A few days old, but it’s never too late to pay a little attention to one of the most powerful people in government musing that basic constitutional freedoms might go down the toilet if the country had to reenact them now.
I’m unclear on what he’s imagining here exactly. If he means that the country might not reauthorize the Bill of Rights in a take-it-or-leave-it up-or-down vote to either keep the first ten amendments or do away with written guarantees of core rights, he’s obviously wrong. Americans would vote overwhelmingly to affirm their current rights.
But if he means something more like a constitutional convention, where we’re not just voting to scrap old rights but to replace/supplement them with new ones, he’s obviously, obviously right. Are you kidding? I mean, just run through the list.
First Amendment: No clause would escape unscathed. We’d end up having a national conversation about whether to exclude “hate speech” from the protections afforded free speech. We’d have a wrenching argument about whether religious freedom should extend beyond the church door and into business places. No doubt social conservatives would want a narrower reading of the word “establishment” in the Establishment Clause. Freedom to petition the government for a redress of grievances would receive caveats related to lobbying. On and on. The amendment would be a shadow of itself by the time we were done.
Second Amendment: Again, are you kidding?
Third Amendment: Wouldn’t exist because it’s never been a concern.
Fourth Amendment: Natsec hawks would want some exceptions included for the surveillance state in forbidding unlawful searches and seizures. Libertarians would want the provisions expanded to include prohibitions on things like facial-recognition technology in public. Another hash.
Fifth Amendment: We’d have another loooong national conversation about what “due process” means, specifically, with plenty of horse-trading between left and right on what should and shouldn’t count.
Can we stop here? I’m getting depressed. Needless to say, there’d be another long and depressing conversation about what “cruel and unusual punishment” in the Eighth Amendment means too. The new Bill of Rights would be 10 or even 100 times wordier than the old one for the simple reason that both parties would be trying to tie the hands of future Supreme Court justices appointed by the other party as best they can. “Do you really want me to rule the country?” said Neil Gorsuch to CNN in an interview this week about the Court’s outsized power over American life. No, Americans say. One obvious way to prevent rule by judiciary in a scenario in which fundamental constitutional provisions are on the table is to be much more specific with those provisions and narrow the Court’s interpretative discretion accordingly. For that reason alone, Clyburn’s clearly correct.