Ain't Nobody's Business If You Do

PART II: WHY LAWS AGAINST CONSENSUAL ACTIVITIES ARE NOT A GOOD IDEA

Laws Against Consensual Activities Are Unconstitutional

The Bill of Rights

Once it was decided that there would be a strong, central (federal) government, many people—most notably, Thomas Jefferson, James Madison, and, later, John Adams—wanted to make sure that the power of that government was severely limited—especially where the rights of the individual were concerned. They wanted to be certain that the government did what it needed to do, and nothing more. Other than defending the borders, establishing treaties, settling disputes, keeping a level playing field for commerce, and ensuring the free flow of goods and ideas, they wanted to make sure the government left the people blessedly alone. "I am for a government rigorously frugal and simple," wrote Jefferson. "Were we directed from Washington when to sow, when to reap, we should soon want bread."


A Bill of Rights is what
the people are entitled to
against every government on earth,
general or particular,
and what no just government
should refuse to rest on inference.
THOMAS JEFFERSON
Letter to James Madison
December 20, 1787

Jefferson and the others called for a Bill of Rights, a series of amendments to the Constitution which clearly delineated what the government could and, more importantly, could not do to regulate individual thought and behavior.

Those who favored the Constitution without a Bill of Rights were not against the ideas propounded in the Bill of Rights, but only argued that such guarantees were unnecessary because they already were contained within the main body of the Constitution. The Enumeration of Powers, they claimed, limited the government to basic functions. None of these enumerated powers infringed on the individual unless that individual harmed the person or property of another. The government could not take on additional powers—such as regulating speech, religion, the press, or anything else—without adding a constitutional amendment. In other words, if the Constitution didn't say that the government specifically could do something, it couldn't. As Alexander Hamilton explained,

For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?


It's easy for people to assume
that the Bill of Rights will be,
as somebody once called
the Constitution,
a machine that runs itself.
I disagree.
I think eternal vigilance
is the price
of keeping it in working order.
JUDGE LAWRENCE TRIBE

"No," said those in favor of a Bill of Rights, "we all understand that the intent of the government is not to restrict freedom, but we don't know what some nefarious people twenty, fifty, two hundred years from now might attempt to do with the Constitution. The Constitution is a contract between the government and the people. It is important to spell out clearly not only what the government can do, but what it cannot do as well."

"But," argued those against a Bill of Rights, "if we specifically say that the federal government cannot do certain things, then the implication will be that it can do everything else. The list of what it can't do could go on forever. And what about those things it can't do that haven't been invented yet?"

Those in favor of a Bill of Rights responded, "We will make the limitations general enough to cover large areas of freedoms, but specific enough to give a clear indication of what we mean. The basic form of government in the world today is tyrannical and opposed to individual freedoms. We want the people of the United States, all the world, and all posterity to see clearly—without having to read between the lines—the freedoms we believe the government simply cannot take away."

The pro–Bill of Rights argument won the day. So those in favor of the Constitution as it was said, "Let's pass the Constitution as it is, and we'll immediately begin working on a Bill of Rights." It was this promise of a Bill of Rights that got the Constitution enough support to become the supreme law of the land. The basic Constitution was submitted to the states for ratification in 1787, and ratified in 1788. In 1789, at the first session of Congress, the Bill of Rights was proposed, and its adoption was certified on December 15, 1791. (The three states that failed to ratify the Bill of Rights—Massachusetts, Georgia, and Connecticut—eventually did so. In 1939.)


The minute you read something
that you can't understand,
you can almost be sure
it was drawn up by a lawyer.
WILL ROGERS

Let's look at the Bill of Rights in David Letterman order—from ten to one. To the average citizen, the First Amendment—guaranteeing freedom of speech, the press, assembly, petition, and freedom of and from religion—seems the most important. From a legal point of view (many of the founding fathers were lawyers, and the judges in the courts interpreting the Constitution today are all lawyers) number ten is the most significant.

