The First Amendment is the best place to start. As I’ve always said, there’s a reason it’s number one.

The FCC may not be the largest censorial agency in the world (greatly doubt that people in China are reading this) but certainly the most annoying to me personally.  They pretty much jumped the shark with the whole super-bowl nipple thingie but with government power behind them, can hang on long after their core mission has passed the point of absurdity.

Consi: Such protection against unreasonable search and seizures as the exclusionary rule were unheard of only 100 years ago.  It is a monumental leap in the enlargement of an individual’s right to be free from unreasonable search and seizures by providing that the evidence obtained is inadmissible.

Remedies are only necessary following the abridgment of one’s rights.

The exclusionary rule is a remedy for an unlawful search/seizure. It’s doesn’t prevent unlawful search, nor protect our 4th amendment right to be secure in our persons, houses, papers, and effects.  The exclusionary rule can’t keep agents of the state from smashing down your door and searching your home, or from injuring or killing you if you attempt to resist such action. 

Instead, it prohibits the state from using evidence gathered from unreasonable searches from being used against a defendant - after the defendant’s 4th amendment rights have already been violated, and only if the search is determined to have actually been unlawful.  In addition, if any evidence gained had arisen as part of a secret FISA investigation, the defendant may have no remedy whatsoever.

Now, after letting KPGs rant sink in for a day or so, I’ve been thinking along the lines of Mook - that I appreciate the sentiment of the rant more so than agree with every point.  Consi, to his credit, has put together a solid counterargument, particularly concerning 1st amendment protections.  I don’t find his conclusion about the 4th amendment protections quite so compelling, however. 

I say this in light of the knee-jerk reaction that the Bush Administration had in both proposing and pushing the USA Patriot Act through congress in the days (yes days) following the 9/11 attacks.  I also content that, since the Patriot Act has granted numerous sweeping powers to law enforcement and intelligence services to surveil US citizens, there now exists sweeping new potential for abuse of such powers - particularly through the changes made to FISA.  Since nobody yet knows for sure if or how such potential abuses might play out against a backdrop of our 4th amendment rights (although there is already some evidence of abuse), we should, in the interest of the common good, demand the highest level of scrutiny over our newly empowered police forces.

The 2nd 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.

Consi: With respect to the 2nd Amendment, I’m not sure how broad KPG believes this right is.  So, without knowing that, I can’t really address the issue with any real thoroughness.

Very fucking broad. Look, let’s be honest here. The 2nd Amendment has never been about self defense or hunting or any of that sort of nonsense. It exists for one reason and one reason only. To make possible the violent overthrow of the government should it become tyrannical.

Again, I must point out, the phrase “the right of the people to keep and bear Arms, shall not be infringed” is not in any way vague and it leaves no room for interpretation. Any law restricting the people from owning guns is unconstitutional.

The restrictions:  No silencers, no fully automatic weapons (though I can easily modify certain rifles to make them fully automatic and as long as I shoot them for entertainment value in the middle of nowhere, nobody cares) and no sawed off shotguns.

It is hard to see how my rights have been diminished unless I wanted a silencer or sawed off shotgun.  It’s even harder for me to see what legitimate purpose might precipitate a need for such equipment, which is likely why they are reasonable restrictions.

The violent overthrow of the government.

That said, let’s look back to the good ol’ days.  I note that On May 21, 1856, the “Sack of Lawrence” took place, in which the Kansas territorial militia, bearing arms supplied by the United States government and under the command of a deputy federal marshal, confiscated the guns of a group of free-soilers.

I read through that article, reminded me of something else, what was that place called? Oh, yeah. Waco.

Like a previous example, the Sack of Lawrence is mostly smoke and mirrors on Consi’s part. The action taken was unconstitutional then, just as it would be now. No rights were added to protect us from such things. They didn’t need to be. That was already aptly covered in the Bill of Rights.

Ignorance is bliss.

panzerr: Ignorance is bliss.

Speaking from personal experience?

The 3rd Amendment provides:

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.

Consi: I don’t see any reference by KPG, so I shall presume that he is not maintaining that his rights enumerated herein are any less than they were at any time previously.

