18A011 Loose Construction by Jim Davies, 3/13/2018    

In the brouhaha following the Florida massacre I took a small part in countering the deafening chorus of demands that guns be controlled yet more tightly, and the subject of Amendment 2 arose. I pointed out in the august forum of the PBS News Hour that its key wording says "the right of the people to keep and bear arms shall not be infringed." Thus, Amendment 2 never granted anyone anything; the natural right to keep and bear arms was already in place when those words were ratified, and all they did was to guarantee that the new Federal Government would not interfere with or "infringe" it. Promises, promises.

Nobody can infringe something that doesn't yet exist. Hence, the right was in place before the FedGov was.

From one of the other contributors, this drew the response "it just shows that strict construction is crap" - his word. "Strict construction" holds that the Constitution means just what it says, neither more nor less. The opposite view, which he evidently favors, is that the Charter is just a guide, a statement of general principles, useful sometimes and especially two centuries ago when times were different, but not binding today and certainly open to loose interpretation.

So I thought to present here a version of the Bill of Rights that conforms to that principle of loose construction and which agrees rather closely with current practice. I may well have it a bit wrong here and there - but no matter, because the whole idea of hanging loose is that it can mean whatever it is convenient for it to mean in current circumstances - which change, after all, from year to year.

Right #1: (a) Congress shall make no law establishing a religion, except that for purpose of charitable tax deductibility the term "religion" shall apply only to those approved and listed by Congress and (b) Congress shall make no law to infringe freedom of speech, except disparagement of Jews, Blacks, women, homosexuals and its favorite wars and theater owners.

Right #2: The right of the people to keep and bear arms shall not be infringed, unless so desired by the government of the Union, the State, the County, the City or the Town concerned.

Right #3: No soldier shall be quartered in any house at any time, but the cost of accommodating the military elsewhere shall be borne by house owners.

Right #4: The right of the people to be secure in their persons, houses, papers, and effects shall be violated only at the discretion of border police or of criminal investigators upon reasonable suspicion, and when telephoning or emailing.

Right #5: No person shall be charged with a crime unless investigators think him guilty or persuade him to confess, and such persuasion shall amount to "torture" only if a government judge so decrees.

Right #6: All persons charged with a crime shall be tried in a government court, on a schedule convenient to the government prosecutor, by a jury (except in Traffic Court) selected under government rules and subject to direction by a government judge, and shall have the assistance of a counsel approved by the government.

Right #7: In suits at common law, the right to a trial by jury shall be preserved if the amount in controversy shall exceed $20, unless the government judge rules otherwise.

Right #8: No punishments shall be imposed, which are cruel or excessive in the imposing government judge's opinion.

Right #9: The enumeration in the Constitution of certain rights shall be construed to deny or disparage others retained by the people.

Right #10: The powers not delegated to the United States by the Constitution can be augmented at any time by Congress.

I hope you'll agree that this version of the Bill does reflect today's reality quite well, and that the change of wording from the original is minor; in the case of #9, only a single word was removed. Once the principle of strict construction is abandoned, it's easy to make the supposed limits on government vanish into thin air. And this is what they have done. It's one more proof that government is not an entity which, once established, can be restrained. It's either zero, or eventually absolute.

Of course it can't be limited. If it could, it would not be government; the limiters would be governing instead. And then they, in turn, would need limits on their powers, and so ad infinitum. "Limited Government" is therefore an oxymoron; the whole idea is impossible. Tom Paine and the founders were intelligent men, it's hard to suppose they could not understand that.

So they probably did. Then they founded it anyway.