There has been a debate going for a while, under the covers, about the Bill of Rights and what it applies to.
I think it’s based on a central mistake, a category error: the assumption that rights are granted by the State. The Founders understood this error, as we can see by the wording of the individual Amendments. Every article states that a certain right “shall not be infringed” or that people “shall enjoy the right.” The Ninth Amendment goes out of its way to note that:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
The whole basis of the Declaration of Independence, the Constitution, the Bill of Rights — and a good bit of the Enlightenment thought that formed the basis of them all — was that human rights are natural rights, that they are “endowed by their creator.” But the common assumption is that the Bill of Rights grants those rights and that those rights are limited to the conditions enumerated in the Amendment.
The most recent example is when Rand Paul noted that the right to confront your accuser is “enshrined in the 6th Amendment.”
Paul was careful in his phrasing: notice he says “enshrined” and not “granted.”
Now, I am not a lawyer, and I wouldn’t dare to question Andrew McCarthy’s legal reasoning. He writes:
With impeachment upon us, he’s now onto the Sixth Amendment — specifically, the confrontation clause. It guarantees the right of cross-examination: In all criminal trials, the accused must be given the right to confront the accusers. Senator Paul has deduced that this must mean that the identity of the so-called whistleblower has to be revealed, lest President Trump be denied his constitutional rights.
The confrontation clause protects only the accused at a criminal trial. The point is that before one’s liberty is taken away, one must have the opportunity to question one’s accusers. Impeachment, however, is not even a legal proceeding, much less a criminal trial. It is a political proceeding. No one’s liberty is at stake; it is strictly about whether an official should be stripped of political authority — in the president’s case, of the executive power.
The legal reasoning is a pretty piece of argument that, frankly, obfuscates the actual point: we have a long tradition that trials must be conducted fairly. The claim that “impeachment is not a trial” because it’s political is a red herring. First of all, while the impeachment is not a trial, it leads to what is explicitly a trial in the Senate. It is more like a grand jury, but as many have noted, a malicious prosecutor can exploit the grand jury process to “indict a ham sandwich.” Glenn Reynolds noted in “Ham Sandwich Nation: Due Process When Everything is a Crime”:
This … results in “[t]he most dangerous power of the prosecutor: that he will pick people he thinks he should get, rather than pick cases that need to be prosecuted.”
Given that people were literally calling for Trump’s impeachment within minutes of his inauguration, it seems hard not to see an effort to pick the man and find the crime. We now know that the “whistleblower’s” lawyer was tweeting explicitly about Sally Yates starting the “#coup,” “#rebellion,” and “impeachment” on January 30, 2017.
— Mark S. Zaid (@MarkSZaidEsq) January 31, 2017
As I predicted at the start, the whistleblower — yes, I’m going to say “Eric Ciaramella,” hold your horses — does turn out to be someone closely connected to Biden, and the second whistleblower’s — apparently a serving Army officer, LTC Alexander Vindman — complaints seem to be that Trump was not following Vindman’s foreign policy, which upset him.
And as the recent House resolution made clear, the inquisiti… — sorry, investigation — is not to be tainted by any hint of fairness.
Maybe that’s legally right, but then as Mr. Bumble said, “The law is an ass.”
Honestly, though, that’s beside the point. The Bill of Rights doesn’t establish those rights, it protects those rights.
The First Amendment didn’t establish the right to speak, write, and worship freely — it memorializes those rights, which are the natural rights of all humans.
The Second Amendment doesn’t establish a right to self-defense and to defense against a corrupt government — it observes that those rights exist and are not to be infringed by government.
The Sixth Amendment doesn’t establish a right to a free trial, to confront accusers and so on except to the extent it makes those rights explicit. But the right to be charged in a fair fashion, to not be the victim of a concerted slander campaign by a branch of government, those are also natural rights, rights that all humans have.
Even if they’re orange.
The way we treat our rights as legalisms is the problem. No matter how convenient it is, our rights are not subject to the whims of government or the arguments about the wordings of the Constitution.