The Rise of the Insane State - Chapter 7 - The Erosion of the Bill of Rights

7. The Erosion of the Bill of Rights


“A man will fight harder for his interests than for his rights.”

-Napolean Bonaparte

Before the creation of the United States, many states were frightened at the prospect of creating a strong centralized government.  They were afraid that the United States government could be so powerful that it would eventually usurp power from the state governments.  The passage of the Bill of Rights was a way to appease the states and limit the power of the United States government.  The states have just fought a war to separate themselves from the King of England, and they just did not want to turn around and create a new powerful threat.  The Bill of Rights is a very powerful document.  It clearly sets a limit on the federal government’s power.  The Bill of Rights originally applied to the federal government, but through a Supreme Court case, Gitlow versus New York, in 1925 was the Bill of Rights applied to the states.  The Supreme Court upheld the conviction of Gitlow who was socialist and advocated the overthrow of government.  Supreme Court ruled that speech and writings for overthrowing the government did not violate free speech of the First Amendment.

The sad truth is the states’ nightmare has become true.  The federal government has circumvented the Bill of Rights and usurped control and power away from the states.  Of course, many states are not big on the Bill of Rights either.  The state governments are also circumventing these rights.  The unfortunately truth is the Bill of Rights is a piece of paper.  A piece of paper cannot impose limits on government.  Only government officials can.  The Bill of Rights helped keep a lid on government's power for 200 years, because it imbued a set ethics and duty on politicians, judges, Presidents, governors, and legislators.  However, through the acts of Congress and the federal courts, government has been able to circumvent the Bill of Rights.  Each amendment of the Bill of Rights is written as a section heading and has an explanation how the federal or state government has circumvented it. 

Amendment I

“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.”

The judicial system has really twisted and distorted this Amendment.  This is the most abused amendment ever.  The purpose of this amendment is to protect religion and a free press from government.

The forefathers did not intend the American people to be atheists, nor remove god from the public institutions.  They just did not want the federal government to sponsor a particular religion.  With the United States being a melting pot of different cultures, the forefathers wanted the people to choose their own religion, whether or not it was Catholic, Presbyterian, Lutheran, Baptist, or Judaism.  The forefathers did not want a godless, atheistic society, because religion has power.  For example, what if 99% of the U.S. population believed in Jesus and the 10 Commandments?  The 10 Commandments are the beginning of western law.  Thou shall not covet thy neighbor's wife, thou shall not steal, and thou shall honor thy father and mother.  If 99% of the population followed these precepts, we could actually have a society with almost NO GOVERNMENT!  Religion is a source of discipline and behavior control.  Now the U.S. government has been successful at eliminating religion from society.  The government has encouraged the break up of traditional families and helped finance out-of-wedlock children.  Indirectly, the federal government has contributed to the deterioration of society.  The government has been building more prisons, more court buildings, more jails, and more treatment facilities.  We are already incarcerating 2% of the U.S. population.  What have we achieved?  The federal and state governments are rapidly growing broke and crime is still present. 

The courts have expanded freedom of the press to cover all kinds of behavior.  Nudists want to walk around with no clothes:  You have the freedom to be naked.  Pornography is viewed as free speech.  College professors have the freedom to grade students.  In the 8th U.S. Federal District Court, you have the freedom to give a cop the middle finger.  (Interpretation of laws can differ among federal court districts until a Supreme Court decision brings all districts to the same consensus).  The public has forgotten the purpose of freedom of speech.  Freedom of speech is to keep news reporters free from government control.  For example, the Soviet Union controlled all newspapers, TV channels, and book publishing.  The Soviet government only told its citizens what the government wanted them to know.  In the United States, the press may be free, but they really do not ask politicians and government the tough questions that need to be asked.  However, a new technology was formed that allows anyone to become a writer – the internet.

