Archive for the ‘bill of rights’ Tag

‘Fixing’ the Bill of Rights – Fairbanks Daily News-Miner: Letters To Editor   Leave a comment

‘Fixing’ the Bill of Rights – Fairbanks Daily News-Miner: Letters To Editor.

Reforming the Constitution by Amendment   Leave a comment

In looking at Article V the first time, I encountered some fears. After all, in trying to amend the constitution, the states are not guaranteed to keep what we have. Amendments make changes and the progressives have as much opportunity to make changes as conservative-libertarians do.

Yes, the progressives could make changes … but would they? Remember, it takes 38 state legislatures (and both houses must agree) to ratify an amendment to the constitution (regardless if it is passed by Congress or approved by a convention of the states) and it only takes 13 states (or one house of each legislature) to prevent ratification of an amendment. The Founders, as they so often did, imposed gridlock as a means of protecting the government from hasty and ill-conceived action. It hasn’t always work, but it’s a better option than doing nothing until we erupt in violence.

Honestly, looking over the amendments, we should note that – with the exception of the 2nd Amendment – nobody is seriously debating the Bill of Rights. We may have issues with the court rulings about these amendments, but the Bill of Rights appears to be “safe” because people have a passionate attachment to them. Even the 2nd Amendment is unlikely to be repealed because 38 pairs of state delegates/legislatures couldn’t agree to it. In fact, it might be a good thing for government minions to hear an up-down vote on these amendments, since some of these officials act as if these amendments have been repealed.

So, the Bill of Rights is probably safe. Gridlock is good. But that leaves 17 amendments that we should probably look at because many of these were proposed and ratified under very specific, era-driven circumstances and might not be something we still want or may need modification. Remember, nobody today ever signed onto most of these amendments or to the body of the Constitution itself. Part of our problem is a lack of ownership of our founding document. It might help us to actually debate it, get to know it, and decide whether we ought to keep it or not.

We Must Protect the Bill of Rights   1 comment

Did you hear?

Nancy Pelosi and the Occupy Wallstreet crowd want to repeal the 1st Amendment because they don’t like corporations being able to give large sums of money to the political campaigns of Republicans.

See, THIS is the reason we can’t risk a constitutional convention because the radicals would be able to do away with the Bill of Rights.

Again, a Constitutional convention is only allowed to amend the Constitution, not throw out the whole thing. This is not 1787 and the Articles of Confederation have not failed after only eight years of use. The US Constitution, unlike the Articles, allows for amendments to be proposed by either Congress or the state legislatures.

Do you think your state legislature would authorize your state delegates to rewrite the Bill of Rights and then ratify an amendment repealing the First Amendment?

I don’t know your state, but I’m rock-solid certain that Alaska’s legislature would not do that. Yes, the Bill of Rights are amendments to the Constitution, so could be modified, but 75 of the 99 state legislative bodies would need to ratify any amendments, which would require a consensus of opinion.

Yes, there are radical elements that would love to make changes to the 1st Amendment, but three-quarters of the legislative bodies in the states is a pretty high threshold that should prevent radical changes to anything that has been working so well for so long.

On the other hand, we could use such a convention to discuss and possibly clear up whether corporations are people and have a right to free speech. I think most of us think of these as individual rights and recognize corporations are not individuals (or even people), but the debate would do the country good.

What about the 2nd Amendment? You know the radicals want to do away with that. Yes. But – 80 million Americans (about half of US homes) own more than 223 million guns. A 2011 Gallup poll showed that only 26% of American citizens would support a handgun ban and about 70% of Americans currently (in the wake of Sandy Hook, no less) oppose an assault weapons ban. Maybe they saw the same sheriff’s video I saw that showed the Bushmaster still in the trunk of the shooter’s car after he was dead or maybe the American people are just saner than the media want us to believe. Again, three-quarters of the legislative bodies in the states several would have to ratify an amendment for it to become part of the Constitution. Following Sandy Hook, four states have increased gun control, but three relaxed their gun regulations. Nine states have “stand your ground” laws and 45 states have concealed carry permits. Of course, maybe we ought to take a look at clarifying that 2nd Amendment language to clear up the confusion over militia, individual versus collective right, etc.

