Throughout the early campaign process, before the insults and innuendo drowned out most other discourse, there were a number of outraged Republican hopefuls staking their claim as Defender-in-Chief of the Constitution of the United States.
Made more fervid by the potential “swing” opening of a seat on the Supreme Court, many proclamations were made at this (apparently) suffering document. The most common refrain was that if “candidate X” was President, the Constitution would be interpreted as it was written.
While the righteous statements offer many discussion points, I’ll focus on only a few, to allow you to go on with your day (or, at least, not be rendered unconscious on your keyboard).
First, let’s face some grim facts. Most Americans don’t even know what the Constitution represents, let alone what is actually in the document. I count myself as only partially aware, so for purposes of this blog I spent a day reading through various government publications about the Constitution before actually reading the document in full.
Fun fact: The “Bill of Rights”, referring to the famous first ten amendments, was actually Articles 3 through 12. The first two Articles never got ratified!
Okay, let’s talk Amendments (circa 1789, the original document).
Article the third (The First Amendment – I’ll use this numbering going forward).
You all know this one: freedom of religion and speech. It includes freedom of the press and freedom to assemble (much to the chagrin of the GOP frontrunner).
It also prevents the government from “choosing” a religion or making laws to that effect. Does that mean swearing to God or refusing to allow it in schools is “choosing”?
The right to keep and bear arms. A campaign favorite. Oft unmentioned is the preface, “A well regulated Militia, being necessary to the security”.
Does that mean that since there are local militias (police) and national (the armed forces), there is no longer a reason (or right) to bear arms? Don’t throw tomatoes at me, peeps, it’s in the original Constitution.
No soldier, in peace time, can reside in your home without your permission or in war without special laws.
You never hear about this one because, frankly, there’s nothing controversial about it. Talk to some people from less fortunate countries if you want a feel for how important this one is.
Right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. No warrants without probable cause.
Commonly known as your right to privacy. But, how private? What is the definition of “unreasonable”?
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 the Military). Nor shall any person be subject for the same offence twice. Nor shall he be compelled in any criminal case to be a witness against himself. Nor shall he be without due process of law. Nor shall private property be taken without just compensation.
Whoo! Big one, huh? And you thought the 5th amendment was just about not incriminating yourself! Okay, so, right to a fair trial, not re-tried for the same specific crime and also due process (you get a lawyer).
By the way, that last line can be related to an early (and long-forgotten) debate topic called “eminent domain”. As with searches, though, what constitutes “just compensation”?
The right to a speedy and public trial and to confront the witnesses against you.
This is another of those amendments that everyone can get behind. It’s nice when you get one of these rare amendments that are straightforward.
In suits of common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.
Times change, eh? So you used to get a full jury trial for the less than the value of a family eating at McDonald’s.
Excessive bail shall not be required, nor excessive fines be imposed, nor cruel and unusual punishment inflicted.
How would the Founding Fathers reflect on waterboarding? There doesn’t seem to be a separate amendment for terrorists.
The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.
In other words, if we don’t expressly list or limit, you’re free to do as you please. The very basis of America was as much freedom of personal choice as possible.
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.
So, you have a middleman, the State government, but the cautionary tale here is that the true power lies with the people of the United States.
Okay, assuming you’ve waded through that (I watered it down only a little…it’s important reading), let’s tackle some of the problems with political rhetoric regarding the Constitution in the current campaigns.
I believe in the strict interpretation of the Constitution
Which “strict” interpretation is that?
The one that suggests you only have a right to bear arms for the purposes of a militia and, having now what we did not have back in 1789, that right is null and void?
The one that protects me from unreasonable search but doesn’t define what is unreasonable?
The one that says you can take my property as long as you give me just compensation, even if it doesn’t stipulate how much is just and who determines that amount?
How about the part where any time I have a $20 claim, I can request a full jury trial. Man, Comcast is going to hate that one.
Does the military get a pass on the cruel and unusual punishment? It’s not in the Constitution Of course, one person’s cruel and unusual is another’s interrogation technique.
In the real world, there is no way for a “strict” interpretation of the Constitution, only an interpretation.
The Constitution is not a living document
Should we stop at the Bill of Rights, then? Is that where the Constitution “died”?
Here’s some tidbits to consider that occurred after 1789:
Thirteenth Amendment (1865) – Abolishment of slavery
Fifteenth Amendment (1870) – Right to vote regardless of race or color
Nineteenth Amendment (1920) – Right to vote regardless of gender
Twenty-sixth Amendment (1971) – Right to vote at age 18
Can anyone argue with the value of the previous amendments? Should the Bill of Rights have stopped at ten? It takes 2/3 of Congress and 3/4 of the States to amend the Constitution, but there are surely times that demand such action. The Constitution, by necessity of the very fact that life is change, cannot be set in stone.
Speaking of set in stone, one thing you won’t find in the Constitution is the Ten Commandments.
The Constitution is not about morality, though surely that colors some of its words. It is about law and more, it is about guaranteeing the people who chose to live here, immigrants all, the very freedoms they saw crushed in their former homelands.
The Constitution is a marvelous document for what it says. It is even more important for what it stands for.
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity”
Tune in tomorrow for: Trade-in Value