Are you confused by the supreme law of the land? Did your high school’s civic classes leave you with a clammy feeling on your buttocks and nothing else? Does Judge Andrew Napolitano have a patent on articles consistent entirely of questions?
Don’t worry, your friendly neighborhood immigrant is here to help you figure this stuff out. This isn’t legal advice, I’m not a lawyer, and this is simply my plain English reading of the founding documents of this great country.
With that out of the way, let’s get to the subject at hand. How does the United States Constitution actually work, and in particular, the Bill of Rights? Most people seem to have a very vague understanding of this; they think that it mainly lists their rights and a few other things, like how elections are done, how the justice system works, and that it prescribes the structure of the three branches of the Federal Government. But beyond that they don’t really know or care about the specifics – that’s for experts to know and deal with, amirite?
Sure, you know much more than most people about this subject, but a few things might still surprise you, and maybe you need a refresher, or a way to convince those you love and care about to truly understand it as well?
So in a nutshell, the U.S. Constitution is written by the people of the United States of America, and it originally was intended to create the structure of the Federal Government and grant it certain powers. Those powers are therefore granted by the people to the government. This is an important distinction that most people in my experience have backwards – they think the Constitution is the government’s way to grant rights to the people, and that they can be arbitrarily re-interpreted and restricted based on need.
Seen in this new (to some) light, it becomes obvious that this document is mostly a white-list of things the Federal Government and states (more on this later) can do. That is, anything not specifically mentioned as a power is simply out of bounds. I won’t go into the specific powers listed, just mention that they are quite limited, and that most lawmaking was thought best left to the states and other local governments.
The part of the Constitution that most people know and love is the Bill of Rights. They will enthusiastically point out that they have a certain right because it’s mentioned here. They also attempt to limit rights they don’t agree with by interpreting the text in certain ways, or by showing that a right isn’t explicitly mentioned. But what if I claimed that these initial amendments actually really do nothing at all? That they are just a list of examples of rights that you have regardless of their mention or not. Almost anyone I have talked to about this has balked at the idea, but I think it’s the only way to truly read and understand the Bill of Rights. I’ll explain why.
The Bill of Rights consist of amendments to the original Constitution. It was effectively an afterthought, based on a reasonable fear that people would have a hard time understanding that rights existed by omission, rather than inclusion. In hindsight this was spot on. Today most people consider this afterthought to the Constitution one of its most important features, mainly because we are so much better at dealing with, and understanding specifics rather than those things not mentioned.
The Founding Fathers were inspired by Enlightenment Philosophy. They were Enlightenment philosophers themselves, and arguably contributed as much as they borrowed. One of the ideas that define this philosophical movement is the notion that we are all born with certain rights, and that these rights come from simply existing, not because someone else gave them to us. Today people are in the habit of claiming anything they want as a “right”, but to Enlightenment philosophers, rights were a definable spectrum of what we today call negative rights.
It’s therefore obvious to me that every time the word “right” is used by a Founding Father, that it really means“negative right”, such as in this famous passage from the Declaration of Independence:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
This is essentially the prologue to American history, everything that followed was based on this idea, and the sense that it had somehow been violated by Britain. It eloquently describes the two concerns discussed above; that rights are inherent and not limited to specific ones.
This is echoed in the Bill of Rights, or rather the pre-amble to it, as well as the Ninth and Tenth Amendments. These pieces of text bookends the Bill of Rights and adds necessary context to the rights that are listed.
From the pre-amble:
“THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution”
The “declaratory and restrictive clauses” are the First through Eight Amendments.
The Bill of Rights conclude with the very simple Ninth Amendment:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
And further expands on it in the 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.”
The cautious concern expressed in these three clauses is almost palpable, and in historical hindsight, completely justified. Clearly there was some worry that rights by omission was just not enough, but also that it was necessary to point out that the Bill of Rights is not the origin of your rights, or the only rights you have.
So what does this mean in practice? Let’s use the Second Amendment as an example, as it has popularly been both misconstrued as limiting your right to keep and bear arms, or as the originator of this right. It states:
“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.”
Eggheads and regular Americans alike have been pointlessly dithering over the meaning of this sentence for a long time. Each trying to use it as justification for their desired outcome. The various claims are that it only applies to the militia, or that it justifies regulation, or that it applies to everyone because that’s who the “militia” is, or what the meaning of “arms” is in this context. The real truth is that none of this matters. It’s an affirmation of a negative right. Even if the Framers only intended this to cover the militia, it still doesn’t overrule your negative right to keep and bear arms. That exists separate from this sentence, which was tacked onto the Constitution by a bunch of worried gun nuts in the late seventeen hundreds. You can repeal this amendment, and it still would not change a single thing.
The only way to curb this right is for people to willingly give it up by rewriting the Constitution with an amendment to grant government the power to regulate arms.
“A-ha!” you say, “but what about laws at the state level?”
This would have been a somewhat valid argument until July 9th, 1868, where the Fourteenth Amendment to the United States Constitution was adopted. At least if you have a hard time reading the Ninth Amendment, which to me seems nearly indecipherable to most people, including jurists. In any case the Fourteenth Amendment hammers it home, and the most important passage in this amendment for our context is this:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
This has been understood to limit the states, and not just the Federal Government to the legislative powers laid out in the Constitution. It was really written because the states were being willfully stupid when it came to enforcing those pesky negative rights for slaves.
At least one amendment has been added based on the clear understanding that legislative powers have to be granted via the Constitution – not only to Congress but also to the states, after the Fourteenth Amendment. And I think this fact lends some credibility to the idea that the Constitution has been understood in the way outlined above for most of its history, until just very recently.
Which amendment is that? The Eighteenth. Pay particular attention to Section 2:
“Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”
This was of course one of the silliest mistakes in American history, but at least it was implemented in a legal way, in accordance with the Constitution.
So if banning alcohol at both the Federal and state level required an amendment to the Constitution, why is the same not true for regulating guns, drugs, and rock’n’roll? Do you even logic, bro?
And no, Judge Napolitano does not have a patent on articles consisting entirely of questions. Or does he?