Sometimes people get all tangled up in legaleze. I suppose it makes us feel smarter when we can successfully wade through the maze of judicial opinions and technicalities. Law is transformed into some kind of religion, and only those with special knowledge can decode its secrets. I know I’ve been guilty of this at times. (In fact, just yesterday I wrote a long winded blog here that contained a whole lot of nonsense concerning the failed Thune Amendment.)
But when it comes to our rights, I think we need a much simpler, more secular standard. The Federal Constitution has a Bill of Rights appended. This list of ten amendments was never supposed to be exhaustive. It was meant to be a reiteration of some of our more important rights, added in case legislators someday tried to deny the existence of those rights. During the ratification process, it was believed the Constitution would not be agreed to without this declaration of rights. Of course, Alexander Hamilton felt that there was no reason to append these rights-protecting amendments. He claimed this step was unnecessary in his multi-authored snow job, The Federalist Papers. Because, he reasoned, who could ever question the existence of rights that everybody knew they had?
Any names come to mind who might question your rights? Hmmm? Yeah, Hamilton was as full of garbage as any founding father could ever be. The same man who felt the Bill of Rights was superfluous also was a monarchist, and saddled us with the first central bank. On a scale of Ghandi to Ming The Merciless, Hamilton has to be sitting at the right hand of Ming. If you look downward toward Hades long enough, maybe this can be verified.
Since the post-Civil War passage of the Fourteenth Amendment, an entirely new church of legal scholarship has sprouted. It’s called the Doctrine of Incorporation. See, it turns out that some people felt our rights in the Bill of Rights were only guaranteed against incursion by the federal government. Then, when the Fourteenth Amendment was ratified, there was a battle over just how much of the Bill of Rights the states themselves had to live up to (that’s what incorporation means.) The winning team in this contest espoused a “selective incorporation” doctrine. So, some but not all of your rights are protected from overreaching states. And over the last century and a half, the judiciary has been selectively picking and choosing which rights those are.
I propose a reformation of the Church of Incorporation. In my reformation, we will side with the faction who felt the Bill of Rights was a floor beneath which our rights could not fall. That all of our rights, including all the ones reiterated in the Bill of Rights, were not only protected from federal encroachment, but also from incursion by the states or any other subdivision of government.
My reformation should have a name. I think I’ll call it the “Liberty and Justice For All” reformation. And all judges are invited, nay COMMANDED by the Law Their God, to join. Until next time.
