What about the 4th Amendment? What were the Founding Fathers thinking?

The right of the people to be secure in their persons, houses, papers, and effects,^[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In 1604, there was a famous case in English law: the Semayne Case.  Sir Edward Coke, the legal counsel for the defendant, made a statement that has come down through the ages: "The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose."  Unfortunately, in the process of setting up the rules for the 13 colonies, the British Parliament decided to specifically disallow this particular right to the colonists.  The very carefully designed British laws governing the colonies allowed for a General Warrant which, basically, allowed "officers of the Crown" to pretty much search anything or anyone any time they felt like it.  As you can imagine, that particular authority was easily and often misused.

Once again, we see the Founding Fathers writing into the Constitution guarantees of rights that they had once had as Englishmen but had been deprived of as colonists.  Having only recently been freed from the oppressive British rule, is it any wonder that they would have strong memories of having been deprived of certain rights and, therefore, a strong desire to ensure that the new government they were creating would be bound by the very Constitution creating it to protect those rights?  As with the other first 10 amendments, this one is designed to guarantee the rights of the citizens would not be trampled on by the new Federal government; It was not so much that they didn't trust the new government but more that they wanted to guarantee that nobody would have any qualms new government overstepping its bounds.

In light of recent developments in our nation, perhaps the origins of the Bill of Rights may be more understandable.  Our Founding Fathers, in spite of their brilliance and foresight that they showed in crafting the Declaration of Independence and the Constitution, knew that there is always a possibility for any government to overstep its bounds, so they wanted to make absolutely certain that the rights of the citizens would be guaranteed.

So, do we REALLY need the 3rd Amendment to the U.S. Constitution?

To start with, let's see what the 3rd Amendment says:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Okay ... so why the heck did our Founding Fathers think that they needed to worry about soldiers being quartered in peoples' homes?  Weren't there barracks on the military bases?  Well, actually, no, not only were there no barracks but there also weren't any military bases.  On top of that, when the original 13 states were British colonies, the British actually did quarter soldiers in private homes ... in fact, there were occasions when British officers decided to not only live in a home but to evict the home-owners and to take over the whole house.  So, yes, it seems that our Founding Fathers did have reason to be concerned about soldiers being quartered in private homes.

As with most, if not all, of the first ten amendments to the Constitution are based upon recent experiences with the British Crown.  So, as a condition to the Constitution being ratified, the various states and their representatives demanded protection of the individual rights.  Among others, Delaware put this provision in its Delaware Declaration of Rights in 1776.   British public had had some really bad experiences with "standing armies", i.e. armies that continued to exist even when there wasn't a war, and the colonists had had even worse experiences with the British troops that had been sent to protect and colonies.  This Amendment addresses one of the greatest fears that the colonists had with regard to the prospect of the newly formed government creating and maintaining a standing army.

When you stop and think about it, for exactly the same reason that you probably wondered why in the world the Founding Fathers felt compelled to add this amendment, it seemed to them like "common sense" to do so ... just to make sure that there was no question about this point.

Next, we come to the Second Amendment ...

One of the most acrimonious and long running debates in the U.S. has been the one regarding exactly what the Founding Fathers were thinking when they added the Second Amendment to our Constitution.  So, first, let's take a look at hat they wrote:

"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."

Okay, so, where are the points of contention?  Well, that's easy!  What did they mean by the term "Militia"?  How about the phrase "well regulated Militia"?  Okay, if we could agree on those, what were they thinking when the referenced "Arms"?  As if that weren't enough, why in the world would they not only allow for but seemingly encourage the possibility of citizens having firearms and surely that could only apply to muskets, right?

Let's take the last bit of that first.  The Founding Fathers had just engaged in a war for their independence and, in order to have done that, they had to have had firearms and, in fact, the possession of firearms had to have been fairly universal.  In addition, in the fairly recent history of citizens of England, the King of England had selectively confiscated the weapons of those citizens in order to ensure that only those who favored the king would have weapons.  In some cases, the confiscation of weapons from the king's opponents had been accompanied by veiled and not so veiled encouragement to persecute those opponents.  In the final analysis, the Founding Fathers were very aware that, in order to enforce their declaration that

"But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

In other words, the Founding Fathers drew a straight line of logic from "We have the right and obligation to throw off a despotic government." to "In order to do so, we need to be armed at least approximately as well as the troops of the government we are throwing off." to "In fact, in order to be able to prevent any newly formed government from becoming despotic, our citizens will need to own firearms."  So, when ratification of the U.S. Constitution was being discussed, the various States were concerned about many points, not the least of which was the fact that a federal government could be strong enough to become despotic.  As a result, They were more than a little concerned about the possibility not only of a standing army but also of the newly formed government becoming despotic.  As a result, they wanted to make sure that the citizenry was not put in the position of not being able to invoke the right and duty that had been outlined in the Declaration of Independence.

