We then read through the amendments as a group--an interesting experiment with 250 or more people in the room. Some interesting tidbits a lot of people today may not know:
* The Anti-Federalists, who opposed adoption of the U.S. Constitution in 1789, actually came up with a number of proposed amendments for the first Congress to consider. The House approved seventeen of them, and the Senate twelve of those. Ultimately the states considered 12 potential articles of amendment for ratification.
* The Bill of Rights, as ratified by the states, was not actually ten separate amendments when ratified--instead it was a single amendment with ten separate articles. Through re-printing and editing the articles became known as amendments.
* Without the promise of a bill of rights, folks like Patrick Henry stood in such strong opposition to ratification of our Constitution that it likely would not have been ratified.
Anyway...
After some history and a read through of the amendments themselves (which are available here and I recommend taking a moment to read through them yourself in their entirety), we began a discussion of the amendments' health and status these days. I'll just highlight those we discussed.
First Amendment: mixed reviews. We're living in the age of McCain-Feingold, one of the worst ideas in the history of politics, and a horrendous First Amendment violation. On the other hand, last term the Supreme Court gave us an encouraging decision in Davis v. FEC. In recent years, further, we had the incredibly important Zelman v. Simmons-Harris, correctly determining that the First Amendment presents no problem for school voucher programs.
Second Amendment: much of the conversation focused here. While this year brought the Heller v. DC opinion, which, for the first time, explicitly recognizing that this amendment protects an individual right to bear arms (and was not meant merely to provide arms to an organized militia), this amendment does not yet apply to the states. Further, the Court left open the ability of states to apply "reasonable" restrictions on the right to bear arms. What the government thinks of as "reasonable" tends to be overreaching in my experience, so it will be interesting to see how this plays out.
Fourth Amendment: between the so-called war on drugs causing paramilitary police raids in which innocent people are killed, the Mississippi Medical Examinor shaming the entire state, and the spread of photo radar speed traps, well this is an amendment is serious trouble.
Fifth Amendment: the Supreme Court effectively cut the last clause out of this amendment in the 2005 Kelo v. New London decision allowing governments broad discression in the abuse of eminent domain. I imagine there are many other problems here, but this is the one we focused on. Not a particularly healthy amendment.
Ninth Amendment: we didn't really focus on this one, but I have to put something about it here as it's my favorite. In fact, I'll just go ahead and quote it here:
The enumeration in the Constitution, of certain rights, shall not beNote the very, very important "shall not be construed." Unfortunately, this is also not in good shape given the number of rights--particularly economic rights--courts, and even many people, don't believe deserve protection. For many examples check out IJ's work in the area of economic liberty.
construed to deny or disparage others retained by the people.
Tenth Amendment: While in general we all agreed this is an amendment in trouble, there are the occasional rays of hope. For example, in the wake of the Kelo decision, very nearly every state in the union made an effort (some more effective than others) to ensure greater private property protection at the state level.
I hope anyone who has made it this far has found something new to learn in this post, and don't forget to take a moment next December 15 to think about our Bill of Rights.
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