The 3rd is meaningless unless we have another war on U.S. soil.

The 4th Amendment provides:

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.

Consi: KPG maintains that this was eviscerated by the Patriot ACt.  He does not set forth how.  It is part of his claim that he has lost rights in regards to 100 years ago.

Have you read the damn thing? I realize that it’s an imposing document, but with “sections including those that authorize sneak and peek searches, library, medical, and financial record searches, and the detention and deportation of non-citizens without full judicial review”, it’s well worth the read.

The Benjamin Franklin True Patriot Act was a bill put before the 108th congress in 2003, to repeal some of the horrible mistakes of the Patriot Act. No action was taken on the bill. Details from the article about it, highlighted below, show just what the Patriot Act has done to violate our rights….

Had the Benjamin Franklin True Patriot Act been passed, it would have repealed the following portions of the USA PATRIOT Act:

* Section 213 - Authorizes property to be searched and seized in secret by government law enforcement officials, without notifying the subject of a warrant.
* Section 214 & Section 216 - Pen registers for foreign intelligence purposes and criminal cases. (Pen registers record all phone numbers dialed from a person’s telephone).
* Section 215 - Authorizes searches of library, bookstore, medical, financial, religious and travel records without a judicial warrant.
* Section 218 - This section of the PATRIOT Act eliminated the Fourth Amendment’s requirement for “probable cause” when obtaining a search warrant.
* Section 411 & 412 - Grants new grounds for the deportation and/or the mandatory detention of aliens.
* Section 505 - Authorizes FBI field agents to issue national security letters to obtain financial, bank and credit records of individuals - all without a court order or judicial oversight.
* Section 507 & 508 - Seizure of educational records and the disclosure of individually identifiable information under the National Education Statistics Act of 1994.
* Section 802 - Repeal the Patriot’s Definition of “Domestic Terrorism”. The definition is so broad that political protests that unaccountably become violent could be classified as domestic terrorism.
* The Benjamin Franklin True Patriot Act would repeal sections of the Homeland Security Act of 2002, so that the Department of Justice and the Department of Homeland Security are no longer exempt from Freedom of Information Act (FOIA) requests.
* The federal government would no longer be able to monitor conversations between attorneys and their clients, violating the fundamental right of attorney-client privilege.
* The proposed act reinstates tough guidelines instituted in 1989 by former Attorney General Richard Thornburg to rein in a runaway FBI, which had been conducting unlawful surveillance of protesters, peace demonstrators and religious groups. Spying on religious institutions - allowed by Ashcroft’s rules - would be put under strict limits.

Consi: Yet, when we examine the history of the 4th Amendment, we find that evidence obtained in violation of the 4th Amendment was regularly allowed in at a trial.

I’m skipping over the example this time because it’s just another piece of sophistry. As I have said, repeatedly, the violation of a rule, even the repeated violation of it, does not mean that the rule didn’t exist. It just means that people were acting unconstitutionally.

Diminution of rights from 100 years ago with regards to the 4th Amendment?  No.  Enlargement of rights/remedies? Yes.

Does it ever rain on your planet, Consi?

Ignorance is bliss.

Nah. It’s too expensive.

The current Patriot Act is not just a George Bush deal. It’s a response ( CYA ) to remedy our lack of control regarding immigration. ( They are wondering exactly who and what, they have let in the country in the last decade or so...) Not to mention current entry into US Territory illegally. The communication sector be it phone, Internet, or any air wave needs to be monitored. I’m not saying it does not have flaws, everything does. But…

What if another September 11 does happen ?

Some people are going to be mighty pissed that the government did not do all it can to stop the attack.

KPatrickGlover:  Speaking from personal experience?

Yes, actually.  It is a great deal easier to perform a questionable duty if you force yourself to remain ignorant, shutting your mind off to the things you see around you that don’t agree with what you’ve been told.

The fact is many people would prefer to have the wool pulled over their eyes when it comes to some truths.  Would you rather be told you are going to die from a brain tumor two weeks before your death or five years?  Would you rather believe that your wife has always been faithful or would you rather know of the one time, years ago, when she was drunk and lonely and hooked up with an old flame during a moment of weakness?  Would you rather know that ten years from now a huge comet will come crashing down and wipe out existence as we know it?  That would make life pretty fucking meaningless -why should I study for tomorrow’s exam if the world is going to end next week?

