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Re-Adopting the Constitution

Posted by Rick · September 17th, 2004 · 5 Comments

No time for a full entry today. But I can’t help myself.

I find myself perpetually blown away by the death of the United States. What gets me the most is that most people — particularly most Americans — don’t even realize it’s dead.

It doesn’t matter to me if you’re a Republican (like Nick and Nat), a Democrat (like Mark), an independent (like me; in California, where this is possible, I’m not a registered member of any party), or a member of some other party. The fact of the matter is pretty simple: the current Administration has been elected by less than a third of Americans, actually represents the interests of less than 20% of Americans and is dismantling the Constitution of the United States.

The thing that concerns me the most — and what I write about today — is that last point.

In America, because of whatever lunacy inspires a population of people with a right to vote not to exercise that right, it’s always been true that less than half the country elects the President. Since a party’s policies dictate how much of the population it will actually represent, it’s often the case that the represented group is small. (There’s not a strict correlation between who is represented and who votes, but the detailed consideration of that is beyond my time limitations this morning. As is sometimes said in books I read, “I leave that as an exercise for the reader.”) And that’s even assuming that no voter is voting against their own best interests. Yet this last assumption is false, because many people who do vote don’t think about their votes; they vote based on their emotions, which are often dictated by the best advertising or gossip they’ve heard. But without the protections of the Constitution, our United States cannot long survive as a free and democratic republic.

Where, for example, can the concerns of Americans who feel they are not being represented by the Bush Administration be heard? Protest is either not allowed, or is relegated to areas where it cannot be heard. This is one reason why people are increasingly taking to “crashing” events where, frankly, they don’t always belong.

Candidates — whether George Bush, John Kerry, Ralph Nader, or anyone else — deserve and have a right to make their campaign speeches uninterrupted. When the government forcibly forbids any arena to protesters, though, there is often no alternative left but to try to “heckle” them during their speech. (And, in a sense, turnabout is fair play. If Bush won’t allow the protesters to be heard, it’s hard to argue the protesters should allow Bush to be heard.)

Protests, if allowed to occur as they should be allowed, would permit protesters’ messages to be heard and the issues they raise to be considered and debated. Protesters should be allowed to attend events wearing shirts or quietly holding signs, for example, that make their questions or protests known. The Bush Administration routinely has them removed from events and sometimes even from the area around events.

Just as during the 1930s in Germany, this has two very negative results. The first is that, obviously, freedom is suppressed. Secondly, important issues go undiscussed, unconsidered and largely unheard. The feelings, of course, do not. Potential injustices, also, do not. America used to be concerned about things like that. It’s one reason our Founders ensconced freedom of assembly, speech and press into the constitutional fabric of our once-great nation.

And thank whatever Being or Force you worship that some of the Founders insisted upon a Bill of Rights. The original conception of the Constitution did not include any such thing. When Hamilton wrote Federalist Paper No. 84, he complained about people who fought against ratification (for those few who don’t know, that means “approval” or “sanction” and refers to the fact that before the Constitution could become the controlling law of the land, Americans had to vote for it to be the controlling law of the land). Hamilton called these people, “the most intemperate partisans of a bill of rights.” The Federalist No. 84, at p. 509 (Alexander Hamilton) (Clinton Rossiter, ed., 1961).

“Intemperate” was a much stronger word then than it is now. The word means “immoderate in satisfying an appetite or passion; specifically : given to excessive use of intoxicating liquors.” Synonyms include “excessive,” “inordinate,” “violent,” “extreme,” and “severe.” “intemperate.” Webster’s Third New International Dictionary, Unabridged. Merriam-Webster, 2002. http://unabridged.merriam-webster.com (17 Sep. 2004).

And the reason Hamilton considered people who insisted upon a Bill of Rights for the Constitution as extremists was simple. According to Hamilton, the purpose of a Bill of Rights was to create an agreement between a King and his subjects; it was a promise that the King would allow them certain fundamental freedoms that simply could not be trumped even by him. Concerning bills of rights, Hamilton said,

It is evident, therefore, that, according to their primitive signification, they have no application to constitutions, professedly founded upon the power of the people and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations. The Federalist No. 84, at p. 512 (Alexander Hamilton) (Clinton Rossiter, ed., 1961) (emphasis added).

