El Gringoqueño

All a man needs out of life is a place to sit ‘n’ spit in the fire.

The US Constitution is Complete but not Done.

Oh blessed unerring document, we must protect its sacred words – or at least that’s what many on the right in the US would have us believe.  The US Constitution (including the Bill of Rights), was a complete, although unfinished, document and one upon which we are still working.  It is not the unerring words of our “founding fathers,” white men who did not implicitly protect, free speech, freedom of religion, physical freedom for people, free press, right to assemble, or the ability to seek redress from the government for grievances .

WTF, I hear you saying.  Go ahead and read it, as it was written, its original text. I’ll wait.

Here’s the first amendment:

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.

It didn’t say the states couldn’t.  And they did.  States had state religions, banned literature, restrictions on press etc, all the way until the 20th century.

At that time, the federal government did not explicitly prohibit these things, nor protect them as inalienable rights.  It simply said, Congress shall make no law restricting or establishing. I know you’re scratching your head.  You thought the Constitution was sacred, handed down by a Christian God.  Obama wants to destroy it.  He is a tyrant.  He wants to take away our guns.

Want to know who else was a tyrant?

Abraham Lincoln.  He was a tyrant because he wanted to expand the federal definition of freedom to the states.

Want to know something else?  Activist judges were the ones to encroach the constitutional protections to the states. Yes, activists judges (as the right likes to call them) gave you your freedom of speech and press.

When did this happen?

1925.  Did you get that?  It wasn’t until nineteen twenty-five that case law recognized that the Bill of Rights applied not just to the federal government, but to the states.  And it wasn’t even really over at the point.  It’s still being fought about.

So, let’s remember that the Constitution is not sacred in its original form.  It was a complete document, but we’ve been fleshing it out, still working on it, tweaking it to make it better lo these 230+ years.   It also goes hand in hand with just as many years of judicial precedent.

Intentions of our “founding fathers?”  Their intentions were noble, I imagine, but short-sighted.  They left out women, black people, none-land holding whites, did not protect freedom of speech, assembly, press, religion, did not prohibit involuntary servitude, and a whole host of things.

Once we see the document as above reproach we cease to grow as a nation as a people.

Our story as a nation and our document are not yet finished and they will continue to be written and perfected.  They are not perfect, just as we are not perfect.

We/it are works in progress.

24 Comments

  1. Reviving the old living document v. legal document are we? I remind you that the constitution has a process explicitly outlining how you change it: the amendment process.

    “But the amendment process is hard!”, you say. Exactly, it is a check on the power of politicians.

    Liberals want to short-circuit the check by leaving the wording of the Constitution up to the interpretation of a majority of political appointees. Get a progressive majority on the Supreme Court, and you can ‘reinterpret’ the Constitution to say anything you want.

  2. Jim O'Malley

    January 24, 2013 at 3:45 PM

    Not reviving anything… did you even read the post? Without judicial action you wouldn’t even have FREE SPEECH.

    Your free speech, freedom of religion ARE NOT protected for you by the constitution, unless you consider protection that the Federal government can’t make laws abridging those freedoms. The Constitution never says states can’t do those things. What’s worse is that they did.

    Doesn’t that blow your mind?

  3. It’s not blowing my mind, because I don’t think I’m coming from the same place as you. Frankly your explanation above was not clear enough in showing the transition you made before and after the revelation.

    Are you saying you were previously under the impression that the Constitution granted these rights?

    It has been and continues to be my understanding that they took great pains to show that the rights in question were NOT granted by that document, by the government (state or federal), or any other body, but they were self-evident and granted by a creator.

    The entire purpose of the document is to list the things that government should not do. It wasn’t granting rights, it was a contract with the people preventing all possible future infringement of rights granted by a creator, independent of government.

  4. Jim O'Malley

    January 24, 2013 at 8:22 PM

    I think you are confusing the Declaration of Independence with the Constitution. I understand it can be considered a founding document. In any case, it (the Declaration or the Constitution) did not enumerate explicitly quite a few important things that should have been protected.

