In this lesson we are going to explore what rights and freedoms we have as Australians and where they come from.
We learned previously that the colonies came together to agree on the creation of a national government in 1901. We learned that the Constitution of Australia sets out the rules about how the National Parliament works and about what powers belong to the National Government and what powers belong to the States.
We also learned that the High Court of Australia has the final say in how the Constitution of Australia Act is interpreted.
So do we actually have any constitutional rights or guaranteed freedoms?
People who watch a lot of American TV might assume that, because we live in a free country and we have a constitution, it must be a bit like the American one and give us some rights. Then there is another group of people who assume that we have inherited a lot of rights from Britain. So what rights do we actually have?
In this lesson we are going to jump straight to the conclusion and then go on a journey to see how we got there.
Rights in the Australian Constitution Act
You might think that, if the founding fathers were going to go to the trouble of framing a written constitution that they might have put something in there are about basic freedoms and your rights and duties as a citizen. Well, you might think that but you would be wrong. You have the right to practise your religion and if the government takes your property they have to give you something for it…and that’s about it.
The Constitution of Australia Act does not expressly provide for any of the following rights:
Freedom of assembly
Freedom of speech
Freedom from discrimination and persecution
Freedom of association
Freedom of movement within the country
Protection from torture or inhumane treatment
What the Constitution Act does is set out how the federation works. However the High Court has been very creative in implying rights into the Constitution that are not actually written. The Court has found an implied constitutional guarantee of freedom of communication on all political matters. This is our only constitutional right to free speech. Potentially this right is quite broad but as yet we do not know what the limit and extent of it is because it is something the Court has referred to in only a couple of cases.
There is also a nod to freedom of religion. In the 1890’s there was concern that the new government might favour the Church of England over the rights of Irish Catholics. The founding fathers wanted to make sure we did not get a situation like that in Northern Ireland so they included section 116 which states that the Federal government:
“Shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office…of the Commonwealth.”
So the Commonwealth would be in breach of section 116 if they were to deny you a job because you are a Muslim, and they cannot impose a state religion onto you. Constitutionally we cannot become an Islamic State. To date the Commonwealth has not attempted to prohibit the free exercise of religion. However it is possible that anti-discrimination law will make the church’s traditional teaching on homosexuality unlawful. Proselyting in a multicultural society could also be restricted as it is in Singapore. Whether the Constitution would prevent this remains to be seen.
Remember that each State also has a Governor, a parliament and a constitution. The Tasmanian Constitution Act 1934 states:
(1) Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
(2) No person shall be subject to any disability, or be required to take any oath on account of his religion or religious belief and no religious test shall be imposed in respect of the appointment to or holding of any public office.
In addition to the written constitution of Australian we are connected to the British Monarchy and consequently the written and unwritten British constitution also applies in Australia. Let’s look at the British constitution.
In summary, the constitution we have inherited from Britain establishes the principle that everyone has to live by the law of the land. The law applies to the Governor-General as much as it applies to you as much as it applies to the Prime Minister. The government of the day can only operate in accordance with the laws made by Parliament. So the main right that we have is the right to due process under law.
This is what distinguishes modern civilised societies from Tin Pot Dictatorships or ‘TPDs’. In TPDs what ‘El Presedante’ wants ‘El Presedente’ gets and people who get in the way tend to get whacked. This has been the story in much of Africa, Arabia and many other parts of the world. These societies on the whole tend to be poor, corrupt, and not places people choose to migrate to or invest in. In fact the notion of a society under law made by Parliament is one of the great achievements of the British peoples. Furthermore it is assumed that ‘what is not forbidden is permitted’ in other words, all things are permissible except those things prohibited by law.
Why then have a constitution at all? The purpose of having a constitution is to limit what the law can do. A constitutional right is one which the law cannot take away. Any law that takes away a constitutional right is unconstitutional and therefore invalid. So in one sense, our constitution does not give us rights, it protects the rights that we already have.
The idea that everyone lives under law comes from the Bible and the Jewish concept that we all live under the law of God. The idea that we are all equal before the law comes from the idea that we are all equal before God.