The Tenth Amendment reads,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This affirms what the founding fathers unanimously agreed on at the time—that if the Constitution didn't specifically take away a power (that is, a right or a freedom) from the people, the people kept it. This settled once and for all, the fundamental question, "Does the government inherently have all the power and then dole out rights to the people, or do the people inherently have all the power and—in exchange for certain benefits—surrender specific powers to the government?" Concerning the government of the United States, the answer is clear: the people inherently have the power and turn specific powers over to the government in exchange for certain benefits. These powers were detailed in the Constitution (the Enumeration of Powers), and all other powers belong to the people.


The layman's constitutional view
is that what he likes
is constitutional
and that which he doesn't like
is unconstitutional.
JUSTICE HUGO BLACK
The Ninth Amendment says,

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Just because the Constitution says you have certain rights does not mean that you don't also have other rights which the Constitution didn't bother to enumerate. This amendment was designed to counter the argument, "If we list certain rights, then it might be supposed that those are the only rights the people have." As in the Tenth Amendment, the people clearly hold all the rights, and just because some of those basic rights are listed in the Constitution does not in any way mean to limit the rights not mentioned.
The Eighth Amendment reads,

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

To me it seems both cruel and unusual to punish people for doing something that potentially could harm only themselves. This is especially true when the punishment is almost always worse than the damage they might do to themselves. Such punishment is, however, so usual we've become numb to its cruelty.
The Seventh Amendment guarantees a jury in civil matters. While the government is there to protect us from harm, it cannot protect us from all possible harm, nor can it lock up everyone we feel has harmed us. The government can, however, guarantee a fair system by which disputes between individuals (civil matters) can be settled. This system is a trial by jury.
We can't make everything a criminal matter, the Constitution is saying: we can't lock up every citizen who displeases another citizen. Citizens do, however, harm each other in ways not prohibited by criminal law, and there should be a system for rectifying the harm.

An individual,
thinking himself injured,
makes more noise
than a State.
THOMAS JEFFERSON
1785

If, for example, I borrow ten dollars from you and do not pay it back when promised, I have physically harmed you (by not returning your property). I have not, however, stolen from you in a criminal way: you did, after all, consent to loan it to me. Implied in the consent to loan is the risk you won't get it back. (A victim of criminal thievery never consents at any point.) Nonetheless, the ten dollars is rightfully yours. While you cannot put me in jail, you can take me to court, and the government's job is to (a) make sure the rules of the court are fair and equally applied to us both, and (b) use force, if necessary, to carry out the judgment of the court. If the court finds in your favor and orders me to pay the money but even then I refuse to pay it (never loan money to a writer), the court can send law enforcement agents to seize my property, sell it, and pay you your ten dollars from the proceeds. It cannot, however, throw me in jail until I pay up.

This amendment acknowledges that not every physical harm one person does another is a criminal offense. How much less a criminal offense it must be, then, when people only potentially harm themselves. Not only does the Constitution have no authority to regulate personal morality; it offers no system by which to do so. This amendment also gives moralists a system by which they can protect themselves without using the full force of the criminal justice system. The moralist groups can take those who offend them to civil court. Let a jury decide. The reason most moral groups don't do this is (a) most of their cases would be thrown out of court for lack of sufficient grounds and (b) most cases that went before a jury would lose.


Anyone who does anything
for pleasure
to indulge his selfish soul
will surely burn in Hell.
LENNY BRUCE

Instead, moralist groups threaten—or have elected—legislators, badger police, intimidate the media, and frighten the public into using the criminal arm of the law to punish the very same actions they could not hope to control in civil court. For example, if there were no laws against drug use, can you imagine Pat Robertson taking me to civil court and getting a court order prohibiting me from smoking pot in my own home? Jerry Falwell believes drinking alcohol is a sin. Can you imagine how few liquor stores he could close through the civil courts? (His political-spiritual ancestors, however, closed down all the liquor stores during Prohibition by making possession of liquor a criminal offense.)

The Constitution made provisions for the settlement of civil disputes so that the government could use its criminal enforcement arm for only the most clearly criminal acts. The acts of civil misconduct—even many that do cause physical harm to others—the Constitution left to the civil courts.