We shouldn’t take the 3rd Amendment lightly. Although soldiers have not been quartered in our homes during peace time since the Constitution was written, there are instances of police possibly violating this amendment, for instance, using private homes for stakeouts even when the homeowner objected. I think it’s probably safe from modification and again – three-quarters of the legislative bodies in the states several is an intentionally high bar.

The 4th Amendment – is that still in the Constitution? While I can’t imagine three-quarters of the states agreeing to substantially modify it, a conversation about what security in your person, property and papers means might do us some good. Maybe the states could make it clear to the NSA that the 4th Amendment is still in the Constitution by voting to keep it in.

The 5th Amendment appears to be quite popular with the federal Executive Branch of late. It goes all the way back to Anglo-Saxon law. I think the bar that protects it is high enough if common sense fails the delegates.

The 6th Amendment is still in the Constitution, but it wouldn’t be a bad idea to discuss it, especially whether it and the 7th Amendment apply to citizens of the United States or to anyone who happens to somehow show up here.

The 7th Amendment could use a good airing out. Seriously, do any of us think three-quarters of the states are going to vote to remove jury trials from the Constitution? But maybe we need to talk about what a jury trial means, especially given the anger surrounding the Zimmerman verdict.

I thought we’d already repealed the 8th Amendment, but Wikipedia says it‘s still there, so …. What are the limits of cruel and unusual in this age of federal drug enforcement and determinant sentencing? In Alaska, you’ll do 99 years for 1st degree murder, unless you plea to 2nd degree and then you’ll do 99 years. Yeah, I can’t explain it either. Bail is now routinely not allowed or set so high that nobody can post it. A couple of weeks back, a guy on a DWI was denied bail on the grounds that he might drink while awaiting trial. And, I daresay, Alaska’s justice system isn’t that out of step with the rest of the country. I think we need to clear up what this amendment means. I don’t see a substantial change being ratified by 75% of states, but I think the conversation would do us good.

I don’t know that I ever studied the 9th Amendment in school. Pity because it’s key to understanding how the Founding Fathers thought about the liberties they were restraining the government from infringing. They didn’t believe they were creating these liberties. They were acknowledging some (not all) of the rights that no government could properly deny. They suspected they might have missed some, so they put a provision in the Constitution to cover themselves because they wanted individual liberties protected, even if they missed a few. Affirming that shouldn’t be a problem … right? And if it is … again, three-quarters of the states and all that.

The 10th Amendment has essentially been repealed in practice. The last time the states had rights the federal government acknowledged was in the 1950s. I cannot imagine that any state is going to vote to repeal the 10th amendment, but if some do, I don’t think it likely that 75% of them will. And, like the 9th that says rights belong to individuals and Congress may not infringe upon them, a conversation about enumerated federal authority and states rights is a long time overdue. This is really the whole purpose of calling a constitutional convention – to put the states back in the driver’s seat where they were always supposed to be and largely were prior to the Civil War.

My analysis is that the Bill of Rights is largely safe from major meddling by a general subject amendments convention, not necessarily because delegates wouldn’t propose amendments to it, but because 75% of states wouldn’t ratify the amendments.

By the way, this is all assuming that we the people know who are state legislators are and will be communicating with them about what we want to see.

And, also remember, that Article V requires that a convention be called for a particular subject, so the convention cannot propose changes to, say, the Bill of Rights if states haven’t applied for those changes, but the convention can discuss and recommend changes that the states can then apply for. I see this as a good 10th amendment way to take the temperature of the country about the Bill of Rights. There is a small minority of Americans who think these should be suspended. It might be good for them to be served notice that they are a minority.

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