Wednesday, September 19, 2012

In my rights mind: Using the Constitution’s protections — all at once

Published in the Portland Phoenix

On the occasion of this week's 225th birthday of the US Constitution, I wanted to embrace our culture's all-or-nothing ethos, by not just exercising all of my Constitutional rights, but using as many as possible all at once. I got to do that, but I also met a person who was using those rights in a much more important way than for the sake of a news story.
It's become commonplace today to hear people — especially those in public office — talking a good game about the Constitution. But let's be honest: Almost nobody in elected office has used many important rights in the document they take an oath to uphold. How come? Easy: If you hold an elected office, it's a near certainty that you've never been arrested for anything — and a whole swath of Constitutional rights only really get a workout when the government's trying to exercise its power to take away your freedom.
I wanted to figure out what's there — and what's not; the Ninth Amendment reminds us that people have rights that aren't listed in the Constitution, that still need to be respected. But shelves and shelves of books have been written interpreting flowery formal 18th-century language and centuries of ensuring court rulings; I wanted to stick as closely as possible to the actual exercise of the rights, though theoretical what-ifs are never far away.
Determining specific protections is not necessarily a political or philosophical controversy. People who believe in reading the Constitution literally will agree that what qualifies as "speech" involves lots more than the sounds made by passing air through human vocal cords — it includes writing, advertising, product packaging, and all forms of art. It even includes other forms of expression, as we saw last year in several Occupy-related lawsuits (including in Maine), where judges found that the act of living in a tent on public land was a legitimate message that should be protected from undue government interference. (But as those rulings also spelled out, there are no rights that are completely absolute and utterly free from government intervention. In the Occupy cases, usually it was the government's duty to enforce sanitation and fire-safety rules that ended up trumping the protesters' rights to express themselves through tent villages.)
Armed with my research, and a checklist of my rights, I set out to Monument Square to give them some exercise.
Kathleen Johnson, a Portland mother of five, was sitting on the Congress Street side of the curbing around the monument of "Portland to her sons who died for the Union," holding a sign reading "Stop Maine's DHHS from stealing our kids! They lie to take them and they create more lies to keep them!" Her view, critical of a government agency (the state Department of Health and Human Services), is protected under the First Amendment.
In North Africa on the same day as I spoke with Johnson, riots flashed around US and other Western embassies and diplomatic missions, clashes that had already cost the lives of four Americans, including the US ambassador to Libya. Relatively inexperienced with speech not authorized by a government (after decades under dictatorship), protesters objected to a film insulting the Prophet Muhammad — by targeting the government of the country from which that film had originated. Here, by contrast, we assume that if something is published, it hasn't gone through a government censor (unless it's actually issued by the government, whose censors are often — and often laughably — called "public information officers").
Free speech seems simple: Have a thought, an opinion, a piece of information, a concept, or any other tidbit — and say it. Or write it, or sing it, or paint about it, or camp in a park about it. Or do nothing: Your right to remain silent is here, too. Free speech doesn't mean free of consequences, though. There are legal limits, such as criminal and civil penalties after the speech has occurred for incitement to riot, threats, slander, and libel; private jurisdiction — which is how malls can ban pamphleteers; and hate-crime limits, which in Maine mean an assault can become more serious if there are racial, gender, or sexual-orientation epithets hurled along with punches. But the most important free-speech restrictions to the people I spoke with (and to me personally, as I reflected) were social, not legal: the risk of alienating friends or relatives, of being seen to have bad manners or poor taste. In extreme cases of national security or other serious danger, the government can seek to prevent you from speaking.
This shouldn't silence people with legitimate points of view that simply differ from government perspectives — and indeed, Johnson says she has met several supporters as a result of her sign, which she displays in Monument Square a few days a week for a couple hours at a time, in between other obligations.
What she's doing would have, in colonial days, also qualified for protection under the First Amendment's provision of a free press ("speech" still meant the vocal kind then): She had created a sign and was displaying it in public. Today that extends to online expression as well as many forms of news media (though notably not TV or radio stations that use the public airwaves; the government regulates the users of that public resource to ensure it is, at least broadly, used for the public good). It can also be limited, in extreme circumstances, by interests of national security, though usually government officials use persuasive power, rather than coercive effort, to forestall publication of sensitive information.
As I sat speaking with Johnson, I noticed that while holding the sign, she had been reading a copy of the Koran. Her fiancé is Muslim, and she says she finds "a lot of peace" in the Koran, as well as many familiar stories of Biblical figures, such as Abraham (Ibrahim), Noah (Nuh), Moses (Musa), and Jesus (Isa). Her freedom to do this, despite the fact that some leading politicians of the day express hostility toward Islam, is protected by the First Amendment, too. The government can neither tell you what religion to practice, nor prevent you from practicing whatever religion you choose. This includes not only mainstream religions with billions of followers, but also Zoroastrians, Baha'is, and even members of the Church of the Flying Spaghetti Monster. It also protects atheists from being forced to practice any religion at all. The increasingly desperate anti-abortion movement has recently tried to use this as an excuse to avoid doing things they'd prefer not to (such as operate companies that must offer workers health-care coverage that includes contraception). Of course, there's a balancing test here: the workers' right to personal privacy is a strong counterweight.