The Sixth Amendment lists one's rights in criminal prosecution. This amendment guarantees "the right to a speedy and public trial, by an impartial jury." One of the requirements for this jury trial in criminal prosecutions is for the accused "to be confronted with the witnesses against him." In a trial for a consensual crime, who are the witnesses against the person accused? In a genuine crime (except murder, of course) the victim can come forth and testify against the accused. If someone pushes you down and takes your money, you can go to court and testify against the person who did it.


[The Bill of Rights is] designed to
protect individuals and minorities
against the tyranny of the majority,
but it's also designed to protect
the people against bureaucracy,
against the government.
JUDGE LAWRENCE TRIBE

But if there is no clear-cut victim, who is there to testify "against" you? In trials involving consensual crimes, the witnesses are generally the police ("I broke down the door and after a diligent search of the premises found a small bag containing two grams of white powder which I believed to be an illicit substance"), friends of the accused who testify against the accused in order to avoid prosecution for the same consensual crime (this is called "turning state's evidence" as well as "turning on your friends"), police lab technicians who proclaim, "Yes, this is pot," and state social workers who proclaim, "Yes, this is a prostitute." None of these people was harmed by the accused. In fact, all of them are being paid by the government in some way to testify.

The intent of the Sixth Amendment was that before the government can punish a citizen, the person or persons harmed by that citizen must stand in public court and tell a jury what harm was done to them and how the accused did it. In cases involving consensual crimes, unharmed, government-paid (or government-coerced) witnesses testify against Accused A, who could just as easily be Accused B, C, or D. This system, to which we have become painfully accustomed (it's used for roughly half the court cases in the country), is an obvious perversion of the intent behind the Sixth Amendment's requirement that the accused "be confronted with the witnesses against him."

The Fifth Amendment is most famous for the provision that one does not have to testify against oneself in a criminal case—to "take the Fifth." If you were made to testify against yourself, you would often be torn between self-incrimination and perjury. This amendment, too, offers protection against prosecution for consensual activities: since the only clear-cut victim in a consensual crime is the person involved in the crime, and the person involved in the crime is the one who would be accused, the Fifth Amendment says that you don't have to give any information about the crime. Hence, a lot of consensual crimes have—thanks to the Constitution—not been prosecuted as vigorously as they might. Courts can prove possession of drugs, but not necessarily drug use; prostitutes can be convicted for soliciting, but not necessarily having sex; gamblers can be convicted for being where gambling is taking place, but not actually gambling.


The privilege against
self-incrimination is one of the
great landmarks in man's struggle
to make himself civilized. . . .
The Fifth is a lone sure rock
in time of storm . . .
a symbol of the ultimate
moral sense of the community,
upholding the best in us.
ERWIN GRISWOLD
Former dean of Harvard Law School

Another important guarantee of the Fifth Amendment reads, "Nor shall private property be taken for public use without just compensation." This affirms the sanctity of private property. The government does not own or control our property; we do. If the government takes it "for public use," the government must provide "just compensation." In other words, even if the public—the people—have a pressing need for your private property, they can't have it unless they justly compensate you. This is a clear statement that the government will protect the individual against the majority and even protect the individual against the government itself. As we will explore more fully in the chapter, "Laws against Consensual Activities Are Opposed to the Principles of Private Property, Free Enterprise, Capitalism, and the Open Market," the idea of private property encompasses the idea that we can do with our property as we see fit—use it, sell it, trade it, give it, and, yes, even destroy it. As long as it doesn't infringe on the person or property of another, it ain't no government's business if we do.


The 4th Amendment
and the personal rights it secures
have a long history.
At the very core stands
the right of a man
to retreat into his own home
and there be free
from unreasonable
governmental intrusion.
JUSTICE POTTER STEWART
The Fourth Amendment begins,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .

