Rights Erosion - An Analysis

By LAWRENCE DAVIDSON

Lawrence Davidson is a professor of History at West Chester University. This is a guest article.

PART I - What Is Important When It Comes to Rights?

Question: Why is it that so many Americans are more angry over the prospect of relatively minor adjustments to the gun laws, than they are over the serious erosion of Constitutional rights to due process in the courts?

Despite the fact that proposed changes to the gun laws would leave the Second Amendment’s* alleged basic right of ownership intact, thousands of Americans rallied in state capitals across the nation last week to demand their “right” to own all manner of automatic weapons and multiple round ammunition clips. The rationale for this ranged from “the Second Amendment comes from God,” a popular claim with protesters in Austin Texas, to the equally absurd notion that the Obama administration is obsessed with controlling all our lives. “It is not about guns, it is about control” proclaimed the folks rallying in Annapolis, Maryland. All this took place on the nation’s first impromptu “gun appreciation day” (Saturday, 19 January 2013) during which five accidental shooting occurred at celebratory gun shows and three others took place elsewhere. Nonetheless, as one protester in Maine put it, the right to “bear arms” is “a constitutional right no one can take away.”

Actually, the last twelve years have proved this fellow from Maine quite wrong. There has been an erosion of constitutional rights that are much more important than his so-called inalienable right to own weapons with thirty round clips. For instance, the federal government has been steadily eroding the Fifth, Sixth and Fourteenth Amendments which guarantee one’s access to fair procedures in the courts. These are the ones that say your life, liberty and property cannot be taken away without your being charged with a crime and tried by a jury of your peers and/or a judge following due process rules. There are multiple examples of such deterioration:

--The federal government now asserts that it has the authority to hold Americans, as well as others, indefinitely without charge or trial. It does so on the assertion that we are in a perennial state of war. This allows for the perversion of the Fifth Amendment which allows for the suspension of Habeas Corpus in the special cases of war and rebellion. The government’s claim to this authority has been challenged in court but the U.S. Court of Appeals has sided with the Feds and the issue will probably end up in the Supreme Court. In the meantime, to fall into this black hole in American jurisprudence all you have to do is be is labeled a “terrorist” by the president. This, of course, can happen based on alleged evidence never made public.

-- Another weird but relevant point. If you do happen to meet someone who is a member of a “designated terrorist group,” don’t you dare try to talk them out of being violent. That is illegal as well. Our very own Supreme Court told us so in the 2010 case of Holder v. Humanitarian Law Project. In what may well call into question the rationality of a majority of the justices (the decision was decided 6 for the government position and 3 against), the Court declared that trying to persuade members of such an organization give up violence is the equivalent of rendering “material aid” to the bad guys. Try to save their souls in this fashion and you will end up in some special hell-hole of an American prison where all communications with your lawyer will be taped for the benefit of the prosecution.

--The president can also put anyone, including American citizens, on a list of folks to be murdered at the first suitable opportunity. The government often uses drones to do this. Here is one of the ways this works: some Air Force officer living in Las Vegas gets up in the morning, has his breakfast, kisses the wife goodbye and tells the kids to behave at school. He gets in his four door sedan and drives to Creech Air Force base in the desert outside of town. He passes through the security checks and finally gets to his “office.” The office is a video studio affair from which he controls a UAV (unmanned aerial vehicle) full of explosives. The UAV in question is actually sitting at an another air base in Afghanistan, Yemen or some such location. Our man's job is to remotely fly this thing into somebody’s house half-a-world away. Doing so usually kills another man, his wife, his kids, and maybe the neighbors too. All this happens without any due process establishing the victims' guilt or innocence.

-- Then there is the case of the Holy Land Foundation in which five American citizens who ran the largest Muslim charity in the nation were convicted of “material support of terrorism” and sentenced to up to 65 years in jail on the basis of an anonymous witness whose credibility could not be challenged. This is a prima facie violation of the Sixth Amendment which guarantees (or used to guarantee) the accused his or her right to confront the accuser. You would think the Supreme Court would have something to say about this, particularly considering that all the real evidence in the case showed that the Holy Land Foundation was simply supporting institutions such as Palestinian hospitals, and that its directors had repeatedly consulted the State Department to assure the legality of their activities. But no, in a miscarriage of justice not rivaled since Dread Scott, our present Court refused to hear the Holy Land Five’s appeal.