Interestingly enough, there is an interesting point that could easily be argued and that is that, because the colonists were armed, to a great extent, with rifles rather than muskets the colonists might have actually been armed better than the British Red Coats.  Why? The British Red Coats were armed, for the most part, with the "Brown Bess" musket, which was a smooth bore weapon and, therefore, not extremely accurate.  That was why the British approach to deploying those weapons depended on massed troops all firing in the same general direction ... basically in the hopes of creating one huge shotgun.  The colonists, on the other hand, were more often than not armed with weapons that had rifled barrels and that were, therefore, far more accurate.  As a result, the colonists often used the same techniques that were used by Native Americans (and that were decried by the British as "unfair", "ungentlemanly", and "against the known rules of warfare"), i.e. instead of massing their troops and firing as a group, the colonists found as fairly well coordinated individuals and often from behind trees, walls, fences, etc. 

In the various towns and villages of the British colonies on the Atlantic coast, every able bodied man was expected to own a firearm and to be prepared to join together to defend the town or village.  That was what constituted the militia of the town or village.  In fact, most towns and villages required the able bodied men to periodically gather to drill and practice their defense activities and to ensure that everyone was prepared with their arms and ammunition ... which, of course, also offered an excellent opportunity for the men to socialize and have a pint or two of all or rum.  While the periodic gatherings and the requirement to own a weapon and ammunition were mandated by the local government, the actual acquisition and ownership of those items were incumbent upon the individual and were not provided or paid for by the local government.  In addition, some towns and villages did acquire some sort of cannon and ammunition for it and, even, in a few cases a supply of gunpowder and shot; however, the primary weight of defense rested on the individuals and their weapons. Thus, it could be argued that the "well regulated Militia" could be considered to be "the whole of the local, able bodied male population who are mandated by law to own a suitable weapon and ammunition for that weapon".

So, returning to the opening discussion of terms, it could well be argued that the expectation of our Founding Fathers was that every able bodied male (and, to bring that up to date, also every able bodied female) would own a firearm and ammunition for it, although the purchasing of those items would not be funded by the local community.  Those able bodied individuals would be mandated to periodically gather together to practice the defense of their community.  Since the rifles owned by the colonists were equivalent to or better than the muskets of the armies of the day and the Native Americans who might be attacking the colonists, the colonists owned arms that were equivalent to the weapons of the armies they might face.  Therefore, it could really be argued that our Founding Fathers anticipated not only the wide spread ownership of firearms but, actually, the widespread ownership of arms that would be equivalent to those owned by the arm ... in other words, assault rifles and even fully automatic weapons ... and they wanted to ensure against the newly created federal government infringing upon that right, i.e. limiting or even trying to deny that right.

If you are just starting to learn about our Constitution, I have a suggestion for you.

Recently, I came across a book that I would recommend to anyone wanting to learn more about the U.S. Constitution and its background.  This book, "The U.S. Constitution: The Citizen's Annotated Edition" by Ray Raphael, offers commentary on the Constitution, pretty much on a paragraph by paragraph or section by section basis.  While I have not finished reading the book, I have read enough of it to know that it offers a straight forward discussion of the meaning and background of this unique document that has provided the foundational principles of this nation.

While I'm at it, let me also mention a few more sources of information about our nation's Constitution:

• The Federalist Papers (with US Constitution, Amendments, & Declaration of Independenceoriginally written by by Alexander Hamilton, James Madison, John Jay, and United States Founders;
  
• The Anti-Federalist Papers and the Constitutional Convention Debates by Nathaniel Kethcen and Ralph Ketcham;
   
• Finally, you could check out the various on-line courses and DVDs from Hillsdale College, such as the following free offerings:
• Constitution 101: The Meaning and History of the Constitution;
• A free copy of the Constitution and Declaration of Independence;
• The Presidency and the Constitution, a 10 week course;

Let's dig into the "Bill of Rights", starting with the 1st Amendment

When our Founding Fathers were replacing the Articles of Confederation and Perpetual Union (aka the Articles of Confederation) with the new Constitution of the United States, there were some major issues revolving around the guaranteeing of individual rights as well as the constraining of the power of the federal government.  In order to get the basic Constitution adopted, the various states' representative had to hash out a guarantee that, immediately upon the adoption of the Constitution in 1789, there would be a set of amendments that would guarantee those individual rights.  This led to the first 10 Amendments which were authored between 1789 and 1791, when they were adopted.

