Our ‘two’ Bills of Rights

The Washington Times Daily - - CELEBRATING FREEDOM - By Dr. Robert Lowry Clin­ton Robert Lowry Clin­ton, Ph.D., is pro­fes­sor emer­i­tus at South­ern Illi­nois Univer­sity and ad­junct pro­fes­sor of po­lit­i­cal sci­ence at the Univer­sity of Mis­souri-St. Louis. He is the au­thor of “Mar­bury v. Madi­son and Ju­di­cial Re­view”

The first 10 Amend­ments to the United States Con­sti­tu­tion, widely known as the Amer­i­can Bill of Rights, were adopted in 1791 un­der pres­sure from the An­tifed­er­al­ist op­po­nents of the Con­sti­tu­tion. In its echo of the Dec­la­ra­tion’s time­less prin­ci­ple of in­alien­able rights, it is cer­tainly a doc­u­ment worthy of ven­er­a­tion; yet ap­pro­pri­ate ven­er­a­tion re­quires re­flec­tion in the light of his­tory and a clear view of ex­actly what is be­ing ven­er­ated.

When it comes to the Bill of Rights, a co­nun­drum be­comes im­me­di­ately ev­i­dent, for it is plain that the Bill of Rights in ef­fect to­day is not ex­actly the Bill of Rights handed down to us by the Founders, ei­ther in its le­gal ap­pli­ca­tion or its philo­soph­i­cal foun­da­tion. If we are re­ally cel­e­brat­ing its 225th an­niver­sary, then we should be cel­e­brat­ing the doc­u­ment that was handed down to us 225 years ago, and this means that we will be cel­e­brat­ing some­thing which is in some re­spects a dead let­ter. Let us see what this means.

First, when we cel­e­brate the Founders’ Bill of Rights, we cel­e­brate a doc­u­ment de­signed chiefly to pro­tect states and their cit­i­zens from fed­eral ag­gran­dize­ment. The fi­nal ar­ti­cle in the Bill of Rights is the 10th Amend­ment, which re­serves any power not granted to the na­tional gov­ern­ment (or de­nied to the states) to the states or their cit­i­zens. As the 10th Amend­ment sug­gests, the orig­i­nal Bill of Rights was de­signed to limit only the na­tional gov­ern­ment, thus leav­ing space for states to ex­er­cise au­ton­omy in their mode of rec­og­niz­ing the rights of their own cit­i­zens.

This was the com­mon un­der­stand­ing for more than 150 years of the na­tion’s ex­is­tence.

It was not un­til the mid­dle of the 20th cen­tury that the U.S. Supreme Court be­gan to “na­tion­al­ize” the Bill of Rights through a process it called “se­lec­tive in­cor­po­ra­tion,” ac­cord­ing to which the Court ap­plies what­ever pro­vi­sions it chooses against the states on a case-by­case ba­sis.

This process, by now nearly com­plete, has had the ef­fect of turn­ing the Bill of Rights from a doc­u­ment de­signed pri­mar­ily to pro­tect states and their cit­i­zens from an over­bear­ing na­tional gov­ern­ment into a doc­u­ment that au­tho­rizes en­hanced fed­eral con­trol of both in­di­vid­u­als and states.

Sec­ond, when we cel­e­brate the Founders’ Bill of Rights, we cel­e­brate a doc­u­ment in­tended to guar­an­tee the in­vi­o­la­bil­ity of rights orig­i­nat­ing in God or na­ture, not in gov­ern­ment. Yet the Court’s se­lec­tive ap­pro­pri­a­tion of the Bill of Rights in the man­ner de­scribed above laid a foun­da­tion for its ul­ti­mate ap­pro­pri­a­tion of the en­tire Con­sti­tu­tion through the doc­trine of ju­di­cial supremacy.

Briefly stated, ju­di­cial supremacy is the doc­trine that the Court has ex­clu­sive, fi­nal authority to de­ter­mine the mean­ing of all con­sti­tu­tional pro­vi­sions — in­clud­ing the Bill of Rights.