The internet is one of the most versatile inventions of the 20th century.  Anybody with access to a computer can be his or her own press with little cost.  However, some lawyers (and judges) have found a way to punish people who use the internet as a free press.  For example in Texas, if you create a website (or you have the money to run a commercial against a political opponent), then you may be violating a campaign finance law.  The opponent may sue you and you could pay high damages or even be subjected to criminal prosecution.  The Texas campaign law requires you to register with the state and disclose all financial contributors.  For example, a person ran a negative campaign ad on television against a particular Texas judge.  That person ended up paying large civil damages, even though slander was not involved.  Apparently, politicians in Texas do not believe in the free press.  Currently, political organizations that are unhappy about negative campaign ads have been getting more Texas prosecutors to examine these cases for violations of the campaign laws as a clever way to shut people up.

Government has eroded the right to peaceful assembly.  Usually when a political group is angry with an issue and wants politicians to pay attention, the group has a public protest.  These protests make it in the news and political leaders have to pay serious attention.  However, some political leaders do not like the message or the publicity, so they sic the police on them.  Thus, the police are present at these protests.  In some instances, the police have been aggressive against the protesters, like the Mexican protesters who were protesting the new immigration laws in Los Angeles in 2007 (Associated Press 2007).  Another way for government to stop protests is to require a permit.  Government may take awhile to approve the permit or arrest the protesters if they did not get the necessary paperwork.  Of course, the key word is "approve."  Government can also decline permits, forcing citizens to go through an appeal process.

Amendment II

“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.”

In the beginning, the United States did not have a large, full-time military, because the soldiers had to work their jobs and farm the land to support their families.  The states needed access to soldiers who could be called up in short notice and help protect people and towns from invaders and the Indians.  (We did steal land from the Indians, so they have every right to be angry with the Europeans).  It was also convenient for these people to own their guns.

This Amendment clearly placed a limit on the federal government.  If the federal government became too powerful, a state government could easily rebel, because they have fast access to its armed population.  If the federal government went too far, a potential, bloody war could ensue.  The United States lost more soldiers in the U.S. Civil War than in World War I and II combined.  The worse war a country can fight is a civil war.   

The current government has a problem with too many people owning guns and government has been very successful at placing barriers to gun ownership. 

  • A person can own a gun, but cannot fire it within city limits, because of city ordinances.  It makes no difference what the circumstances are. 

  • A person could be subjected to criminal prosecution in certain states, if a burglar tries to break into the house and the owner shoots him.  An owner is supposed to go up only one step to remove the threat.  Of course, how could a person know what the level of threat is when someone is breaking into his or her home?  The burglar could be unarmed or armed.

  • Another restriction is a person needs a special permit to carry a concealed weapon.  You have to ask a government agency to give you permission to carry a firearm. 

  • The most popular means of gun control is domestic violence.  A person loses their right to have a firearm, if either that person (i.e. male) is convicted of domestic violence or a court places a protective order against him.  Of course, protective orders are easy to obtain in some states and defendants may have trouble legally challenging protective orders.  Defendants are required to turn in all guns and if they do not, then they are charged with felonies. 

  • Felony convictions prevent gun ownership for the rest of a felon’s life.

Why would a government want to limit gun ownership?  The federal, state, and local governments have gotten in the mode of taxing, stealing, and expropriating property.  Government rationalizes this behavior by saying the person is a criminal or has broken some type of law and needs to have his property and assets taken.  It can be as simple as a person carrying too much cash and the government steals your money by claiming this person is a drug dealer.  If people are armed, government has much more difficulty expropriating property.  Who in their right mind would want to be a government agent, if every time the agent knocks on a door, and is shot at by the occupants.  This can become very expensive in terms of manpower and the potential loss of government agents.

Machiavelli (1520) summed it best in the Art of War.  A republic with armed citizens has a longer life span than a Republic where the citizens are unarmed.  If the people are armed, then government has to be afraid of its people.  If the government is armed, then the people have to be afraid of government.  If the people do not have weapons, a leader can seize power and easily establish a dictatorship.

Amendment III

“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.”

Government has not really violated this Amendment.  The U.S. military receives plenty of tax dollars to house soldiers in barracks.

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.”

