RALEIGH – As someone who views constitutional government as a basic institution of freedom, and constitutions as wielding near-divine authority, I retain what to some might be a surprising or even cavalier openness to constitutional amendment. Quite a few provisions in our state and federal constitutions should be changed or at least clarified, in my view.
If constitutions wield near-divine authority, in other words, that’s because we need a clear set of rules about government that span generations and political fashions. It’s not because any constitution predates human beings, or sprang from the head of Zeus fully formed and ready for battle, as did the wise and resolute Athena. Constitutions are human creations. Thus they are imperfect ones.
The most famous, and blatant, miscalculation in the federal constitution is evident from the interaction of the initial articles and the subsequent Bill of Rights. During the ratification debates, anti-Federalists argued that the constitution gave the Feds the potential to tyrannize the states and individuals. They argued that, as some states had already done, the United States should adopt a formal Bill of Rights to protect key freedoms.
Federalists thought the Anti-Federalists were overreacting (or that the Anti-Federalists were correct but expansive federal power was a good thing). Their argument in public, however, was that specifying a Bill of Rights was itself dangerous to individual liberties by suggesting wrongly that the constitution granted federal officials the power to infringe on those liberties. They pointed out that the initial articles set up a system of enumerated powers – if a power was not specifically listed, it was not granted.
For example, they argued, why is there a need to enshrine the right to free speech in the constitution? There is no power granted earlier in the document to regulate speech, so a free-speech amendment would be superfluous or worse. Since Americans enjoyed not a few specific rights but hundreds of specific rights, protected through the common law and general understanding, the result of a Bill of Rights could be less rather than more freedom, the Federalists suggested.
The Anti-Federalists were not to be dissuaded, however, so the result was a compromise. The first eight amendments (culled down from a larger list) were put forward with two additional ones: the Ninth Amendment, which clarified that listing a right should not be understood as suggesting that other non-listed rights had no legal force; and the 10th Amendment, which clarified that all powers not specifically enumerated belonged to state governments or the people as individuals.
It is here that libertarian writers often observe how wise and ingenious this deal was. But it obviously failed! We now have a system in which politicians, judges, activists, and many average Americans believe that unless a right is specifically protected in the constitution, it doesn’t exist and government can do whatever a majority of voters wants it to do in that area.
Short of some kind of revolution in judicial interpretation, the fix for this problem is to amend the constitution to clarify its original, restrictive meaning. There are other constitutional confusions worth straightening out through amendment, as well. One would be to clarify the extent of property rights and propriety of eminent domain, as my JLF colleague Daren Bakst has observed in a paper released this week.
I like the image of constitutions as legal Athenas, helmed and grasping stout spears. But to prevail in the battle against government encroachment, they need ongoing help: new arms, new armor, and constant battle training.
Hood is president of the John Locke Foundation.