You might have heard that the Supreme Court just finished their session. They made a lot of noise with several decisions accompanied by a variety of levels of emotion. Probably the most vocal of them was about the overturning of a decision made nearly fifty years ago. It was based on the Women’s Health Section of the Constitution, the one that covered all sorts of specific needs the Founders recognized regarding marriage, contraception, sexual practice and lawful termination of pregnancies.

OK, OK, there is no such section of the Constitution. We were kidding. There is no “men’s” or “children’s health” sections, either. When our Founders drafted our founding document there was a lot of stuff they didn’t know about medicine and health, nor did they think there was a reason to write about assigning citizen rights to what were then imaginary rights. They tried to keep things real, which in those times was restricted to things actually known. There was a reason for that, since they had just been in a major conflict about most of them, or what we might call the Founding Father’s “Top Ten.”

Speech, religion and the ability to hang around with people who share your views had recently been challenged by a King in England, so those matters were naturally included in the first specific Amendment. There were several others they thought were important.

In fact, there were nine more in the first package for a total of ten. They called them the “Bill of Rights.” They are not specifically ordered in terms of importance, though in reading them, you can see the relative importance the Framers attached to them. The Supremes managed to hit quite a few components of the original Bill of Rights.

One that the Supremes in this term didn’t have to make a ruling on was fairly high in the list, the one right after 2nd Amendment, the one that says an armed population was a useful thing and the Government wouldn’t mess with it. New York State had been messing with that right for a very long time, nearly a century. The High Court told them to knock it off. Nothing was said in this term about the 3rd Amendment, nor has it been much talked about in the last few dozen sessions. That was the one prohibiting the Government from billeting troops on your property in peacetime. Although there is some controversy over that, they let the matter rest for now.

There was some speculation about the 4th Amendment, which specifically protects people from unreasonable searches and seizures by the government unless a warrant has been issued by a court with specific jurisdiction. We are mildly interested by that one. We just saw a video of cops lifting a phone from an attorney they were detaining for something he did that irritated the government. His phone contains all sorts of information previously protected, but apparently not now. We assume the High Court will get around to some decisions on that one, since the provisions of the USA Patriot Act seem to violate that Amendment comprehensively. Do you remember when all the phone records in American were scooped up to “fight Osama bin Laden?” He is gone, but apparently the Government is still doing it.

5th Amendment? That one was designed to protect the rights of the criminally accused pf “infamous crimes.” There is a bit more to it, like a provision about not being charged more than once for the same alleged crime, nor being forced to testify against yourself. There are provisions about wartime circumstances, and the 5th has always had some interest.

Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses. That doesn’t appear to be the case with the 1/7 Insurrectionists, so there may be more to come.

Seventh Amendment: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. Plus, no fact tried by a jury shall be otherwise re-examined in any Court of the United States, other than according to the rules of the common law.

Most often mentioned in the context of the death penalty, the Eighth Amendment prohibits cruel and unusual punishment. “Death” has come to be included in that category over time, which seems fairly reasonable, except for some of the things people do that brings the matter up for discussion in the first place. The 8thalso mentions “excessive fines” and bail, which is a provision under some discussion right now. The “excessive fines” clause is also a mutable one in the context of civil and criminal forfeiture, like property seized during a drug raid. You can see the relevance of the 8th with the two fellows who were just busted for smuggling enough Fentanyl to kill a dozen million citizens and then were immediately released from custody on their own recognizance. There may be some additional work necessary on that Amendment.

Getting through the first eight was a big deal. But James Madison, a fellow whose house is just down the road from Refuge Farm wanted to wrap things up in a comprehensive manner that would eliminate any misunderstanding. The Ninth and Tenth Amendments were Madison’s attempt to ensure that the Bill of Rights was not seen as granting to the people of the United States only the specific rights it addressed. You can see where that perfectly reasonable provision can lead folks astray. Madison’s gang was concerned that because certain unenumerated rights were not listed in the Bill of Rights, they might be held to not exist.

Until the 1980s, both the 9th and 10th were often considered “forgotten” or “irrelevant” by many legal academics. After the swirl of social thinking in the 1960s and 70s, some began to assert the short little 9th as affirming the existence of “unenumerated” rights outside those expressly protected by the Bill of Rights. The terms “penumbra” and “emanations” were first used by scholars to justify all sorts of rights that had appeared with modern times.

The 10th is one of our favorites. Madison’s thinking in the 9th is reiterated and specified in the 10th. The words are clear enough to meet the academic standard that they are sort of irrelevant. “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.”

That was sort of a wrap-up, with the clear intent that the Government could not itself start making up new restrictions on the rights of the states or the citizens, which of course it began to do immediately. We now have had 33 Amendments submitted for consideration under the provisions of the Constitution. 27 have been passed and only one repealed. That was the one that outlawed the sale of liquor for personal use. It was a new idea that didn’t work out that well. But repeal of the 18thAmendment is only an example of how things were intended to work.

We have moved on in dramatic fashion. Harvard University professor Harvey Silverglate estimated in his 2011 book that daily life in the United States is now so over-criminalized that the average American professional commits about three felonies a day. Limiting that to 15 crimes in the average working week, that is a total of 780 a year. Some reviewers claim that number is wildly exaggerated, and the actual number of felonies committed by us is only three a month, or just 36 per annum. Since conviction on only one of them could result in bankruptcy and actual time locked up, you can see why James Madison wanted to wrap things up in a nice tidy package that seems to have come a little unraveled.

You can also see why Madison’s concerns have become inconvenient, since the current situation is useful in a society as complex as ours. The Environmental Protection Agency was smacked down in it’s attempt to declare Carbon Dioxide a dangerous pollutant. We have been breathing it for quite a while, so we were skeptical. But the EPA regulation- not a law- that any running or standing water on U.S. private property is subject to its jurisdiction got us a little agitated. Not that there is any on our property, of course, unless they decide there is. You can see the issues involved with all the other matters subject to litigation our attorneys assure us were lost in that tragic canoeing accident just before the statute of limitations went into effect.

It tends to keep us in line and all the lawyers fully employed. Particularly the Supreme Court.

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