In Medieval times people had the idea that those further up the hierarchy were closer to God and it was their role to rule the peasants on God’s behalf. This was known as the ‘divine right of kings’. The Popes meanwhile claimed to be the infallible and sole representative of God on earth. Equality was considered blasphemy. The Bible was not widely read and was forbidden to be read by all but a handful of Roman Catholic clerics.
That is why the development of Parliament, voting and representative government happened in parallel with the development of Protestantism. As people re-discovered the Bible they adopted the Jewish concept that we all live under the law of God which applies equally to everyone; and the Bible, not the Pope or the King, is the final authority.
We noted in the first lessons that our democratic impulses originated with the Nordic settlers but were later extinguished by feudalism. Secular people often think that democracy came to Europe from Greece, but that is incorrect. The Greek classics were studied extensively during the Medieval period but this did not move democracy forward at all. It was only after the re-discovery of the Bible in the sixteenth century that representative government and limits to royal and church authority began to develop. Without Protestantism it is very unlikely that any sort of modern democracy would have happened. That is one reason why democracy happened first in the West, and specifically in Britain.
Rights Inherited from Britain
Living under law does not prevent Parliament from making laws that take away your liberty, unless that liberty is protected by the Constitution in some way.
In addition to our own Constitution Act, Australia has inherited the constitution of Great Britain.
Arguably the British Constitution gives citizens four basic rights:
What that means is that if the Parliament of Australia made a law taking away one of these freedoms the High Court could rule that the law was invalid. However that would not just happen. Someone who was affected by the law would have to take a case to the High Court, persuade them to hear it, and then prosecute the case. To do that you need about a quarter of a million dollars, or some good lawyers prepared to work for free, and you had better not be in a hurry because it can take from two to five years to get a case before the Court. It is no small undertaking. Also if you lose you might have to pay costs to the other side. To make matters harder the Commonwealth can restrict the ability of the High Court to hear appeals. Even if a case gets as far as being heard, it is very difficult to predict what will be decided in any given matter.
So now we need to be clear about what constitutional rights we do not have. Australians do not have to any of the following constitutional rights:
It could be argued that there is not a clear right to start a political party, but there is an ancient right to petition parliament.
On that basis then, let us consider some scenarios.
Currently if you witness criminal behaviour against refugees in a detention center and you tell someone you can go to jail. That is constitutional.
It would be constitutional to make home education illegal or to require a single state mandated curriculum to be taught.
What if the government decided that it did not like an identifiable group (Jews, Muslims, homosexuals, Christians, whatever) and decided to lock them up in remote camps and kidnap their children? Well that has already happened. It was the official policy towards Aboriginal people for many decades and it was entirely constitutional.
Less clear is whether Parliament could pass laws banning organisations such as those opposing foreign ownership, promoting environmental protection, or advocating for minority rights. The High Court did not allow the Menzies government to dissolve the Communist Party of Australia, and Queensland has been frustrated by the High Court in trying to ban outlaw motorcycle gangs, so there may be an implied right to association after all.
What is the British Constitution?
When people talk about the “British constitution” that really means three things:
Conventions are basically traditions, the way things are done. There are lots of them and they have to do with the machinery of Parliament and the Courts and keeping them working. There are some very quaint traditions like the House Speaker being dragged to the chair on the first day of Parliament sitting, and people tapping on the doors of the House of Representatives with a black rod. They are important traditions but they do not give you any personal rights.
Countries with a British heritage such as the United States, Canada, New Zealand and Australia, have what is called the Common Law Legal System. The defining feature of this system is that Parliament does not have to write down every single law. Instead over the last couple of centuries judges have made rulings in particular cases. Some of these have established principles of law that have been followed in subsequent cases. Over time these have evolved into many of the legal rights that we have today. This judge-made law sits in parallel with the laws made by Parliament.
So for example, if you run over my dog I can sue you for compensation. That is based on common law. So is trespass, libel, damage to goods, negligence and many other things that people can sue one another for. Legal precedents are also important in interpretation statute law such as Acts of parliament.
