The US Constitution

Lars Poulsen - 2020-10-24

As a foreign-born US citizen - from Denmark - I am always a little puzzled at the way Americans treat their custitution like it were a religious text. In fact, as a Unitarian-Universalist, I can say that we don't treat any of our religious texts with that kind of reverence.

The constitution is an amalgam of somewhat disparate parts:

the preamble, setting out lofty goals for the country
the articles (the main text), which is a detailed rulebook forming a set of basic laws, describing how laws are made
the amendments, beginning with the 10 that form the Bill of Rights.

The closer you study any part of this, the more it becomes apparent that it is so ambiguous as to be a very bad piece of legislation. It was written in a world so different from ours, that the words as written make very little sense. We really should find a way to rewrite large parts of it.

This article gives some of my ideas about how I would like to see it changed.

The First Amendment

The first amendment in the bill of rights says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That is quite a mouthful, and in other countries' constitutions, this would be three separate enumerated rights:

Freedom of religion and freedom FROM religion if you so desire (Separation of Church and State)
Freedom of speech, freedom of the press, guarantee against censorship
Freedom of assembly, the right to peacefully protest and air your grievances against the government.

Freedom of (and from) religion

At the time the USA became independent, it was the norm that every country had a state religion, and the church was seen as an arm of government. Trying to worship differently was seen as an act of rebellion, and most countries supressed such heresy firmly and brutally.

Many of the people in America were there because they had fled such persecution, and the founders saw very clearly that if they did not declare religion to be a completely private matter and keep the government out of it, the states would not remain united.

The only part of this that gives us any trouble today is this:

Congress shall make no law ... prohibiting the free exercise of [religion].

In modern times this has been interpreted to mean that if a religious group dislikes a law, they do not have to obey it.

A couple of decades ago, the example of this that came to mind, was that some indigenous tribes wanted to ingest psychedelic herbs and mushrooms during some of their rituals, even though these mind-altering substances were banned by statute. In order to allow them to do that, one had to define exactly what counts as a religious ritual.

Today, some Christian churches feel that they should not have to grant their employees the same rights that all other employers had to allow. They should be free to only hire members of their own faith. They should not have to submit to other anti-discrimination laws. And they should be exempt from the standard rules governing minimum wage, vacation days, overtime, and obligation to provide health insurance conforming to the requirements governing employer-provided health insurance.

While it makes sense to me that a church should not be obliged to hire a minister or priest that rejects the doctrine of that church, it makes no sense to me that their secretary should not be given the same employment rights as employees of private businesses.

Freedom of speech and the press

In the days of the founders, a printing press was a very expensive piece of equipment, and so there were few printers and publishers. Most countries had laws regulating their operation. For example, it was often required that copies of all materials printed must be given to the government.

In some countries, a government license was required to operate a printing press, and if something was printed that the government did not like, the printer could lose his license or even go to jail.

In the 1970's, photocopy machines allowed every business to have a printing press in their office, which did not require any special training to operate. In the Soviet Union, the state feared this and did not allow widespread use of these devices.

The Founding Fathers felt that trying to stifle rebellious ideas was a bad idea, and they explicitly said so. But there are several wrinkles on this that are not so obvious to most:

It is only the government that is prevented from suppressing ideas that it disagrees with. The publisher is allowed to promote or supress ideas as he sees fit. Or as it has been said: "The freedom of the press belongs to him that owns it!". Back in the day when a printing press was prohibitively expensive, this meant that individuals could reach an audience only if the could find enough others that agreed with them. In the internet age, this threshold has been lowered dramatically.
Private inerests can also protect themselves from attacks by suing those who attack them for slander or libel. It is only the government that cannot protect itself.
A natural consequence of "free speech" should be that one cannot be criminally prosecuted for just ones's words - in speech or in print. But this runs up against laws that make it criminal to induce others to commit crimes, or to deliberately incite panic that can harm others.

Freedom of assembly and petition

This is what protects protest marches and rallies. Note that to be protected, assemblies must be peaceful. If a protest turns violent, it becomes a riot, and the government can lawfully suppress it.

The Second Amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

From the beginning there has been disputes about the two commas. The printed version put up for ratification votes in diffeent states have omitted one or the other (or all) of the three commas.

Some people argue that this creates doubt about what it is that shall not be infringed: The right to bear arms or the well regulated militia.

Most historians have traditionally understood this in the context of the revolutionary war under which it was written: The new republic could not afford a professional army, so it needed to create one out of volunteer citizens that brought their own guns, and the right to own guns was for this purpose, while guns not so intended could be regulated.

This is not a framing that makes sense in our current society. The "well regulated militia" today is called the National Guard. Since it is organized by the government, it is clear that the government would not suppress it. But it is only protected when it is "well regulated", not when it is an armed mob. Outside of that, we have two very different ways of living today:

In the cities, we have police readily available, generally just minutes away, to deal with burglars and robbers. A free floating mass of firearms, where it exists, is likely to be in the hands of criminals. So city dwellers want fewer guns in circulation.
In the rural areas, police may be 30 minutes or an hour away, so many people feel that they need to be armed to protect themselves. Also, farmers and people with some open land around their houses may feel a need to hunt predators that threaten their livestock, or to hunt deer for sport and food. So those people want to be free to buy the guns they feel they need.

This divide between city people and country folks is one of the deepest political divides today. In another page I have written some of my ideas for how to resolve the gun control issue.

More to follow

I intend to write more about the Constitution as I find time. I welcome comments, please send them to lars@beagle-ears.com

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