It’s a response ( CYA ) to remedy our lack of control regarding immigration.

Of course immigration is the socio-economic response to our inflated labor value compared to the rest of the world too. We talk very largely about protecting the American worker, but what we’re really talking about is the high value we earn as American workers compared to elsewhere...which is what makes immigrating to the United States so enticing and outsourcing away from the United States so profitable.

Without immigration we’re basically going to eventually price ourselves out of employment and competition with the rest of the world, unless we continue to spend enough money (and “enough” these days seems to mean “debt") to pull up the wages of the people we do business with.

What if another September 11 does happen ?

I’ve noticed that September 11 happens every year. Personally I’d be more concerned about the year that we didn’t have a September 11.

What if we have another terrorist attack?

So what? What if the 9/11 terrorists had all failed miserably? A small portion of dead people wouldn’t be in New York, a rather large portion of people in Afghanistan & Iraq would all be living, we wouldn’t be bleeding money into bullets in yet another failed attempt at “democracy” overseas, and instead of being a bunch of pussies whimpering over the very notion of someone striking out and hurting us we’d still be walking around with our cocks knocking our knees and be talking about more important issues. You can play the what if game all you want. What if is dumb unless you’re in insurance. The better questions are almost always “what for” and “what now.”

While I appreciate cutting sarcasm, using it on the subject of politics it is a volatile gesture at best.

All things considered, I think Americans are rather lucky in that they have more freedoms than the rest of the world. That said, my concern for this country, and my personal rights, lie in the future of what “could be”; A totalitarian dictatorship using the worlds foremost economy as a self sustaining war engine. I believe the views and fears expressed here in the original article are valid.

The real questions are, “How much is too much? At that point, will it already be too late? What must be done to prevent it?”

I’m not sure.

At best, people would continually evolve and want to know about current events and use their rights in active ways to create progress. An example of this would be boycotting. Money has a very special power in this world and has a much deeper impact than voting ever does. I do not want to see a world and nation torn apart by savage violence, and so, I look for alternative methods to get my point across.

There may come a point, however, where violence is sadly nesasary. I only hope at that point, it’s worth it.

is a good example of what is possible without the Patriot Act. No I am not a big fan of George Bush. I am not a fan of the Democrats either. But I believe that even if Gore had been elected, We would still have a Patriot Act. It’s just not his or Hillary’s Ass. So it’s easy to sit back and condemn shit when you don’t have to worry about being blamed.

I was also opposed to the war in Iraq, I was and still am for Military intervention in Afghanistan. The dynamics in Iraq have changed. And even though it was a mistake to go in the first place. We cannot leave until their is some type of resolve. I recommend that we stop using the word Iraq. Use 3 names for the 3 different Countries, and realize that Democracy is not a working concept in the long run for people that cannot appreciate, or care to have it. They seem content to have a benevolent dictator. And let’s be honest, The US is certainly no compass for the way the world should be. The Constitution has become overloaded with amendments that it is no longer a working concept. And it will just get worse over time. Always favoring who has the most money and can purchase the law to favor their own interest.

Sorry about the “ Here “ but here is the link that I meant to post.
http://apnews.myway.com/article/20070602/D8PGTE5G0.html

All I can say is, I love what little freedom I have left.

Paul, this thread and its original essay have fuck all to do with Afghanistan and Iraq. I have put forth absolutely no opinion on the wars. This is about internal politics and our civil liberties.

You can’t just hold up foiled terrorist plots and say, “See, the Patriot Act is a good thing.” For one thing, it’s possible that the same result could have been achieved with just plain good intelligence work, all within the boundries of the Constitution.

Or maybe some folks would have died. I don’t believe in trading freedom for safety. Tough world.

panzerr:Yes, actually.  It is a great deal easier to perform a questionable duty if you force yourself to remain ignorant, shutting your mind off to the things you see around you that don’t agree with what you’ve been told.