Laws made by Parliament override common law, but more often Parliament draws on the learning of the courts when it makes laws. For example, many business people will have encountered the Trade Practices Act which was recently re-badged and re-issued as the Australian Consumer Law. This Act of Parliament codifies a large body of judge-made common law in areas like unfair contract terms and unconscionable conduct.
Conversely judicial precedents are used to interpret laws made by Parliament, and to interpret the Australian Constitution. If you want to get to grips with the Common Law you need to go to law school and study Tort and Contract Law where you will learn about carbolic smoke balls and decomposing snails and the guy who went looking for a gas leak with a candle (he found it!).
So essentially what the Common Law does is create rights between citizens. If you breach your contract with me I can sue for compensation. You can sue me for trespass when I keep doing wheelies on your front lawn.
But does the Common Law protect us from government tyranny? The answer is ‘no not really’ but there is one Common Law action that is important and that is called ‘Habeas Corpus’. Habeas corpus is a piece of Latin that means literally ‘show us the body’ or ‘where is the body’. This goes back to merry old England and the days of Robin Hood and knights and castles. In those days if you offended the local Lord you tended to disappear into a dungeon somewhere and you might never be heard of again, or bad things would happen to you until you handed over your taxes.
After a while people got a bit tired of this sort of thing and the courts began demanding that if someone was taken into custody they had to explain to the court where the person was and bring him before a judge. A person couldn’t simply be ‘disappeared’.
It is a very important freedom that we still have. If you get taken into custody your lawyer can go to court and seek a ‘Writ’ of Habeas Corpus and the authorities must disclose where you are and bring any charges before the court.
In 1640 Parliament passed the Habeas Corpus Act and later Acts were passed affirming habeas corpus in English law.
Nevertheless governments in Europe and in the UK successfully ignored habeas corpus when they participated in the CIA’s program of ‘extraordinary rendition’ where terror suspects were kidnapped off the streets and taken to secret locations where they were tortured and, in some cases, tortured to death.
It is the reason why the US houses its Gitmo inmates at Guantanamo Bay because it is outside the US and therefore the common law writ of habeas corpus does not apply.
Now onto the third aspect of the British constitution – written statements of rights starting with a big document called Magna Carter.
Written Statements of Rights
We pick up this story at the time of the crusades. In 1200 Britain was involved in an expensive and controversial war in the Middle East which involved killing lots of Muslims. This was not a new idea even then. The king at the time was Richard the Lionheart! Richard was a bad king but very good at killing Muslims. He was too busy with the crusades to really bother being King so he put his brother, King John, in charge in Britain to collect all the taxes to pay for his wars. Richard got to be a war hero and John got to be a tax collector. Guess who was more popular? John was also a bad king and eventually the Barons who had the castles, owned the land and gathered the taxes, ganged up on him. In 1215 they forced him to sign a ‘Great Charter’ of rights called the Magna Carter (which is Latin for Great Charter).
There are 63 clauses in the Magna Carter and most of them are about keeping certain rights and traditions of the nobility which are now obsolete. What it did do was establish the principle that the government – in those days the King – was subject to the law and could not just do whatever they wanted.
Four of the Magna Carter rights are still relevant today. They are:
These rights only applied to certain classes of society at that time but they have been accepted as rights that can be applied more broadly. The relevant clauses in (translated from Latin) are provided in your materials.
From Magna Carter we need to fast forward to the Petition of Right in 1628. This is the time of ‘royalists’ and ‘round heads’. On the one side we now have a Parliament which was largely Protestant. On the other side we have a king who was Catholic. In 1628 King Charles the First was short of money for another unpopular war and began simply requiring wealthy land owners to provide ‘forced loans’ to the King. Those that refused were simply locked up without charge or trial. In addition the King imposed martial law which suspended normal laws and left people at the mercy of local military commanders. The King also required citizens to billet soldiers in their homes and feed them at their own expense. This led to a show-down between Charles and Parliament. Parliament agreed on a ‘Petition of Right’ which demanded the following liberties:
After much negotiation the King agreed to these rights. Nevertheless civil war broke out between the King and Parliament in 1642 but these rights remain part of the constitution of Britain and are also part of the constitution of Australia.
