis is prudent provided it used properly and in the correct manner and this is not a situation in which it was, by the Judges own admission in his opinion.

The background of this case concerns concealed weapons, the actual subject of the case is of actual little matter to my opinion here, rather it is his jurisprudence that I will examine. Yolo County CA banned concealed weapons, and a challenge was brought against the County citing 2nd Amendment protections.

The plaintiffs (contending the ban was unconstitutional) argued the same manner of interpretation should be applied to the Second Amendment as is the First Amendment (it is to protect maximum freedom of the subject). The Judges response to this was,

The Court sees no reason to analogize rights under the Second Amendment to those under the First, as plenty of case authority exists to provide a clear framework of analysis to facial challenges, without poaching precedent from another Amendment’s framework.

Bill of Rights Day: December 15

On this day in 1791 the First Ten Amendments were ratified by the State of Virginia (the 10th State to do so), putting them into effect.

The Bill of rights mean different things to different people, but to all they mean a Free Society. 12 Amendments were proposed by the Congress in 1789, 11 are now Amendments to the Constitution (Amendments 1-10 and 27). Today the Constitution has 27 Amendments, but these 10 are the most known.

Bill of Rights or Bill of Limitations?

The Bill of Rights

It seems so granted today, having a bill of rights. But it was not a certain thing to happen after the Constitution was finished in 1787. Some of the prominent delegates actually argued against it, such as  Alexander Hamilton in the Federalists Papers (Federalist 84 & 85).

Why would they argue against a Bill of Rights? Did they not want to ensure all Americans had these so elemental and as Thomas Jefferson stated inalienable Rights? Did they fear the People? Well, simply No. They did want the people to have these rights, they did not fear them, but respected them and their wisdom. But why did they did feel a Bill of Rights was not needed? Part of the answer can be found in the second paragraph of Preamble of the Bill of Rights itself.