The Bill of Rights is Dead

Essay by Gary Norton

Constitution – July 1995 – Colorado Central Magazine

As a former teacher of American history, I apologize to the students I put through the torture of retaking tests on the Constitution and Bill of Rights until they could earn an 82% or higher grade. A rebellious student was right (and I, the teacher, was wrong), when he declared that it was pointless to learn our rights when those rights existed only on paper and not in the real world of the modern United States.

On the other hand, I don’t think we Americans were wise to let the Bill of Rights go without so much as commemorating its passing.

The constitutional convention that met in Philadelphia in the 1780s was only authorized to create an efficient way for the 13 colonies to deal with foreign governments. Instead, they created an entirely new form of government.

Today, a constitutional convention would be apt to implement sweeping changes as well, and perhaps it is time to do just that.

The United States needs to get employers, law enforcement, the judiciary, the press, and the American people at large to recognize that many of the liberties and freedoms guaranteed under our Bill of Rights and Constitution are now null. With a constitutional convention, we can decide to either enforce those rights, or to delete several rights our society routinely ignores anyway.

I used to belong to the National Rifle Association. Today I, like most Americans, disagree with most of its political agenda. But I applaud the NRA’s successful campaigns to hold fast to the right to bear arms outlined in the second amendment. It is the one right that has actually expanded over the generations.

The second amendment says, “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.” Often, the NRA and gun advocates choose to ignore the first three words to the amendment, “A well-regulated militia.” This amendment does not guarantee that private citizens will be allowed to keep weapons for their personal use, nor that unregulated militias may exist. And actually, this amendment was not interpreted to guarantee such rights for several decades.

Thus, I applaud the NRA and gun advocates for expanding this right to individuals — because it is the only constitutional right we have that has been increased and not decreased.

Today, we American citizens have more rights to weaponry than any people on the planet, even though it has made America one of the least safe places to live, thanks to the tireless efforts of gun advocates to protect their second amendment rights.

If the second amendment were put to a vote of Americans today, it would suffer a resounding defeat. Most Americans simply don’t believe in it any more. Americans reject the right to a handgun and challenge several kinds of automatic weapons as having nothing to do with hunting or the second amendment.

Even here in Central Colorado where the frontier mentality thrives, citizens are divided about 50-50 on the issue. A constitutional convention would surely scrap the amendment or leave an extremely weak provision in its place.

Yet ironically, the defenders of gun-toting usually lead in the push for employers and law enforcement officials to disregard several other freedoms in the Bill of Rights in an effort to combat assorted social evils.

Americans love easy solutions and quick fixes.

As a people we are waging wars on the big five of abuse: drunken driving, substance abuse, child abuse, sex abuse, and domestic abuse. Our quick fix to these complex problems has been to say we will all collectively give up our rights in the fourth, fifth, and sixth amendments, so that law enforcement can more easily apprehend and incarcerate the villains perpetrating such atrocities.

Unfortunately, under our constitutional republic form of government, legislatures at the national and state level do NOT have the authority to remove liberties specified in the Bill of Rights. But the judicial branch has been lax in reminding legislative bodies of these protections.

Einstein said, “The strength of the Constitution lies entirely in the determination of each citizen to defend it. Only if every single citizen feels duty bound to do his share in this defense are constitutional rights secure.”

The Bill of Rights is supposed to prevent the majority of us good folk in America from oppressing a minority. But judges have only randomly enforced the individual liberties outlined in the Bill of Rights as employers, law makers and law enforcers have erased them in a benign offensive against the big five abuse problems.

The press contributes to the problem by reporting on these random enforcements of the Bill of Rights with stories to the effect that some villain went free on a legal technicality. The Bill of Rights is more than a legal technicality.

Apparently the only four words in the Bill of Rights studied at journalism school are “freedom of the press.” King George’s men never went to the extreme of setting up roadblocks to snare drunk drivers, drug abusers, culprits, and other enemies of the state. King George’s men did conduct such searches of all houses in a given area. That is the specific offense the fourth amendment was written to prevent.

The Sons of Liberty waged a war against much less intrusive wrongs. The war on the five abuses has produced no victories over any of the abuses, but it has rendered the Bill of Rights pretty much a worthless piece of paper. Indeed, employers and law enforcement so routinely violate the Bill of Rights that talk show hosts refer to the disregard of the fourth, fifth, and sixth amendments as “reasonable.”