The civil war was not very ‘civil’ and King Charles was beheaded. After that things got complicated and some decades later the English nobility decided that they did want a King after all but only if he was Protestant and only with certain written guarantees. These were written up as the Bill of Rights in 1689. Essentially this was a contract offer that set the foundation for the Constitutional Monarchy. If he would agree to the Bill of Rights restricting his powers he would be offered the crown. In the event, William III of Orange and Mary II become joint monarchs and reigned in accordance with the Bill of Rights that became law.
So what did the Bill of Rights say?
It did not say much about individual liberties but it did assert the power of Parliament as a law making body and prevented the King from interfering. Specifically Parliamentarians could say anything they wanted within the chamber which is a right that exists. It is now referred to as ‘parliamentary privilege’. The ‘Bill of Rights’ affirmed the previous ‘Petition of Right’ in saying that taxes could only be collected according to laws made by Parliament, and it affirmed Magna Carter in saying that excessive fines should not be imposed, or excessive bail asked for, or cruel and unusual punishments inflicted.
The Bill of Rights has been adopted in Australia and all Commonwealth countries including New Zealand and Canada.
The questions we have to ask are:
The fact is that the constitutional prohibition against cruel and unusual punishment and the right to a trial did not stop the slave trade in Britain, the Highland Clearances or the persecution of the Irish. Nor did it stop transportation or the extreme cruelties that were inflicted on convicts at special locations such as Port Arthur, Sara Island or Norfolk Island. Historically and today it is very difficult to enforce a constitutional right, particularly if you are poor or disadvantaged. Also, there are very few civil rights that cannot be legislated away. If the Parliament passes a law that clearly states that your rights can be infringed it is almost impossible to challenge that law. Ultimately therefore our best protections are political. They lie in the favour we enjoy with Parliament. We consider Parliament, and more specifically who the government is, in a future lesson.
Note that any people consider the US Constitution to be the high water mark in constitutional development and civil liberties. However, some experts consider the US Constitution today to have been largely usurped by executive, that is dictatorial, power. An article is included in your materials.
In summary, in Australia we have:
End of Lesson 3
Suggested research assignments:
Is the imprisonment and overall treatment of Julian Assagne by the British government constitutional?
Do laws against ‘hate speech’ prevent reasonable public discussion or the free expression of religious belief?
Sources and References
Rights in the Written Constitution of Australia
“Nevertheless, there are five explicit individual rights in the Constitution. These are the right to vote (Section 41), protection against acquisition of property on unjust terms (Section 51 (xxxi)), the right to a trial by jury (Section 80), freedom of religion (Section 116) and prohibition of discrimination on the basis of State of residency (Section 117).”
Link to the Constitution of Australia Act
Copy of Sections
51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: –
(xxxi.) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws:
Religious Freedom and Freedom of Expression
In the case of Williams v Threewisemonkeys and Durston  TASADT 4 (30 June 2015) a person was fined and forced to publish a public apology in the local newspaper for letterboxing a pamphlet which was condemning of homosexuality. The authors contended that section 116 of the Constitution protected their right to religious freedom and freedom of speech. In relation to this the Tribunal made the following finding:
“It is not, in form a constitutional guarantee of the rights of individuals … instead takes the form of express restriction upon the exercise of Commonwealth legislative power.”
Notably, there is no similar constraint imposed upon the legislatures of the States: The Attorney General for the State of Victoria (at the relation of Black) and Ors v The Commonwealth of Australia  HCA 2; (1981) 146 CLR 559 at 605; Grace Bible Church v Redman (1984) 36 SASR 376.
Notwithstanding a number of challenges (Krygger v Williams  HCA 65; Adelaide Company of Jehovah’s Witnesses Incorporated v Commonwealth  HCA 12; Kruger v Commonwealth  HCA 27) the Australian High Court has not ruled a law to be in contravention of s116.
