A few thoughts on the US Constitution.
I have thinked a few thoughts about the Constitution.
A few things about the Constitution:
Firstly, and most importantly, what it does and does not do.
Thing One the Constitution does not, and cannot do, is grant rights. Rights, in legal (and epistemological) terms, are those powers and liberties with which men and women are born. They may be altered, they may be taken for various reasons, and they may even be returned (voting rights, for example, may be returned to felons who have lost theirs, under various circumstances) but they are not granted by any mortal power: they exist merely by the fact of one’s existing under a given condition. Being born in the United States, or to citizens of the United States, for example, gives one the rights inherent to a citizen of the United States, such as voting, speaking, and worshiping freely. These rights are not dependent on anything other than the condition of having been born under given circumstances. They do not need to be spelled out explicitly; nor do the rights to, for example, live, move around as one wishes, or buy and sell in commerce with whom any person may wish to trade. (we may or may not get into the differences between citizens and persons, but take it as given for now, that all persons have the right to buy, sell, work, live, love, &c. without limitation, except as explicitly spelled out by law)
Contrast this with Thing One the Constitution does do, which is grant and delegate the power to make, interpret, and carry out laws, to government at various levels. Those powers are not inherent in government; they must be granted explicitly, in writing. Governments don’t get “rights,” which makes them as corporate entities pretty weak in comparison to persons, who merely by existing, have rights and powers that don’t have to be defined by law or covenant.
Thing Two the Constitution does, is define some particular rights which cannot be altered or abridged by government. These are rights not only inherent to citizens merely by their having been born, but are so important to remaining citizens, that they have to be left without even “reasonable” limitations by government, lest a majority of the citizens or some branch of the government destroy some minority by taking away their ability to exercise a right, such as speaking their minds freely, assembling together to redress mis-government, or keeping their things, homes, and words out of the government’s and the public’s view at will. Other rights, like the right to keep some things (like sex with other adults) “private” and out of the public’s view, can be limited by law, but are still inherent to all persons unless explicitly forbidden by written law (like having sex with children.)
Thing Two the Constitution does not, but probably should do, is define who is a party to it. Article Six says who is subject to the Constitution (everyone, including all the united states) and Amendment Fourteen says who has all of the specially-reserved rights (including voting) of citizens, but doesn’t explicitly say anything about who formed the union, or granted the power to form one. (those are covered, thinly, by Article Five, which defines how the Constitution, or changes to it, must come to be agreed on)
We have now passed the definition section of the essay, and I begin to present my argument, which is that some of the ambiguities in the Constitution help us as a nation-state, and some of them hurt.
The ambiguity which has done the most harm to the unity of the nation, is the weak definition in Article Five, of how the Constitution came to be the law of the land. The Convention that ratified the Constitution required the legislatures of the uniting States to convene their electorates and present to them the proposed (unamended) text for ratification or rejection of the whole law, Articles One through Seven. Nine of the thirteen States’ conventions had to agree, in order for the Constitution to form the federal union, prescribed by Article Seven. The ambiguity lies in the language of Articles Five and Seven: were the conventions (composed of citizens) or the States convening their citizens, the authority agreeing to ratify the Constitution? Those who advocated the Federalist position held that the sovereign authority rested in the States themselves, and that therefore it was the legislatures which had granted the power to form a federal government; the anti-Federalist Republicans (now known as Democrats) held the alternate view, that it was the electors (citizens) who convened, who had granted the power to form a federal government, rescinding the power of their legislatures to separate, sovereign rule. This argument goes on to this day, thanks to the ambiguity remaining in Articles Five and Seven, and in many subtle and overt ways damages the philosophical unity of identity which makes the people of this country a nation. That ambiguity helped to lead to one of the fundamental disagreements over federal and state powers that led to the US Civil War, and remaining, might yet lead to another civil war.
The ambiguity which has likely done the most to help form and sustain the nation, is the ambiguity in the “free speech” clause of Amendment One. The First embraces several rights and liberties in just a few words: the right to worship freely; the liberty from state religion; the right to print truth and lies alike; the right to speak and to associate without reservation; and the right to petition the government to correct injustices. Nowhere in the First is cartooning, sign-making, acting, playwrighting, gesturing, or flag-burning explicitly mentioned, but as the Supreme Court has repeatedly interpreted it (most recently in Texas v. Johnson) any of those alternate methods of petition or expression are just as important to free political discourse. That collective freedom, the right to express political ideas in whatever manner a citizen may deem necessary, has managed not merely to stand the test of time, but in many ways has composed the very test in and of itself, as this collaborative experiment in republican government moved from federation, to union, to nation-state, and on into the present century and whatever new iteration it may bring.
