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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.
13 replies on “Securing Liberty”
excellent writing, David. Thanks for sharing.
Excellent thoughts that I feel explains out current situation accurately but without hyperbole. Well written.
You've got it right! We are never very far from anarchy if we don't continue to fight for liberty and freedom. Maybe that is how we show our appreciation to the Founding Fathers, but continuing the fight they led to create this country.
It seems beyond ridiculous to assume that a constitutional amendment, once adopted, could itself never be subject to amendment. What an absurd notion. How is it possible that an amendment could ever be considered so much superior to the original text of the Constitution that it could not be subject to the same law that applies for amending the Constitution? What about the 21st Amendment repealing the 18th?
Upon ratification, an amendment becomes regarded as equal to the original text of the Constitution (as amended) plus prior amendments (as amended). Just as some of the original language of the Constitution has been changed by amendment (like Article IV, Section 2 requiring that slaves be returned to their owners being made obsolete by the 13th Amendment), no amendment can be considered so permanently perfect and sacrosanct that it could be forever impervious to amendment.
The original complaint suggested that the Constitution as first adopted plus the Bill of Rights were somehow sacrosanct. As you say, there have already been important alterations through subsequent amendments that illustrate how untenable such a position is.
You are absolutely right Scott – the only way to appreciate what they gave us is to fight for its continuation.
As I posted elsewhere, in theory and by its very nature, the Constitution could be un-ratified by an amendment to the effect that declares the Constitution and all prior amendments null and void.
I continue to marvel had the utter genius of the Constitution. Relatively speaking, it is not a long document and provides so much room for growth and development of the nation. It has specific policy and procedures where necessary and is full of areas for legitimate debate and development as the country grew and grows and changes. There has never been a law written under the umbrella of Constitution protection that does as much as this marvelous divinely inspired document.
We all must continue to do whatever it takes to keep this document the guiding law of this land so as to keep tyranny from destroying the liberties the Founding Fathers gave us and which others insidiously seek to impose their treachery upon us. That is the continued battle of our time–to protect our liberties from all enemies “foreign and domestic”.
It is not merely the continued battle of our time – it is the continuous battle of all time to either protect the rule of law such as was established by the Constitution or to institute such rule of liberty-securing law where it does not already exist. As with every fight there is a right way and a wrong way to go about it.
Part of our current problem is that we have so often taken the wrong path in our efforts through history to protect the Constitution as our fundamental law and to promote similar constitutional government elsewhere.
Of course before we got near the 222 year mark for the Constitution we may still be a significantly free republic but we have no significantly independent states. We need to fix the balance between the President and the Governors, Congress and the Legislatures.
Agreed that those relationships may be out of kilter right now, and such exchanges of power will continue throughout the history of the United States. The Federal side is way too big and powerful and, in my opinion, has been exploited by the inordinate and unconstitutional use of the Commerce Clause.
As to the independence and sovereignty of the individual states, my point is more along the lines that Utah and Connecticut, Nevada and Louisiana, Washington and Georgia still work within the federal compact, yet have their own respective laws by which they are governed. Within each one of those states, there is still is most of our judicial activities, many of our laws are legislated, and executive power still can function.
The states do need to fight back on states’ rights issues more strongly than in the past. This may be a real difficult battle because of the taxing structures we have, but this is a discussion for another time.
True – the struggle between state power and central power has been going on since the articles of confederation were drafted. That will always be a place for power struggles. I guess that I’m wishing for more lively differences between the states, but that may not be possible until the Federal government is cut down to its proper size. (There may be some argument about what size that is, but much smaller than it is now is beyond debate as far as I am concerned.)
Excellent point on what we have done throughout our history with respect to the Constitution. Maybe the brilliance of the document is that, at times, it may protect us against ourselves. We might ponder where we would be without the Constituional provisions we have.
Some travesties along the way include things like Dred Scott; yet here we are, ready to celebrate the 222nd anniversary of the Constitution and we are still a significantly free republic of independent states. Over 200 years without a coup and the most benign of all power transistions when we elect a new president. Whether I like the new President’s idealogies and policies or not, it still is wonderful that someone who 200-plus years ago only counted as 3/5ths of a person is now the President.
We survived a Civil War, and we live in a time when the most pressing question on many people’s mind is whether Florida or Alabama is the best football team in college. Although on the surface that may seem silly, it is also a testament to the freedoms that we really do have that allow us this type of enjoyment.
But you are dead on accurate: this will always be a battle, and there are absolute truths that exist, and there is right and wrong, good and evil. Such is the plight of our mortal existence and the on-going battle we must engage in every day.
The latitude of the states has been severely restricted over the years to the point that they can only act within the spheres that the centralized government permits. State legislators can pass laws and state executives can work to implement those laws. But ask any of these people, an they will admit that they feel like they have to ask permission from the feds to do anything. Or at least, they can’t do anything before having their staffs peruse the labyrinthine layers of federal regulation to see if it is allowed. Not only that, the central power often dictates what the states MUST do, whether funds are provided for these activities or not.
We have also evolved to a regulatory state of arbitrary powers, where many of the rules that govern our daily lives come from federal bureaucrats to whom our elected officials have abdicated far too much power. No unelected official should wield the kind of arbitrary power that the Secretary of the Treasury and the Chairman of the Fed enjoy. Heck, no ELECTED official should wield that kind of power. We are supposed to be a nation of laws, not a nation of elitist bureaucrats that can do whatever it takes to ‘get the job done.’
The Constitution is indeed a magnificent piece of work. Wouldn’t it be great if we as a nation actually made more of an effort to actually follow it?