Again, we have a clear directive that the government should stay out of our private property, unless it has a specific search warrant (described in the rest of the amendment).
The Third Amendment reads,

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Once again, the Constitution affirms the absolute sanctity of private property. Even a soldier—who may someday risk his or her life to defend your life and property—cannot spend a night in your house without your permission. Second, the amendment shows that, in time of war, things change. In time of war, it is understood that certain sacrifices must be made, but even then a soldier can't stay in a private house unless a law is passed allowing him or her to do so. In other words, the legislature must pass a bill, the president must sign it (or be overriden by a veto), and the courts are available for recourse if someone considers the law unfair. This is one of many safeguards in the Constitution against a police state, against a military body that decides its needs are more important than those of a citizen and takes what it wants by force. In order for this to happen, according to the Constitution, the Congress must first declare war and then, in addition to declaring war, pass a law stating that, for the duration of the war, soldiers may stay in private houses without the owners' permission and (going back to the Fifth Amendment) stating what sort of compensation the owners of the houses shall receive.

This provision speaks for itself.
Its plain object is to secure
the perfect enjoyment of that
great right of the common law,
that a man's house
shall be his own castle,
privileged against
all civil and military intrusion.
JUSTICE JOSEPH STORY
1833

The Second Amendment affirms "The right of the people to keep and bear Arms." Here is the constitutional basis of what some—mostly liberals—call the paranoia of people who feel the need to arm themselves.

The reasoning behind this amendment turns out to be not the paranoia of a few gun-stockpiling kooks, but the hard-edged pragmatism of the founding fathers; a pragmatism based firmly on historical precedent. People who are not permitted to individually keep and bear arms are relatively easy to conquer and subdue by even a small well-armed group. In taking control of an innocent group of people, a tyrant almost invariably first deprives them of their right to bear arms, making it easier to later deprive them of liberty and life.


Power may be at the end of a gun,
but sometimes it's also
at the end of the shadow
or the image of a gun.
JEAN GENET
Quite often the well-armed populace does not need to defend itself from a door-to-door attack because, frankly, a well-armed populace is such a deterrent that tyrants often spread their tyranny among the lambs and avoid significant interaction with the lions.
Imagine for a moment that you are a tyrant. Town A (Lambsville) has $10,000,000 in wealth spread among an unarmed populace of 10,000. Town B (Lionsburg) has $10,000,000 in wealth spread among 5,000 well-armed, well-trained citizens. Which town would you plunder first? As has been clear to tyrants throughout time, Lambsville will get shorn while Lionsburg sleeps peacefully in the sun.
Even our own government (and I'm not going to speculate on its position on the benevolent-to-tyrannical scale) pursues unarmed consensual crime quarries far more often than heavily armed ones. If the Branch Davidian compound at Waco had been your ordinary, unarmed weirdo cult, do you think any of us would have heard about what would have been a very uneventful raid? Although it would have made the front page in Waco, the swift round-up and eventual release of a band of odd believers would have been buried in the second section of the Dallas papers and probably never mentioned by Time, Newsweek, the Los Angeles Times, or the New York Times. And although the Branch Davidians died in the mystery inferno, they certainly made their point; I doubt very much if a branch of the federal government will be attacking an armed cult again in the near future.
On local levels, it is well known that individual drug users or casual drug sellers are arrested more often than residents of heavily fortified crack houses or well-armed drug-lord lairs. Most law enforcement officials just hate being shot at.

I'm a card-carrying member
of the ACLU and the NRA.
DAVID MAMET

It is in this space between the Second and the First Amendments that liberals and conservatives have their greatest split: liberals love the First Amendment; conservatives love the Second. This is also the space where liberals and conservatives show their greatest similarities: each uses the same reasoning in attempting to deny the other group rights guaranteed by the Constitution.

Both say, "Yes, it's in the Constitution, but . . ." and then give a variety of reasons why the supreme law of the land should be suspended in this particular case. The arguments for banning guns sound perfectly reasonable to liberals, and the arguments for banning pornography (for example) sound perfectly reasonable to conservatives. To the celebration and consternation of both sides, the Constitution guarantees both the right to bear arms and to bare arms (and anything else one chooses to bare).

Like it or not, the Constitution is the rules of the game. The rules cannot be changed by argument; they can only be changed by amendment.

Many will consider this book a liberal tome. It's not. It may seem to be a liberal tome only because the conservatives have been more successful in keeping the constitutional rights most important to them intact—as much as liberals might like it to be, gun ownership is not, for the most part, a crime.


