There are very few things about the Constitution that are more important than how it has been amended over the years. Certainly some of them are frequently talked about, objected to or highly praised. Some of them are highly neglected or even totally ignored. It is a totally arguable fact that some of them were passed through the Senate in violation of the Constitution or should be repealed because they were not properly ratified in the first place. Some of them were outright bad ideas to begin with and never should have happened.
One of the more frustrating things to get people to understand is that the validity of all law, even the Constitution itself, should be questioned. Each person should read and decide for himself what right and wrong is. This applies as much to his own life as it applies to the supreme law of the land, the Constitution, and all rules and laws in between. With some sarcasm I have to say that it should be no surprise to anybody that government is not always run by the most honest sorts of people and as such bad laws do get passed. Not to question the validity of laws, in principle, is to blindly accept the rule of the King.
I’ll say again that this applies to the Constitution and its amendments as much as any other law.
People, as I have observed them, have a tendency to believe that just because an amendment is added to the Constitution, it is unarguably constitutional. Here’s a line of thinking you may not be used to but a constitutional amendment is just as any other law. Some of them are in direct conflict if not in outright violation of the principles of the Constitution. To believe that all amendments to the Constitution are constitutional is to believe that two thirds of the legislature of the federal government and three fourths of the States can amend the Constitution any old way they want, to do any old thing they want, common sense notwithstanding.
California is a problem to the rest of the country? No problem! Two thirds of the legislature and three quarters of the federal government can then amend the Constitution to disband the government of California, seize and liquidate all of the property and money of the State and People therein, sell the population into slavery and pay off the national debt with it.
Would this be constitutional?
As ridiculous as this example sounds, under the belief that the federal government and majority of the States can amend the Constitution any old way that they want, it would be from that perspective perfectly legal. As batcrap crazy as California is (as evidenced clearly by the continuous election of Nancy Pelosi) and has been, I would not be in support of such an amendment. It would violate a plethora of other parts of the Constitution which restrict the actions of the federal government.
Yet this example is not as wild as it may seem to be. In the 16th Amendment the government and States did just simply decide that they have the perfect and valid authority to take your money. No reason given. No limitations on it expressed. Just pretty much a straight forward, “we have enough men with guns that we’ve now decided that we can take your money and there’s not a damn thing you can do about it.”
And that is setting aside completely the argument that the 16th Amendment was never properly ratified by the legislatures of enough States to make it official. The Wilson administration didn’t even wait for all of the returns from all of the States. They just said, “well, we’re gonna take your money and that’s that and we’ll call it the 16th Amendment.” I, having discharged my civic duty in making the reader aware of this fact, leave it to you for your own research.
Going through the problems with any specific amendment is not the subject of this morning’s article. I’ve noted a general lack of knowledge in the minds of the People on what the amendments are, what they mean, the effect they’ve had and if it is important to you, what I think of them. That’s mainly what I want to address today.
So, the First Amendment is for obvious reasons one of the most talked about. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
As I’ve pointed out in at least one previous article regarding the dangers of accepting decisions of the Supreme Court, the First Amendment does not say “nobody in government, anywhere, at anytime, for any reason, shall ever be allowed to pray.” It does not say that “there is a wall of separation between church and state.” It says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” This is directed at a specific portion of the federal government and restricting a specific action. It is not directed at the federal government in general or the government of the States or local government. It is directed at the federal congress and only the federal congress.
Freedom of speech and the press are obvious to the maintenance our freedoms. Even if it’s something I don’t want to hear for the sake of hearing it, it should be out there so we know who the crazies are and can keep an eye on them.
The right to peaceably assemble and petition the government for redress of grievances is taken as the right to protest. While that is included what is petitioning the government for redress of grievances? Well a lot of people don’t like lobbyists. I myself do not mind any of them, for any reason. If you can’t get a group of like minded people together, private citizens or corporations, and approach your government and ask them to do something on your behalf, even in their exchange for support, which is what lobbying really is, you can’t possibly petition your representatives for redress of grievances. The only time it is a problem is when they are lobbying for something unconstitutional and the representative accepts, particularly money, in exchange for doing something that violates his oath of office or other laws of the land.
The Second Amendment protects the right of the People to keep and bear arms. This is important for their individual lives as well as the security and freedom of the country.
One of my friends brought up a very worthy comment on the First and Second Amendments. They are not government granted rights. They recognize that these rights are inherently ours rather than granting them. The First and Second Amendments, as well as most of the Bill of Rights amendments, are restrictions on the power of the federal government.
