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20. May 2011

The crisis in constitutionalism

An overwhelming number of conservatives proclaim support for the constitution, and even liberals rally behind the rights they believe the Constitution protects. But is it possible for either side to truly be interested in constitutionalism?

If one considers that our bill of rights guarantees freedom of speech in very broad terms, it is only fair to ask what speech is. To list just a few examples, speech includes giving away military secrets and weapons blueprints, lying under oath, sexually harassing female coworkers (without hands, of course), phoning a bomb threat, engaging in insider trading, threatening to kill one’s neighbors, and conspiring to assassinate people. None of these, at the current moment, are legal, and common sense requires that many of them remain so.

Americans are also guaranteed within that same first amendment that the government will make no infringements upon our freedom to practice religion. But surely one can imagine that some abominable religious practices throughout mankind’s long, barbaric history ought to be prohibited, and that they currently banned with nearly total public support.

The Constitution also guarantees that there will be no establishment of religion, but if this were enforced as many leftists believe it should be, Americans would have to do without divine concepts such as unalienable rights. After all, one cannot evolve an unalienable right; it must either exist or not, but it cannot be created or manipulated by humans, since an unalienable right is an exclusive statement received from a specific Creator. On the other hand, if Americans were to interpret the Establishment Clause as many conservatives would like, as a statement of non-preference, we would have to publicly support Wahhabi and Satanist chaplains alongside Catholic ones.

Of course, few people, if anybody at all, on either left or right, are actually interested in enforcing the Bill of Rights in totality. Instead, recognizing the utter impracticability of these so-called rights, most people are comfortable with concocting bizarre doctrines around these principles, subjectively determining which rights to bestow at certain times and which to rescind at others.

But any rational person can attest that the combination of these doctrines and our Bill of Rights results in something far different from law and its purpose. At least, it is different from law in any serious form, since a good law in a free society cannot have an unlimited number of definitions, as it would place undefined power into the hands of leadership. James Madison wrote of such law in Federalist #62:

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

Frustratingly enough, the Bill of Rights makes the creation of such arbitrary doctrines necessary not only to our healthy function, but to our very existence and safety. But Americans should take encouragement in that the Bill of Rights was actually opposed in Federalist #84 by Alexander Hamilton, who cited the same kind of problems listed at the beginning of this article. Hamilton’s concern was that broadly defined rights, such as the “liberty of the press,” were so widely interpretable as to be completely meaningless. And out of a deep understanding that law is no place for ambiguity, Hamilton proclaimed that such rights were unenforceable, and even dangerous.

But though the Bill of Rights appears at first glance to be utterly impracticable, there is good news: our founding fathers were well aware of the inconveniencies, and they did not intend for us to live with them. At least, we were not to live with them on a local level.

Most Americans are not aware that until the ratification of the 14th Amendment in 1868, almost a hundred years after we ratified the Constitution, the Bill of Rights was not applicable in the states. And perhaps most interestingly, until 1833, not a single American had even claimed these rights against his particular state; it was simply understood that the Bill of Rights was intended to restrain solely the federal government. Federalist #32 expressly clarifies and supports this original intent for states’ rights, explaining that the states were to govern themselves particularly in those ways excluded to the federal government (see original state constitutions for overt violations of both secularism and freedom of speech).

But this liberty did not last forever. The introduction of the 14th Amendment’s due process clause birthed the incorporation doctrine, which enforced the Bill of Rights in state governments which were never intended to be held under its authority. Effectively, our Bill of Rights became a Bill of Wrongs. And long as the due process clause and the doctrine of incorporation exist, Americans will never be a free people under the protection of law, instead having their rights redefined with every appointment into the Supreme Court. (For an amazing lecture on judicial positivism, click here.) As such, the due process clause absolutely must go; and if its purpose was to end slavery, Americans can draft an anti-slavery measure to replace it.

But before the clause can go, the children of Washington, Jefferson, and Hamilton must face a cultural problem. Americans must realize that liberty cannot be an enforcement of “neutrality” as claimed by our First Amendment, when a stance of enforced neutrality is a poor moral stance indeed, and unenforced neutrality is anarchy. Rather, liberty must be recognized as the enforcement of the God-given boundaries within which human beings function most optimally. Liberty cannot simply be a broad and irresponsible dispensation of rights which human beings have never actually owned, nor can ever practically own.

Our forefathers did not intend for Sharia Law to be protected in all of America, as the First Amendment requires. They did not intend to allow — as our judges and legislators have already decided — people to make films about raping and killing people, but at the same time not to allow someone to advertise for a Jewish roommate. Our entire nation was not to be forced into allowing mosques near a ground zero, nor was it intended to defend the mass manufacturing of pornography, nor was it intended to force every public building to remove the Ten Commandments, nor ban prayer and the Bible from schools. These behaviors were to be regulated by cultural peoples in their culturally defined states, so that Americans could live their lives under the protection of a federal government and still retain autonomy under the Bill of Rights — not so that we could force the entire nation to defend works of pedophilia.

Generous autonomy within the boundaries of unalienable rights is what our founding fathers intended for us, and it is what we should intend for our grandchildren. As such, it is the duty of every American patriot to repeal the due process clause, and, if we are interested in protecting an interpretable code of rights, to do so sooner than later.

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