According to learned academic commentary: “Section 116 prohibits the Commonwealth Parliament from enacting legislation that would prohibit the free exercise of religion or establish a religion. This constitutional protection is, however, limited in many ways. It applies only to the Commonwealth and not to the States. It does not apply to all government action but only to legislation or actions taken under legislation. It does not, in its terms, protect beliefs that are not religious (although the High Court has interpreted it to extend to atheism and agnosticism at least). In addition, the High Court has interpreted s116 very restrictively so that it has little force: Associate Professor Carolyn Maree Evans, Legal Aspects of the Protection of Religious Freedom, in Australia, Centre for Comparative Constitutional Studies, Melbourne Law School 2009.
So, notwithstanding the apparently broad terms of s116 of the Constitution, this section does not amount to a complete guarantee of protection. In particular, it does not provide individuals with any avenue of legal redress if their perceived right to freedom of religion has been violated. In any event, any ‘freedom’ must be balanced against the rights of others, as is the case with the rights to freedom of speech and freedom of association. Accordingly, the Tribunal finds no basis for the respondent’s reliance on a right to freedom of religion by way of response or defence to this complaint.
Magna Carta (Great Charter)
(40) To no one will we sell, to no one deny or delay right or justice.
(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
(38) In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.
(22) A fine imposed upon the lay property of a clerk in holy orders shall be assessed upon the same principles, without reference to the value of his ecclesiastical benefice.
(21) Earls and barons shall be fined only by their equals, and in proportion to the gravity of their offence.
(20) For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.
In translation the following is text from the Magna Carter that still has relevance today and forms part of the constitution of Great Britain and therefor also of Australia as a Commonwealth Country.
Magna Carta established for the first time the principle that everybody, including the king, was subject to the law.
What does the Magna Carta say?
Although Magna Carta contained 63 clauses when it was first granted, only three of those clauses remain part of English law. One defends the liberties and rights of the English Church, another confirms the liberties and customs of London and other towns, but the third is the most famous:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
To no one will we sell, to no one deny or delay right or justice.
This clause gave all free men the right to justice and a fair trial. However, ‘free men’ comprised only a small proportion of the population in medieval England. The majority of the people were unfree peasants known as ‘villeins’, who could seek justice only through the courts of their own lords.
Buried deep in Magna Carta, this clause was given no particular prominence in 1215, but its intrinsic adaptability has allowed succeeding generations to reinterpret it for their own purposes. In the 14th century Parliament saw it as guaranteeing trial by jury; in the 17th century Sir Edward Coke (1552-1634) interpreted it as a declaration of individual liberty in his conflict with the early Stuart kings; and it has echoes in the American Bill of Rights (1791) and the Universal Declaration of Human Rights (1948).
Much of the remainder of Magna Carta dealt with specific grievances regarding the ownership of land, the regulation of the justice system, and medieval taxes with no modern equivalent (such as ‘scutage’ and ‘socage’). It demanded the removal of fish weirs from the Thames, the Medway and throughout England; the dismissal of several royal servants; the standardisation of various weights and measures; and so on.
Magna Carta stated that no taxes could be demanded without the ‘general consent of the realm’, meaning the leading barons and churchmen. It re-established privileges which had been lost, and it linked fines to the severity of the offence so as not to threaten an individual’s livelihood. It also confirmed that a widow could not be forced to remarry against her wishes.
Petition of Right
View full text here: http://www.constitution.org/eng/petright.htm
The Petition of Right was the next major restriction on the power of the King, and assertion of the power of Parliament. It demanded some rights for subjects:
Coke [representing the Parliamentary faction] …. immediately began preparing the Resolutions on 1 April, a series of Parliamentary declarations. The four resolutions were that imprisonment was illegal, except under law, that habeas corpus should be granted to anyone, whether they are imprisoned by the King or the Privy Council, that defendants could not be remanded in custody until the crime they were charged with was shown, and that non-Parliamentary taxation such as the forced loans was illegal. This was “a dogmatic summary of subjects’ rights as enshrined in English ‘due process’ legislation since 1225.