The Third Amendment keeps the government from forcing you to accept soldiers, without your consent, living in your home. It’s simple enough.
The Fourth is again a restriction on the federal government against unreasonable search and seizure. They have to have probable cause sworn to by oath, a warrant approved by a judge and be specific about what they are looking for and seizing. They can’t just bust in and start fishing for anything that a citizen might be doing wrong.
The Fifth is also a restriction on the actions of the federal government. They can’t just take you and chuck you into prison without due process. They can’t make you testify against yourself. They can’t put you up for trial for the same crime more than once. They can’t just take your money and your stuff or your life.
The Sixth, should you be accused of a crime, recognizes the right to a speedy trial, to be faced by your accusers and know the charges against you. It also provides a mechanism by which your lawyers, via the court, can subpoena people as witnesses on your behalf.
The Seventh recognizes the right to call for a trial by jury regarding civil issues rather than criminal issues.
The Eighth is a restriction against cruel and unusual punishment.
The Ninth is basically a statement that the rights listed in the Constitution are not complete. There are a lot of other things that are rights held by the People but the ones listed in the Constitution are the ones that apply to the federal government.
The Tenth Amendment, simply put, is that all powers not listed in the Constitution as powers of the federal government, are for the States and the People. This is the most neglected part of the Constitution and it is right here in the Bill of Rights. I think it is also the most important part of the Constitution. It’s the part, more than any other single thing, which argues for the limited federal government model of the country. Entire books have been written about this one alone. The liberal left hates it because what it means is that the federal government can’t do any frickin thing it wants.
(Side note here: can you even believe I actually get in heated arguments with people who claim the federal government has no limits placed on it by the Constitution? Yet this really happens.)
The similarities between the current United States government and Star Trek’s Borg cannot be denied. While the Founding Fathers didn’t have fictional stories of Borg assimilating them, they had the very real possibility of foreign invaders and this government reverting the country back into a British style of rule, to worry about. I believe they meant for the 10th Amendment to prevent the federal government from growing past the limits imposed on it by the Constitution of the time.
“Yes, but Brett,” a friend once said to me, “the powers they are talking about in the Tenth are meant to be the things that are also not in any of the amendments. Those are the ones reserved to the States and the People. If they amend the Constitution to include something as a federal power, it becomes constitutional as a federal power.” A classic case of circular reasoning.
If the power proposed to be amended to the federal government is unconstitutional for the federal government to be involved in, per the Tenth Amendment, how the hell can Congress pass it to get themselves the proposed power?
This is chicken and egg type stuff here…so let’s go with that. Congress sees the need to regulate chickens but there is the problem that the regulation of chickens is a power of the States under the Tenth Amendment. So the federal government, who doesn’t have the power to regulate chickens, passes a proposed amendment to give themselves the power to regulate chickens. Well where do they get the power to pass an amendment to regulate chickens? It’s not listed in the Constitution anywhere as a power of theirs. Also nowhere within the Constitution is a power to take powers from the States and transfer them to the federal government.
So here’s the thing; the Tenth Amendment logically either means the federal government is absolutely forbidden from doing anything not previously listed in the Constitution or the Tenth Amendment means absolutely nothing, in which case one would have to question why it is there at all. If the federal government plus the majority of States can expand their power any way that they want, even by amendment, then the Tenth serves no purpose at all. What can’t they ever do if they can just amend themselves the power to do everything? From that point, as in the example of California above, it would be perfectly constitutional for forty-nine of the States to eat the fiftieth.
Yes. The Constitution can be legitimately amended to rearrange the already specified powers. But the way I see this it cannot be amended to add additional powers to the federal government.
The Eleventh and Twelfth Amendments provide valid examples of constitutional amendments.
The Eleventh provides a restriction on the judicial powers of the federal courts. The States can’t sue each other and foreign States can’t sue States. Okay, they can, it’s just not a federal power.
The Twelfth changed the way the president and vice president were chosen. There were some problems with how it was originally done with regard to problems resulting in ties with the counts. (Reference Jefferson versus Adams, 1800.)
And there, my dearest and patriotic, constitutional readers, is where I’m going to have to leave it for now. Discussion of valid and not valid amendments will have to continue in some part two extension of this article, hopefully in the not too distant future. Up to this point everything is above board and valid, not to mention wise and restrained uses of constitutional amendments.
It’s hit and miss but mostly downhill from this point on.
The Amendments: Part Two
The Fourteenth Amendment: Part One
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