The fact is many people would prefer to have the wool pulled over their eyes when it comes to some truths.  Would you rather be told you are going to die from a brain tumor two weeks before your death or five years?  Would you rather believe that your wife has always been faithful or would you rather know of the one time, years ago, when she was drunk and lonely and hooked up with an old flame during a moment of weakness?  Would you rather know that ten years from now a huge comet will come crashing down and wipe out existence as we know it?  That would make life pretty fucking meaningless -why should I study for tomorrow’s exam if the world is going to end next week?

I’d prefer to no the truth. Everything is meaningless save for the meaning that you give it. If you only have five years to live, best to know you’re time and have the chance to do what brings meaning to you.

why should you study for tomorrow’s exam if the world is going to end next week? The same reason you should study for it if the earth wasn’t going to explode. The thirst for knowledge.

Michael: Now, after letting KPGs rant sink in for a day or so, I’ve been thinking along the lines of Mook - that I appreciate the sentiment of the rant more so than agree with every point.  Consi, to his credit, has put together a solid counterargument, particularly concerning 1st amendment protections.

Actually, I think I’ve done a pretty good job of discrediting Consi’s counterargument......

Notable cases that placed more restrictions on law enforcement:
Tennessee v. Garner, 1985:  Supreme Court rules that it is not constitutional to use deadly force to stop a non-violent fleeing felon. Example: no more shooting somebody who committed Theft>$300

Mapp v. Ohio, 1961: Exclusionary Rule applies to states.  Your statement that prior to this the states were violating existing laws is questionable, given the Supreme Court ruled in Wolf v. Colorado (1949) that the Exclusionary Rule did not apply to states.

Miranda v. Arizona, (1966): Supreme Court rules that police officers must formally warn arrestee of certain rights before interrogation while in custody.

Brown v. Mississippi, (1936): Supreme Court rules that coerced confessions are inadmissible.

However, I guess believing that country with these court rulings, women’s suffrage, legalized miscegenation and sodomy, separatism banned, poll taxes banned, and no more Chinese Exclusion Act, is more free than 100 years ago is being willfully ignorant and blind.

But that’s just from a cosmopolitan minority viewpoint.  I’d imagine privileged white males would be a lot less likely to be bothered by a lot of those things.

Benoir, I have never said that no new rights or freedoms have been legally granted us in the last hundred years. The civil rights movement brought us forward in many ways.

What I said was that many of our rights granted in the constitution have been restricted or taken away.

I will not get into a discussion of which rights are more importnat, that way lies madness. I will say this, “more free” is a meaningless fucking term. Freedom is a lot like pregnancy in that respect. You either are or you aren’t.

Paul: “Some people are going to be mighty pissed that the government did not do all it can to stop the attack.

That could be misused as an argument for becoming a totalitarian fascist state.  We could tap all phones all the time, repress all opposition, confiscate all guns, slam the borders shut, deport, well, everyone who doesn’t seem quite right to us.  Forget legal protections generally.  Reignite the draft and invade at least a dozen countries.  Total war!  Let’s do all we can.

Of course that wasn’t what you meant, and neither was it what the reps who voted for the patriot act (without reading it) intended to say.  But if your algorithm is “do all we can to avoid an attack” that’s where we eventually end up.  The algorithm needs boundaries, and those boundaries are spelled out in the constitution, to which our current president referred as “just a piece of paper”.  In his view, perhaps, the kind of paper that comes in a roll next to the toilet.

We should be concentrating on doing the right things, the correct things, to prevent another attack.  I don’t mean “right” as in “moral” though that applies too, but as in “well-chosen”. We cannot afford to flail blindly against terrorism.

We simply do not have unlimited resources and must choose well how to apply what we have.  And, there is always an internal element that wants to use the attacks as an opportunity to seize control, and we should be watching for that threat as well as threats from outside.

See: Eisenhower’s “military-industrial complex” speech.  I’d include a clip, but can’t decide where to apply the scissors.

KPG,

I did not intend to address comments, yours or others, before finishing.  However, it appears you’ve staked out a position that you perceive allows you immunity from retraction.  The exercise in going through with you the Amendments and the history of their development and application was being done by me as much for you as for others. I had expected that you were riled up when you wrote the diatribe and that reason and analysis would, with some time, cause some reflection.