Bill of Rights
The circumstances of this assertion of rights are complex and have to do with the restoration of the monarchy at that time. The background to the Bill of Rights is the English civil war in the 1640’s, and subsequent difficulties in governing the country. It reflects the conflict between Protestants and Catholics and between King and Parliament. In simple terms the King was Catholic and championed the rights of Catholics. He also believed in ‘the divine right of kings’, namely that only the Pope could tell him what to do. Parliament largely represented the Protestant cause and sought to limit the power of the King asserting the right to make its own laws.
What is important is that the Bill of Rights is the nearest thing to the American Bill of Rights because the Americans drew inspiration from it. For more explanation see here: https://en.wikipedia.org/wiki/Bill_of_Rights_1689
The Bill of Rights started as the Declaration of Right made by Parliament but in December 1689 this Declaration was enacted in an Act of Parliament, as the Bill of Rights 1689. The Act asserted “certain ancient rights and liberties” by declaring:
The Act declared that when King James fled from England following the Glorious Revolution he abdicated the throne. Furthermore, it listed twelve of James’s policies by which James designed to “endeavour to subvert and extirpate the protestant religion, and the laws and liberties of this kingdom”.
In a prelude to the Act of Settlement to come twelve years later, the Bill of Rights barred Roman Catholics from the throne of England as “it hath been found by experience that it is inconsistent with the safety and welfare of this Protestant kingdom to be governed by a papist prince”.
It is still law today that a Roman Catholic cannot be a King or Queen of Britain or of any other Commonwealth Country.
….and Lets not forget King Richard who started the whole thing off…
Richard (1189-99) is known to history as “Coeur de Lion”, or Lionheart, because of his bravery in battle. He was without a doubt a great warrior, but he was a very poor king for England. In his ten year reign he spent only tem months in England, and that only to raise money for his foreign wars. He fought brilliantly and cruelly in the Third Crusade, and was captured on his way home by a personal enemy, Leopold of Austria.
King John was reluctant to pay the ransom, and it was left to the Dowager Queen Elenaor, and Hugh Walter, the Archbishop of Canterbury, to raise the required £60,000 to free Richard from his captivity. Richard was freed only to die a short time later fighting in France. Richard’s later popularity rests as much on romantic wishful thinking as it does on facts.
“King John was not a Good King…”
Whereas Richard exhibited little interest in his responsibilities as a king, John (1199-1216) exhibited too much. A bad press over the years has portrayed him as a villain, and the sad truth is that John was really not a very good king. He was greedy, a poor administrator, and a poor warrior. In 1204 he lost all the lands north of the Loire to Philip of France. This had the effect of severing the Norman aristocracy of England from their continental possessions. They were forced to turn all their energies and attention to England, where they began to flex their muscles.
The Magna Carta
The rebellious attitude of the great barons led to inevitable confrontation with John. In 1215 the barons were powerful enough to force John to sign the Magna Carta (Great Charter). Contrary to later opinion, the Magna Carta was not an outline of universal freedom and democracy. It was a document which bound the king to observe common law and tradition, particularly where it affected the rights and privileges of the nobility. It put the crown directly under the thumb of the law, rather than vice versa, as John would have it. It did have several clauses that were later interpreted in ways that led to a definition of democratic freedom and the rights of the individual under law. It is rightly regarded as the basis of the modern English constitution, but at the time it was little more than a power grab by the barons.
John tried to repudiate the Charter as soon as he was out of the barons’ control. Their struggle continued until the following year when John died after bingeing on peaches.
…and what about the US Constitution?
Does The United States Still Exist?
An address delivered to the Libertarian Party of Florida on March 23, 2016 in Destin, Florida
Paul Craig Roberts
About the Author:
Dr. Paul Craig Roberts served as an Assistant Secretary of the Treasury for Economic Policy in the Reagan administration.
For full curriculum vitae see here: http://www.paulcraigroberts.org/pages/about-paul-craig-roberts/
“To answer the question that is the title, we have to know of what the US consists. Is it an ethnic group, a collection of buildings and resources, a land mass with boundaries, or is it the Constitution. Clearly what differentiates the US from other countries is the US Constitution. The Constitution defines us as a people. Without the Constitution we would be a different country. Therefore, to lose the Constitution is to lose the country.
Does the Constitution still exist? Let us examine the document and come to a conclusion.
