I got a complaint on facebook over a statement I made that later amendments take legal precedence over earlier ones where both conflictingly address the same point of law. Here was the complaint:
I have a problem with the rationalization . . . that a later amendment takes precedence over an earlier one- That takes away all security in the freedoms that our constitution grants.
I don’t know how it is possible to fight common sense. If the city code states that housing density may not exceed 2 houses per acre and then a later city council passes an ordinance stating that housing density may not exceed 5 houses per acre it would be absurd to try stopping a developer who wanted to build a subdivision filled with 1/4 acre lots (at least it would be absurd to do so using the original density code to back up your complaint). The same principle holds true at every level of legal authority – including at the Constitutional level. The guarantees of freedoms in the Constitution are only binding from one time to the next if they are not challenged at that level of law. If the people of succeeding generations challenge and remove the liberties currently in the Constitution through new amendments there is no way today to prevent them from doing so.
[quote]For example, today the act of burning a flag is held to be protected under the free speech rights “guaranteed” in the first amendment. If Senator Orrin Hatch has his way it would no longer be protected because he would like to pass an amendment that would make it illegal to burn a flag. If he can get such an amendment passed that right would cease to be protected regardless of what the first amendment says. That is the nature of a Constitutional amendment. Personally I think that flag burning is an atrocious use of free expression, but I also believe that banning it through Constitutional amendment is an abuse of the amendment process.
Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same. (emphasis added)
While I think his statement is accurate I fear that some would interpret the second sentence to mean that we must go to battle in each generation lest our freedom dissolve from our bloodstream. Not only do I think that is not true but I think that is not what Reagan meant. The fighting that we must do for each generation is the ideological fight to educate each succeeding generation on what it means to be free. If one generation has a false or incomplete understanding of the nature of liberty it becomes too easy for them to pass exactly the kind of amendment that would remove some of the basic rights that were meant to guarantee a continuity of our individual liberty in this nation.
The argument that the ability to abolish a right by passing an amendment opens the door to a tyranny of the majority is absolutely true. It has to be a pretty big majority (2/3 of the House and 2/3 of the Senate or else 2/3 of the states in convention PLUS ratification by 3/4 of the states) but the door is open and must remain open. If there is one level of law (lets say the original Constitution and the first 10 amendments) that is not subject to any future change then we become subject to an (unenforceable) tyranny of previous history. In such a case if there were ever found to be any need to modify the unchangeable portion of law there would be no legitimate method for doing so.
In the Declaration of Independence when Thomas Jefferson said that:
whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it
he did not imply that there is some magical exception – some form of government which could never become destructive of the ends for which governments are instituted. Rather than try to make an unalterable constitution the founders thought it appropriate (and rightly so) to provide for the alterations that might be found necessary in the future. The door for a tyranny of the majority is open but carefully balanced against a tyranny of a minority (such as by requiring unanimity from both houses of Congress and the states) so that changes could be made when enough people felt strongly enough that they were necessary. This does not guarantee that every amendment is or will be good, but it does guarantee that it will be very widely supported before it can become a part of the Constitution.
In the end, no constitution can ever guarantee any liberty in perpetuity to future generations. The only guarantee that can be had is the one we make ourselves, that we will uphold our liberties and do our best to pass the desire for liberty on to our children.
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