The first ten amendments to the US Constitution is usually defined as a bill of rights for citizens. Certainly, my childhood education of the constitution presented these a set of rights that are reserved to the citizens and thus off-limits to government. My very limited view of the judicial interpretation of these amendments conforms to this understanding that the amendments remain enforceable restraints on what the government can impose on the citizens. I now believe this widely accepted interpretations of these amendments are incorrect.
The amendments do not, and in fact cannot, grant rights to people. Instead the amendments acknowledges the rights of the US citizens of the late 19th century in order to ratify the main body of the constitution. The correct way to interpret the first ten amendments is as a description of the signatories of the constitution. As such this is a sign of the common intellectual brilliance of that age.
Looking at the constitution today, having a list of actual names who ratified the constitution would be virtually irrelevant to us. Most modern citizens, myself included, have no ancestral connection to the US citizens who ratified the constitution. Even if such relationship exists, it is unrealistic to expect that we can know who these people are as well as we can know our neighbors or colleagues.
Given the recognition that the names of the ratifiers would soon be irrelevant, the brilliant notion was to describe the character of the ratifiers by listing the rights they felt needed to be preserved. The constitution did not grant the rights. Instead it merely acknowledges the rights the people at the time felt confident they already had.
The first ten amendments are descriptive of the population that ratified the constitution. These amendments effectively describes the signatories of the constitution. Succeeding generations, include our own, interpreted the amendments as prescriptive, positively granting rights that otherwise may not be present. However, the actual amendments do not have the authority to define rights in this way. As cultures change, our understanding of individual roles in society will change. The modern times have a vastly different culture than what existed in the late 18th century.
The first ten amendments are descriptive of pre-existing rights the population perceived it already enjoyed before ratifying the constitution. In terms of the modern age, the amendments do a very poor job in describing the natural rights we perceive ourselves as having if the constitution did not exist. The only reason we grant the broad rights of the first ten amendments is because it is written, not because we believe they are natural rights. A major reason why the courts so often have to make decisions on grounds of these first ten amendment is because the ruling majority has newer more modern understanding of natural rights of citizens.
If the first ten amendments did not exist today, we would not propose and ratify those amendments today, especially in in the expansive terms used by the existing amendments. If we approached the project the same way, we would offer amendments that described the modern understanding of natural rights that would include such notions as right to privacy (such as HIPAA), right to laws with scientific rather than moral justifications (such as abortion, same sex marriage), right to have funds to participate in economy (social security, subsidized food or medical care, earned income credit), right to be free from hateful speech including freedom from religious speech.
The first ten amendments describe the population that ratified the constitution. Implicitly, these amendments declare that the constitution is only valid for a population that accepts the rights these amendments enumerate. As soon as the population rejects any of these rights are no longer relevant, then the entire constitution will no longer be valid nor enforceable. We would need to ratify a new constitution that will earn the ratification of the population that accepts a fresh bill of rights that effectively described the modern interpretation of natural rights.
I suggest that we crossed that point several decades ago. Throughout the 20th century, we built a new understanding of natural rights to include the concepts I listed earlier. In addition, our interpretations of the first ten amendments have eroded the meaning so as to be largely irrelevant. Amendments such as the 9th and 10th amendments appear to be largely irrelevant in terms of deciding cases. The middle amendments 3-8 have lost much of the original meaning in absolute terms:
- 8th: our modern interpretations of excessive bail, and punishments that are cruel and unusual, have evolved substantially from what was generally accepted in the 18th century, for example our sentencing practices that have resulted in incarcerating a significant fraction of the citizens.
- 7th: 20 dollars isn’t what it used to be
- 6th and 5th: modern interpretation of speedy trials is slow by 18th century standards, and many if not most criminal cases are decided by plea bargains that are deliberately intended to avoid the trial by jury and having the accused confront his accusers.
- 4th: technology advances have made this amendment irrelevant as originally stated. In addition, the majority tends to accept state authority for intrusive searches of communications using modern technologies.