After a shooting spree,
they always want to take the guns
away from the people
who didn't do it.
I sure as hell
wouldn't want to live in a society
where the only people
allowed guns
are the police and the military.
WILLIAM BURROUGHS
1992

The conservatives are to be congratulated for this. If the conservatives hadn't done as good a job, and gun ownership were illegal, it would be on the list of consensual crimes. As the NRA puts it, "Guns don't kill people. People kill people." Amen.

The press is astonishingly biased when it comes to reporting acts of violence performed by individuals using guns. My favorite is the almost universal use of the term assault weapons. In fact, these semi-automatic Gatling guns could be just as accurately called "family and children protection devices." Who is to say that one of those portable bullet-spewing contraptions won't be used to defend innocent would-be victims from the deranged attack of a lunatic armed with merely a .457 magnum?

Further, those who argue for an unarmed populace do so based on the fantasy that the government can protect us from physical harm. If a burglar is breaking down your door, do you think the police will protect you? The burglar would be in and you'd be out cold before you could get 911 to answer. But if you have a gun, there's no need to wait. Protection is—literally—at hand.

We look at the number of hand gun deaths in this country (which is appalling), but who is to say how many crimes of violence were prevented by the potential victim's judicious production of a gun or by a criminal saying, "Let's not mess with him; he keeps a gun." One study showed that for each crime committed with a gun, 67 crimes were prevented with one.

The inordinate amount of Americans killing each other is caused not by guns, but by the ongoing psychotic breakdown in our culture. Picking up a gun does not instill in one the urge to kill; people have the urge to kill and then pick up guns. If there weren't a single firearm—antique or automatic—in this country, we would still be murdering each other in astonishing numbers. We would just be offing each other with kitchen knives, poison, bombs, and a few hundred other devices.


Television has brought back
murder into the home
—where it belongs.
ALFRED HITCHCOCK

Does this mean we should stop the murderers by banning kitchen utensils, household cleaners, and all the rest? I am told that you can effectively do someone in by slipping ground glass into his or her Lean Cuisine. Do we ban glass? Then there are blunt instruments, high places, bathtubs, electricity, and a whole series of potentially lethal "weapons" that can be put to use by even remedially creative humans bent on the destruction of others.

As with drugs, prostitution, gambling, consensual sex, and all the rest, it's not the item or act that causes misery, but human misuse of same.

The liberal agenda to ban private ownership of guns is as much a constitutional violation as the conservative agenda to continue the ban on prostitution, pornography, or other currently illegal consensual activities. (The war on drugs now cuts across conservative/liberal lines, although, as we shall see, it started as a conservative notion.) Rather than take away the conservatives' constitutional rights with the same logic that the conservatives use to keep the laws against certain consensual activities on the books ("It hurts people!"), the liberals might be better off using some of the conservatives' tactics in pursuing their own not-fully-realized constitutional guarantees. (The NRA is powerful, but the ACLU is no slouch.)


History teaches us
that men and nations
only behave wisely
once they have exhausted
all other alternatives.
ABBA EBAN

To continue to live together under the Constitution, liberals must learn to give the conservatives their constitutional "favorites," (gun ownership, private property, strong militia), and conservatives must bite the bullet and give the liberals their favorites (freedom of press, freedom of and from religion, personal privacy).

Until the Second Amendment is repealed, people have a right to own guns. Until the First Amendment is repealed, people have the right to free speech, press, and religious choice. That's politics. That's tolerance. That's compromise. That's cooperation. That's the Constitution.

There. Now that I've got everybody mad, let's move on to the greatest friend of the currently illegal consensual activities, the First Amendment.

The First Amendment. Ah, the best for last. The First Amendment, forty-five words that spell "freedom." Here it is in its full glory:

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.

Allow me to emphasize one portion of the First Amendment: "Congress shall make no law"—allow me to emphasize that again:

NO LAW

—allow me to emphasize that once again:

NO
LAW


I am for the First Amendment
from the first word to the last.
I believe it means what it says.
JUSTICE HUGO BLACK

—"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." (Emphasis added.)