    I think we are arguing different things. The Constitution does not grant rights. I never used that word. The Constitution protects rights, and in the case of free speech et al, it didn’t do a very good job, even with the Bill of Rights. I actually posted about it a while back: http://jim.casablog.com/2006/05/07/who-owns-your-rights/

    The blow your mind thing is that freedom of the press and speech were rights that became protected (rightly or wrongly) from court cases – which is why it took until 1964 for Jim Crow to go away.

    How does that not blow your mind?

  5. Doesn’t it depend on what you mean by protected? Protection from federal infringement versus protected by legal precedent?

    In any case, with your original post and with every reply, it’s hard for me to pin down the argument you are making. You make casual statements about the Constitution needing to grow and and change and not be revered, which I want to argue with, but you keep coming back to the Bill of Rights not being somehow binding until the 1960s.

    We are arguing past each other because you seem to assume that the Bill of Rights was some badge that people could flash at an Alabama cop to protect them from having to sit in the back of the bus. All the Bill of Rights does is prevent the FEDERAL government from enacting FEDERAL laws to infringe upon God-given rights. That’s all. States are free to enact whatever backward-seeming laws they want to, if the majority of their elected representatives vote that way. That’s federalism, that’s limited government, and that has nothing whatsoever to do with Jim Crow, banning literature, or anything else a state wants to do.

  6. Jim O'Malley

    January 24, 2013 at 9:05 PM

    Oh, and one more thing. You say: “The entire purpose of the document is to list the things that government should not do.”

    You miss the big point here. It only listed the things that the Federal government should not do. It did not generalize. It spoke only about the Federal powers, which were limited. It never said the state governments couldn’t abridge freedom speech, press, religion etc. And they did.

    Again, at least my mind was blown by this. I always thought the Constitution was the law of the land, but it’s not.

  7. Jim O'Malley

    January 24, 2013 at 9:08 PM

    You say: States are free to enact whatever backward-seeming laws they want to, if the majority of their elected representatives vote that way.

    Exactly! Why are you arguing with me?

    I personally like that the Bill of Rights and that the amendments apply to the states now through legal precedent, but that’s not the point I was making. The point I was making was that it blew my mind that that freedom of the press until very recently wasn’t the law of the land.

  8. Jim O'Malley

    January 24, 2013 at 9:10 PM

    I mean, admittedly I am making a just a few tiny assumptions:

    1) Freedom of speech is good
    2) Freedom of religion is good
    3) Freedom of the press is good

    But we could argue those things separately, I suppose.

  9. I think we’re getting close to the point now. “Law of the Land” is the stumbling block.

    So The Bill of Rights is ratified in 1791, making it a part of the Constitution by amendment, and by Article VI, the Supremacy Clause, is made “the supreme law of the land”, just like the rest of the Constitution. This makes it the higher power in any case of conflict with subsequent state laws.

    So, how was it, as you say, “[not] the law of the land”?

    You have some example of a state passing a law in 1814 or something infringing on the freedom of the press without it being struck down by the Supreme Court?

  10. Jim O'Malley

    January 24, 2013 at 10:14 PM

    http://undergod.procon.org/view.resource.php?resourceID=69 – states and their religous charters

    http://en.wikipedia.org/wiki/Barron_v._Baltimore where it was upheld that the major provisions of the Bill of Rights DID NOT apply to the states.

    The big case that finally applied major Provisions of the Bill of Rights to the states was: http://en.wikipedia.org/wiki/Gitlow_v._New_York

    But it was the final battle in a long running series of battles about the reach of the Constitution (Bill of Rights).

    Maybe there’s where we missed each other… I include the amendments to the original Constitution as part of the Constitution.

  11. Those are good and interesting examples of case law and how the relationship between the states and the feds have evolved over the years. I still don’t see anything mind-blowing, but I won’t belabor the point.

    Now if you want to argue whether the Constitution is ‘unfinished’, or that the founders were ‘short-sighted’, or if mankind ‘is a work in progress’, then I will happily re-engage.