A few things about the Constitution:
Firstly, and most importantly, what it does and does not do.
Thing One the Constitution does not, and cannot do, is grant rights. Rights, in legal (and epistemological) terms, are those powers and liberties with which men and women are born. They may be altered, they may be taken for various reasons, and they may even be returned (voting rights, for example, may be returned to felons who have lost theirs, under various circumstances) but they are not granted by any mortal power: they exist merely by the fact of one’s existing under a given condition. Being born in the United States, or to citizens of the United States, for example, gives one the rights inherent to a citizen of the United States, such as voting, speaking, and worshiping freely. These rights are not dependent on anything other than the condition of having been born under given circumstances. They do not need to be spelled out explicitly; nor do the rights to, for example, live, move around as one wishes, or buy and sell in commerce with whom any person may wish to trade. (we may or may not get into the differences between citizens and persons, but take it as given for now, that all persons have the right to buy, sell, work, live, love, &c. without limitation, except as explicitly spelled out by law)
Contrast this with Thing One the Constitution does do, which is grant and delegate the power to make, interpret, and carry out laws, to government at various levels. Those powers are not inherent in government; they must be granted explicitly, in writing. Governments don’t get “rights,” which makes them as corporate entities pretty weak in comparison to persons, who merely by existing, have rights and powers that don’t have to be defined by law or covenant.
Thing Two the Constitution does, is define some particular rights which cannot be altered or abridged by government. These are rights not only inherent to citizens merely by their having been born, but are so important to remaining citizens, that they have to be left without even “reasonable” limitations by government, lest a majority of the citizens or some branch of the government destroy some minority by taking away their ability to exercise a right, such as speaking their minds freely, assembling together to redress mis-government, or keeping their things, homes, and words out of the government’s and the public’s view at will. Other rights, like the right to keep some things (like sex with other adults) “private” and out of the public’s view, can be limited by law, but are still inherent to all persons unless explicitly forbidden by written law (like having sex with children.)
Thing Two the Constitution does not, but probably should do, is define who is a party to it. Article Six says who is subject to the Constitution (everyone, including all the united states) and Amendment Fourteen says who has all of the specially-reserved rights (including voting) of citizens, but doesn’t explicitly say anything about who formed the union, or granted the power to form one. (those are covered, thinly, by Article Five, which defines how the Constitution, or changes to it, must come to be agreed on)
We have now passed the definition section of the essay, and I begin to present my argument, which is that some of the ambiguities in the Constitution help us as a nation-state, and some of them hurt.
The ambiguity which has done the most harm to the unity of the nation, is the weak definition in Article Five, of how the Constitution came to be the law of the land. The Convention that ratified the Constitution required the legislatures of the uniting States to convene their electorates and present to them the proposed (unamended) text for ratification or rejection of the whole law, Articles One through Seven. Nine of the thirteen States’ conventions had to agree, in order for the Constitution to form the federal union, prescribed by Article Seven. The ambiguity lies in the language of Articles Five and Seven: were the conventions (composed of citizens) or the States convening their citizens, the authority agreeing to ratify the Constitution? Those who advocated the Federalist position held that the sovereign authority rested in the States themselves, and that therefore it was the legislatures which had granted the power to form a federal government; the anti-Federalist Republicans (now known as Democrats) held the alternate view, that it was the electors (citizens) who convened, who had granted the power to form a federal government, rescinding the power of their legislatures to separate, sovereign rule. This argument goes on to this day, thanks to the ambiguity remaining in Articles Five and Seven, and in many subtle and overt ways damages the philosophical unity of identity which makes the people of this country a nation. That ambiguity helped to lead to one of the fundamental disagreements over federal and state powers that led to the US Civil War, and remaining, might yet lead to another civil war.
The ambiguity which has likely done the most to help form and sustain the nation, is the ambiguity in the “free speech” clause of Amendment One. The First embraces several rights and liberties in just a few words: the right to worship freely; the liberty from state religion; the right to print truth and lies alike; the right to speak and to associate without reservation; and the right to petition the government to correct injustices. Nowhere in the First is cartooning, sign-making, acting, playwrighting, gesturing, or flag-burning explicitly mentioned, but as the Supreme Court has repeatedly interpreted it (most recently in Texas v. Johnson) any of those alternate methods of petition or expression are just as important to free political discourse. That collective freedom, the right to express political ideas in whatever manner a citizen may deem necessary, has managed not merely to stand the test of time, but in many ways has composed the very test in and of itself, as this collaborative experiment in republican government moved from federation, to union, to nation-state, and on into the present century and whatever new iteration it may bring.