Government has easily circumvented this Amendment.  First, if police want to search a house or vehicle, the police can lie and say anything to a judge or magistrate.  Judges or magistrates usually sign the search warrant.  Second, in the name of public safety, if police believe a person is armed or is destroying evidence, then the police will not hesitate to crash through someone’s door without a search warrant.  This has been an actual case in the federal district court in Texas.  A person was taking a shower and did not hear the police knock on the door.  Imagine the person's surprise to see a multitude of guns pointed at him as he was getting out of the shower.  The federal court says this is okay.  Of course, to a person with common sense, how could the police ever know a person is armed or is destroying evidence?  Police are not mind readers.  Thus, the police have the power to kick in any door under these pretenses without the need for a warrant.

The Texas Department of Transportation went after a homeowner that constructed a billboard on his property.  The billboard stated the fourth amendment, “Just say NO to police searches!”  The billboard also lists a telephone number that is a pre-recorded message for the 4th Amendment.  How dare this homeowner do this and inform the public their constitutional rights!  The Department of Transportation claimed the owner violated the Texas Highway Beautification Act, which is around the time that the State of Texas stepped up what they call “consent' searches of vehicles on our highways.”  The homeowner won his case in court using “freedom of speech” from the first amendment (Blumner 1999).

This homeowner was concerned that police were pulling over too many people and searching their cars.  The homeowner did the right thing and posted our right about “unreasonable searches and seizures.”  For the police to follow the rules and obtain a search warrant could take several hours.  The judge has to sign the search warrant and the warrant has to be delivered to the person.  These several hours could prevent police from pulling over a dozen more cars and searching them.  Remember, time is money and the police have to keep writing tickets.  Police do not respect smart asses that say no to an officer's request to search the vehicle.  Of course, this could be dangerous in Texas, where many claim that police officers may plant drugs on difficult citizens.

Amendment V

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Government has circumvented this Amendment.  This Amendment says grand juries have to approve serious charges against a person, but it does not state who serves on grand juries.  In Harris County Courts (Houston, Texas), all judges choose the people who serve on grand juries.  Only one judge selects a grand jury from voter registrations.  Would you be surprised to learn that retired police officers, retired prosecutors, and court employees tend to be overrepresented on grand juries in Harris County?  Even though they are retired, could former employees of the criminal justice system remain unbiased, if their former colleagues are bringing charges against someone?  A grand jury investigated the Houston Crime Lab scandal and found no violations.  The grand jury had one Houston police officer as a member.  However, the FBI shut down this same lab.  Moreover, rumors abound that prosecutors shop around the court system and will select a court with highly biased grand juries for weak cases (McVicker 2004).

This Amendment also allows government to seize property through eminent domain.  Eminent domain is the power to condemn a property and take it over without consent.  Traditionally, government only seized property for public projects, like building a highway, expanding streets, building a new school, or expanding an airport.  These public goods benefit society.  However, the key word is “just compensation.”  Property owners usually over value their property while government that is seizing the property undervalues it.  For example, a person may have a house that is worth $50,000, but he values it at $70,000 while government wants to pay only $10,000.  If a homeowner and government agency cannot agree on the compensation, then this case could go to court and a judge decides what the value is.

The first assault on private property started in the early 1970s when Congress and the President signed the Endangered Species Act of 1973.  The federal government was given the power to halt land development if the development would harm an endangered species or its habitat.  Here is the problem with this law.  The federal government does not have to provide “just compensation.”  For example, you bought a piece of land and planned to build a house on it.  Then the federal government found an endangered bird living on your land and informed you to halt any construction on it.  Now the land drops in value because most people do not want to hold land for the stake of holding land.  The government does not have to compensate you for this loss.  In a way, the federal government seized your land, because it limited the activity that you can do with it.  Congress also knew the power of the federal government would be severely limited if it had to compensate landowners when it destroyed their land values from endangered species.  Similar laws protect wetlands [1] and many states imposed various laws that similarly restricted land development.