The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."  This is the Amendment that is used by many to protect their right to protest (no matter how profanely), harangue crowds, write articles (in newspapers, magazines, or even blogs), and otherwise "make their voices heard".  It has also been used as the basis for removing any references to God or the Ten Commandments from public facilities and even to ban the Pledge of Allegiance in schools ... which sort of makes an interesting comment about the phrase "free exercise thereof". ;-) 

Of course, there are some constraints that have been allowed on this right.  For instance, courts have ruled that one can't shout "Fire!" in a crowded theater unless, of course, there is actually a fire.  In other words, the government has the right to constrain the rights guaranteed by the Bill of Rights where it is "reasonable" to do so to prevent the rights of an individual from causing problems with the overall community's safety.  The government's ability to constrain, though, are extremely limited because the government has the burden of proving the reasonableness and necessity of those constraints (e.g., in the case of yell "Fire!" in a crowded theater when there is no fire, the necessity is based upon the panic and subsequent dangers to innocent attendees who might get injured in the subsequent flight from the theater).

Another aspect to consider is the phrase the right of the people peaceably to assemble.  This portion of the First Amendment has recently been used to excuse/justify the various protest marches around this nation.  Cities around the nation have enacted ordinances that require those who would hold rallies and, especially, marches to submit requests for permits to do so, not because the protesters don't have the right to do so but, rather, because there is a need to provide for the safety of both the protesters and other citizens during the protest.  When marches occupy city streets, those streets have to be blocked off in order to prevent drivers from accidentally driving into (or over) the crowds that are marching.  Also, there is a need to contain the protest march so that it doesn't interfere with the functioning of society.  This has, at least traditionally, been considered to be a "reasonable and prudent" constraint upon the rights of those who would gather to protest.

However, of late, there appears to be an assumption by those who would gather/assemble and march in protest that their right to protest supersedes the rights of everyone else to conduct the business of society and that any constraints on that right to march in protest is unreasonable.  As a result, whether or not the marchers choose to submit requests for permits to march, these protesters consider it unreasonable to require them to limit their activity to certain streets, much less to not shut down highways, airports, or business activities.  This is to say nothing of the peaceful constraint contained within the First Amendment.  In general, many have extended their "personal rights" to not only supersede the rights of others but to also include the destruction or appropriation of the property of others as a form of "protest".

Traditionally, when a large group of individuals engages in unconstrained, especially unconstrained and violent, gathering and obstruction of the functioning of society, they have been termed a mob and when they have engaged in the destruction or "appropriation" (aka stealing and looting) of other peoples' property, the term "rioting" has been employed to describe their activities.

Does the Constitution, itself, guarantee any rights?

If the US Constitution and its Amendments doesn't guarantee your right to a free education, then do you have any rights that are guaranteed by the Constitution and its Amendments?  Well, as a matter of fact, there are several rights that are guaranteed ... as you probably already know.  So, let's look into them ... starting with the Constitution itself.

The U.S. Constitution was nicely divided into sections by the Founding Fathers.  The first section is the Preamble. Interestingly enough, this bit of the Constitution outlines why the Constitution was written.  While the purpose of the Constitution is outlined, there is absolutely no reference to rights, much less any sort of guarantees.  So, that's one section down.

From there, the Constitution moves on to Article I in which outlines the Legislative branch of the new government.  Section 1 declares the existence of of the Congress and that it is divided into the Senate and the House of Representatives.  Section 2 goes on to define the nature of the House of Representatives.  Section 3 defines the nature of the Senate.  Section 4 outlines how the election processes for the Senators and Representatives as well as the fact that Congress "shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December".  Section 5 explains that each House, basically, governs its own existence and rules of operations.  Section 6 covers the compensation associated with serving in the Senate and House of Representatives.  Article 7 outlines the basic process of generating bills and how they become laws.  Section 8 declares many specific powers granted to Congress.  Section 9 lists several things that are specifically disallowed to Congress.  Section 10 lists a few powers specifically not allowed to the States.  So, once again, Article I makes no mention of rights.