Here is why I say you have staked out a position that you perceive grants you immunity from saying I was wrong.  You start with the premise that we have lost a good deal of freedom with respect to rights contained in the Constitution.  You admit that the Civil Rights Act, Title IX and subsequent amendments have created new and additional rights that are extremely important to those to whom they were granted.  You then maintain that is really not what you are addressing. 

You maintain you are addressing those rights conferred primarily in the Constitution and the Bill of Rights.  When presented with the history of how the amendments were applied by the Courts, you then default to a position in which you say:

the violation of a rule, even the repeated violation of it, does not mean that the rule didn’t exist. It just means that people were acting unconstitutionally.

With that premise, everything that you want to be unconstitutional is now and always has been, whether it was or not.  It’s a position of I’m right about my rights Your only caveat is that our legal system hasn’t both grown up enough with you, and is some instances reverted to older applications to make you right.

Let’s use the 4th Amendment as an example.  With respect to the 4th Amendment, the Court was the branch of government that instituted the exlusionary rule. In short, it was troubled by the double standard that existed between state and federal action.  It was also becoming frustrated with the continued review of cases that it was seeing where it was called upon to parse out federal action versus state action.  See Silver Platter Doctrine and cases associated with it.

So, when I say that your 4th Amendment right has been expanded, it has been expanded by having a remedy.  The wording granting us the right has not changed. However, the practical effect is that the violation no longer benefits the violator anymore.

The exclusionary rule being but one example, was unknown at the time of the framing of the Constitution.  The sophistry you pass over: 

when we examine the history of the 4th Amendment, we find that evidence obtained in violation of the 4th Amendment was regularly allowed in at a trial.

is at the heart of the matter.  That was the rule of evidence that the courts applied at the time. The evidentiary rule, whether the evidence was or was not admitted, was not deemed a constitutional violation.  The violation was the unreasonable search. It was the court that made the remedy applicable to the violation.

There was and is nothing that makes the admission of evidence against you, if seized by an unreasonable search unconstitutional in the language of the 4th Amendment.  That remedy has not always existed.  Most of us, had we been around 100 years ago, would have lacked the intellectual firepower to come up with a solution that so dramatically enhances the right, but does so without changing the wording.  I stand in awe of the judges that did have the intellectual firepower.

KPG, if you want to make distinctions, then let us make the proper distinctions--The distinction between the right, the remedy and the practical effect of the remedy upon the right.  I know if I can do it, it’s so simple that even a caveman can do it. 

I do want to make one correction to what you have said in your rebuttal regarding the 14th Amendment though.  You point to

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

as grounds for this:

Those privileges and immunities include the 1st amendment.

KPG, it’s not all that important, but I mention it because, well, it’s not the approach the courts have utilized.  The privileges or immunities clause, both in the Constitution proper and in the 14th Amendment has had limited application (e.g. right to travel cases).  Your view of the clause is that articulated by Justice Black in his dissent in Adamson v. California, 332 U.S. 46 (1947).  That has not been the view the Court has taken in overturning the decision in Adamson.  It has relied instead upon the due process and equal protection clause of the 14th Amendment to hang its hat for incorporation of the Bill of Rights.

Okay, give me a few minutes here. That’s a lot of words to sort through with a hangover......

Okay, we seem to be talking apples and oranges here, so maybe we should clarify a few things and see if it doesn’t leave us with a bit of common ground.

You appear to be saying that, because of changes in the way the court system interprets the Constitution, we have broader rights today then we did before in some areas.

I have maintained that new laws have been passed that unconstitutionally restrict or take away some of our rights.

Both of these statements can be and are true.

And my original essay, while not written in a fit of anger, as you suggest, was very carefully written to evoke a certain response. I am a writer, first and foremost, and my purpose is usually to entertain. Hyperbole can be and often is one of the tools in my box, but I use it judiciously.

I still believe in what I wrote (except the sodomy laws, where a recent legal case ruined my punch line), but I concede many of your points and don’t think they really contradict mine.