Constitution or bust


constitutionIt’s “Controversy Week” on the JMD blog, spurred by the chaotic presidential nomination process currently kicking up dust across America…


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”?

Second Amendment

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.

Third Amendment

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.

Fourth Amendment

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”?

Fifth Amendment

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”?


Sixth Amendment

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.

Seventh Amendment

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.

Eighth Amendment

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.

Ninth Amendment

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.

Tenth Amendment

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

4 Responses to “Constitution or bust”

  1. Scott Zucker

    Jeff: With regard to water boarding et. al., at the time the constitution was written I think the UK still allowed for being torn apart by 4 horses running in opposite directions, ga routing a victim, the rack, and other unpleasantness. By contrast pseudo drowning would have been a cake walk, not that I’m for it.

  2. JMD

    True, but our founders chose to leave that government. Do you think it likely that amendment might have been specifically to protect against that type of treatment?

    • Scott Zucker

      Jeff: I am not a constitutional scholar but one of the reasons why there has been such an uproar about the replacement for Antonin Scalia is that Scalia’s interpretation of the constitutional language was predicated on the meaning of the words at the time (Textualism). He contended that “The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated – a compatibility which, by a benign fiction, we assume Congress always has in mind.”

      I’m not looking for a text-debate on any of the items you addressed. My fingers would get too tired typing. But on the 2nd Amendment text I think you left out the complete text of the amendment which is, “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.”

      Your assumption that militias are police or the armed forces isn’t correct. They are groups of local people that come together to protect their community without special power granted by the government. The primary purpose of the 2nd amendment was to make sure that the people could protect themselves from a tyrannical government as the founding fathers chose to due against the crown. I am not suggesting that the 2nd amendment provides rights to carry assault weapons nor is there any special consideration for hunting, etc. but the amendment does provide that you and I can own a gun to protect ourselves, our family, our property, and our community.

  3. JMD

    Fair point, which shows the difference in interpretation of just us two ordinary (and, as suggested, non-scholar) citizens.

    I’m suggesting that the need for militias is obviated by the establishment of local protection forces (e.g., police). Since these are representatives of State jurisdiction and not Federal, they are (purportedly) more likely to reflect the mores and practices of the local citizenry.

    Now, that may not be what always happens in practice, but I think it’s safe to say that the police ARE there to try to protect the citizenry from criminals (though not politicians) and that the ownership of guns by citizens today is not with the intent of shooting government officials (and by extension, military forces), no matter how awful citizens feel their decision making.

    So, if the guns are not to prevent against tyranny, by what “constitutional right” are they currently protected?

    I’ve actually got no problem with people owning licensed guns, though I would prefer there be some mandatory training to be required before purchase.

    I think I am more at risk from people owning licensed cars, with which I wish there were also more mandatory training before purchase, as well.


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