Article II addresses the Executive branch of the government.  Section 1 explains the process by which the President is to be elected.  Section 2 establishes the President as the Commander in Chief of the armed forces and his powers with regard to treaties, etc.  Section 3 states that the President "shall from time to time give to the Congress Information of the State of the Union".  Section 4 discusses impeachment.  I realize it is getting boring but, yet again, there is no discussion of "rights".

Article III covers the Judicial branch of the government.  Section 1 defines the basic structure of the federal court system.  Section 2 covers the jurisdiction of the federal courts.  Section 3 discusses treason and the federal courts.  Guess what ... yup, still no mention of "rights".

Article IV discusses "States Relations", i.e. the relationships between the various states and between the new government and the states.  Section 1 starts out by clarifies the recognition of the fact that the "public Acts, Records, and judicial Proceedings" of each state will be recognized by the other states while also providing for the new government's power to define exactly how that recognition and "proof" shall occur.  Section 2 goes on to to clarify the fact that the citizens of any one state will have all the protections and privileges of the citizen of any other, no matter whether they are in their home state or any other, as well as the fact that any person charged with a crime in one state who flees to another shall be extradited.  Section 3 covers the means for admitting new states into the union and the creation of "territories".  Section 4 closes this Article by establishing the responsibilities of the United States to every member state, i.e. to "guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and ... against domestic Violence."  At this point, there has still been no mention of any rights of the individual citizens.

Article V defines the manner in which the Constitution can be amended.  Interestingly enough, our Founding Fathers, while creating a truly fantastic new form of government and doing so through the creation of a written document, realized that they were not infallible and omniscient and that there would arise issues that would require adjustments to the document and government they were creating.  Still, this Article also does not discuss any sort of guaranteed rights of citizens.

Article VI addresses "Prior Debts, National Supremacy, Oaths of Office".  First and foremost, Section 1 commits the new government to honor the debts incurred by the preceding form of government ... which was unlike most "new governments" created before or, for that matter, after this one.  Section 2 goes on to establish the supremacy of the Constitution, the laws, and any treaties made by the new government over those of the various states and to bind the judges of the various states to abide by the Constitution and those laws and treaties.  Again, this Article addresses the states and the new government without discussing any individual rights.

Finally, Article VII declares the ratification of the Constitution by nine of the thirteen states to be sufficient for the Constitution to establish "this Constitution between the States".  So, having reviewed the Constitution Article by Article, it is clear that there are NO individual rights guaranteed by this document as it was originally written.

I apologize for the length of this entry but it was, to a great extent, unavoidable in order to clarify my point regarding the rights guaranteed by the Constitution of the United States.  I will next address the various Amendments, especially the first 10 (aka "The Bill of Rights").

As far as I can tell, there is no Constitutional "Right to a Free Education"

If you read my previous entry, you should have, by now, come to your conclusion about whether or not there is a right to free education that is protected by the US Constitution.  As I said in that post, I was recently in a discussion regarding this point and was confronted with some rather adamant respondents who got very incensed when I tried to point out the gaps in their logic.  Hopefully, if you are reading far enough to reach this sentence, you are willing to have an adult discussion based on the facts and wording of the US Constitution and its amendments. 😃

So, let's get started on my response.   As indicated in the title of this post, my short answer is, no, as far as I can tell there is no "Right to a Free Education" guaranteed by the United States Constitution or its Amendments.  I've read (and recently reread) the US Constitution and its Amendments and, while there is mention of protection of our borders and a couple of other things as being the responsibility of the federal government, there is no mention of the federal government being responsible for the public (i.e. free) education system.

I know this may come as a shock to some people, especially in light of a rather long list of Supreme Court decisions regarding equality of education.  The thing is, in many of not most, of those SCOTUS decisions, there is reliance on the 14th Amendment and the fact that it calls for equa; treatment under the law, so an awful lot of people have drawn the inference that this reliance on the 14th Amendment implies (or, as some would claim, out right states) that there is a Constitutionally defined and protected Right to a Free Education.  In point of fact, the only implication that should be drawn from those decisions and their reliance on the 14th Amendment is that IF a state/county/city offers free education, THEN the free education must be offered to everyone on an equal basis.

Okay, so, what rights ARE guaranteed by the US Constitution and its Amendments?