In 1928, Supreme Court Justice Louis Brandeis wrote, “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

When local law enforcement officers set up roadblocks on Highways 285 and 291 in Chaffee County, as they did on June 2, 1994, they violate the fourth amendment which reads, “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.”

Most Americans simply don’t believe in this right any more. Earlier this year, a rewritten version of the fourth amendment was submitted as a bill in Congress by some Democrats; it was soundly voted down by the Republican majority.

The majority apparently feels that anyone accused of one of the heinous five societal abuses isn’t entitled to rights. But that is not the way our system of government was set up.

When the Department of Social Services and a small child accuse a person of child abuse, and the accused is consequently deprived of property and placed on a computerized central registry of known offenders, that violates the fifth and sixth amendments to the Constitution in the Bill of Rights.

The fifth amendment says in part, “No person shall be held to answer for a capital or otherwise infamous crime…nor be deprived of life, liberty, or property without due process of law.” The sixth amendment says in part, “the accused shall. . .be informed of the nature and cause of the accusation; 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 defense.”

Yet a majority of Americans believe we should willingly forfeit these rights, because anyone accused of such a heinous crime should have no rights.

When a small businessman carries large sums of money with him in an airport to purchase products for his business and police seize the money without charging the man with a crime, this violates the fifth amendment. It says, in part, “nor shall private property be taken for public use without just compensation.”

Yet Americans shrug their shoulders and think that’s fine. If the police think the businessman might be a drug pusher, then that is enough to deny the man due process and confiscate his money. If the fourth, fifth, and sixth amendments were put to a vote of the people today, those rights would go down in flames along with the second amendment.

Believers in freedom on both ends of the political spectrum would lose in a constitutional convention.

Sadly, employers are some of the worst modern violators of the Bill of Rights. The reasoning runs that you don’t have a constitutional right to a job. Therefore, if you want to get or keep a job with this company, you forfeit freedoms and liberties you have on the street under the Bill of Rights. Employers maintain the Bill of Rights is a limitation of government, not employers.

We need a Supreme Court decision in a case today to correct the dehumanizing of the American workplace. In 1969, a group of black Des Moines high school students wore black armbands in protest. The administration forced the armbands’ removal. The students turned to the courts and won in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). The Supreme Court decision defending the students’ right to free speech said students don’t leave their constitutional rights at the schoolhouse door.

This changed many things in the operation of the public schools. The Supreme Court needs to reinforce that concept as it refers to workers entering their place of employment. Employers need to be reminded that they do not have any more right to remove human dignity than our government does.

If we the people really do want to rid ourselves of the killing and maiming and other violence we are subjected to due to our unlimited access to guns and sophisticated weapons that kill, then we need to amend the second amendment to the Constitution first.

If we the people really do believe that drunken driving, substance abuse, child abuse, sex abuse, and domestic abuse are such extreme problems that all of us should willingly forfeit our liberties in the fourth, fifth, and sixth amendments, then we must first amend the Constitution and Bill of Rights.

We need to either get legislatures, the judiciary, the press, employers, and the American people to recognize and uphold the liberties guaranteed in the Bill of Rights or hold a constitutional convention and erase the second, fourth, fifth, and sixth amendments that most of us seem to have given up without a fight anyway.

We have to be consistent — because without consistency we encourage anger and rebellion. We should not teach our schoolchildren to brag to the rest of the world about rights American citizens have that exist only on paper and not in reality.

So let’s align the formal written rules of the game and the behavior of those running our society. If we are still the land of the free and the home of the brave, let’s act like it, and enforce the Bill of Rights daily. If, on the other hand, we have become the land of the accusers, let’s be honest about it.

If we think it’s OK to allow government officials to roadblock the highways in a fishing expedition to find possible violators of driving and drug laws, and if it’s OK to seize business people’s cash and other assets without due process, and if it’s OK for Social Services to reverse our system of justice and to treat a person as guilty until he’s proven innocent, and if it’s OK to send secret undercover agents into the homes of American citizens, than let’s be upfront with people and inform them in advance what the real rules are.

Doing that right though, requires constitutional amendments. This can be done in either of two ways. The Congress can pass such changes with a 2/3 vote, and then, if 3/4 of the state legislatures approve, such changes would become constitutional amendments.

Or a constitutional convention could be convoked if 2/3 of the state legislatures call for one. Afterwards 3/4 of the state legislatures and/or state conventions would also need to ratify those changes.

But either way, let’s either follow the Constitution or change it.

Gary Norton is the counselor at Kesner Junior High School in Salida.