The final assault on property owners is the Supreme Court’s decision, Kelo versus City of New London.  The court allows government to seize land if it believes it can collect more tax revenue, even if government seized property from one private owner and transferred it to another private owner (Associated Press 2005).  For example, a city government could use eminent domain to seize properties in a neighborhood and transfer the properties to a developer.  Then a developer demolishes the homes and builds new condominiums or a shopping mall.  The new development brings in new property taxes and possibly new sales taxes (Jones 2003).  However, this wide power can have a chilling effect on private investment.  Who would invest in a building or buy a condominium if government will seize the property again a few years later.  Then private property ownership does not exist.  This would be a form of a land lease from government. 

Amendment VI

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to 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 defence.”

One has to be careful with this Amendment.  For instance, what is a speedy trial?  Does it mean one year, two years, or eight years?  The forefathers never specified.  A trick that prosecutors can use is to ensure their bail is set too high and make defendants sit in jail.  Many people do not like to be locked up and will cave into a prosecutor’s plea agreement, even if they are not guilty.  A person sitting in jail for a couple of months could lose their job and housing, so prosecutors can coerce innocent people into pleading guilty; it is the cheaper alternative.  In one example, the criminal justice system in Baton Rouge, Louisiana completely forgot one person.  James Thomas waited in jail for 8 and half years for his murder case to go to trial.  His mother had to scrape together $500 for an attorney to appeal his case.  The court had to drop charges against James and release him from jail, but the prosecutors are trying to reinstate the murder charges against him (Parker 2005). 

This Amendment allows defendants to obtain witnesses in their favor.  However, this requires an honest criminal justice system.  The police and prosecutors have to disclose pertinent information to the defendant.  What happens if a prosecutor or police does not turn over all evidence or names of all witnesses to the defense?  Thus, how can a defendant request a witness to appear on his behalf if he does not know his or her name?  For instance, prosecutors always bring witnesses to court that say the defendant committed the crime, while the defense brings witnesses that exonerate the defendant.  The police and/or prosecutor could withhold a name of a key witness that could weaken a state’s case. 

This Amendment also requires criminal courts to supply attorneys for the poor, which was a Supreme Court ruling in Gideon versus Wainwright in 1963.  Thus, all states are required to provide counsel for poor defendants for serious misdemeanors and felonies.  What kind of attorneys does government hire to protect defendants and ensure they receive fair trials?  Many states ensure that public defenders earn the lowest salaries, overburden them with caseloads, and provide no financial assistance for expert witnesses.  Thus, public defender offices have trouble retaining experienced attorneys, have high turnover rates, and have trouble recruiting good attorneys (Parker 2005; Patrick 2005).  (Prosecutors also make the same claims for their offices, but they are paid better than public defenders).  Moreover, the State of Texas provided one attorney who slept during a death-penalty trial.  The State of Texas claimed that the “death sentence should be upheld because a sleeping lawyer is no different from a lawyer who is intoxicated, under the influence of drugs, suffering from Alzheimer's disease or having a psychotic break.”  After a lengthy appeals court battle, the defendant was able to get a new trial (The Justice Project 2001).

States vary widely in how public defenders are funded.  The two common methods are:

  • Court provides legal counsel (Parker 2005).  A judge hires a private attorney to represent poor defendants that appear in that judge’s court.  A good question, is the private attorney representing the defendant or working for the judge?  What if the judge is more interested in clearing his dockets with guilty pleas?

  • The court uses a public defender’s office.  A court requests a public defender’s office to send an attorney to represent poor defendants.  Public defender’s offices receive funding from the county and state governments (Parker 2005).

Amendment VII

“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.

Jury trials take time and are expensive.  Many defense attorneys and prosecutors like to avoid jury trials.  Both the prosecutors and defense have to spend a large amount of time organizing the evidence, preparing witnesses, and filing paperwork with the court.  Furthermore, jury trials tend to be a random process.  In some cases, prosecutors have had strong evidence, but juries did not find the defendant guilty.  Other juries convicted defendants on circumstantial evidence.  Moreover, judges would like to avoid jury trials.  The court has to spend time to summon jurors, prepare the juries, and hear the case.  Too many trials can clog a judge’s docket with a backlog of cases. 

