Perhaps we need to summon up the spirits of the Founding Fathers and pull them aside for a chat. During an era when people are calling for the repeal of the Second Amendment (or at least forcing the courts to “clarify” it for us) and questioning just who should or shouldn’t have free speech, a case can be made for one sad conclusion. The Constitution of the these United States – and I’m speaking specifically of the Bill of Rights here – is a hot mess. Let’s take a moment and look at some of those inalienable rights and see where they’ve gotten us, shall we?
Since I already mentioned it, let’s start with that whole free speech thing. The Founders themselves knew that popular speech rarely requires protection, but free speech had to resist all efforts at erosion. Yet this leaves us constantly defending the most horrid and noxious speech imaginable. And Freedom of Religion? It’s an idea cooked up by people who were fleeing a tyrannical monarchy where one sect of Christianity could stomp out another with the blessings of the crown. I don’t expect that the founders anticipated people attempting to use religion as a dodge to skirt drug laws or an excuse to allow children to die of curable diseases.
Freedom of the Press probably sounded like a great idea in theory, but we basically enshrined anyone with a printing press (or today, a website) with almost godlike powers. An army of independent truthseekers empowered with the ability to scrutinize every aspect of government activity and shine the cleansing light of transparency upon it is a marvel to behold. But right from the earliest days of the nation, we learned that “the press” is made up of fallible human beings who frequently have their own agenda.
The right of the people peaceably to assemble sounded like it couldn’t miss. Public displays and soapbox speeches could sway the decisions of elected officials and your fellow citizens alike. But did the Founders anticipate people abusing that freedom to shut down highways and airports, block the legal flow of commerce and menace or even terrorize their fellow citizens? Doubtful at best.
Even if the Second Amendment had been written without the superfluous and confusing phrase about militias, we’re still left with a terrible reality. The law-abiding still outnumber the criminals by a vast margin, but a few evil men with guns can still rob, rape and murder with abandon in alarming fashion.
The Fourth Amendment was put in place to protect honest citizens from governmental abuse via harassing searches and trumped-up charges. But it also opened the door for clever lawyers to create toxic metaphors such as the fruit of the poisonous tree which is regularly used to allow the obviously guilty to walk free. The concept of double jeopardy, as identified in the Fifth Amendment, was similarly envisioned as a way to prevent corrupt government officials from taking their political enemies to court endlessly, but is similarly employed to allow the guilty to slide by if one stacked jury can be assembled.
The protections found in the Eighth Amendment were a fine idea, but they include words such as excessive and unusual. Those are so open to interpretation that legislators and justices can make of them what they will. And as for the attempt at limiting the power of the federal government set forth in the Tenth Amendment, our system of courts has turned that into the saddest and most pathetic joke of all. For well over a century the courts have allowed Washington to explain away virtually anything they wish to do with a flourish of the pen and a few mumbled words about the essentially extinct Commerce Clause. The Tenth Amendment died in the late 1800s, but it’s simply too embarrassed to fall down and submit to a proper funeral.
In the end, possibly the only entry in the Bill of Rights which has worked out fairly well is the prohibition against forcibly quartering troops in the homes of civilians. But if you look long and hard enough you can even find some joker who wants to repeal that as well.
So was it all for nothing? Did the Founders fail us? Not in the least. Each and every one of the mandates listed above was written with the correct intentions. They were crafted by idealists who chose to see the best in humanity while standing guard against the worst. They sought to protect us from our own government while simultaneously keeping us safe from each other. (We tend to be a pugnacious lot at times without some guardrails to keep us inside the white lines on the road.) So why didn’t it work?
The fact is that it did. Those rules have provided an atmosphere of relative safety and equality of opportunity for a veritable ocean of humanity for generations on end. The problem is that there will always be the fringe element of mankind which seeks to stretch the rules to the maximum if not break them entirely and they draw far too much of our attention. This is a nation with well over 300 million souls onboard, and probably 98 percent of us have never committed a crime more serious than a traffic violation or some misdemeanor arising from either a misunderstanding or a momentary lapse of judgment. Unfortunately, even two percent of more than 300 million adds up to a significant body of varlets and knaves.
As for the rest of us, the Bill of Rights has worked. It was written by visionaries but intended for the use of honest people who seek to live in a civilized and ordered society. The fact that criminals and maniacs regularly seek to exploit it or violate the social compact is not an indictment of the first ten amendments. It simply exposes the failings of our own species when it comes to the worst of the worst.