I want to take a critical (and admittedly reductive) look at the Bill of Rights to highlight some concerns I have. Not about the rights themselves necessarily, but about the idea behind the Bill of Rights itself and implications it has for our society today.
1st Amendment – Freedom of Religion. Seriously. The bit about “freedom of speech” comes later in the amendment, but this opens with a focus on having religion left alone. Once they establish that, they then proceed to freedom of speech and assembly. The religion bit was the compelling feature here.
2nd Amendment – Guns for everyone. They’ll be useful in defence, such as if the government who is listing this as an “inalienable right” gets too big for its britches and the citizens need to stand up against it. It’s critical that we enshrine, in federal law, a means for citizens to defend itself against the federal government, as though #2A means anything to the federal government in the event that it wanted to oppress the people. We’ll come back to this futility.
3rd Amendment – In times of peace, you don’t have to let soldiers stay in your residence. Seriously. Number three. Empathise with me here. You are starting a new country or just asked to list all of the “inalienable rights” that come with being a person or specifically an American. Is the third thing in your mind “we should not have to let soldiers live with us in times of peace?” It makes all the sense in the world in 18th century colonial America where the Brits were doing precisely that. But in any other time or place?
The 3rd Amendment also introduces a question here. How many of you knew that was the 3rd Amendment? How many of these 10 can you name without researching other than 1, 2, and 5? Without scrolling down – what is the 9th Amendment? Remember, these are the ten most important in our American lives.
4th Amendment – No illegal search and seizure.
5th Amendment – Protection against self-incrimination, which along with the
6th Amendment – Speedy and public trial with an impartial jury – and the
7th Amendment – Trial by jury in civil cases where value exceeds $20 – and the
8th Amendment – Against cruel and unusual punishment – establishes our due process. As I said, I’m not condemning the individual rights.
9th Amendment – “Just because we listed certain things here does not mean other rights do not exist”
10th Amendment – “If the Constitution doesn’t say the federal government can do it or that the states cannot do it, the states can do whatever they want”
This Bill of Rights exists because the powers that were adopted the Constitution but thought, “Well, hold on a minute. There’s this other stuff that could get out of hand and we need to protect against those abuses.”
Those abuses. Was this a philosophical consideration of abuses a government might levy against its people? Was it the result of a socio-political treatise? No. It was a list of crap the colonists had experienced at the hands of the crown and did not want to see return in the future. It was 18th century white men guarding against things they did not like.
That does not make them wrong. I am a fervent supporter of 1 and 4 through 8. I think those are critical, inalienable human rights based on years of study in moral philosophy. Those things should exist in a society.
It does not change how we got to that conclusion though. Process matters, and we should be willing to take the time to investigate if the reasoning has the soundness we seek in the conclusion.
For example, I ask what good is the 2nd Amendment in the context of defence against a tyrannical government? For home defence or in the interest of a militia to defend against outside aggressors – sure. Making certain the federal government will not impede with that by stripping away firearms makes sense.
As a safeguard against the federal government though? If the federal government was that tyrannical, they would strip away the guns #2A be damned. They wouldn’t simply honour that agreement, nor should it stop citizens from protecting themselves. In that case, this amendment is irrelevant.
Regardless of what we feel about individual amendments, we must recognise that the Bill of Rights was a reactionary move based very much in the time. The crown abused colonists in specific ways, and they set out to do away with those things. Everything about the formation of the United States government exists in that sense.
A President, the leader of the executive branch, elected from among the people.
George Washington stopped after two terms, creating an unofficial precedent (made official after FDR) to limit the term of a sitting President to avoid the tyranny of a king or emperor.
No American should blindly cling to the Bill of Rights, or any part of it, without critical examination. We reserve the right (Amendment 9) to review and further amend the Constitution if things do not work. This is purely a semantics argument as we all might well agree that all 10 items in the Bill of Rights should stay exactly as they are.
The point is simply that “because they are in the Bill of Rights” is not the reason, even a reason, why they have to stay exactly as they are.