Everyone in the criminal justice system would like to avoid a jury trial.  What happens if a court has difficult defendants that insist on a jury trial?  Prosecutors thought up ingenious ways to get people to plead guilty and forgo their right to a jury trial.  Some examples are:

  • A defendant is looking at two legitimate charges.  However, prosecutors invent three additional bogus charges.  The prosecutor will drop those three charges if the person pleads guilty.  If a jury finds the person guilty on all five charges, he will spend a long vacation in prison.  Moreover, prosecutors can threaten to remove children or seize property, unless the defendant accepts the prosecutor’s plea agreement.

  • Prosecutors ask the judge to set a high bail.  A person may sit in jail for up to a year waiting for his jury trial.  Furthermore, if the defendant posted bail, the person has to appear in front of the judge every 4 weeks.  The court makes sure the person appears, and then the prosecutor keeps asking for a continuance (i.e. more time).  The judge resets the case for next month.  This process of resetting the case does two things.  First, a person wasted his day to come to court, like take a day off from work.  Second, if that person brought his lawyer, then he has to pay his lawyer for appearing in court.  If the court keeps resetting the case for two or more years, many defendants will give up and accept the plea bargain from the prosecutor.  It gets expensive to bring an attorney to court month after month.

Another problem is judges control the information that juries can hear.  Judges can indirectly help prosecutors win court cases.  (Just in case you did not know, many judges were former prosecutors).  The following cases illustrate without a doubt that these people are guilty.

  • An elderly woman is caught smoking marijuana in her house.

  • A person attacked another person with a weapon.

  • A convicted felon was caught firing a gun at another person. Thus, a felon is in possession of a firearm.

These seem like open and shut cases.  Would you change your mind if you had more information?  Read the cases again.

  • An elderly woman is caught smoking marijuana in her house.  She has severe glaucoma and marijuana helps relieve the pain.

  • A person attacked another person with a weapon.  This other person molested the attacker’s daughter and the judge threw the child molestation case out on a technicality.

  • A convicted felon was caught firing a gun at another person.  This person was robbing the felon and the felon grabbed the weapon, causing the gun to fire.

These cases are not fictional!  They actually happened.  Of course, you say these people can always appeal a wrongful conviction.  However, defendants usually cannot appeal a jury’s decision.  They can only appeal a judge’s decision.  In these cases, the violators did violate the letter of the law; appeals judges do not look at extenuating circumstances, but juries may.

Some municipal and state governments re-wrote laws removing jury trials.  For example, the State of Texas re-wrote laws for red-light cameras, changing a traffic violation from a criminal offense to a civil one.  Thus, the city government does not have to provide a jury trial.  Currently, the City of Houston has 70 red light cameras, but some members of city council want to expand the number to 200.  City leaders, like Mayor White claimed, “cameras raise awareness about red-light safety and free up officers to patrol neighborhoods” (Houston Politics 2008).  Clearly, changing the law from a criminal offense to civil one is a government’s grab for more money.  In 2008, the red-light cameras generated 387,000 citations.  A violation is $75, which equates to $29 million in revenue (if all violators pay the fine of course).  Imagine if 10% of the violators requested a jury trial.  The court system would be flooded with new cases.  By the way, the number of collisions at intersections with red light cameras doubled since they were installed.  If the City of Houston was concerned about public safety, then the red-light cameras should be removed (Olson 2008).

Amendment VIII

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The legal system has abused the “cruel and unusual punishment” clause of this Amendment.  Cruel and unusual punishment is a judgment call.  The United States reserves the death penalty for treason and premeditated murder.  Moreover, the U.S. Supreme Court ruled the death penalty unconstitutional in 1972, but re-instituted it in 1976.  A strong argument for the death penalty is a deterrent.  A violator pays the ultimate price for murder or treason.  Furthermore, some people are psychopaths and inherently evil.  Society would be better off if the state removed these people permanently.  The only concern is prisoners who are condemned to death are given fair trials and are given a fair chance to defend themselves.