PART II -- Why the Apathy?

Alas, with the exception of a handful of citizens, no one has hit the streets in protest over any of these horrid legal precedents. No one has dreamt up a “due process appreciation day” and called for commemorative rallies. How come? The answer has to do with how basic communal impulses play out. These include natural localism and the power of custom and tradition.

Natural localness is my term for the fact that most people live their lives according to the precepts of their immediate local communities. Therefore, local customs and traditions are usually taken quite seriously. In the United States, gun ownership is widespread enough to be an issue for self-conscious subsets of most local populations. In other words, for millions it is an important local custom which helps shape their self-images. Gun ownership has also been tied to a Constitutional right allegedly enshrined in the Second Amendment. Support for this claim links these subsets into a powerful “special interest” that translates local custom into a national tradition. So, you can get thousands protesting on the same day in state capitals across the U.S.

What about due process? Is it not a local practice of major importance representing a national tradition enshrined in law through the Constitution? Yes, that is correct, but psychologically, due process rights have completely different personae. Due process laws protect the rights of those accused of wrong doing. They try to assure, among other things, that the accused is assumed innocent until proven guilty. Yet among the public this assumption is almost never held. If you end up in court, the public assumption is that you must have done something wrong. This is particularly true if you can be tagged with a label that suggests danger to or betrayal of community values. The media uses such labels all the time, for instance, terms such as terrorist or whistle blower. So, those who are in need of due process protections are almost always assumed by the public to have acted outside the parameters of acceptable behavior.

The other side of this coin is that ordinary individuals, the mass who make up “the people,” naively feel that due process protections are not important to them. This is because they rarely trespass against the customs and traditions they themselves have, over time, established. In other words, the “people” define what is acceptable. Carrying guns or, in the local lingo, to “go packin,” is sufficiently within the bounds of acceptable behavior to be “normal” in much of the U.S. As long as you register all the weapons in your arsenal (even if you have enough of them to wage a small war), you are still a “law abiding” citizen. However, give charity to the Palestinians or try to tell the Kurdish PKK (a group on the State Department’s Terrorism List) how to pursue their goals non-violently, and you are a danger to the American way of life and on an obscenely fast track to indefinite detention. And very few law abiding citizens are going to care, because if they notice your fate at all, they will assume you are guilty and getting what you deserve.

PART III - Conclusion

"The people” simply do not like those who think outside the box. They never have and probably never will. Non-conformists (in this case those in need of due-process and not those "packin") make the majority feel uneasy and fearful.

In relatively peaceful times such “others’ can be tolerated if they don’t make too much noise and, with the American Civil Liberties Union watching, they can demand their due process rights when needed. However, since the September 11, 2001 attacks things have changed. We are being told that there are no more peaceful times. Crisis is, supposedly, perpetual and that leads to the erosion of the rights of those assumed guilty of something endangering the majority--even if there is no real evidence or logic to the claim. This is a awful slippery slope.

There is a passage in the 1957 play A Man For All Seasons, by Robert Bolt, that speaks to this present predicament. The play tells the story of Sir Thomas More, the singularly principled Chancellor of England under King Henry VIII. The passage we are concerned with is about the importance making the law available to all, even the Devil.

“William Roper (More’s son-in-law): So, now you give the Devil the benefit of law!

Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!

Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”

So that is the crux of the matter. As long as the law is denied to some, we are all at risk. The majority does not understand this. They do not understand that for democracy to be worth its salt, it must defend the rights of everyone, and particularly those who disagree with, live differently from, and think differently than the majority. The United States as we know it can easily survive without everyone having assess to assault rifles. It cannot survive without everyone having assess to due process. Thus, as goes due process rights, so goes our democracy.

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* The origin of the Second Amendment lies, at least in good part, with the Founders' perceived need to give local jurisdictions control of militias in slave holding sections of the young United States. See Thom Hartmann piece on this issue at: http://truth-out.org/news/item/13890-the-second-amendment-was-ratified-to-preserve-slavery.