“The colonel behind me… that’s Colonel William Aylett. Now, his great-grandfather was the Virginian, Patrick Henry.” – Gettysburg
While salting his food, Patrick Henry said, “If this be season, make the most of it.”
The biggest genius of the Constitution was an afterthought, the result of a protest. Patrick Henry refused to go to the Constitutional Convention held in 1787, convinced that it was merely an excuse to create a strong central government out of the relatively loose Articles of Confederation. And even though it’s my policy to never trust anyone whose name consists of two first names, I’ll admit that Patrick Henry was right.
When the new Constitution was finally released, Henry (among others) complained, mainly that it didn’t contain a bill of rights. The promise was that if the Constitution was passed, the first act would be to create a bill of rights. Unlike a political promise in 2019, the framers actually did what they said, probably because in 1792 a state could have fairly easily left the United States, since at the time that was widely assumed to be a right held by states. The states voted into the agreement, the states could vote themselves out.
The Bill of Rights was passed by the House and Senate, and sent to the states for ratification – 10 of the 12 proposed rights were ratified. The 11th, the Right for Ben Franklin to be Naked Whenever He Wants was narrowly defeated by people who had seen Franklin naked. The 12th, establishing a National Taco Tuesday and Mandatory Metallica® failed initially but was finally ratified in 1994, much to the relief of radio stations everywhere.
When does this bill show up? Is it monthly?
One objection to the Bill of Rights was that it was felt that the states could do a good enough job protecting the rights of their citizens – the Federal government didn’t have all that much power, right? Another objection? It was felt that listing the rights would allow people to think that those were the only rights. That second objection is somewhat prophetic, especially since (by my count) nearly every right in the Bill of Rights has been violated at some point.
Me? I’m pretty glad Patrick Henry got the job done – the Bill of Rights has been instrumental in keeping us as free as we are today. My Aunt told me I was related to him somehow, and that’s not hard to believe – he had a total of 17 children, so there have to be a zillion descendants. Being his great-great-great-grandkid isn’t all that rare, though I imagine getting a good night’s sleep at the Henry household was rare – especially for Mrs. Henry. If I were to brag about being related to Patrick Henry, it would be like an iguana bragging that he was descended from a velociraptor. While it may be true, it won’t help the iguana get a part in the next Jurassic Park® movie, especially after what his cousin, Harvey Weinstein did. Most people don’t know that Weinstein is part iguana, on his mother’s side.
I hear that freedom weighs a WashingTon.
If that’s where we ended, with a stronger central government and a strong bill of rights, we’d be fine. We’d have a Bill of Rights that protects Americans from abuse by their government in many different ways. But in the decision of Marbury v. Madison, the newly installed Chief Justice of the Supreme Court, John Marshall, had a tequila-inspired vision that the Supreme Court had the power to invalidate laws that it felt were contradictory to the Constitution.
This is nowhere in the Constitution itself. Marshall made the logical leap that since the Constitution wasn’t a vague set of political principles but rather the supreme law of the land, it had to be followed as if it was a law. So far, so good. If Congress made a law that couldn’t be interpreted to follow the Constitution or the Bill of Rights, the law had to be made invalid by the Supreme Court.
A Supreme Court is just regular court, but with sour cream and tomatoes.
Thomas Jefferson had a different view: he felt that each branch of government had the power to declare acts by the other branches unconstitutional. Presidents have, in multiple cases, not enforced laws they felt were unconstitutional.
Jefferson further felt that states could declare laws that were especially in violation of the Constitution void. The recent legalization of marijuana in multiple states without intervention from the Federal government has proven the principle that Jefferson wrote about early in the life of the country. If it took a Constitutional amendment to make booze illegal, why shouldn’t it take one to make marijuana illegal at the Federal level. How can the Federal government legally make enforceable laws dealing with the amount of decongestant I can buy?
Because power keeps flowing to the Federal government.
The Constitution was written in 1787, and the Bill of Rights was fully ratified in 1791. The words in the Constitution clearly have changed only through the 27 amendments to the Constitution.
Hey! I can write bathroom graffiti that kids can’t understand!
One concept in English Common Law is that of precedent. From Wikipedia®: Common Law Legal systems place great value on deciding cases according to consistent principled rules, so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained. The precedent of the Supreme Court is supposed to remain unchanged.
Most of the time, it is.
Yet there have been 141 cases where the Supreme Court changed its opinion and rejected previous Supreme Court decisions. 102 of those cases came during or after 1960: that was about the time that the Supreme Court became activist in finding new “rights” – the right of people to use contraception or be free from hearing a prayer at the start of school. 28 of the 141 reversals of precedent were in just a single ten year period between 1960 and 1969. Earl Warren was Chief Justice during that time.
When the right involves the federal government being prevented from interfering with liberty, I’m for it. But the Warren Court specifically focused on creating new rights and new judicial power and accomplishing goals that the legislatures either at the state or Federal level wouldn’t – the Warren Court was about fairness and equity rather than justice – the Supreme Court decision mandating participation ribbons and allowing soccer into the United States came from the Warren Court.
I had to play soccer with second graders the other day. I really should save up and buy a ball.
Any action provokes a reaction, and the Warren Court specifically was opposed by the newly formed doctrine of “originalism” – the idea that the Constitution means what it says in plain language, and not what you want it to say. If that’s the case, the Constitution just becomes a series of popular (on the Left) interpretations like “the right to keep and bear arms shall not be infringed” should really be read as “the state has the right to arm the police,” and “Congress shall make no law” really means “Congress can do whatever it wants to do this week – it’s having a midlife crisis.”
It can be shown that the 1960’s and early 1970’s was the time that set the stage for every problem that we’re experiencing today. As much as blaming the Boomers is popular (I’m not a Boomer), it’s really not deserved. The Boomers had the good fortune to be in the right place at the right time – I can make the case that 1973 was the high-water mark for the economy of the country, and the Boomers did what anyone would do – make the best of their time, while wearing dark socks with sandals and listening to way too much Bob Dylan®.
The real culprits of our situation today are the leaders in charge in the 1960’s. The Greatest Generation really created the Greatest Problems. They fought and won a world war, but they put in place policies that are demographically tearing the United States apart today, and have put our economy at risk through a debt that grows exponentially. The Boomers didn’t take us off the gold standard. The Boomers weren’t responsible for Green Acres® being cancelled.
The Boomers did, though, give us Led Zeppelin. Even better when sung by a rubber chicken being observed by a cat.
The Constitution was awesome for a very long time, but it won’t save us – the Constitution of the Soviet Union provided for “freedom of speech” after it was, of course, reviewed by the appropriate government censor. The next Leftist president will happily appoint as many Supreme Court justices as required to interpret the Constitution to mean whatever the Left wants it to mean. The Warren Court wasn’t an aberration- it was a test case, one that set the stage for the future dream of the Left – complete power.
One thing stands in their way. You.
Virginia in this November’s election shows that the solution isn’t to vote moar harder. Virginia, the state that gave us Patrick Henry, is now permanently Left, with both houses and all top state-level jobs now held by Democrats. The Left wants more and bigger government, the exact opposite of Henry wanted. When I was growing up, and someone wanted to do something, I’d often hear, “It’s a free country” as an answer. That meant, essentially, do whatever you want. I rarely hear that phrase anymore.
However, the Right isn’t done yet. Remember what Janis said –
Freedom’s just another word for nothin’ left to lose
Nothin’, don’t mean nothin’ hon’ if it ain’t free, no no
And while you can vote yourself into tyranny, you can’t vote yourself out of it.