The Constitution consists of a description of a republic with three independent branches, legislative, executive, and judicial, each with its own powers, and the Bill of Rights incorporated as constitutional amendments. The Bill of Rights describes the civil liberties of citizens that cannot be violated by the government.
Article I of the Constitution describes legislative powers. Article II describes executive powers, and Article III describes the power of the judiciary. For example, Article I, Section 1 gives all legislative powers to Congress. Article I, Section 8 gives Congress the power to declare war.
The Bill of Rights protects citizens from the government by making law a shield of the people rather than a weapon in the hands of the government.
The First Amendment protects the freedom of speech, the press, and assembly or public protest.
The Second Amendment gives the people the right “to keep and bear arms.”
The Third Amendment has to do with quartering of soldiers on civilians, a large complaint against King George III, but not a practice of present-day armies.
The Fourth Amendment grants “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and prevents the issue of warrants except “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment prevents police and prosecutors from going on “fishing expeditions” in an effort to find some offense with which to charge a targeted individual.
The Fifth Amendment prohibits double jeopardy, self-incrimination, the taking of life, liberty, or property without due process and the prohibition of seizing property without just compensation.
The Sixth Amendment guarantees speedy and public trial, requires that a defendent be informed of the charge against him and to be confronted with the witnesses, to present witnesses in his favor, and to have the assistance of an attorney.
The Seventh Amendment gives the right of trial by jury to civil suits.
The Eighth Amendment prevents excessive bail and cruel and unusual punishments.
The Ninth Amendment says that the enumeration of certain rights in the Constitution does not deny or disparage others retained by the people. In other words, people have rights in addition to those listed in the proscriptions against the government’s use of abusive power.
The Tenth Amendment reserves the rights not delegated to the federal government to the states.
The Tenth Amendment is a dead letter amendment. The Third Amendment protects against an abandoned abusive practice of government. The Seventh Amendment is still relevant as it allows damages in civil suits to be determined by a jury, once a protection against unfairness and today not always the case.
The other seven amendments comprise the major protections of civil liberty. I will examine them in turn, but first let’s look at Section 1 and Section 8 of Article I. These two articles describe the major powers of Congress, and both articles have been breached. The Constitution’s grant of “all legislative powers” to Congress has been overturned by executive orders and signing statements. The president can use executive orders to legislate, and he can use signing statements to render sections of laws passed by Congress and signed by the president into non-enforced status. Legislative authority has also been lost by delegating to executive branch officials the power to write the regulations that implement the laws that are passed. The right that Section 8 gives to Congress to declare war has been usurped by the executive branch. Thus, major powers given to Congress have been lost to the executive branch.
The First Amendment has been compromised by executive branch claims of “national security” and by extensive classification. Whistleblowers are relentlessly prosecuted despite federal laws protecting them. The right of assembly and public protest are overturned by arrests, tear gas, clubs, rubber bullets, water cannons, and jail terms. Free speech is also limited by political correctness and taboo topics. Dissent shows signs of gradually becoming criminalized.
The Fourth Amendment is a dead letter amendment. In its place we have warrantless searches, SWAT team home invasions, strip and cavity searches, warrantless seizures of computers and cell phones, and the loss of all privacy to warrantless universal spying.
The Fifth Amendment is a dead letter amendment. The criminal justice system relies on self-incrimination as plea bargains are self-incrimination produced by psychological torture, and plea bargains are the basis of conviction in 97% of all felony cases. Moreover, physical torture is a feature of the “war on terror” despite its illegality under both US statute and international law and is also experienced by inmates in the US prison system.
The Fifth Amendment’s protection against deprivation of life, liberty, and property without due process of law has been lost to indefinite detention, executive assassination, and property takings without compensation. The Racketer Influenced Corrupt Organizations Act (RICO) passed in 1970. The act permits asset freezes, which are takings. The Comprehensive Forfeiture Act passed in 1984 and permits police to confiscate property on “probable cause,” which often means merely the presence of cash.