Here is where the legal system gets crazy.  The federal and some state governments use lethal injections to execute prisoners because they consider this more humane.  However, firing squads, hangings, and electric chairs constitute cruel and unusual punishment.  All these methods have one common form.  They all induce death to the prisoner.  Death is death!  Does it really make a difference to the public if it takes 10 seconds to kill a prisoner or 2 minutes?  Is one method of death more humane than another method?  Of course, states would save more money by incarcerating a person for the rest of his life than to pay for all the legal appeals of a death penalty.  Unfortunately, the death penalty is a source of employment for attorneys.  For instance, the most ridiculous court case is a judge sentenced Richard Cooey to die in 2008, because he murdered two college students.  Richard claimed he was too fat to die and using lethal injection would cause an agonizing and cruel death.  The executioners would have trouble finding his veins and administer the injection.  This is not made up!  The U.S. Supreme Court denied his appeal (Kinney 2008).  For this case to make it to the U.S. Supreme Court and Ohio Supreme Court, lawyers would have to file all the paperwork and generate time on this case.  Who is paying for all this time?  If the defendant is indigent, the taxpayers pay for it.  Of course, it is truly amazing how a person can maliciously murdered another person and he will beg the public and courts to spare his life.  (If you noticed, Richard Cooey never mentioned he was innocent).

After the terrorist’s attacks on the United States on September 11, 2001 and prominent school shootings, the criminal justice system has become very sensitive to particular crimes.  For example, a judged sentenced a 17-year old kid for 8 years in prison for making terroristic death threats in Tyler, Texas.  The kid had no means and no weapons.  Apparently, this was a bad joke.  On the way to school, a student called a rival bus and threatened to open fire on them.  Granted this is a serious case with the crises of school shootings, but the judge stated “the times we live in” (Associated Press 2008).  Granted, this kid should be punished, but does this crime necessitate 8 years in prison?

Hate crimes could constitute cruel and unusual punishment, because hate crimes skew efficient punishment systems.  An efficient punishment system is minor crimes warrant less severe punishment, while serious crimes warrant harsh punishment.  Thus, punishment matches the severity of the crime.  An example of an efficient punishment scale is shown in Table 7.1.  An inefficient punishment system would be a criminal gets 10 years for murder, but the death penalty for attempted murder.  If all murderers know this, then they will make sure to follow through on the murder.  Thus, hate crimes can add a dimension of capriciousness and unfairness to the justice system.  First, the same crime results in different penalties.  If two white men are fighting, then they get the regular penalties.  If two men are fighting and one is a minority and the other is white, then somehow the white must be punished much more severely.  Second, prosecutors determine whether to charge a defendant with a hate crime.  Some cases the prosecutor charges defendants with a hate crime and others he does not.  Third, more defendants may challenge the charges and request jury trials.  A hate-crime conviction can add a lot more time to a person’s sentence and the defendant will more likely challenge it.  Finally, courts already have trouble determining whether a defendant is guilty or not.  A hate crime requires the court get into the defendant’s head , which makes court cases much more complicated.

Table 7.1. Efficient Punishment System

Crime

Punishment

Assault without a weapon, drinking while intoxicated, etc.

Fines, probation, and/or time in jail

Assault with a weapon

Some prison time

Rape, attempted murder, and child molestation

Decades in prison

Murder

Death penalty or life in prison

The final problem that nobody likes to talk about is criminal records.  Criminal records may constitute “cruel and unusual punishment.”  Originally, courts and their records are open to the public.  It keeps the courts honest, because the public can examine its records.  Before computers, if a person wanted to check a person’s background, they physically went down to the courthouse to look at the records.  Usually most people did not check criminal records.  If a person moved to a new state, then he started with a clean slate.  It was virtually impossible to check criminal records in other states.  Cases exist where a convict broke out of prison and became a schoolteacher in another state.  Now, everyone has potential access to criminal records through the internet from all 50 states.  The problems with a criminal record are:

  • A criminal record is forever, so a conviction can follow a person throughout his life.  Punishment for minor crimes should have a stopping point.  For severe crimes, the person should be in prison for a long time, so a criminal record would be irrelevant. 

