As a general rule, the Founding Fathers get way too much credit. The Declaration of Independence was basically plagiarized from John Locke; a lot of the Constitution is downright awful, either from a moral standpoint or a procedural one. Let’s not even get started on the Bill of Rights…
One thing the Founders do not get enough credit for, though, is the Census. In Clause 3 of Article I the Constitution mandates: “The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”
It’s not flashy or glamorous, but it’s hard to understate its importance. People so often recall the grand philosophical ideas espoused by Thomas Jefferson, James Madison, et al., and as a result we tend to think of them more as political philosophers than as actual policy makers. This is understandable, but not really accurate. What the Founders were doing, after all, was establishing a country. So while Josh may be thrilled that the Founders decided to prohibit government regulation of speech, I’m more impressed by whomever stood up and said, “It would probably be really helpful if we counted each other every ten years or so.” Continue reading »
So, Josh exercised his right to free speech by responding to my critique of rights with his own defense of rights. His defense was valiant, yes, but doomed.
Let’s start right at the beginning, with Josh’s attempt to define the ineffable concept of a “right”: “If X has a right to do something, he is legally protected from interference by Y. In other words Y has a correlative duty not to interfere with X’s right. So, if X has a right to speak freely, then Y has a correlative duty not to interfere with X’s speaking freely.” This doesn’t really help us much, does it? A right means that Y—Y, as defined by Josh himself, “being any other individual or the government”—has a duty not to interfere with that entitlement. So, technically, every single time you interrupt someone you have violated someone’s right to free speech, since you’ve interfered with that person’s speaking freely. Apparently, that person now has legal recourse against you. By this standard, public school teachers who force students to raise their hand before speaking have collectively committed the gravest assault on our free speech rights that the U.S. has ever known.
Of course, this is ridiculous because Josh’s standard is ridiculous. A right protects you from any interference? That’s simply not true empirically. Continue reading »
Now that Josh has concluded his eight month-long analysis of the Bill of Rights,* it’s time for we at NPI to finally face facts: The Bill of Rights as a whole is incredibly overrated. The Ninth and Tenth Amendments are glorified addenda, the Seventh is, as Josh said, dull, the Third has been pretty useless, and the Second is essentially gibberish. The entire document is in desperate need of a proofreader (seriously, the grammar in that thing is offensively ambiguous).
*And in depressingly anticlimactic fashion, I might add: Oh, the First Amendment is first and the Second is last? How original! Is he also going to write something about how rainbows are pretty and chocolate tastes good?
And yet the Bill of Rights remains incredibly popular. Demagogic political figures appeal to it for justification of any principle they want to espouse; citizens regard it with a scriptural sanctity even though polls show that most of them don’t know what it says. In other words, the Bill of Rights is basically the secular version of the Bible. And not much of that has to do with its proscription on troop-quartering.
You don’t have to be a constitutional scholar to know that the Bill of Rights’ reputation with the public is largely the result of the First Amendment, specifically the freedoms of speech and the press. And yet it is this part of the Bill of Rights that is the most overrated. Continue reading »
Contain your excitement. The “Ranking The Bill of Rights Series” is back and better than ever. Why such a time lag between the Number 3 ranking and the Number 2 ranking? Let’s just say it’s because the decision was incredibly tough.*
*I will likely contradict this in my next Bill of Rights post.
Coming in at second is an amendment I view dearly. It has never stolen from me—at least in an unreasonable manner—and whenever it’s around I feel an aura of security. I present the Fourth Amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, 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.”
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This is where the men are separated the boys; the women from the girls; the toddlers from the infants. We have reached the top three. Without further ado, I present the Fifth Amendment:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on 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.”
There’s quite a bit going on in the Fifth. What puts the Fifth in the top three is its guiding philosophy, which attempts to protect the individual against unjust and arbitrary uses of government power. Much of this is done through procedural constraints on the government. Prosecution wasn’t satisfied with the jury’s decision and wants to try the case before another jury? Too bad: No double jeopardy. Want to transfer a private homeowner’s property to a private company? Not happening.* The D.A who prefers mild to moderate public opinion about crimes is angry about the extent of a crime’s infamy and wants to punish the individual without a Grand Jury?** Well, he can’t.
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Robert Bork once referred to the Ninth Amendment as an indecipherable “inkblot.” First, as we know from the Rorschach Test, inkblots can have a lot of meaning. The Founders’ perception of this inkblot could tell us a good deal about their inner thoughts. Second, the Ninth Amendment IS NOT AN INKBLOT. Not even close. The Ninth Amendment reads:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
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We have made it to the Top Five! I never thought we would see this day.* Nevertheless, we are here.
*This line is almost entirely for rhetorical flourish. I was fairly certain at the start of these rankings that we would reach number five.
The 6th Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
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At this point, it may appear that I’m just being lazy and simply matching the number of the ranking to the number of the amendment. However, if this were to continue, I would be quite embarrassed when it came to filling the number two ranking since I have already ranked the Second Amendment. Suffice it to say, then, that is whole ranking-matching-amendment-number bit is mere coincidence.
With that said, I present the fightin’ seventh: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
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I like the Bill of Rights. So, while the Second Amendment is pretty terrible, I don’t have a particularly strong distaste for any other of the first ten amendments.
With that said, the Tenth Amendment has no point. It reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
It is a truth reflected already by the rest of the Constitution. The Constitution gives each of the three branches of the national government expressly delegated powers: Why the need to repeatedly emphasize that this is the case? The Supreme Court even claimed in United States v. Sprague that the Tenth Amendment has added “nothing to the [Constitution] as originally ratified.” What is the Tenth Amendment amending? Imagine an amendment to a marriage license that states that the husband and wife are married. Sure, I’m sympathetic to the idea that the national government’s powers need to be limited, but the reality is that the Tenth Amendment does little to assure that this is a reality. It recognizes that federalism exists without giving any teeth to it.
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Luckily, the Bill of Rights is more limited than history. So, rather than ranking 173 historical happenings, I can get away with ranking a much more manageable ten amendments, which constitute the United States’ Bill of Rights.
Coming in last place is the Second Amendment which reads: “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.”
Seriously, Framers? That’s the best you can give us? The Second Amendment is—by far—the most poorly worded and punctuated amendment. The opening noun clause “a well regulated Militia” is neither the subject nor the object of the sentence. The opening phrase isn’t even necessarily part of the substance of the amendment, but rather a justification for the amendment. But, if the justification no longer holds—if a well regulated militia is not so necessary for a free state—does the declarative clause lose its meaning? Antonin Scalia maintained that it did not in the Heller case, claiming that the first clause is a prefatory clause, a non-exclusive reason for having the right to keep and bear arms. Moreover, there is significant ambiguity as to what constitutes “Arms” and at what point a right (which is arguably collective despite Scalia’s ruling) is infringed. And, what the heck is that comma after “Arms” doing there?
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