DUE PROCESS

Had an officer approached me, I was ready. Many rights only come into play when the fearsome muscles of government power get flexed. The government, after all, can take away your freedom (by jailing you), your property (by confiscating it or fining you), and even in extreme cases your life (by executing you). Under this Fifth Amendment protection from the federal government, expanded by the Fourteenth Amendment to include protection from state and local authorities, there are rules about how government authority can be used, and officials' failure to follow them is a Constitutional violation.

Importantly, these rights apply not only to American citizens, but to any person brought before a court in the US — which affects treatment of people who are undocumented immigrants or alleged terrorists captured overseas.

There is an aspect of the equal protection right as well, to ensure that people facing accusations of similar crimes also face similar processes and similar punishments.

HABEAS CORPUS

The first aspect of my plan in case of a police encounter was to invoke this right, noted in Article I, Section 9, with origins in England in the 1200s or 1300s. It allows a person to challenge the legality of detention or imprisonment. At this stage of events, I would need no formal process, but would simply ask, "Am I free to leave?" (Later stages would involve requesting a judge hold a hearing in which the government agency that had ordered my detention to explain why I was being held. Fortunately, those stages were not necessary.)

A police officer may detain you under certain circumstances (such as if you are a suspect in a crime or a possible witness), but requires actual legal authority to do so; asking if I was free to leave would have required the officer to either tell me I was (in which case I'd walk away) or articulate why I wasn't. (If the officer refuses to answer the question, it's better to ask again — even several times — than assume the answer is "Yes" and just walk away. Cops carry weapons, remember, and are allowed to use them if they believe they are in danger, even from a person walking away.)

RIGHT TO A FAIR TRIAL

Had I not been free to leave — and, in fact, been detained, summoned to court at a future date, or outright arrested — the government would have to protect my right to a fair trial, with parts provided in the Fifth and Sixth Amendments.

It's a blanket phrase for what really are a wide swath of rights intended to level the playing field between a lowly individual and the mighty government, by ensuring (alongside the right of due process) that anyone hauled to court has certain basic protections.

Had I been charged and tried, I would have afforded myself of the presumption of innocence (unless and until proven guilty) — I would have argued that I was doing nothing wrong, and the government would have had to prove that I was. Though I could choose to represent myself, I likely would have availed myself of the help of an attorney (depending on income level, taxpayers may foot the bill as part of a societal duty to protect this right in criminal cases). I would have sought a jury trial, held in public, at which I could hear my accusers' charges and testimony, and offer my own evidence.

I could have remained silent in my own defense throughout the entire process — including during the initial encounter with police, where the officer would have had to provide a legal reason for demanding my name and ID, or I would have refused to give it. If I chose not to remain silent on some issues, I could nevertheless refuse to answer some questions or reveal some information for fear I might incriminate myself.

Johnson was also using this right in her civil case (as opposed to my hypothetical criminal proceeding). She is seeking a pro-bono attorney for her October hearing before a judge in family court, at which she will present evidence in support of her argument, and ask a judge to order DHHS to return her children to her from their foster families.

NO CRUEL OR UNUSUAL PUNISHMENT

Specifically created by the Founders to outlaw the gruesome practices of English criminal law (look up a description for hanging, drawing, and quartering while you consider having your corpse chopped), this Eighth Amendment protection would have kept me (if convicted) from some of the more horrible practices of incarceration that have been practiced throughout history around the world. It has been the basis for prison reform ever since, including extending medical care to sick inmates, and in some jurisdictions limiting the practice of solitary confinement.

VOTING RIGHTS

Though it's the last right I'm covering here, voting is the first right conferred on individuals in the Constitution. But it is obliquely referenced, appearing as more of an implication than anything explicit. Here's the language from Article I, Section 2: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States."

The means by which that choosing would occur is left to Section 4: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof."

This left open — and outside the realm of the Constitution itself — the extremely important question of who should be allowed to vote. The states were free to determine each for itself who constituted "the People." No doubt some of the Founding Fathers never expected minorities, women, or even free men who did not own property to vote. If other Founding Fathers imagined, or even hoped, that the franchise would be extended, they would have remained quiet, letting the vagueness provide the opening for the future. Indeed, though not explicitly excluded from the Constitution, enough states barred African Americans, women, people who could not afford poll taxes, and 18-year-olds that each of those groups needed its own Constitutional amendment before casting a ballot (the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth, respectively).

People do have to register to vote, including proving residency in the district where they intend to cast a ballot. And, obviously, each person can vote only once per election. Kathleen Johnson plans to vote in November. I do too.

< prev  1  |  2  |  3  |  4  | 
  Topics: News Features , Politics, free speech, rights,  More more >
| More


Most Popular
ARTICLES BY JEFF INGLIS
Share this entry with Delicious
  •   PORTLAND VS. HER PEOPLE  |  March 19, 2014
    This city, which all agree is lucky to have so many options, has leaders who do not behave as if they have any choice at all. To the frustration of the citzenry, the City Council and the Planning Board often run off with the first partner who asks for a dance.
  •   LEARNING FROM FAIRPOINT'S DISASTERS  |  March 06, 2014
    Two bills before the Maine legislature seek to pry lessons from the hard time FairPoint has had taking over the former Verizon landline operations in Maine since 2009.
  •   BEYOND POLITICS  |  March 06, 2014
    Today’s US media environment might well seem extremely gay-friendly.
  •   THE ONLINE CHEF  |  February 27, 2014
    It turns out that home-cooked scallops are crazy-easy, super-delicious, and far cheaper than if you get them when you’re dining out.
  •   RISE OF THE E-CURRENCIES  |  February 12, 2014
    Plus: Is Rhode Island ready for Bitcoin? Two perspectives

 See all articles by: JEFF INGLIS