“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).
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