Considering these forty-five words, by what authority does Congress dare make laws based on limiting assembly, speech, and religion? The Enumeration of Powers, as we have seen, does not give the government this authority—and even if it did, the First Amendment would take away.

The freedom of religion is guaranteed to us twice: the freedom from religion and the freedom of religion. Most laws against consensual activities are based on religious beliefs.

With the implementation of the Constitution, the United States government broke from almost every other government in the world by not establishing an official state religion ("Congress shall make no law respecting an establishment of religion . . ."). In the 1700s, Virginia (the home state of Thomas Jefferson and George Washington) used tax dollars to support the Anglican church. Both Jefferson and Washington saw firsthand how un-free, unfair, and downright unworkable it was. In the next chapter, on the separation of church and state, we'll explore the restriction of freedom, not just by the established state religion, but by the battles fought over which religion would become The One.

The second clause of the First Amendment prohibits Congress from making any law "prohibiting the free exercise" of religion. If the Constitution guaranteed no other freedom than this one, it would be enough to immediately abolish all consensual crimes. Who is to say the practice of my religion should not include any activity currently on the list of consensual crimes (as long as it does not physically harm . . . etc.)? More on this in the next chapter.


The First Amendment
makes confidence
in the common sense
of our people and
in the maturity of their judgment
the great postulate
of our democracy.
JUSTICE WILLIAM O. DOUGLAS

Congress shall also make no law "abridging the freedom of speech, or of the press." Well, there go all the censorship arguments. Period. "No law" is no law. I don't know how anything could be any clearer than that—and yet, and yet . . .

As Frank Zappa explained,

Asked random questions about the First Amendment and how they would like to have it applied, if you believe in polls at all, the average American wants no part of it. But if you ask, "What if we threw the Constitution away tomorrow?" the answer is "No, that would be bad!" But living under the Constitution is another story altogether.

Also guaranteed in the First Amendment is "the right of the people peaceably to assemble." This constitutional guarantee is often set aside in hysteria over consensual crimes. Law enforcement agencies must merely claim that the people peaceably assembling are primarily homosexuals (or prostitutes, or drug dealers, or bookies, or indigents), declare the assembly to be "loitering," and the assembly is "legally" disassembled. Even private gatherings have a long history of being raided. This clearly goes against the freedom of peaceable assembly clause, but as with so many constitutional violations, it's been going on for so long people forget to notice.

The final guarantee of the First Amendment is the right of the people to "petition the government for a redress of grievances." Have I suggested yet that you write a letter to all of your elected representatives suggesting the elimination of all laws against consensual activities? No? I will.


Can any of you seriously say
the Bill of Rights could
get through Congress today?
It wouldn't even get out
of committee.
F. LEE BAILEY

Over the years, other amendments have been added to the Constitution which either directly or indirectly affect consensual crimes. None of them gives the government the right to control crimes without clear-cut victims—except the Eighteenth Amendment (Prohibition), which was so blatantly unsuccessful it was repealed by the Twenty-first Amendment thirteen years later. But even Prohibition proves the point: if you want to regulate an activity that does not have a clear victim, it takes a constitutional amendment to do so.

No state or federal law has the power to override the individual freedoms guaranteed each of us in the Constitution and the Bill of Rights.

Let's look at a few of the amendments which have been passed since the Bill of Rights.

The Fourteenth Amendment—hard won by the Civil War—guaranteed that a state could not take away the freedoms granted by the Constitution.

. . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . .

This amendment affirmed once again that the Constitution and the Bill of Rights were the supreme law of the land and the rights guaranteed by the Constitution could not be taken away by any state under the guise of "state's rights."

It also guarantees that a state cannot "deprive any person of life, liberty, or property, without due process of law." This affirms, once again, that we are innocent until proven guilty in a court of law, and that no group—even a majority—has the right to deprive "any person" of his or her "life, liberty, or property" just because the majority doesn't like the way that person is living. The Fourteenth Amendment is our greatest protection against a police state and against the rule by the iron whim of either the majority or a highly vocal minority.


