Preamble to the Bill of Rights
Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March,
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses
concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
(Note: The first 10 amendments to the Constitution were ratified December 15, 1791, and form what is known as the “Bill of Rights.”)
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The spirit of disunity which was initially caused by Rhode Island refusing to ratify the Constitution until the remaining 12 of 13 states threatened with with trade embargoes, is the climate by which the Bill of Rights was formed. It is very much worth remembering the words of Thomas Jefferson, as the crystallisation of these rights and not of others, and the disability of the Constitution to change fluidly with what is and is not decent or just, serves to act as a permanent tombstone upon the republic for whom they stand.
Even Thomas Jefferson who was the Trade Commissioner to the Kingdom of France, and then the Minister to France, in correspondence with James Madison (who is largely considered the "Father of the Constitution") wrote:
"On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, & what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, & consequently may govern them as they please. But persons & property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course, with those who gave them being. This could preserve that being till it ceased to be itself, & no longer. Every constitution then, & every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, & not of right.
It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19 years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly & without impediment. But this is true of no form. The people cannot assemble themselves. Their representation is unequal & vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents: and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal."
- Thomas Jefferson to James Madison, 6th Sep 1789.
While Madison was on the floor of the House, he basically had every kind of objection and complaint about the deficiencies of the Constitution directed at him by the Anti-Federalist factions who had been elected. In response, the "Bill of Rights" which aren't even called that within the legislation, are "further declaratory and restrictive clauses" which should be seen as corrective rather than expansionary.
Although Congress did approve twelve articles of amendment on September 25, 1789, they do not really express any desire to "expand justice" or "insure domestic Tranquility, provide for the common defence, or promote the general Welfare" at all. Indeed, while I have previously written about all ten of what is commonly known as the "Bill of Rights", I shall cover this ground again because while there are good aspects to most systems of rights conceptions, the flaws therein are not immediately obvious.
For the next 27 Amendments to the US Constitution, I shall adopt the common convention of referring to the numbered Amendments as 1A, 2A, 3A, et cetera.
Amendment I.
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.
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Freedom of religion and the free exercise thereof is a good idea. However, "religion" is a set of practices which result from a belief set; which needs further examination.
Everyone without exception has some core belief set. It is impossible to live in the kosmos unless you have at least some abstract set of beliefs about how the kosmos works. Religion is nominally an ordered set of practices, sometimes derived from scripture and sometimes not, in which the object of one's worship, is shown loyalty, fealty, affection, devotion, exultation, et cetera.
There could very well be a set of practices which are intolerable to society at large and an anathema to things like Justice, Tranquility, Welfare, Liberty and whatnot, as stated in the Preamble's aims as to what the Constitution at large is designed to do. What happens if for instance, that some religious sect thought that sacrificing people on an altar was necessary to appease their gods? Here we have already run into the problem of why a very hard conception of what rights are, is bad law. To test law, we need to find the limits and see where the goodness and fitness of the law breaks.
Advocates of hard rights in the extreme position, would have to acquiesce that child sacrifice is a logical end to the operation of 1A. Why is that a good thing? This is always the difficulty with hard rights positions. I think that generally speaking, if the operation of law, which includes the exercising of rights, leads to harm and/or death, the it is bad law.
The general test which you will find in Westminster traditions of law, is the reasonableness test. The reasonableness test says that equity and outcomes should be evaluated according to what a reasonable person of ordinary faculties would conceive of as reasonable. In English law they are personified as "the Man on the Clapham Omnibus" and I have heard of the expression "Billy Brown of Sydney Town" also as the personification of the reasonable and ordinary person.
Would a reasonable and ordinary person be fine with child sacrifice? No. I think that a reasonable and ordinary person would be horrified as this offends common decency and the rights of the person being sacrificed, to an ordinary and boring life. Clearly this part of 1A does have limits but if "Congress shall make no law" "prohibiting the free exercise thereof", then this is equally horrifying.
Likewise a hard position on "abridging the freedom of speech, or of the press" is equally horrifying. A hard position would suggest that things like racism or sedition or defamation, in which other people are actively harmed, is acceptable. Yet again, I come back to the words of
https://www.jade.io/article/269619
A good draftsman would realize that the mere generality of the word must compel limitation in its interpretation. “ Free ” in itself is vague and indeterminate. It must take its colour from the context. Compare, for instance, its use in free speech, free love, free dinner and free trade. Free speech does not mean free speech ; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth ; it means freedom governed by law as was pointed out in McArthur's Case.
- James v Commonwealth (1936) 55CLR1
The hardest of hard positions would have to conclude that all expressions of the free exercise of religion, or that all cases of speech or anything published in the press should be free and unfettered. I think that this is stupid. I would ask why people who think that there should be no limits to liberty, when the unfettered exercise therein will cause harm and death to people, are being deliberately stupid.
"If everyone is tolerant of every idea, then intolerant ideas will emerge. Tolerant people will tolerate this intolerance, and the intolerant people will not tolerate the tolerant people. Eventually, the intolerant people will take over and create a society of intolerance. Therefore, Popper said, to maintain a society of tolerance, the tolerant must be intolerant of intolerance."
- Karl Popper, The Open Society and Its Enemies (1945)
It was the repeated free exercise of speech which led to the rise of Adolf Hitler and the Nazi Party and with the unfettered free exercise of speech, followed the spillover of mere ideas to action; resulting eventually in the extermination of Jews.
This says to me that a tolerant society must defend itself against onslaught of the intolerant, because if not, then the tolerant will be destroyed, and tolerance with them. Unfettered free speech which preaches and propagandises intolerance as a mode of operation can and should be placed beyond the limits of the law; which is why in my country, things like the Racial Discrimination Act and the Sex Discrimination Act place the reasonableness test front and centre; because that reasonable and ordinary person deserves an ordinary and boring life.
This is why I think that hard positions on rights conceptions are awful. Law generally should be about the regulation, standardisation, and protection of society. Incitement to intolerance, incitement to violence, and incitement to harm, in no way should be protected by law. Society when looked at under a microscope, is in reality made up of individual granular people who themselves are far more valuable and fragile and precious than we might care to think.
You should however, still be allowed to yell "Theatre!" in a crowded fire.
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