Sam Fink (1916–2011)

During the Constitutional Age, American citizens enjoyed the exercise of free speech. Although the judiciary placed some restrictions on this, most notably Oliver Wendell Holmes Jr’s famous "shouting fire in a crowded theatre" opinion (Schenck v. United States in 1919), it seemed to be an easily-understood standard. Under the USA PATRIOT ACT, any speech -even peaceful conflict resolution- could be illegal, if it was with groups or persons on government watch lists. Following passage of the PATRIOT ACT, use of "free speech zones" proliferated in public areas. The Bush II administration also infringed free speech with the issuance of over 30,000 National Securities Letters, most of which were accompanied by gag orders prohibiting the receiver from telling anybody he had received the letter. The full extent of how National Securities Letters are used in the Age of the Unitary Executive is not publicly known, but apparently many have been used to solicit from librarians information about what books citizens read.

I know this part will be the most divisive. A lot of people are quite correctly concerned about the role of guns in violent crime. There’s no denying that, and I don’t think every person should have a gun; much the way not every person should have a license to drive. On the other hand, it seems clear that a sufficiently armed citizenry is more secure from governmental abuses. It seems obvious that if the average Cambodian family had firearms in 1974, Pol Pot’s government would have had far less success implementing their program of genocide on the population. This little poster may be trite, but it’s also got an element of truth to it:



So anyway, The Second Amendment had been controversial in America for a long time before 2001. As the nation moved from a sparsely-populated agrarian rural society to a more populous urban industrialized one, gun-related crime increased dramatically. The public came to regard the legal issues surrounding gun ownership to be purely a matter related to domestic crime. The notion of widespread gun ownership as a safeguard against tyranny was gradually forgotten, or came to be thought of as a "fringe" belief. The PATRIOT ACT did not itself eradicate the Second Amendment, but did signal an a tightening of administrative restrictions on gun sales and ammunition production.

The realities of the twenty-first century did not require quartering of the military in private homes, so this right -only because it was so irrelevant- was left unmolested by the USA PATRIOT ACT.

Of the entire Bill of Rights, the Fourth Amendment was probably worst damaged by the USA PATRIOT ACT. As with other rights, safeguards against unreasonable search and seizures began eroding long before 2001, but it was the USA PATRIOT ACT which allowed law enforcement agents to conduct searches without warrants issued by judges, and which specifically allowed evidence obtained contrary to the Fourth Amendment to be nevertheless used in legal proceedings. Section 215 of the PATRIOT ACT contains provisions allowing for "warrantless wiretapping", in which private voice communications can be intercepted, recorded, and used against a citizen without a warrant. The Act's "sneak and peak" provisions allow police and other law agents to search homes without serving warrants, and/or to delay notification of the warrant for 90 days or more after the actual search. In the Age of the Unitary Executive (A.U.E.), an anonymous tip is enough to get a citizen categorized as “suspicious”, which in turn is sufficient cause to trample his rights. The label "Suspicious" in the A.U.E. is akin to the label "witch" in the Middle Ages.

These are the Amendments which protected citizens from being deprived of life, liberty or property without due process of the law. After the 2001 attacks on the World Trade Center, it was deemed too risky to let citizens have due process, because then The Terrorists would also get due process. The PATRIOT ACT streamlined law enforcement substantially, allowing the Unitary Executive to forgo the time-consuming bureaucratic steps our Fifth and Sixth Amendments entailed. By merely by designating any citizen as an "enemy combatant" or "suspected terrorist", the Executive could move directly to indefinite detention, questioning without defense council present, or filing of charges.



No guidance or restrictions are in place to specify who can be designated as "suspicious", and there is no oversight for how the Executive chooses to use this power. (that’s why he’s the “Unitary Executive”). Evidence obtained by coercion, or torture is admissible in trials against suspect citizens, who may not excercise the right to attorney-client privilege. This streamlined process is great for catching The Terrorists, yet even today the idea that anyone may legally be locked away forever with no trial, even with no suspicion of wrongdoing, and no chance to clear his name, merely at the President's whim, doesn’t sit well with some people, who would like to go back to the dangerous old Constitutional system. Unfortunately, that outmoded document doesn’t recognize the realities of the twenty-first century- namely that if Americans want to preserve our freedoms from The Terrorists who would destroy us, "due process" is simply a luxury we can no longer afford. The USA PATRIOT ACT was just the first of many laws stripping away the old system of due process. Certainly Section 1031 of the 2012 National Defense Appropriations Act (NDAA) also went a long way in clarifying that U.S. citizens no longer enjoyed due process as it existed under the Fifth and Sixth Amendments.

I am not aware of any examples in which the USA PATRIOT ACT or other legislation in the A.U.E. has abridged the Seventh Amendment, but if you have any, please comment on this review’s thread. I’d be interested to hear about it.

Now this will be an interesting discussion. I don’t honestly know how waterboarding fits into this discussion, because the Eighth Amendment addresses punishment, which seems to imply something which follows a trial and conviction. Waterboarding, while certainly cruel and unusual, is a technique used to gather information from suspects, not convicts. Of course in an age where being a suspect is enough to get you a life prison sentence, fussing over the difference between suspects and convicts really seems like hair-splitting, doesn't it? Under the Unitary Executive, being a suspect is effectively a punishable crime. There is not presumption of innocence, which leads us to Amendment #9...

The Ninth Amendment was supposed to clarify that the Bill of Rights was not intended to be a complete list of citizens’ rights. Just because something isn’t in the Bill of Rights, doesn’t mean it isn’t a right. Take the presumption of innocence, for example. It isn’t specifically mentioned in the Bill of Rights, but it was a foundational principle in American law during the Constitutional Age. Obviously involuntary detention based on suspicion runs counter to the idea of a presumption of innocence, so the 2012 NDAA represents a violation of the Ninth Amendment. Hope you don’t miss it too much. I think the Unitary Executive would tell you that if you aren’t doing anything wrong, you don’t need a presumption of innocence; only terrorists need a presumption of innocence.



Reference 6

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.

Even though we are barely a decade into the A.U.E., there have already been some bold legislative proposals to keep us all safe from The Terrorists. One of the more controversial ones has been the REAL ID ACT. This was to be a federal law mandating standardization of state drivers’ licenses throughout the nation, effectively creating a sort of "national I.D. card", which would supposedly be more difficult for The Terrorists to copy. The thing is, the federal government isn’t supposed to get into the states’ business over stuff like this, and if you read this link, or this one, or maybe this one, you can begin to see why people in different states might want to keep their own local laws, and not have federal standards forced on them.