  12. Jim O'Malley

    January 25, 2013 at 8:24 AM

    Forget “unfinished.” It is a basis, and does not constitute the finished law of the land. The law of the land includes but is not limited to the Constitution. So I suppose it’s semantics. My assumption is that most people think protections on free speech come from the Constitution (Bill of Rights), but that is false. It’s like the Iñigo Montoya line, “You keep saying that the Constitution protects free speech. I do not think it means what you think it means.”

    The Constitution (inc. amendments) does not protect free speech. Free speech as applied to the citizens of the country came about through judicial precedent, not even actual law (although some states spell it out in THEIR constitutions – New York for example). It’s similar to how Roe v Wade makes abortion legal. Agree or disagree, it’s the same thing.

    Now, oddly enough, they were more explicit with the second amendment. There’s no “Congress shall make no laws.” It flat out says that “[right to keep and bear arms] shall not be infringed.” Period, by anybody.

    Now, whether or not the intent was for everybody to have a tank in their front yard or a ball and musket rifle is open for debate. And we do debate as it was intended for us to do by the framers, I believe, continuing to codify/clarify the “law of the land” through legislation and judicial review.

  13. Of course the Constitution protects free speech. It protects it from the government. You’re getting yourself all twisted by trying to get your head around judicial precedent somehow being more supreme or more demonstrative or more effective than the Constitution.

    The Constitution is the statue on the dais. The courts are the security guards who keep the “anarchists” from spray-painting “we are the 99%” across the statue’s back.

    Can you please link the article that got this mind-blowing idea of judicial supremacy into your head?

  14. Jim O'Malley

    January 25, 2013 at 6:30 PM

    Eh? Come again? Protects free speech from the government? What is this free speech of which you speak and where does protection of it come from? You’re starting to head into, “It’s true because it is.” From where do you derive the authority for protection of free speech? or free speech for that matter?

    It’s got to be written down somewhere and agreed to by people, no?

    Codified law (Constitution, amendments, laws, judicial precedent) is absolutely necessary. A lot of smart people disagree on the particulars of codified law and have argued about it in the courts for centuries. The protections on free speech are still not absolute, but have been a LOT less absolute in the past.

    By your reasoning, we don’t need laws on murder, because everybody knows it’s wrong and what it is. The problem is is that it’s not clear and there are different kinds, and so we have to write this shit down and argue about it.

    The persuasive arguments win.

  15. Jim O'Malley

    January 25, 2013 at 6:36 PM

    I mean, also, the Judiciary IS the third branch of our government, and does draw its charter from the Constitution. It’s not like it’s working outside of the authority of the Constitution, it is working within the complete yet unfinished framework of codified law.

  16. You are seriously making the argument that I have to define freedom? That our natural state is subjugation, and that we have to ‘write this shit down’ because freedom is so antithetical to our existence?

    “It’s got to be written down somewhere and agreed to by people, no?” Who are you arguing with?

    It’s not an argument, it’s just contradiction!

    Oh this is Circular Reasoning, you want Logical Discussion, down the hall…

  17. Jim O'Malley

    January 25, 2013 at 7:00 PM

    The Constitution is the statue on the dais. The courts are the security guards who keep the “anarchists” from spray-painting “we are the 99%” across the statue’s back.

    Yeah, um, no. Where did you get this idea of the courts?

    Here’s what I think:

    1) Executive branch = second hand of the clock, executes the laws and has discretion in the short term. Executive orders and presidential attention to certain issues goes away after the term of the president and his/her administration.

    2) Legislative branch = minute hand of the clock, makes laws that are somewhat immediate, meant to address shortcomings in US law, or account for new developments of a longer duration. These are hard to change.

    3) Judicial branch = hour hand. Interprets the law, creates precedents that are VERY hard to change, short of an amendment to the Constitution. These are usually long reaching, heavy issues that transcend the immediate or the long term… at least in theory. (they make dumbass decisions too of course, Citizen’s United anyone?)

    All of them are architects to some degree, short, medium, and long term. If the President is a coat of paint, the Congress is the plumbing and electrical, the Judiciary is the bones, and the Constitution is the foundation.