In other words, Hamilton said that a Bill of Rights is unnecessary because the people “surrender nothing.” By establishing a constitution, the people say what rights the government has. And the government only has whatever rights the people give them. The people “retain everything.” Consequently, there is no need for them to make “particular reservations”; that is, there is no need for them to specifically state, “Well, this right is one we want to keep for ourselves. And this one.” The people don’t need to say that because, if they do, the implication is “all the others, Government, you get.” But our Constitution did not establish that kind of government. Our Constitution was written with the express intent of creating a government that was limited in its power from the start.

James Madison, trying to convince Americans that they should adopt the Constitution, wrote about the safeguards that would keep the government from becoming too strong and wrestling power away from the people:

They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is whether such a power be necessary to the public good; as the next will be, in the case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment. The Federalist No. 41, at p. 252 (James Madison) (Clinton Rossiter, ed., 1961) (emphasis added).

The “they” to whom Madison referred were those who tried to convince people not to adopt the Constitution. He said that they would see that only those powers that were necessary would be given to the government and that whenever it was decided to give the government some power (that’s the meaning of the archaic construction “in case of an affirmative decision”), that safeguards would be established to make sure that power could not be abused. In other words, whereever the Constitution gives to the government some strength that could be turned against the people, it would include ways to dilute that strength. Our government was meant to be strong enough — just strong enough — to protect us from our enemies, but not so strong that it could be turned against us.

One of the problems with getting the Constitution approved was the existence of powerful people who did not like their power being limited. The new Constitution would make it more difficult for them to control the government; it would create a government that represented, if not all, then at least more of, the people.

The plan [that is, the Constitution] offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions, and prejudices little favorable to the discovery of truth. The Federalist No. 1, at pp. 27-28 (Alexander Hamilton) (Clinton Rossiter, ed., 1961) (emphasis added).

In other words, people who were already powerful would pollute the discussion of the benefits of the Constitution. They would try to distract people from understanding what the Constitution was really about and why it was needed. They would inject “issues” into the public debate that had nothing to do with the important issue itself, things that were “little favorable to the discovery of truth.” They would do this because the Constitution, the Founders claimed, would ensure that the people, and not those in power at the time it was passed, would have the most power and rights. People who wish to control other people don’t like this, for obvious reasons. And then — as now — the best way to keep people from thinking about the important issues, like constitutional rights, was to give them something else to think about, like who used Botox, who’s “boooring,” or who the terrorists (or Jesus, or whoever) would vote for, even if none of these distracting issues are true. Then — as now — the best way to stop people from supporting ideas you don’t like is to make sure those ideas never get heard. Instead, fill the air with “views, passions, and prejudices little favorable to the discovery of truth.”

Today, increasingly, our government is turned against us. Our very Constitution is turned against us. Today, people are taught that the Constitution of the United States limits the people, instead of the government. We are taught that we have only certain limited rights. Hamilton’s fears have come true. He said that he didn’t want us to just think that a Bill of Rights was unnecessary, but rather:

I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power, but it is evidence that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights. The Federalist No. 84, at p. 513 (Alexander Hamilton) (Clinton Rossiter, ed., 1961) (emphasis added).

This — amazing to everyone, perhaps, except Alexander Hamilton — is exactly what has happened. When a compromise Bill of Rights was finally created and accepted, people like Hamilton tried their best to guard against the possibility that someone might try to “claim the power” to “prescribe proper regulations” for various freedoms. In the First Amendment, for example, they said, “Congress shall make no law . . . .” U.S. Const. amend I. And Hamilton, at least, was actually quite serious about the word “no.” Try reading Federalist No. 84 sometime, where he specifically uses the example of freedom of the press to explain why he thought creating a Bill of Rights was dangerous. He was absolutely adamant that there should be not one single, solitary restriction on the press. He felt this way about the other freedoms “retained by the people,” as well. As noted, he was afraid that by creating a Bill of Rights, the government would use this as an excuse; they would say, “Well, obviously we have the power to regulate this freedom. Why else would there be any mention of what we could not do, unless there were obviously things we could do?” In reality, as Hamilton tried desperately and forcefully to explain in Federalist Paper No. 84, the government was supposed to be limited. Only very specific powers that were very deliberately and specifically provided were available to the government.

