R.I.P. Scout26
The list enumerated below, to paraphrase the dead-lettered Ninth Amendment, should not be considered all-inclusive, and there are, no doubt, other dead-lettered constitutional provisions I have neglected to identify.The House origination clause, Art. 1, § 7, requiring that all "Bills for raising Revenue shall originate in the House of Representatives," has been rendered a dead letter by neglect. As Congressman Ron Paul has pointed out, the 2008 bank bailout bill with all its tax implications was deliberately introduced in the Senate after House members rejected it – a plain violation of this clause. Similar practices have gone on for many years.The congressional declaration of war clause, Art. 1, § 8. No "war" in the constitutional sense has been declared since 1941, although the executive branch has engaged in numerous undeclared wars and military escapades around the globe. The public accounting clause Art. 1, § 10: As already discussed, the secret budget of the CIA is in plain conflict with Article I of the Constitution ("No money shall be drawn from the Treasury, but in Consequence of Appropriations made by law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time").The Legal Tender Clause, Art. 1, § 10, prohibiting states from making "any Thing but gold and silver Coin a Tender in Payment of Debts." The application of the Federal Reserve Act and many other statutes and executive orders are in plain violation of this clause. State and Federal governments demand and provide payment in paper currencies that are unbacked by any precious metals. The prohibition against bills of attainder, Art. 1, §10 – which was supposed to ensure that no one could ever be punished by the legislature – has been addressed only four times by the Supreme Court. Congress regularly enacts new laws placing extrajudicial punishments on various groups (felons, convicted sex offenders, disfavored corporations such as Wal-Mart, and even entire industries (e.g., "Big Tobacco")). The Contract Clause, Art. 1, § 10, prohibiting states from impairing contractual obligations. Long dead and buried. Today the federal courts uphold wage, work, production, pricing, licensing and advertising regulations of every manner, irrespective of the Contract Clause. The Second Amendment right to bear arms. Despite the recent Heller decision (which issued a "landmark" ruling that the Amendment protects an individual right), there are still thousands of felons and other persons in federal prison for the mere possession of firearms. No defendant has ever been released from prison or cleared of gun charges in federal court on account of judges recognizing the right to bear arms. The gist of the Heller decision is that the Amendment protects a "reasonable" right to bear government-approved arms so long as you are government-approved. Of course, such a limited and conditional reading of the Second Amendment renders it a dead letter. The leaders of the American Revolution were themselves accused (and some convicted) felons, and several were notorious criminals (e.g., John Hancock, an accused tax evader and smuggler; John Paul Jones, a twice-indicted murderer who adopted his name as an alias to avoid arrest).The Fifth Amendment Grand Jury clause. While federal grand juries do still exist, they are now wholly subject to the control of federal prosecutors – the very persons the Clause was intended to limit. The grand juries known to the Framers were civilian institutions that acted independently of prosecutors, could investigate prosecutors, and could indict prosecutors. Today, prosecutors dispense all evidence, witnesses and testimony to the grand jurors, who then retire to a deliberation room to vote on whether to approve the prosecutors’ wishes. (A "no" vote will just mean that the prosecutors will coerce another grand jury to vote on the same case.) The Fifth Amendment Double Jeopardy clause. Today, the federal government commonly charges defendants who have been previously charged with essentially the same offense in state court (and vice versa). This usually happens after an acquittal or a "light" sentence in the first prosecution. Because Congress has federalized almost every state crime over the past four decades (something the Founders could never have imagined), federal and state prosecutors are able to get two bites at the apple despite the double jeopardy clause.The Sixth Amendment right to jury trial in criminal cases. My inclusion of this one may puzzle some readers, because thousands of jury trials take place in American courtrooms annually. But the right to jury trial has been stripped for the vast majority of criminal prosecutions. Supreme Court rulings beginning in the late 1800s confined this right to cases of "serious" rather than "petty" crimes (i.e., punishable by less than six months’ imprisonment). This distinction exists nowhere in constitutional text, which explicitly guarantees a jury trial "n all criminal prosecutions " and for "all crimes." The change has allowed government to impose its will on the populace with far greater efficiency. Justices Black and Douglas observed in a 1970 concurrence that their colleagues on the Supreme Court had effectively amended the Constitution by applying a balancing test and that "[t]hose who wrote and adopted our Constitution and Bill of Rights engaged in all the balancing necessary. They decided that the value of a jury trial far outweighed its costs for " all crimes" and "n all criminal prosecutions." Of course, plea bargains have replaced jury trials in most "serious" cases, allowing government to prosecute and imprison a far higher proportion of the American population than the Framers could have anticipated. And even where defendants take their charges to trial, they are tried before emasculated juries that are ordered to follow the judges’ interpretations of the Constitution and the laws. The Founders would have condemned this wholesale takeover of juries by modern judges. The Sixth Amendment vicinage clause (requiring an "impartial jury of the State and district wherein the crime shall have been committed"). In practice today, most federal court proceedings have been centralized into the largest urban areas of each federal court district, leaving rural defendants in many cases to face trials before urban juries drawn from jury districts that do not include the scene(s) of the alleged offense(s).The Seventh Amendment right to jury trial in civil cases where the amount in controversy exceeds twenty dollars ($20). The eternal drive of government officials at every level to collect petty duties, traffic and parking tickets, fees and other tributes has necessitated that they circumvent the plain language of the Seventh Amendment. Today the Seventh Amendment is one of three articles in the Bill of Rights not incorporated into state court practice by the Fourteenth Amendment. Even in federal courts, the civil remedies mandated by the Seventh Amendment are painted into an extremely narrow corner.The Ninth Amendment protection of other "rights retained by the people." As already discussed, this important provision, insisted upon by the Anti-Federalists in 1791, has been dead-lettered by a combination of judicial doctrines, maxims and sophistries that in essence leave the people with few or no reserved rights.The Tenth Amendment. At the heart of the Supreme Court’s dead letter file is the abandonment of federalism in order to create a centralized regime run from Washington. Under the Founders’ intent, of course, each state was to retain its own sovereignty while the federal government was to act as the states’ mutual delegate in matters of foreign and interstate affairs. The absence of this rule in the pre-amendment Constitution precipitated massive resistance across the colonies. Yet today the federal courts regard the Tenth Amendment as a quaint "truism" – a mere statement that the States get to keep whatever jurisdiction is not overtaken by the federal government. The Fourteenth Amendment Privileges and Immunities clause, which was intended to require states to recognize legal rights recognized by the federal government and other states, was mostly dead-lettered in 1873 in The Slaughterhouse Cases, in which the Supreme Court held the provision applied primarily to freed slaves. In recent decades, courts have looked to the Fourteenth Amendment Due Process clause to replace the dead-lettered Privileges and Immunities clause.The Twenty-Seventh Amendment, which requires that "No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened," has been rendered a dead letter by means of the Supreme Court’s "standing" jurisprudence.
I just posted a portion of the rather long article. Why don't you follow the link...?
A "dead letter" is a post office term for mail that doesn't have a valid delivery or return address.
Oh. What do they do with those?