- 3rd: we accept modern police tactics contrary to this amendment
Even the first two amendments have been reinterpreted significantly. For example, we allow hateful speech to aggravate charges of other crimes. Also, gun ownership requires background checks, and the public generally supports significant restrictions of carrying weapons in public.
In my previous post, I proposed a modern justification for more intense regulation of the right to keep and bear arms. Another way to look at this justification is the different attitude toward policing we have today compared to policing practiced in the 18th century.
Modern law enforcement at local, state, and federal levels have been granted policing powers that include the permission to use deadly force. In contrast, at the time when the second amendment was introduced, the culture assumed a broader citizen participation in community policing. The second amendment grants the right of citizens to use weapons in certain circumstances now considered the purview of police departments. I suspect that this was actually fairly common at the time. People pointed guns at each other to initiate a process that would culminate in a criminal trial one way or another. In contrast, the peace officers of the municipalities may likely go about their official duties unarmed. When a situation escalated to an armed confrontation, the confrontation would involve the peace officer summoning armed persons that may as likely come from the general population as from the sheriff’s department.
My proposed new amendment updates to the modern era this presumed older interpretation. The right to bear arms is equal to the right to enforce laws requiring resorting to force. In the modern era, we grant the police the right to carry arms after a determination that the officer earned the public trust. The right to bear arms within range of the general public ought to be converted to the privilege to be an police officer who happens not to be employed by the state in that capacity. In the modern sense, such an unpaid police officer is comparable to the 18th century citizen.
Proposing this amendment offers the opportunity to debate the merits of amateur police force. The first point is that such a police force should obtain some official recognition of earning the public trust. Much of the modern debate about the second amendment is a consequence of justifiable mistrust in our neighbors or fellow citizens. I am suggesting that this mistrust in fellow citizens to use weapons in the public interest is a modern phenomena. In the less populated and smaller economy of the 18th century there was more trust in citizens anyone may encounter in public.
The broader point is whether we even want an amateur police force. Policing is far more difficult today with its needs to not only preserve the peace, but to do so fairly without discriminatory or disparate outcomes for minority groups for instance. The encounters between peace officers and the public is specialized to the point of being completely unlike the encounters between regular citizens. The modern expectation is that if at all possible, people should address any and all unlawful behaviors by summoning the uniformed police force. The modern sensibility is that regular citizens do not have the power to take the law in their own hands. Certainly, we hotly debate this point especially in criminal situations that call for responses with deadly force.
A more productive premise for debate is whether we accept an amateur police force instead of whether people have some natural right to bear arms.
More broadly, we should be debating the premise of the entire so-called bill of rights. The original bill of rights merely described the culture of the population that ratified the constitution. The bill of rights did not grant the rights, but instead preserved the rights everyone assumed they already had. These rights were natural to their culture.
Modern culture is far different from the 18th century revolutionary era. As a result, it would be very beneficial if we can draft a modern version of a bill of rights to explicitly define the rights we feel we have naturally (that do not need to be granted by any document). An honest deliberation on a modern bill of rights describing modern culture’s natural rights will end up with many new rights that the 18th century would not recognize. Similarly, we would probably reject or at least significantly revise the rights that they assumed they had.
We should write a bill of rights that match the modern US culture. This bill of rights would be a descriptive declaration of what we are as a people today.
As with the original bill of rights, amending the constitution with a new bill of rights will have the effect of apply our signature to the body of the document. I suspect once we define a updated bill of rights relevant to the modern era, we would object to apply this signature to the body of the constitution composed in the 18th century. Once we define who we are by listing our natural rights, we will want to apply this signature to a constitution written with this definition in mind. We would demand a new constitution.
The bill of rights is a description of the consensus view of the populations’ natural rights. Applying a bill of rights to a constitution effectively is a population signature on that document. The document is valid as long as a population accepting the bill of rights as natural rights continues to exist. Once a population rejects even one clause of the bill of rights, then the entire constitution will longer be valid.
The constitution is an agreement of a very specific population to abide by the consequences of that government: that specific population is the population the fully accepts every clause of the bill of rights that serves at their signature.