    Although important and necessary, I don’t think I can live in just a foundation. A coat of paint can be nice, but it doesn’t last long. The house isn’t really that useful if you can’t turn on a light or take a shit in your own bathroom. Without walls, well, it’s not much of a house is it?

  18. Jim O'Malley

    January 25, 2013 at 7:02 PM

    You are seriously making the argument that I have to define freedom?

    Yes, I am making the argument that you, Ravener, have to define freedom. That is exactly what this country has been doing for 230+ years in the courts, in the Congress, and in the White House.

    I don’t know a lawyer or judge or legislator that would disagree with me.

  19. Jim O'Malley

    January 25, 2013 at 7:08 PM

    And no, no I am not making the case that our natural state is subjugation. That’s silly. But as a people, who live in society we have to codify law. If it’s just you and your pack of dogs, fine. Freedom can be whatever you like and you don’t have to write it down. But if you live in a society with other people and you disagree with the particulars, then you have to write shit down and argue about it.

    The 1st amendment kicks the can down the road, leaving it to the states to argue about, which has been problematic for a lot of people in our country and has generally been thought of as a bad idea.

    Madison himself wanted the 1st amendment to explicitly state that the states were not to infringe:

    “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”

    But it didn’t make it into the final draft.

  20. Jim O'Malley

    January 25, 2013 at 7:17 PM

    Of course the Constitution protects free speech. It protects it from the government.

    Oh, and one more time – It only protects free speech from the FEDERAL government, not government in general.

  21. It amazes me that we talked about politics and everything under the sun for 28 hours on a road trip, and you never pissed me off once.

    If you treasure intelligent discussion as much as you say, and if you want to actually ATTRACT readers here, you may want to examine your word choices for civility.

    Good luck with your blog, Jim.

  22. Jim O'Malley

    January 25, 2013 at 9:48 PM

    Eh? How was I not civil?

    I think I made reasonable points with a decent amount of citations. Maybe you’re reading tone into it that is not intended or something.

  23. Freedom in America is mostly liberal freedom (though that may change).

    I’m studying JS Mill at the moment, and he was very inspired by Tocqueville. The latter went to the Liberal haven of United States of America in the 1800s expecting people to be widely individual with creative spirits on every corner, advancing the human race. What he witnessed was the opposite, US citizens were very keen to conform and afraid to be different. He wrote two volumes on his trip to the States called “Democracy in America” (1835), which I intend on reading this summer.

    Anyway, his discovery baffled him because the absence of a despot should entail that the people were entirely free to explore the extreme freedom of individuality. Instead, it turned out an anonymous force, which he dubbed the “tyranny of majority” kept everyone in check, and democratic citizens were more inclined to conform.

    This is why Mill turns from the static two-axis system of Hobbes and Locke, and in the place of a despot puts the faceless mass in his stead, creating a perspectival dynamic. Mill’s “On Liberty” that I finished yesterday, is really the delimitation of the liberty of the group vs. the individual and a manifesto of individualism in this understanding of the concept (With heaps of assumptions that really moots his own theory..)

    Anyway. These theories from Macchiavelli->Hobbes->Locke->Mill all have negative definitions of freedom based on a mechanical understanding of humans, and completely fail to recognize the freedom of the group (smallest being the love couple, family aso), that Hegel bases his Philosophy of Rights on (he has his own problems, of course).

    So yes, it’s always a good thing to define freedom or at least state one’s inclination before discussing the political bureaucracies built thereupon. Personally, I think the liberal freedom is an easy explanation that presupposes many of the things it criticizes, which can easily be used to sway political opponents but inevitably fails under closer scrutiny.

    I’m not responding to anyone in particular, though. Just found the post interesting. To be a bit on topic, though: any political agreement is a work in progress. And as society changes, so must laws. Here in Norway, we had a law against Jews, Jesuits and certain monastic orders until 1851! The Norwegian constitution (created in 1814 on American principles) was just recently released in modern language, because it got harder and harder for people to understand what it said and what was meant; and still some struggled against it.

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