Some Logical Thinking and Questioning
by Fielding Backstage Sept 1, 2010

The US Constitution is an interesting document. In its original form, it is pretty easy to understand, especially if you have read any of the historical documents upon which our forefathers based their philosophies of life, good, and evil, and if you have read documents that were generated by the forefathers, including the Federalist Papers. So why is it that over the last 200+ years, so many people don't really understand what it says.

For example, let's examine a couple of misunderstood Amendments.

Amendment 1 - Freedom of Religion, Press, Expression. Ratified 12/15/1791. Note

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.

Let us start here. Many people today, relative to the NYC mosque issue, claim that we have freedom of religion. They are taking the organizational title of the Amendment as the defined right, and in the process, ignoring the actual defined right which follows the title. If we accept the title as the defined right, then what weight do we give the actual defined right shown below it. The title does not include freedom of speech.

Historical documents, as well as the structure of the Constitution itself, affirm that the title is just the title, and the defined rights are the text below it. Now when you debate the defined right, the actual rights of the mosque developers has a totally different look. We all know that freedom of speech can be abridged for public safety. Example: you can't yell "fire" in a theater. Free speech is denied in this case, and others.  Many rights can be abridged for public safety, national security, and probably a few other reasons.

So we have two logical deductions so far. The text under the title is the defined right, and rights can be abridged for reasons of public safety and perhaps other reasons.

Amendment 2 - Right to Bear Arms. Ratified 12/15/1791. Note

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.

From the discussion about Amendment #1, we reaffirm that the title does not trump the text below it because there would be no argument about the commas and their meanings relative to the Right to Bear Arms listed in the title. The argument is however borne out by the known intent of the founders relative to the history of this amendment.  If the title did trump the text, then the 1st Amendment would allow "freedom of religion" with no caveats for cannibalism, human sacrifices, etc., and there would be no freedom of speech.

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.

Here is another example of mis-interpretation by generations of lawyers and judges. Take the case of Blagovich, the ex-governor of Illinois. He is found guilty by 12 of his peers on one count out of 24. Because the prosecutor cannot get 12 out of 12 of his peers to agree that he is guilty of 23 of 24 counts, he says he will retry him. Doesn't this make you think that a hung jury is the same as a not guilty version? How many times will the power of government be allowed to retry a person for the same crime? Doesn't this seem to go against the 5th Amendment to the Constitution. The first trial has bankrupted Blago and a second trial will certainly put him in jeopardy of life and limb. From the historical norms of society when this was written, life and limb is not equivalent to execution.

And just a last word about hung juries.

It has been said many times before, that a Prosecutor can get a Grand Jury to indict a ham sandwich. So let us assume that an innocent person (in the eyes of the law and in reality) is indicted. The state faces 4 possible outcomes, only one of which is good for the accused.
1, Guilty
2, Hung Jury
3. Mis-trial
4. Innocent

In each case, the accused can be financially bankrupted defending themselves. The state has a virtually unlimited amount of funds available to prosecute the accused, and the Hung Jury and Mis-Trial have no bounds, which would appear to not be the intent of the framers of our Constitution. While the mis-trial cannot be judged as positive or negative for the accused without specifics, it would appear that regardless of the reason, it is a potential additional financial burden to the accused.

But the hung jury is even worse. While the judge might tell the jurors not to discuss what the votes were, the votes can leak out and either prejudice a future jury if the votes were predominantly for guilt, but not have the same effect if they were predominantly innocent. The mere fact that even one person votes innocent, does not make that person wrong. As previously noted, you were innocent prior to the jury decision, and they did not find you guilty. Consistent with the Constitution, I cannot create another category of a result  that defines "give the prosecutor as many tries as he needs to find this person guilty".  When you consider the efforts of the prosecutor  to cherry pick juries that would be favorable to guilt, you are just increasing the odds that an innocent person might eventually be found guilty for reasons not even related to evidence.

It would seem to me that the judge's instructions should make exactly the points I have made. Find the accused guilty or innocent. If you can't agree unanimously, they are by definition of the Constitution, innocent.