“But Mitch – why are you an Originalist? Don’t think mankind has evolved in the past 240-odd years?”
Sure – backward.
Case in point: an op-ed in the Boston Glob over the weekend, advocating a rewrite of the first two Amendments of the Constitution. The piece, by one Mary Anne Franks, identified by the Glob as “Distinguished Scholar Chair at the University of Miami School of Law and the author of “The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech“, opens as follows:
As legal texts go, neither of the two amendments is a model of clarity or precision. More important, both are deeply flawed in their respective conceptualizations of some of the most important rights of a democratic society: the freedom of expression and religion and the right of self-defense.
Well – she’s not wrong per se.
Sanford Levinson’s seminal Yale Law Review article, “The Embarassing Second Amendent” – an article that led, circuitously but certainly over the course of two decades to the Heller and McDonald decisions, makes the same point; the language of the Second Amendment is a wee bit anachronistic, although its legal, historical and textual roots are crystal clear to any point of view not addled by 60 years of activist, revisionist jurisprudence largely tied to risible overextension of the Miller decision.
It’s about there that the good points end. I’ll give Franks points for honesty, at least; her op-ed encapsulates the modern Left’s notion that rights are bestowed by a benevolent government, not endowed us by our creator.
It’s a notion that is, in fact, worth going to war over; ideally, a war of words, if we can keep it that way.
Re the First Amendment:
Every person has the right to freedom of expression, association, peaceful assembly, and petition of the government for redress of grievances, consistent with the rights of others to the same and subject to responsibility for abuses. All conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all persons.
Both the freedom of religion and the freedom from religion shall be respected by the government. The government may not single out any religion for interference or endorsement, nor may it force any person to accept or adhere to any religious belief or practice.
Perhaps it’s a sign of social perspicacity that Franks feels the need to enshrine the concept that rights – which are, by definition, “consistent with the rights of others to the same and subject to responsibility of abuses” – apply to everyone, or that they shall “be respected by the government”.
But I don’t even want to think about how the Federal judiciary would torture the meaning of “the princinple of equality and dignity of all persons”, after a few decades of abuse by today’s “woke” blue legal academy.
And the Second?:
All people have the right to bodily autonomy consistent with the right of other people to the same, including the right to defend themselves against unlawful force and the right of self-determination in reproductive matters. The government shall take reasonable measures to protect the health and safety of the public as a whole.
The inalienable right to defend one’s self, family, property, community and freedom – to preserve the “bodily autonomy” not of people as individuals (subject to government’s “reasonable measures”, naturally) would become a carrier germ for abortion.
I’ll await Professor Franks’s attempt to get a majority of Congress and the legislatures and governors of 37 states to jam this down.
(My rewrite of the 2nd Amendment, by the way? It’s simple: drop the dependent clause, “A well-regulated militia being necessary to the preservation of a free state”. Cut it down to “The right of the people to keep and bear arms shall not be infringed”. Simple, elegant, and exactly the opposite of Professor Franks’s intent, which is all I really care about).
It’s Mary Anne Franks. Looked her up… the bimbo-ization of the legal profession continues apace. As to this piece, that was one circuitous path to get to “The right of the people to keep and bear arms shall not be infringed”.
I’m going to preempt Pad and E by reminding everyone the Miller case didn’t say what Liberals say it says.
Miller was in possession of a short-barrel shotgun. The trial court dismissed the charges as a violation of the Second Amendment. Supreme Court said the Second Amendment only protected the right to keep and bear military arms and there was no evidence at trial whether a shotgun was a military arm. The Supreme Court refused to take ‘judicial notice’ of the fact the US Army issued nearly 20,000 M97 Trench Guns to the troops in WWI. Instead, the case was sent back to the district court to receive evidence on whether a shotgun was a military arm and thus protected under the Second Amendment. Unfortunately, Miller had died by that time so the evidence was never produced.
If Miller stands for anything, it stands for my right to keep and bear an M4 assault rifle loaded with M855A1 armor piercing ammo.
JD,
Unfortunately, Miller had died by that time so the evidence was never produced.
Miller was dead, and his case had no representatives in the SCOTUS argument.
I love it when “prog” bobbleheads blather about Heller “So you don’t really believe in stare decisis, then?”. Heller was a return to settled precedent; Miller was the unsupportable activist noodling.
Two things:
1. the left thinks the constitution “grants” rights. It does not.
2. I think even more terrifying for our country is the number of mediots and academiots who are just positive that the first amendment grants too much leeway as regards speech.
Misinformation, as a word, is the greatest thing to happen for lefties in decades
Misinformation, as a word, is the greatest thing to happen for lefties in decades.
Spot on, kinlaw. I debated a lefty on social media a few months back as he argued for more restriction on free speech, using COVID “misinformation” as his Trojan horse. I led him to water and asked him why the remedy wasn’t more speech countering the “misinformation”. To my (sort of) surprise, the horse actually drank and said that people couldn’t be trusted to decide for themselves which information was accurate and which was misleading.
No shame, these people.
All conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all persons.
But all persons are not equal (equal meaning “the same”), and dignity, as a legal term, just means “political equality.”
Frank’s revisions lack the clarity and precision that she faults in the Constitution as written.
The purpose of the constitution is to constrain the federal government within well defined bounds. We know this from the Federalist Papers.
Franks writes:
All people have the right to bodily autonomy consistent with the right of other people to the same
“Bodily autonomy” is not a legal term. I have heard it thrown around a bit lately in the context of the SC possibly overturning Roe V Wade. It is an empty phrase, it is assumed by the writer to mean reproductive rights for women and nothing else. Frank’s constitutional right to bodily autonomy would not protect your right to use drugs, to speak, or to do anything with your body other than kill your unborn child.
All “people” have the right to . . . .
Of course, Blacks aren’t “people,” they’re property. Dred Scott says so.
And Jews aren’t “people,” just ask the Palestinians.
And unborn children aren’t “people” and therefore have no right to life.
And the unvaxxed aren’t “people” so it’s okay to send them to concentration camps and deny them medical treatment.
And the over-educated, and people who wear glasses, and kulaks, wreckers . . . can you see where this is going, Professor?
That confused leftist thot is conflating the 2nd with abortion.
I know a lot of people for whom the loss of the 2nd, as it is written (pertaining to firearms and the right to use them in self defense), would be past the last exit on the highway to CWII.
I wonder if she and her fetid ilk feel as strongly about infanticide? NGL, I kind of hope so.
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Sometimes I wonder what this country would be like if the Federalists had won and we never got the Bill of Rights. Would we actually look at that text of the Constitution for what the Government is allowed to do?
When the 2000 election kerfluffle was happening I was working with a French scientist/engineer. He told me that the apparent crisis of the Florida recount couldn’t happen in France, because their national elections were managed by the central government and their presidential elections were timed not to coincide with parliament elections, etc.
Me: “How many constitutions have you had since the Revolution, David?”
Him: [proudly] “This is the Fifth Republic!”