You Don’t Know Jack About The Constitution

Prohibition button - photo by Minnesota Historical Society

If you advocate a constitutional amendment to ban gay marriage, repeal the 14th Amendment (specifically the Citizenship Clause) or any other amendment to limit instead of guarantee rights – then you don’t know jack about the Constitution.

The intentions of those who drafted the United States Constitution was to define the framework of government and it’s limitations. The Constitution was not conceived as a way to define limitations to the rights of citizens, quite the opposite actually, as I will explain.

Many believed the Constitution should also include a list of guaranteed rights for citizens, so 10 amendments were passed and ratified – known as the Bill of Rights – shortly after ratification of the Constitution. In fact, several states required a guarantee that a bill of rights would soon follow before they gave their stamp of approval to the Constitution. Because they did not want a repeat of the British monarchy in the newly formed United States, those who drafted the Constitution intentionally outlined the co-equal branches of government (judicial, legislative, executive) and designated the President (a civilian) as Commander in Chief of the military. The Constitution lays the framework for how the government should work and each branch’s limitations.

The Bill of Rights is a list of specific rights guaranteed to citizens in the form of 10 constitutional amendments. Some rights guaranteed by the Bill of Rights: freedom of speech and religion, the right to peaceably assemble and petition the government, due process including the right to a speedy trial by jury of your peers, the right to bear arms, protection from unreasonable search and seizure, prohibition of cruel and unusual punishment – and many more rights. I should note that within the Bill of Rights – specifically the 9th Amendment – it states that the rights enumerated within the Constitution are not a complete list of rights guaranteed to citizens. Rights not specifically guaranteed by the Constitution are retained by the people. The 10th Amendment clarifies it further:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

If the Constitution doesn’t specifically guarantee a power it is assumed that power is retained. If the Constitution doesn’t specifically prohibit a power it is left up to the states or is otherwise retained.

There is only one time in the history of the United States that the Constitution was amended for the purpose of restricting the rights of citizens, it was the 18th Amendment – alcohol prohibition, which passed in 1917, was ratified in 1919 and took effect one year later in 1920. We all know how well that worked out! It’s near impossible to make something illegal that many citizens believe should not be illegal. It serves to diminish the authority of law enforcement and can lead to unintended consequences – in this case, a massive increase in organized crime. In addition to being the only amendment to restrict rights, the 18th Amendment also has the distinction of being the only amendment to be repealed. It was officially repealed by the 21st Amendment, ratified in 1933.

Those on the Right who would like to see amendments to the Constitution to limit rights instead of expand rights know jack about the Constitution and it’s purpose to build a framework for the United States government and to establish the rights of citizens.

I end with an interesting – although unsurprising – connection between calls today for a constitutional ban on gay marriage and calls from long ago to prohibit alcohol — Many of the advocates for both causes are evangelical Christians. I don’t make this statement to single out a specific religion. I point it out to highlight that the United States government does not recognize any religion as it relates to law and the rights of citizens. — There shall be no religious test for office and congress shall make no law respecting an establishment of religion — We should tread carefully when considering constitutional amendments. What is the purpose of the amendment? Who is advocating it? Does it serve a narrow interest or the good of the people? These are just some of the questions we should ask.

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