We’re T+14 days from Donald J. Trump’s win of the Electoral College vote, and millions – literally millions – of us are still reeling, still worried, still wondering what’s going to happen to the United States. To our rights. To us.
The best way to protect your rights as a U.S. citizen/resident has always been to exercise them. But how do you do that? Here’s a practical guide to some of your most important Constitutional rights and how to exercise them in the face of an administration that is shaping up to undermine them.
1. Due Process
The right to “due process” is enshrined in the Fifth and Fourteenth Amendments, and it is absolutely fundamental. Without it, your other rights wouldn’t exist – or, at least, you would have no way to enforce them. But what the heck is “due process,” anyway?
Due Process = Notice + Hearing.
There’s more to it (including a whole world of “substantive due process” rights), but this is what’s at the core. This is the part you need to remember. Your right to due process is the right to notice of why the government is taking an action against you and a hearing at which you get the chance to argue why the government should not take that action.
Your due process rights apply when any level or agency of government attempts to deprive you of life, liberty, or property.
How to Exercise Your Due Process Rights
a. Demand Notice. Ask questions like “What am I being charged with?”, “Why are you taking my stuff?” and so on.
b. Take the Hearing Opportunity. Demand a hearing, and gather evidence in your favor: eyewitnesses or their statements, photographs, documents, etc. Establish a timeline of events so you can show what you did or didn’t do in the time leading up to the loss of your liberty or property.
c. If you can, work with a lawyer or a trained advocate. Attorneys spend years learning how to navigate the process; trained advocates, while they can’t give you legal advice, can help you understand how the process works and prepare for it.
The “right to privacy” is actually a whole bundle of rights. Some of them fall under the Fourth Amendment; others are part of the “substantive due process” bundle mentioned above. Here, I’m going to focus specifically on your Fourth Amendment right “to be secure in [your] persons, houses, papers, and effects, against unreasonable searches and seizures,” particularly when interacting with police.
Here’s what you need to know.
a. If the police are asking you if they can search, say no. There are three legal methods by which the police may search your home, vehicle, or person: 1. with a warrant, 2. when an exception to the Fourth Amendment applies, and 3. when you give them permission to search.
If the police have a warrant, they won’t ask for your permission. If they believe an exception to the Fourth Amendment applies, they won’t ask for your permission either. If they are asking for your permission, it’s because there is no way for them to legally search without it. Don’t make it legal. Say no.
If the police have sufficient evidence to get a warrant, make them get one. If they don’t, don’t do their job for them by consenting to a search.
b. If the police start searching anyway, ask if they have a warrant – or if you are under arrest. There are over a dozen exceptions to the warrant requirement, but the most commonly-invoked one by far is the “search incident to arrest” exception. In other words, if you’re arrested, the police can conduct a search of your person and the area around you – no warrant needed.
You may not be able to stop a search if you ask if you’re under arrest or if the police have a warrant. But you can make it clear that you intend to protect your rights.
What does it mean to “plead the Fifth”?
The short version is in the Miranda rights you hear recited in every “cop show” on television: “You have the right to remain silent.” This right isn’t just available during a trial; it’s available as soon as the police start talking to you. Exercising it is a little more complicated than “just shutting up” – but not much.
a. If you’re arrested, say only one sentence: “I’m not talking to you without a lawyer.” Once upon a time, actually not saying anything was considered sufficient notice to police that you intended not to say anything. Not anymore. In 2008 and again in 2013, the Supreme Court held that in order to use your right to remain silent, you actually have to say that you intend to use it.
If this sounds backwards – you have to speak up in order to remain silent – it is. But that’s the game. Exercise your right to remain silent by saying “I’m not talking to you.”
b. Shut up.
After you say the above sentence, don’t say anything. If they don’t need your confession, the police will likely not talk to you much at all. If they do need a confession, they’re going to try to get it – by threatening, cajoling, or anything in between.
They’ll tell you this has probably just been a misunderstanding. They’ll ask what your mother or spouse or kids would think. They’ll tell you they can and will put you away for the rest of your life unless you tell them what “really” happened. In other words, if they think you’ll bite, they’ll say it.
Don’t bite. The moment you start talking – even if you say things that aren’t related to the questions – you’re putting your Fifth Amendment rights in jeopardy.
