by Jesse Galef
Satire, constitutional law, and religion… is it my birthday already? (For the record: no, that’s in April. Send gifts.) This recent Onion article is perfect: Area Man Passionate Defender of What He Imagines Constitution to Be
ESCONDIDO, CA—Spurred by an administration he believes to be guilty of numerous transgressions, self-described American patriot Kyle Mortensen, 47, is a vehement defender of ideas he seems to think are enshrined in the U.S. Constitution and principles that brave men have fought and died for solely in his head.
“Our very way of life is under siege,” said Mortensen, whose understanding of the Constitution derives not from a close reading of the document but from talk-show pundits, books by television personalities, and the limitless expanse of his own colorful imagination. “It’s time for true Americans to stand up and protect the values that make us who we are.”
According to Mortensen—an otherwise mild-mannered husband, father, and small-business owner—the most serious threat to his fanciful version of the 222-year-old Constitution is the attempt by far-left “traitors” to strip it of its religious foundation.“Right there in the preamble, the authors make their priorities clear: ‘one nation under God,’” said Mortensen, attributing to the Constitution a line from the Pledge of Allegiance, which itself did not include any reference to a deity until 1954. “Well, there’s a reason they put that right at the top.”
I find this hilarious, but partly because it’s so close to real life – as good satire must be. So many of the people vehemently opinionated on the separation of church and state don’t have any sense of what the constitution says on the subject or the history is. They often get our patriotic documents mixed up – even House Minority Leader John Boehner gets it wrong (check out my friend Paul Fidalgo’s article at Examiner.com).
Is there any way we can politely tell citizens “Here’s a copy of the Constitution for you to read, please don’t vote until you finish it”?
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20 Comments
What especially kills me about it is the US Constitution is so short. A careful reading would take no more than fifteen minutes.
Hell, most people don’t read their only “owner’s manual” (the buybull). Why would they read the Constitution? Just like their religion, most people seem to rely on the opinions of others.
Something that folks who call themselves “strict constructionists” of the Constitution miss, is that it’s an open-ended document. There are several examples of how this is the case.
For example — using something which was of topical interest this year — the Constitution says the president must be “a natural-born citizen.” But it doesn’t define what “natural-born citizen” means. Instead, it leaves the definition up to the federal government. That definition could, conceivably, change if the government decides to change it.
But aside from places in which openness is implied, there’s at least one place where the Constitution’s open-ended nature is stated explicitly and unambiguously: its Ninth Amendment. It reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, the people can be construed to have rights not stated within the Constitution itself; their rights are not limited merely because something isn’t directly addressed within it.
Thus, people who say “There’s no right to privacy, because the Constitution doesn’t say it,” are flat-out wrong. It doesn’t have to be written there, in order for it to be a right the people have. The 9th doesn’t actually award anyone rights, it’s true, but it does say the people’s rights can’t be limited to what’s on paper elsewhere in the Constitution.
This means, of course, that one can never interpret the Constitution “strictly,” at least as far as the people’s rights are concerned. It just can’t be done so long as the 9th Amendment remains in effect.
The Ninth Amendment was originally intended only to reinforce the notion (partially undercut by the presence of the Bill of Rights) that the Federal Government is one of enumerated powers. The main man himself sed:
“It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.”
And the original text of the Ninth as proposed read:
“The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”
The problem with the Ninth is that courts have approximately zero guidance on what those unenumerated rights may be, and given the principle of judicial deference, are not given to just making ones up on the fly. Hence, the actual value of the Ninth in recognizing unenumerated rights is basically nil. While I love privacy as much as the next guy, this is why Griswold was such a ridiculous decision; the only right to privacy that ought to have been actionable by the courts is the one presented explicitly in the Forth. If we wanted a constitutional right to privacy, we should’ve ratified an amendment for that purpose.
In other words, the Ninth was an interesting but bad idea which doesn’t function given the design of the rest of the system, and for the most part the courts treat it in exactly that way.
I agree the 9th is basically considered passe by the courts. I also agree it doesn’t really tell us anything truly useful. My point is that IF one is actually reading the Constitution “strictly,” then in its strictest-possible sense, the 9th explicitly forbids a “strict” reading.
My point is that IF one is actually reading the Constitution “strictly,” then in its strictest-possible sense, the 9th explicitly forbids a “strict” reading.
A very interesting point. One that is reinforced by Bork (famous strict constructionist and all-time jerkass) who famously said that the Ninth has to be treated as meaningless in order for any strict reading of the rest of the text to work. He called it the “inkblot”.
Yeah, I loved how he — basically — said that his “strict reading” of the Constitution is so valid that he was entitled to ignore the piece of the Constitution that happens to invalidate it!
I bought two hundred copies of the Constitution for about 30¢ each. The best deal I could find was 100 at $30.00 with free shipping at:
http://www.nccs.net/us_constitution.html
Everyone else seems to want $1.00 to $1.50 per copy. If anyone finds a better deal I would love to hear about it.
I leave them in waiting rooms, the library, etc.. They all disappear quickly. This particular pamphlet starts off with several quotes from George Washington which I think will encourage many people to continue reading.
Constitutional evangelism: you, sir, are awesome.
I know.
That’s sweet. I should do that with The Age of Reason. People need to learn things.
I think we should stick with the Constitution until some of that soaks in before introducing anything else. The Age of Reason is great but we really need to concentrate on instructing people on how our government is supposed to work before we try to get them to think.
Another thing is that it doesn’t matter what the Constitution’s exact text says because we interpret it through thousands of court cases. People don’t seem to understand that everything from the banning of assault weapons to the rights of states in border disputes has been determined by the Supreme Court and lower courts, not by the exact text of the Constitution.
As a historian, it irks me that people hold up the Constitution and shout: “It says right here!” about something. When someone does that, they are immediately discredited in my mind as an ignorant waste of time and oxygen.
I always wonder, what would you US unbelievers think/do if the US constitution explicitly endorsed Judeo/Christian religion?
What about those who stress the “freedom OF religion not freedom FROM religion” thingy?
PS: I am serious. I am a staunch pearlist and long time commenter here on UF. =)
I always wonder, what would you US unbelievers think/do if the US constitution explicitly endorsed Judeo/Christian religion?
Probably what unbelievers do in other developed countries with an official religion (like, say, England); complain about it occasionally to one’s friends, usually over some sort of alcoholic brew, and otherwise basically ignore and or mock it as the opportunity arises.
What about those who stress the “freedom OF religion not freedom FROM religion” thingy?
Laugh, and then point out that freedom of religion is necessarily inclusive of freedom from religion, practically speaking. If you must have a religion, you are not free to choose your religious status.
I am a staunch pearlist
I was unfamiliar with the term. Thanks, Urban Dictionary!
That was me…heh, put in the wrong email address. That’s what I get for using someone else’s compy.
I’m amazed nobody’s sued to get “under God” removed yet.
They have.
http://www.washingtonpost.com/wp-dyn/articles/A41802-2004Jun14.html
And they got around it by a technicality, I see. I hope a teacher has the guts to sue over it one day.
Liberal and Conservative Agree on Bill of Rights
http://www.youtube.com/user/ReasonTV#p/search/0/1pk8IxqYF0E