And, again, today we are taught the exact opposite. “I have a right!” someone might say. “I have a right to do [fill in the blank]!” And someone else — perhaps an ignorant Supreme Court Justice, like Scalia, or a senile Chief Justice, like Rehnquist, who has apparently never read the Federalist Papers and doesn’t understand the Constitution — will say, “What the hell are you talking about? You don’t have that right! That’s not in the Constitution!” As I said, exactly backwards.

What part of the Ninth and Tenth Amendments to the Constitution did they not understand? What part of the Federalist Papers, which James Madison, John Jay, and Alexander Hamilton wrote specifically to explain the Constitution, can we encourage them to read, if they won’t read them all?

But there is still one chance for America. It’s the same chance that existed in 1789, right before the Constitution was adopted. We must re-adopt the Constitution.

How do we do this? How do we, the people, re-adopt the Constitution of the United States, which limited government and made it clear that rights belong to the people unless we specifically give them to the government?

First, you must educate yourself. You must understand just what the Constitution says. A good start is to read the Constitution. You will be surprised at how easy this is. Really. On my computer screen, clicking the link I just gave you to the words “read the Constitution,” I have to hit the “Page Down” button on my keyboard only 11 times to read the entire original Constitution of the United States. Frankly, this blog entry is probably longer than the Constitution.

After that, read the Bill of Rights that scared Alexander Hamilton. If you’re feeling ambitious, read the rest of the Amendments (the Bill of Rights is only the first 10 of 27 that now exist). You can find them here. And then, if you’re really fired up and eager to know what it all means — because it can be a little confusing to those who aren’t used to reading constitutions — take a look at the Federalist Papers. The copy I just linked to is only $7.95! There are only 85 of them. Some are shorter than others, but they were all originally written as newspaper articles, so none of them is incredibly long. Reading one each day would be like reading one feature article in the newspaper per day.

If you do this, you’ll be in a position to figure some things out for yourself about how to vote. You won’t need to listen to people like me. And you’ll only need to listen to people like John Kerry or George Bush long enough to see if what they say really fits with a) what they do and b) what the Constitution stands for.

More importantly than anything, you’ll find a way to cut through the crap, discover what’s important, and vote in a way that truly makes your voice heard.

If we re-adopt the Constitution, no one can ever strip us of our freedom.

Categories: Constitutional Issues


5 responses so far ↓

  • 1 abi // Sep 17, 2004 at 12:09 pm

    …and conveniently, a leatherbound Constitution (with all amendments) is almost done and destined for your reading pleasure. Should be completely finished by the end of the month!

  • 2 Rick // Sep 17, 2004 at 3:21 pm


    I can’t wait to see it!

  • 3 Adrian // Nov 1, 2004 at 9:56 pm

    Regarding “turnabout is fair play”:

    I think you’re treading into the area of positing an alleged “right to be heard,” which doesn’t exist. The protestors are free to express themselves in many conceivable forums (fora?), but nothing gives them the right to take advantage of the particular venue that Bush created on that day. He got the people there and he’s directing the event. People who participate are entering into an implied contract to let Bush be the ultimate director of the show.

  • 4 Rick Horowitz // Nov 1, 2004 at 10:24 pm

    Apparently, there is some confusion here about the difference between campaigning for political office and other activities.

    Bush is, indeed, perfectly free to block people from participating in his performances — if that’s how he intends them. If, on the other hand, he perceives himself to be campaigning for public office, then using that public forum to dictate the kind of clothing (or lapel pins) that people can wear if they wish to gain entrance is going a bit far.

    I believe I’ve stated quite clearly that Bush has a right to be heard at an event that centers around the goal of giving him that opportunity. He does not have a right to use the power of the government to ensure that any opposition to him is pushed out of view.

    You may say that the protesters do not have a right to be heard. Unfortunately, the Constitution does not support that point of view. If, in fact, the government can provide that protest is perfectly acceptable, but only if the protesters are willing to protest at the bottom of mine shafts or in the middle of the Mojave Desert, the freedoms of the Constitution are not really freedoms at all.

  • 5 Constitutional Rights // Sep 17, 2008 at 8:56 am

    […] all my arguments supporting that here. Instead, the interested reader is referred to my article, “Re-Adopting the Constitution.” In that article, starting in the tenth paragraph, the case relating to what the Constitution does […]

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