4. Constitutional Rights Combo Platter: The First Amendment
I saved the First Amendment for last because it’s a bundle of five of the most important civil rights we have as Americans – particularly in the face of a President-Elect who has already announced his intention to curtail these rights where he can.
Your First Amendment rights include:
- freedom of speech
- freedom of the press
- freedom of religion
- freedom to assemble peaceably
- freedom to petition the government for redress of grievances
You can, of course, imagine potentially endless ways to exercise these rights. Here are some of the easier and more powerful ones.
Speak up. Talk to friends and family about what’s going on politically. Oppose, in the strongest terms possible, the unconstitutional and dangerous appointments and policies the President-Elect has proposed. Make the bigots you know feel so uncomfortable that they silence themselves.
Oh, and make fun of him. Call the President-Elect creative names (check out the Scottish response to him on Twitter if you need ideas), mock his overinflated ego, point and laugh at his petulant Tweets, share Saturday Night Live videos and similar parodies. No regime can stand long against the power of satire.
If you’re the type who writes, start writing. Make Facebook posts, start a blog, send letters to the editor of your local newspaper. Start printing a zine in your basement and leaving copies in public places.
If you’re not the type who writes, support the press. Pay for a subscription to newspapers, magazines, or other outlets you trust (I am forever a fan of The Nation). Buy books on how to resist fascist regimes, on how to make the world a more just place, on how incredibly awesome it is to have all these rights. And read. Really, you can’t read enough.
The First Amendment freedom of religion is two-sided. On the one hand, Congress “shall make no law…respecting the establishment of religion.” On the other, Congress “shall make no law…prohibiting the free exercise thereof.”
Exercising your freedom of religion starts, of course, with practicing or not-practicing your own religion or non-religion: honoring whatever deity(ies) you do or don’t follow with whatever rituals are or are not prescribed for such things. But it goes further.
Protect this right by protesting, in the strongest terms possible, any attempts to limit this right for other people – not just yourself. Demand that Muslims in the U.S. be given equal treatment. Argue against laws that seek to enshrine a particular religion’s values, such as laws allowing companies or individuals to discriminate against LGBTQ folks, Muslims, or other groups on the basis of “religion” or “conscience.”
You don’t have to be any religion other than the one you choose – and neither does any other American. That’s the deal.
The right to assemble covers the right to protest – but it also covers the right to do things like join a campaign, work with a non-profit or a lobbying group, or even get together with a couple friends at the local coffee shop for advice on how to talk to your racist uncle this Thanksgiving.
Those are all, by the way, excellent ways to exercise your right to assemble. If you’re going to go for something more formal than consciousness-raising over coffee, however, remember that the government can require you to get things like permits or to keep your assembling confined to particular hours or places: anything that is a restriction on “time, place, or manner.” They can also ask you to break it up if you’re becoming a health or safety hazard. Keep this in mind as you plan.
Our President-Elect got where he is today on a wave of people asking, “What the hell has government ever done for me?”
Well, what have you asked them to do?
The right to petition the government for redress of grievances is a big one – it covers lobbying and all sorts of activities – but it starts with a super-simple thing most of us have never done: writing to or calling your elected representatives.
If you’re not sure how to contact your elected representatives or even who they are, Common Cause has a handy form that allows you to find out who represents you at both the state and federal level. The “Contact Page” link will take you right to the representative’s email, phone, and postal mail contact info. If your representative has a “Homepage” but not a “Contact Page” link, click that – most if not all representatives have a big “Contact” link front and center on their Web pages.
What’s the best way to get heard? Opinions vary. When I spoke with several Michigan state legislators in 2004, they said that handwritten letters were the most likely to get their attention, followed by typed letters, phone calls, and email, in that order. Things have probably changed in twelve years, but the important thing is to use the method that ensures you actually carry through. There’s no point in promising you’ll send a handwritten letter if you never actually do it.
These are, of course, not all of your rights – but these are some of the biggest ones, and the ones most commonly neglected by folks who have never had the chance to learn concrete ways to enforce their own rights. But knowing how to exercise your own rights is arguably more important today than it has been in our lifetimes. Use your rights or lose them.