  • A criminal record for a person may exist in a court’s database, the state’s database usually administered by the state police, and the FBI database.  Further, the FBI ties together all police and state’s criminal databases together as one large database for the whole United States and Canada.  What happens if a mistake appears in someone’s criminal record?  What if the wrong name was recorded in a database?  This has happen!  People were denied jobs, because a background check revealed a felony conviction that was a mistake.  Unfortunately, the burden of the proof is on the person with the false record.  He has to hire an attorney and legally challenge the record, which can be expensive and takes time.

  • Many states release arrest records.  If a person is falsely arrested but the case never went to trial, this arrest record still shows up.  Would an employer hire someone that was arrested for “assault with a weapon,” even though charges were dropped?  Vindictive people have falsely accused victims for crimes they did not commit.  How about people who were arrested for barking at police dogs.  Criminal records only contain the charges but no details.  A criminal record would never say, “defendant barked at a police dog.”  Instead, a criminal record will state, “defendant assaulted a police officer.”

Amendment IX

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

No problems were found with this Amendment.

Amendment X

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This Amendment recognizes state power, but the federal government has come up with three ingenious ways to circumvent this Amendment. 

  1. The federal government has taken a broad interpretation of the constitution and has created a multitude of federal bureaucracies.  These bureaucracies impose unfunded mandates on state and local governments. 

  2. The federal government has the right to regulate interstate commerce. 

  3. The federal government funds a variety of projects and this money comes with a long list of conditions.

The first example is the U.S. Environmental Protection Agency (EPA).  This agency was created in 1970 to help protect the environment.  After reading the U.S. constitution several times, how can Congress and the President create this bureaucracy?  Nothing in the constitution gives the federal government to develop a powerful bureaucracy to protect the environment.  Further, this agency exists and is very active in environmental regulations.  The EPA assumes no financial role when it imposes it standards on people, businesses, and state and local governments.  For example, the EPA determined that arsenic levels are too high in central Oklahoma and the EPA has issued orders for the water utilities to lower these levels.  These mandates have two problems:

  1. The EPA does not pay any of the cost of its ruling.  The EPA dictates its rules.  People, businesses, and state and local governments have to follow them.

  2. The people in central Oklahoma are not given the right to determine what arsenic level they would be happy with.  However, they have to pay higher local taxes or higher water bills, so these water treatment facilities are in compliance with the EPA’s ruling. 

The federal government has the right to regulate interstate commerce.  What is interstate commerce?  A business makes something and residents in another state consume it.  Thus, anything that anyone makes is potential interstate commerce.  There is no stopping point.  Look at the traditional examples:

  • Electric power plants are connected to each other and their customers through a grid.  This grid crosses states lines and hence, this whole industry can be regulated by the federal government.  One state, Texas, did not connect to the national grid, so Texas was able to escape from the federal regulators.

  • Airplanes fly between airports located in different states.  Thus, the airline industry is subjected to the regulations of the federal government.  When Southwest Airlines started out, they only flew airplanes within Texas and thus able to prevent federal regulations.  Southwest had a cost advantage and grew fast; then it went national.

  • The federal government regulates the trucking industry.  Trucks carry freight from one state to another.

  • The federal government regulates the food and pharmaceutical industries, because products cross state lines.

A recent Supreme Court case re-asserts the federal government’s ability to regulate interstate commerce.  The State of California allows residents to smoke marijuana for medicinal purposes.  Marijuana helps people with glaucoma, and eases pain from multiple sclerosis and cancer.  However, the federal government still views marijuana suppliers as criminals.  A lawsuit, Gonzales versus Raich, was brought against the federal government to stop this.  You can guess how the Supreme Court ruled.  This is interstate commerce and the federal government has the right to pursue violators (Mears 2005).  Thus, the federal government can potentially regulate all industries and businesses.