It was we, the people;
not we, the white male citizens;
nor yet we, the male citizens;
but we, the whole people,
who formed the Union.
SUSAN B. ANTHONY

The Sixteenth Amendment, passed in 1913, gives the federal government the authority to "collect taxes on income." This reaffirms that the Constitution can only be changed by amendment. Although taxing people's incomes removes a great deal of power from the people, there is something that removes even more power from them: jailing them.

The Eighteenth Amendment. The day this amendment was ratified was a dark day in the history of freedom. One has to give the Prohibitionists credit, however, for at least doing it right. If the government is going to take away basic freedoms, the only way it can do so is through a constitutional amendment. Period. All lesser laws must fall before the "supreme law of the land" and the supreme law of the land sides with individual freedom.

The Nineteenth Amendment gave women the right to vote. It's hard to believe that in this country women did not have the right to vote until 1920. (Women didn't get the right to vote in Canada until 1948!) The outrageousness of this is another issue. Although the Constitution could have been reinterpreted to include women, it was not. This amendment is another example of change—in this case giving rights rather than taking them away—requiring a constitutional amendment.


There is as much chance
of repealing the 18th Amendment
as there is for a humming-bird
to fly to the planet Mars
with the Washington Monument
tied to its tail.
MORRIS SHEPPARD

Section 1 of the Twenty-first Amendment, ratified in 1933, repealed the Eighteenth Amendment. Section 2 of the Twenty-first Amendment is also significant:

The transportation or importation into any State, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

This was a compromise tossed to the Prohibitionists (still powerful in 1933) which allowed individual states to continue Prohibition if they so chose. Note that the control of "intoxicating liquors" had to be constitutionally given from the federal government to the state governments. The implication here is that other consensual activities—such as the use of drugs other than alcohol—are not within the province of the states to regulate. If people feel so strongly about the war on drugs (or warring on any other consensual activities), why don't they do the right thing by America, freedom, and the Constitution and propose an amendment?

The Twenty-seventh Amendment is mentioned here primarily for its entertainment value. It limits the number of pay raises Congress can vote itself. (Not the amount of the raise; just the number of raises.) Proposed in 1789 by James Madison, it was finally ratified by Congress—in 1992.

So what happened? If the Constitution is so clear about our personal freedoms—as it obviously is—how did we lose them?

We never lost them because we never had them.


For most Americans
the Constitution had become
a hazy document,
cited like the Bible
on ceremonial occasions
but forgotten
in the daily transactions of life.
ARTHUR M. SCHLESINGER, JR.

As constitutional scholar Professor Robert Allen Rutland explained,

For almost 150 years, in fact, the Bill of Rights was paid lip service in patriotic orations and ignored in the marketplace. It wasn't until after World War I that the Supreme Court began the process of giving real meaning to the Bill of Rights.

After the Bill of Rights was passed, it was pretty much forgotten. In an 1818 letter to Thomas Jefferson, John Adams wrote,

When people talk of the freedom of writing, speaking, or thinking, I cannot choose but laugh. No such thing ever existed. No such thing now exists; but I hope it will exist. But it must be hundreds of years after you and I shall write and speak no more.

When it came to guaranteeing personal freedoms (usually known today as civil rights), the federal government was lackluster at best. When it came to using the Constitution to raise money or wage war, however, the government was in top form.

In 1794, the first major challenge between federal rights and states' rights took place. In 1791, Secretary of the Treasury Alexander Hamilton passed a tax on, among other things, liquor, to help pay off the revolutionary war debt (which was, in relative terms, greater than our national debt today). A group of Pennsylvania farmers decided they shouldn't have to pay a tax on their homemade whiskey, but the federal revenue collectors (the "revenuers") did not agree. The federal authorities applied pressure on the Pennsylvanians, and the chief revenuer's house was torched by the rebellious farmers. President George Washington personally led thirteen thousand troops to quell what the revenuers had told him was a mass rebellion. The troops found no rebellion. Several arrests were made, there were two convictions (later pardoned by Washington), and the Whiskey Rebellion was over.


America was born of revolt,
flourished on dissent,
became great
through experimentation.
HENRY STEELE COMMAGER

Many, including Thomas Jefferson, expressed concern that the federal government should so violently overreact. The point, nonetheless, had been made: Don't mess with the federal government when it comes to paying your federal taxes.

