IN PARTICULAR, WHICH FREEDOMS WILL YOU
SURRENDER, FOR FEAR OF ISLAM?
Addressing England’s “Glorious Revolution” of 1688-89:
“[The Bill of Rights of 1689 guaranteed Englishmen the right to bear arms] and was the
inspiration for the wording of the Second Amendment. --- Other provisions…were
inspirations for the Third Amendment banning the quartering of troops [in
peacetime], the Fourth Amendment ban on unreasonable searches and seizures, the
Fifth Amendment protection against self-incrimination…and its guarantee that
indictments could only issue from grand juries, the Sixth Amendment’s right to
a jury trial, and the Eighth Amendment prohibition of cruel and unusual
Michael Barone, “Our First Revolution,” 2007, p. 233.
Since the mind will not preserve what the seat cannot
endure, this essay covers only a sampling of the origins of American freedoms. These are freedoms crypto-fascist, reactionary
extremists are urging us to forgo in fear of “terrorism,” which is merely an emphatic
synonym for violent crime, so that the nascent Plutocracy in this country no
longer has to govern obliquely, but could then rule absolutely.
Without objection, it seems to me the concept of civil
rights encompasses universal suffrage and the equal protection of the law.
Civil liberties are those rights adopted in
the body of the Constitution, such as the right to test – in court – the legitimacy
of a person’s detention, i.e, habeas
corpus, and those rights that form the basis for “due process of law,”
including precepts stated in the United States Constitution’s Bill of Rights.
The concept of universal suffrage in America, now under
attack by Republican Governors and Legislatures, was first established in the
Massachusetts Body of Liberties of 1641, which was an attempt to create an
American version of Magna Carta (1215).
The right of all freemen to vote and of all men, free or not free, to
participate in town meetings was guaranteed.
Other protected rights included the right to travel, the abolition of
monopolies, the relief of widows otherwise bereft of support, and the rights of
children and servants – and even a provision against cruelty toward animals! Zechariah Chafee, Federal and State Constitutions, Colonial Charters and Other Organic
Laws, 1877. Equality before the Law
is to be found in the Fourteenth Amendment, and sub silentio, in the “due process” clause of the Fifth
Amendment. Since the Fourteenth
Amendment contains a grant of power to Congress to carry out its provisions,
the Civil Rights Laws and the Voting Rights Act are “the supreme law of the
land,” Article VI. The conundrum faced
by immigration law reformers is that once the onus of illegality is lifted from
undocumented persons, no matter how far distant citizenship may lie, those
persons will have an arguable equal right to the same government benefits as others, because
the Fourteenth Amendment protects the equal rights of “persons,” not only “citizens.” See, H. Hollenberg, “The Rubio of Omar
Khayyam,” newsvine.com, April 18, 2013. Do
we really want to create a sub branch of the permanent underclass most of whose
grandmothers’ first language was Spanish?
Freedom of Religion was expanded during the
aforementioned “Glorious Revolution” by the Toleration Act, which retained for
Anglicans the access to power, but allowed freedom of worship to all Christian sects. The other “first freedoms” were led by the
freedom of the press, which dates from a treatise by the great diplomat and
poet, John Milton.
Areopagitica; A speech of Mr. John Milton for the Liberty of Unlicensed Printing, to the Parliament
of England is a 1644 prose
polemical tract by the English poet and author John Milton against censorship. Areopagitica is among history's
most influential and impassioned philosophical defenses of the principle of a
right to freedom of speech and expression.
It was written in opposition to licensing and censorship, and is
regarded as one of the most eloquent defenses of press freedom ever published
because many of its expressed principles form the basis for modern
justifications of that right. [What would we do without Wikipedia?]
Under civil liberties affecting penal law, the most
difficult concept for any mind to grasp is that ours is an accusatorial
system. That is because the
inquisitional system, formalized by the Roman Catholic Church through the power
of Spain’s King Ferdinand and Queen Isabella, is so free from restraints on police
force and the executive. It is easier
for the State to place the burden of proof of innocence upon the defendant in
custody, while the prosecution builds its case.
(Incidentally, Justice Antonin Scalia has opined that torture is neither
cruel nor unusual punishment. He is
correct. Torture is barred by the privilege
against self-incrimination. See, e.g.,
television series, “The Tudors” or “The Borgias.”) Under our laws, not only is the burden of
proof in a criminal case laid entirely upon the prosecution, the presumption of
innocence runs so far as to insist, as a Constitutional right, that no person can be convicted of a crime except by proof
beyond a reasonable doubt.
In Sullivan v. Louisiana - 508 U.S. 275 (1993) – Associate Justice Antonin Scalia
(the same), speaking for a unanimous Supreme Court, held that as a standard of
guilt, proof beyond a reasonable doubt is an inherent element of due process of
law. Most folks know, who watch
television judges and legal programs, in a civil action, the burden of proof is
“by a preponderance of the evidence.”
That means one side wins where the jury reasons, on the basis of
competent evidence and credible testimony, that either the plaintiff or the
defendant has made the more persuasive case.
Certain matters, like the civil commitment of a person who is alleged to
be mentally ill and a danger to themselves or others require a standard of “clear
and convincing evidence.” Petitioner
must prove these elements not by inferences but by the facts, themselves.
In a criminal case, there may be a preponderance of
evidence pointing toward guilt. There
may be clear and convincing evidence.
But unless no rational circumstance could exist to exonerate the
defendant, he MUST be acquitted. In Sullivan, the late Chief Justice
Rehnquist issued a concurring opinion to underscore the principle that if the
record shows that a jury was allowed to believe that the defendant could be
convicted by a lesser standard, such a procedural error is NEVER harmless: the
conviction must be overturned.
Stated otherwise, as a society (some, like Max Lerner have
even called ours “The American Civilization”), we have determined to take the
risk of setting free those accused against whom there exists only a
preponderance of the evidence or beyond that, clear and convincing evidence,
but not proof beyond a reasonable doubt.
That is why O.J. Simpson was acquitted after his murder trial. Some lawyers and judges said that in the
Simpson case, Marcia Clark had turned “a mountain of evidence” into reasonable
doubt. Nevertheless, we ran the risk
that O.J. Simpson might commit further crimes – and he did!
By the same reasoning, we must either try or free the 166 prisoners we now hold in limbo at
Guantanamo. The fear that we cannot
prove the guilt of most of them is not enough to retain them in preventive
detention. Just as we took the risk with
O.J. Simpson, there is simply no basis under our Constitutional system for
fearing to take the risks our Constitution mandates with regard to the men at
Guantanamo. Those who cry the loudest
against importing foreign law into our system should be in the forefront of the
cause to try or free these men. For
there is nothing so alien to Americanism as detention without trial and trial
without justice. In the end, precisely
what will we have gained by trading our birthright for a mere homegrown version
of yes, American sharia law?
If you disagree with this reasoning, look back over this
article. I have set forth many of your
rights, as Americans. If you so fear the
persuasiveness of Islamic extremists, make a check list of those liberties you
wish to alienate from yourself. Then
watch how your own stature, your own pride in being an American (USA! USA!
USA!), more quickly than you can imagine, utterly dissolves. Would you rather drive a Cadillac or ride a
I used to think President Obama was on the side of the
Cadillac. Now, I’m not so sure.
Harvard Hollenberg is a writer and an appellate attorney in New York City.
© Copyright Harvard Hollenberg 2013. All rights reserved.