The last method for the federal government to control states is with money.  The federal government funds a variety of projects and uses this funding to dictate laws and conditions.  For example, the federal government imposed the legal drinking age of 21 on all the states.  Nowhere in the U.S. Constitution gives the federal government the legal authority to set the legal drinking age.  No articles in the constitution can be interpreted broadly enough to give Congress the power to pass a law such as this.  However, the federal government threatened to reduce funding for highway projects for several states, if these states did not increase the legal drinking age from 18 to 21 years of age.  Thanks to the federal government, everyone has to be 21 or older to drink alcohol, even though, you can marry, enter into contracts, own property, or sent off to another country to die in a war at the age of 18, but how dare you drink alcohol!

Conclusion

It is possible our justice system has always been plague with problems.  However, most people and businesses rarely saw these problems before the 1960s.  The judicial system was small and most citizens had little interaction with the courts.  Thus, injustice would be rare events, but they did happen.  If you read U.S. history, originally courts help sustain slavery and discrimination against women during 19th century.  Now, courts from the city level and all the way up to the Supreme Court have rulings over everything.  The courts have invaded families, schools, neighborhoods, and businesses.  With courts having their hands into everything, injustices have become more frequent.  Remember before the 1970s, these were not crimes:

  • People could freely smoke cigarettes.

  • Parents and school officials could spank children.

  • Some families are violent and fought.  The police would break up the fights and force some family members to leave.

  • One parent would take (i.e. kidnap) the children, if he (or she) did not agree with a custody agreement.

  • People used drugs and alcohol in the open.  Parents could throw a keg party for a child who was graduating from high school.  High school students could be smoking reefer during lunch on school property.

Now look at our society!  All these activities are illegal.  Punishment from the court system can range from misdemeanors all the way up to felonies.  What happened to our society?  One problem is judges have become social crusaders.  They believe they have the right to regulate all of society’s behavior that is deemed bad and they over extend the law to achieve their goals.  That is a problem with the Bill of Rights.  Although this document limits government’s power, it is only a piece of paper.  Through court rulings, judges allowed government to circumvent it.  The courts and government believe they can make the United States are better place to live.  For people who have been around several decades, they know this is a bunch of crap.  Ronald Reagan had a great saying, “Are we better off now than we were 10 years ago?”

Several laws are the Clean Water Act of 1972 and the Coastal Wetlands Planning, Protection and Restoration Act of 1990.

References

Associated Press. June 23, 2005. “Homes may be 'taken' for private projects.” MSNBC.  

Associated Press. May 4, 2007. ”Police chief 'not happy' with LAPD immigration clash.” USA Today. Available at http://www.usatoday.com/news/nation/2007-04-26-LAPD-immigration-rally_N.htm (access date 01/09/09).  

Associated Press. June 7, 2008. “Student, 17, gets 8 years in prison for phone threat.” Houston Chronicle.  

The Bill of Rights. 1791. National Archives Experience. Available at http://www.archives.gov/national_archives_experience/bill_of_rights_transcript.html (access date: 12/24/08).  

Blumner, Robyn E. August 1, 1999. “What’s this man's sign? Try the Fourth Amendment.” St. Petersburg Times.  

Houston Politics. June 11, 2008. “Rodriguez: More red-light cameras = more officers.” Houston Chronicle.  

Jones, Tim. November 16, 2003. “Private property gets condemned for profit.” Chicago Tribune.  

Kinney, Terry. October 14, 2008. “Inmate who says he's too fat to die to be executed.” South Bend Tribune.  

Olson, Bradley. December 29, 2008. “Study: Wrecks increase at red-light cameras sites.” Houston Chronicle.  

Parker, Laura. September 29, 2005. “8 years in a Louisiana jail, but he never went to trial.” USA Today. 

Patrick, Robert. March 6, 2005. “Public lawyers face low pay, high turnover.”  St. Louis Post-Dispatch.

McVicker, Steve. November 13, 2004. “Are judges taking a narrow view of justice?” Houston Chronicle.

Machiavelli, Niccolo. 1520. The Seven Books on the Art of War.  

Mears, Bill. June 7, 2005. “Supreme Court allows prosecution of medical marijuana.” CNN.  

The Justice Project. August 14, 2001. “Texas Death Row Defendant With Sleeping Lawyer Deserves New Trial, Rules Full Fifth Circuit Court.” Available from www.thejusticeproject.com