From the passage of the Bill of Rights in 1791 until the Civil War, states were generally allowed to violate an individual's constitutional rights as they pleased, as long as the federal government got its taxes and its troops.

The Civil War was not, as most people think, fought for the civil rights of the slaves. It was, in fact, an extension of the Whiskey Rebellion. The federal government said, "You do it our way," and the southern states said, "No, we're going to do it our way." Slavery was only one of the issues on which North and South disagreed. The primary disagreements were over (1) money and (2) men and equipment for war—which is a variation of (1).

The judicial view of slavery was made painfully clear in the Supreme Court's 1857 Dred Scott Decision. It proclaimed that slaves were not human beings but "articles of merchandise," that slaves "had no rights which the white man was bound to respect," and that slaves were never entitled to become citizens of the United States. (If you ever want to question the fallibility of the Supreme Court, look no further than this.)

When elected to office in 1860, ABRAHAM LINCOLN stated he did not like slavery personally, but he was willing to endure it for the sake of peace and national unity. Lincoln firmly proclaimed, however, that, although he was flexible on almost all other issues, he would have a Union and he would do whatever was necessary to preserve that Union.


[The South] has too much
common sense and good temper
to break up [the Union].
ABRAHAM LINCOLN
August 1860

Shortly after his inauguration in 1861, seven southern states decided to rebel against what they viewed as his too-paternal attitude and seceded from the Union. Had Lincoln acknowledged their right to secede, there probably would have been no war. Instead, Lincoln blockaded the southern seaports (essential for trade and Southern survival), the Confederates fired in retaliation on Fort Sumpter, and the war was on. In 1862, Simon Cameron, U.S. Secretary of War, wrote,

President Lincoln desires the right to hold slaves to be fully recognized. The war is prosecuted for the Union, hence no question concerning slavery will arise.

It wasn't until 1863 that Lincoln issued the Emancipation Proclamation as a political move to get the Northern Abolitionists on his side after two years of bloody fighting and few victories.

What was later portrayed as a holy war against slavery was, in fact, the federal government putting its foot down firmly and finally: United States Constitution (not any state constitution) was the supreme law of the land, and that was that.

Shortly after the North won the Civil War, the Thirteenth Amendment abolished slavery "within the United States, or any place subject to their jurisdiction." Although the slaves were technically free, they were not recognized as citizens. Denied all civil liberties, many of them continued working only for food and shelter—what became known as "slave wages."

The Fourteenth Amendment, ratified in 1868, gave full and equal citizenship to all slaves and an equal vote to all black men over the age of twenty-one. The Fourteenth Amendment also applied the personal freedoms guaranteed in the federal Constitution to the citizens of all states, and prohibited states from making laws restricting any of these rights.


The illegal we do immediately.
The unconstitutional
takes a little longer.
HENRY KISSINGER

And then everything was quiet again.

It was not until 1925 that the Supreme Court ruled the Fourteenth Amendment (1868) applied the Bill of Rights (1791) to all citizens of all states. U.S. Supreme Court Justice Edward T. Sanford wrote for the majority in 1925,

Freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States.

Over time, the Supreme Court—and even occasionally Congress and the president—have reluctantly "given" us some of the rights the Bill of Rights proclaimed for all citizens more than two hundred years ago. In fact, all the civil rights obtained have been taken, not given. Each and every fragment of freedom had to be won—hard won.

No one is ever given freedom. Power is never given away freely—either by tyrant or bureaucracy. Rights—even inalienable rights—must be claimed, and often fought for.

In 1912, Woodrow Wilson set the stage for people insisting on their natural and constitutional rights:

Liberty has never come from the government. Liberty has always come from the subjects of government. The history of liberty is the history of resistance. The history of liberty is a history of the limitation of governmental power, not the increase of it.

That's what this book is about: getting some of the rights we've had available to us since 1788, rights we never took the time or trouble to claim.


They said it couldn't be done
but sometimes
it doesn't work out that way.
CASEY STENGEL

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