Progressives would claim that our Constitution is outdated and does not apply to America in the 21st century. Many people agree to a certain extent. If the 1787 Constitutional Convention had had a “crystal ball” and offered a more precise definition of each of the amendments in the Bill of Rights, specifically the first, second, and fourth, as well as additional amendments which would have prevented some of the egregious decisions by politically biased members of the Supreme Court, and the massive corruption committed by the U.S. government every year. If they included term limits for every branch of our government, the country might not be in the dysfunctional mess it is today.
The Fifth and Sixth Amendments contain protections for defendants that have been accused of violating criminal statutes. If applied exactly as written, the justice system might not be flawed to the extent it is seen today.
5th Amendment Prevents Frivolous Indictments
Here is what many believe is good and bad about these two amendments in the Bill of Rights. First, the Fifth Amendment.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Fifth Amendment prevents frivolous indictments. No American shall be accused of a criminal violation without substantial evidence. In addition, no man or woman can be tried twice for the same crime if, after a trial for the original crime, they are acquitted in a court of law, or the case is dismissed with prejudice.
The amendment also protects against self-incrimination. Additionally, spousal privilege is protected, preventing a husband or wife from forcible testimony against one another.
Overall, the Fifth Amendment is well written and protects individual citizens from prosecution by a vengeful or incompetent legal system, local, state, or federal.
6th Amendment Guarantees Legal Representation and Speedy Trial
On the other hand, some have reservations and even complaints about the Sixth Amendment and its application today. Look at the amendment, and discuss its effect on our entire judicial system.
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 against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
The right to a “speedy and public” trial is interpreted by judges at all levels and applied differently according to financial capability or the defendant’s public life status.
Prosecutors are often pleased by early trial dates for those without financial resources. Unfortunately, judges are all too often biased and join with these motions to prevent a “waste of time and money” with lengthy trials when they assume guilt before the defendant’s actual day in court. These decisions are frequently based on the accused’s economic situation and race.
The second complaint about the Sixth Amendment, the right to “have [the] assistance of counsel for his defense.”
Wealthy and powerful defendants have access to the most qualified and experienced attorneys who not only seek ways to delay a “speedy and public” trial. Because they have economic power, their lawyers are extremely competent, and defendants receive little or no punishment for their crimes at the end of their often-long-awaited trials.
These same lawyers often contribute to the reelection campaigns of the judges they appear before. Most Americans rely on overworked and less-experienced representation and all too often receive the maximum punishment required by law.
Justice in America’s judicial system is not blind and does not consider defendants equal under the law.
Justice System Needs Overhaul
Over the last two years, increased attention to the fact that the relationship between law enforcement and the Black community has become more volatile. It has received greater attention from a previously apathetic mainstream media. Racism is far more prevalent than any average American imagined, especially in the judicial system.
To combat profoundly ingrained racism and unjust treatment, the entire justice system must be reformed from how judges are appointed and elected to the actual punishment for crimes committed by the accused. When the nation’s largest and most profitable legal firms are allowed to contribute to the judges’ campaigns, their wealthy clients receive an unfair advantage. As a result, when many judges appointed to criminal courts sentence defendants for the same crimes, all too often, the rich and powerful receive a lesser sentence or even probation. In contrast, low-income and impoverished men and women receive the maximum punishment allowed by law.
The Constitution demands “equal treatment under the law,” but what happens today has no resemblance to what is required. Sentencing should not be a selective process. If a crime is punishable by ten years in prison, any individual convicted of that crime should spend 10 years in prison period.
Add to this a mandatory oath required of all jurors. They swear to be impartial and make decisions based on the presentation of evidence and its relationship to the law. Fairness will be added to the court system, which fails thousands every year. The punishment for breaking that oath should be severe, relative to the seriousness of the crime involved.
Politicians, and those involved in the nation’s legal process, love to brag about America’s judicial system. However, there is nothing to brag about. Like most of what happens in a country dominated by politics, “money talks.”
Sen Bernie Sanders (I-Vt.) and others discussed the problem while campaigning. The senator continues to reveal the evils of unbridled capitalism and the need for a form of democratic socialism. He is not wrong. Over the last 40 years, the right-wing created a plutocracy. “Big business” purchase votes on the floor of the Capitol building through an unconstitutional group of lobbyists. If the working class does not have lobbyists to protect their needs and wishes, these lobbies should not exist.
Any part of the Constitution which does not apply equally to all of the nation’s 329.5 million people proves that it must be rewritten. Leaving more than a single interpretation offers multiple forms of corruption.
All of this, everything I write, demands the Constitution be interpreted as a living document. So many of the amendments were written nearly 250 years ago, and no one could have seen the changes in our nation that far into the future.
Op-ed by James Turnage
The Bill of Rights Institute: Bill of Rights (1791)
NPR: Reconstituting The Constitution: How To Rewrite It? By Margot Adler
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