As Johnson and I conversed, we were exercising our right of peaceable assembly. From 1715 to 1967, it was law in England that any gathering of 12 or more people could be forcibly broken up if the authorities did two things: 1) claim (truthfully or otherwise) that it was an unlawful or unruly group, and 2) read the group the Riot Act (this is the origin of the idiom), specifically the following text: "Our Sovereign Lord the King chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of King George, for preventing tumults and riotous assemblies. God Save the King!" In hopes of heading off this sort of thing from continuing in the colonies, the Founding Fathers specified this right.
Johnson is also engaged in a legal process of seeking the return of her children from foster care. She has done this through letters and phone calls to various officials in DHHS; her right to do this, as well as her protection from reprisals or retribution for making those complaints, is also protected by the First Amendment.
What Johnson was complaining about being denied, and what she was seeking with her communications with DHHS officials, was equal protection under the law, first introduced in Article IV, Section 2, but further codified in the Fourteenth Amendment in 1868. This right requires government to treat all people fairly in official proceedings, with reference to evidence and proper procedure.
This Fourth Amendment right also plays into Johnson's situation: She objects that government agents were prying into her family's business unnecessarily. This right is often construed as the "right to privacy" (though that word never appears in the Constitution), or, as future Supreme Court Associate Justice Louis Brandeis put it in an 1890 Harvard Law Review paper, "the right to be let alone." As a state-approved caregiver for an elderly person, she accepts home visits from that person's state caseworker with no problem. But when a child-protective caseworker visited her home as a result of complaints from a neighbor, Johnson objected. There are, of course, limits to this individual right — such as when the well-being of a vulnerable person is in question, or when police officers swear out search warrants, seeking a judge's permission to enter private premises in the process of enforcing the law.
Neither Johnson nor I consented to allowing soldiers to live in our homes. Little used today, this Third Amendment right was included specifically in response to the British colonial government's imposition of troops on civilian populations, which were at times punished for disloyalty by being forced to house and feed imperial soldiers.
I was exercising one right Johnson wasn't, one provided for in the Second Amendment. I had secured a weapon — it was actually a pellet gun powered by compressed air, but it was a replica of a Walther P99 semi-automatic handgun and definitely looked real, to co-workers as well as people I encountered.
With the help of a very friendly firearms salesman named John, I went through almost the entire process of purchasing a handgun, including completing a very thorough (and very sternly worded) electronic questionnaire about my identity, any history of commitment to a mental institution, and several aspects of criminal history. (I wondered whether alarm bells would start ringing if I answered "Yes" to the question "Are you a fugitive from justice?" but didn't indulge my curiosity that far.) Also required to buy a firearm is a call to the FBI, which conducts an "instant" background check (it can take several minutes, and if they encounter an anomaly, they can delay answering for a while). If things check out, you get to go to the cash register and complete the purchase. (I skipped that part, and went to the checkout with the pellet gun instead.) I bought a holster, too — to carry a firearm openly in public, it must be secured in a holster that is plainly visible.
The right to bear arms is one of the most politicized rights, and one of the most vaguely worded: "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." Until 2008, whether this specifically gave individuals the right to bear arms — or whether it simply allowed states to maintain militias — had never been ruled upon by the Supreme Court. In a case about a Washington DC handgun ban, though, the court ruled that it is an individual right that cannot be outlawed completely. Nevertheless, there are plenty of limits on their ownership, including minimum ages (18 for rifles and shotguns, 21 for handguns), government-issued photo ID, background checks (to prevent felons, people with domestic-violence convictions, and people who have been committed to mental institutions from buying guns), and strict regulations about when, where, and how a firearm can be carried. Concealed weapons may not be carried without a government-issued permit, and even weapons carried openly must be secured in a holster except in the case of urgent life threats.
In part because of the exceptional nature of firearms — they can indeed be used to kill humans, in addition to hunting and sport shooting — an unwritten code of manners has emerged in society. Jeff Weinstein, president of the Maine Gun Owners Association, told me he rarely cares to carry a gun openly, because he views it as an unnecessary act of aggression. Just as we don't exercise free speech by walking around insulting everyone we meet, or spewing profanities just because we can, in some circles — including public spaces in New England — Weinstein urges people to use what might be called good Second Amendment manners. Wearing a gun openly is legal and Constitutionally protected, but still shifts the power dynamic around interpersonal interactions. Sure enough, some people abruptly changed their path through Monument Square to avoid walking near me; others walked by as usual, but kept a weather eye on my hip.
Also because of their unique power-shifting nature, law enforcement are more attuned to the presence of guns than, say, posters or protest signs. We have written about Portland police stopping people legally carrying firearms in public (see sidebar, and "Open-Carry Activist Takes to the Streets," by Deirdre Fulton, June 22). I had no such problems, though several police officers saw my weapon.
One conducted a traffic stop in the middle of Monument Square, questioning the driver of a commercial truck that was parked just feet from me. While he pulled his patrol car up a very short distance away from me, on the side I was wearing the holster, and walked past me twice, the first officer I was certain saw it didn't bat an eye, and didn't approach me. A bicycle cop rode through the square, passing directly behind me and to the side. Several officers drove past in cars at various times when I was near the Congress Street edge of the square. One officer — perhaps summoned by a call from a concerned citizen — walked through the square, up to the monument, and looked around as if searching for something. When he spotted me a few feet away, he turned and walked past me, clearly eyeballing the gun. But even so, he didn't approach me to ask for any identification or information about the weapon.
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.
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.)
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.
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.
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.