Ju­di­cial supremacy has, in ef­fect, pro­duced a dif­fer­ent con­sti­tu­tion than the one given to us by the Founders. This new con­sti­tu­tion — usu­ally termed the “liv­ing con­sti­tu­tion” — is based on the idea that the Founders’ Con­sti­tu­tion (and the orig­i­nal Bill of Rights) is “out­dated” and needs to be pe­ri­od­i­cally “up­dated” in or­der to “keep up with the times.” The liv­ing con­sti­tu­tion, when cou­pled with ju­di­cial supremacy, means the Court is en­ti­tled to change the Con­sti­tu­tion (and the Bill of Rights) via in­ter­pre­ta­tion when­ever it likes.

In its new ca­pac­ity as ex­clu­sive in­ter­preter of the Con­sti­tu­tion, the Court has in­ter­preted the Bill of Rights in ways that would have been un­rec­og­niz­able to any­one liv­ing 225 years ago.

In 1947, it be­gan the process of ex­clud­ing re­li­gion from the pub­lic square by falsely declar­ing that the First Amend­ment erected a “wall of sep­a­ra­tion” be­tween church and state. In 1962 and 1963, it de­clared school-spon­sored prayer and Bi­ble read­ing un­con­sti­tu­tional, and in 2000, it out­lawed prayer at high school foot­ball games.

In 1965, the Court fab­ri­cated an ex­tra-con­sti­tu­tional “right to pri­vacy” based, in part, on sev­eral pro­vi­sions in the Bill of Rights, and in 1973, it in­cluded abor­tion in that right. In 1992, the Court, while up­hold­ing its own fab­ri­cated right to abor­tion, ar­ro­gantly de­clared that the Amer­i­can peo­ple must earn their le­git­i­macy as a Peo­ple by rec­og­niz­ing that the Court “speaks be­fore all oth­ers for their con­sti­tu­tional ideals,” and in 1997, it ex­plic­itly de­nied the authority of the peo­ple’s rep­re­sen­ta­tives in Congress to in­ter­pret the Con­sti­tu­tion with any con­clu­sive ef­fect.

In 2003, the Court fab­ri­cated a con­sti­tu­tional right to en­gage in ho­mo­sex­ual sodomy, and in 2013, it de­clared Sec­tion 3 of the De­fense of Mar­riage Act (DOMA) un­con­sti­tu­tional. Fi­nally, a suc­ces­sion of fed­eral courts — and fi­nally the Supreme Court — de­clared same-sex mar­riage bans in sev­eral states un­con­sti­tu­tional.

The cases men­tioned above rep­re­sent just a few of the in­stances in which the Court has in­vented new rights — such as the right to en­gage in ho­mo­sex­ual sex acts, or can­celled old ones — such as the right to life of an un­born child. Thus, it ap­pears that many of the rights we cur­rently have are not the work of God or na­ture, but rather of gov­ern­ment, par­tic­u­larly of the courts.

This sug­gests that the foun­da­tion of the rights em­bod­ied in the liv­ing con­sti­tu­tion and the foun­da­tion of the rights em­bod­ied in the Founders’ Con­sti­tu­tion are not the same.

The Founders’ Con­sti­tu­tion pro­tects rights con­ceived as an­te­rior to gov­ern­ment; the liv­ing con­sti­tu­tion seems to re­gard rights as gifts of gov­ern­ment. In his dis­sent­ing opin­ion in Oberge­fell v. Hodges (2015), Chief Jus­tice John G. Roberts Jr., per­haps had some­thing like this in mind when ex­hort­ing the vic­to­ri­ous pro­po­nents of same-sex mar­riage to cel­e­brate, but not to cel­e­brate the Con­sti­tu­tion, “for it [the Con­sti­tu­tion] had noth­ing to do with it.” Or per­haps he sim­ply spoke bet­ter than he knew. So let us cel­e­brate, and be fully aware of what we cel­e­brate.

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