The Sixth Amendment is a dead letter amendment. Prosecutors routinely withhold exculpatory evidence, and judges at prosecutors’ requests have limited attorneys’ ability to defend clients. The “war on terror” has introduced secret evidence and secret witnesses, making it impossible for a defendant and his attorney to defend against the evidence.
The Eighth Amendment’s prohibition of excessive bail and torture are routinely violated. It is another dead letter amendment.
It is paradoxical that every civil liberty in the Bill of Rights has been lost to a police state except for the Second Amendment, the gun rights of citizens. An armed citizenry is inconsistent with a police state, which the US now is.
Other aspects of our legal protections have been overturned, such as the long standing rule that crime requires intent. William Blackstone wrote: “An unwarrantable act without a vicious will is no crime at all.” But today we have crimes without intent. You can commit a crime and not even know it. See for example, Harvey Silverglate, Three Felonies A Day: How the Feds Target the Innocent.
Attorney-client privilege has been lost. The indictment, prosecution, and imprisonment of defense attorney Lynne Stewart is a good example. The DOJ prevailed on her to defend a blind Muslim regarded by the DOJ as a “terrorist.” She was informed that “special administrative measures” had been applied to her client. She received a letter from the federal prosecutor informing her that she and her client would not be permitted attorney-client privilege, and that she was required to permit the government to listen to her conversations with her client. She was told that she could not carry any communications from her client to the outside world. She regarded all this as illegal nonsense and proceeded to defend her client in accordance with attorney-client privilege. Lynne Stewart was convicted of violating a letter written by a prosecutor as if the prosecutor’s letter were a law passed by Congress and present in the US code. Based on a prosecutor’s letter, Lynne Stewart was sentenced to prison. No law exists that upholds her imprisonment.
Our civil liberties are often said to be “natural rights” to which we are entitled. However, in historical fact civil liberty is a human achievement that required centuries of struggle. The long struggle for accountable law that culminated in the Glorious Revolution in England in the late 17th century can be traced back to Alfred the Great’s codification of English common law in the 9th century and to the Magna Carta in the early 13th century. Instead of issuing kingly edicts, Alfred based law on the traditional customs and behavior of the people. The Glorious Revolution established the supremacy of the people over the law and held the king and government accountable to law. The United States and other former British colonies inherited this accomplishment, an accomplishment that makes law a shield of the people and not a weapon in the hands of the state.
Today law as a shield of the people has been lost. The loss was gradual over time and culminated in the George W. Bush and Obama regime assaults on habeas corpus and due process. Lawrence Stratton and I explain how the law was lost in our book, The Tyranny of Good Intentions. Beginning with Jeremy Bentham in the late 18th century, liberals saw the protective shield of law as a constraint on the government’s ability to do good. Bentham redefined liberty as the freedom of government from restraint, not the freedom of people from government. Bentham’s influence grew over time until in our own day, to use the words of Sir Thomas More in A man for All Seasons, the law was cut down so as to better chase after devils.
We cut down the law so that we could better chase after the Mafia.
We cut down the law so that we could better chase after drug users.
We cut down the law so that we could better chase after child abusers.
We cut down the law so that we could better chase after “terrorists.”
We cut down the law so that we could better chase after whistleblowers.
We cut down the law so that we could better cover up the government’s crimes.
Today the law is cut down. Any one of us can be arrested on bogus charges and be helpless to do anything about it.
There is very little concern in legal circles about this. The American Civil Liberties Union (ACLU) does attempt to defend civil liberty. However, just as often the ACLU is not defending the civil liberties in the Bill of Rights that protect us from the abuse of government power, but newly invented “civil rights” that are not in the Constitution, such as “abortion rights,” the right to homosexual marriage, and rights to preferential treatment for preferred minorities.
An attack on abortion rights, for example, produces a far greater outcry and resistance than the successful attack on habeas corpus and due process. President Obama was able to declare his power to execute citizens by executive branch decision alone without due process and conviction in court, and it produced barely audible protest.
Historically, a government that can, without due process, throw a citizen into a dungeon or summarily execute him is considered to be a tyranny, not a democracy. By any historical definition, the United States today is a tyranny.”
 See further Williams v Threewisemonkeys and Durston  TASADT 4 930 June 2015