A day for rights

Paul Jacob

12/14/2008 12:00:56 AM - Paul Jacob

The 217th anniversary of an event cannot warrant an especially big celebration. As far as I know, 217 isn’t a celebratory number. Not like 200, or, perhaps 222 (that’s for those of you who like to see all the numerals line up on your odometer). Maybe in Babylonian math it is, or Mayan; not in ours.

But if the event is important enough, the anniversary remains worth celebrating, even in off years.

I’m referring to tomorrow’s designation as Bill of Rights Day. December 15, 1791 was the day the first ten amendments were added to the Constitution. Now, before you send out an e-card, or write a check to your favorite rights-defending institution — the ACLU is the most famous, but there is also the Individual Rights Foundation and the Institute for Justice (among others) — it is probably worth clearing up a few things about the Bill of Rights.

1. Without it, the Constitution would not have been adopted.

The mis-named “anti-Federalists” were deeply concerned. They were afraid that the Constitution would quickly morph away from what the Federalists promised, away from a truly federal union where the states retained sovereignty. They feared that the Constitution would not be treated as a federalist document at all, but as a nationalist one. And the fact that quite a number of so-called Federalists had come out for nationalism and monarchy and a whole bunch of other rightly loathed institutions and isms, didn’t help the anti-Federalists sit easy.

You can learn a lot about all this in Kevin R. C. Gutzman’s The Politically Incorrect Guide to the Constitution. Gutzman makes clear how the nationalist-leaning Federalists, needing anti-Federalist support, cooked up a fairly federalist document.

Even so, the anti-Federalists were suspicious. Where were the guarantees of individual rights?

So, those much-maligned, truly federalist “anti-Federalists” gave us the one part of the Constitution that has been successfully used, on multiple occasions, to push back government. Many states ratified the Constitution contingent upon a Bill of Rights being added on immediately. And so it came to pass (or: “be ratified”).

When you say something politically incorrect, or when you pray in such a way that in some other place and time would have earned you a fiery death, thank the anti-Federalists . . . for the Bill of Rights.

2. The Bill of Rights is not a partisan document.

The rights recognized by the first ten amendments are central to American life. And yet in my lifetime they have been treated in amazingly partisan fashion. Some amendments get labeled “right-wing” and others “left-wing.” Worse yet, when a party puts its man into the executive office, the partisans of that politician tend to let his administration off the hook for his rights violations. But once the man is out of power, then the partisans go back to talking about the importance of civil rights . . . and violations by the “other guys.”

This happened, notoriously, during both the Clinton and Bush administrations. Clinton’s record on rights was abysmal, but you didn’t hear much complaint from Democrats. But once Bush got in power, the Democrats rightly screamed bloody murder about Bush’s forays into despotism.

Similarly, the Republican defenders of rights during the Clinton years too often became apologists for rights violations as directed by President Bush and Vice President Cheney.

This is a disgusting spectacle no matter which shoe is on which foot.

And it is worth noting that, because of this, Republicans — now on the outs in a very big way — have little moral capital to draw upon. It was squandered during the last seven or so years.

I presume that the new united government under the Democrats will present Republicans with many opportunities to defend the Bill of Rights. It’s just a pity that Republicans will have to spend some of their efforts merely beating back their own horrible reputations, building up new stores of honor.

Of course, across the political spectrum there are exceptions. There were people “on the left” who excoriated the Clinton administration for its many illiberal violations of rights. There were many people often labeled “on the right” who kept up the fight to conserve our traditional rights.

But, alas, there were too few.

3. Our rights have made headway even while government grew.

Government lurched out of control in recent years. It grew bigger. It extended its scope. And partisan hacks lustily touted each swallow of American life into the purview of that maw of force known as government.

But, even so, some of our rights became clearer.

The Bill of Rights defends freedom of speech, and of the press, and of religion; the right to bear arms; the security of people in their homes not only from quartering troops but also from unreasonable searches and seizures; and a whole lot more.

The right to petition our government is being clarified in a series of court cases . . . perhaps even as I type these words.

Government is always a problem, of course. There’s a reason why George Washington called it a “dangerous servant and a fearful master.” I should know. The state of Oklahoma is trying to put me in prison for my above-board part in petitioning that government. But the law under which the state’s prosecutor is trying to nab me — a law I didn’t break — is itself under constitutional challenge right now. By the time the state gets around to actually trying me, the law may have been declared unconstitutional.

That would be a great blessing not only to me, but also to all citizens who seek to restrain their governments by petitioning their governments.

The big news this year was the Heller decision. This was the first case that directly considered whether an individual has a right under the Constitution to own and use firearms for self-protection. The Supreme Court said that, yes, the Second Amendment does guarantee such a right. This decision alone will do more good for our rights than electing any politician possibly could.

So it is worth remembering: Our rights may be fragile, but because of the Bill of Rights, they are a lot less fragile than they would otherwise be.

And while we may complain of “activist judges” and the like, we should be happy, on the whole, for the independence of the judicial branch. Every now and then the courts return to us our Constitutional freedoms even when the major parties seem intent only on taking them away.

Tomorrow, Monday the 15th of December, is a good occasion to remember these truths.