Bill of Rights Redux

People never ask me about the Bill of Rights. I consider this an unfortunate state of affairs because I have developed several cogent remarks that concern this subject. Lacking a proper audience I pollute the Internet.

1 – The Enlightenment

But before I interpret the American Constitution I should bring up the Enlightenment. The Enlightenment began, according to no extant account, when Shakespeare said that we should kill all the lawyers. This got people thinking, for the first time since Plato, about the role of government on the left side of the map. A man named Hobbes thought particularly hard about it, and he came to the conclusion that left-map governments were unaccountable manifestations of an ancient and Biblical sea-beast. Then a blind poet named Milton accidentally disagreed with him, arguing that parliamentary debate was in fact a byproduct of God’s decision to throw all of the dissenting angels into the same jail cell. This was an admittedly inauspicious beginning for something called the Enlightenment. Neither the scary teeth of sea-beasts nor the polemics of pandemonium seem conducive to the progress of civil society. Lucky for us a man named John Locke slayed the beast and boarded up Hell. Then he presented humanity with the tabula rasa, which Rousseau used to formulate the Social Contract. Concurrently across the European continent there was a boom of swarthy piss-taking, and writers like Jonathan Swift and Voltaire added irony into the mix. Now, instead of memorizing testaments and fearing Gods and Kings, people flipped through the Encyclopedia and laughed about the human anatomy. At about this time Thomas Jefferson stole many of these good ideas and put them in a box which he carried off to America.

I’m sorry for the long paragraph but the Enlightenment was a big deal and it’s worth knowing about. Some people think it’s old and dumb and that we should get rid of it. I disagree with them. It’s true that new words get old fast, and what ravished the greatest minds of the 17th and 18th centuries can bore the dullest children of the 21st. Swift doesn’t say anything about digital micro-transactions or pay-to-win PVP; Alexander Pope is mute when it comes to twitter war; Jefferson didn’t write a single word about the imminence of an AI overlord. It’s hard to respect the horseback Enlightenment from a jet-fueled perch in the sky. Scrolling through the totality of accumulated knowledge at the speed of light, we might think it’s all just some sexist tripe about the Rights of Man – or maybe it’s that weird hypocrisy which the American founders called ‘equality’. Or even worse, it’s the reason Robespierre chopped off all the pretty heads. I bet there’s someone out there who would say, “The Enlightenment is just a bunch of premodern hogwash we had to choke down at school – the lukewarm propaganda of some wistful pedagogues. Down with the canon!” But I think they’re full of shit. The Enlightenment isn’t reducible to the flaws of the people who started it, and it isn’t hostage to those who don’t want to understand it. That’s because the Enlightenment really did bring into the world a new kind of word – and that word never actually becomes old. Any person with the dignity to stand up and the nerve to speak is an unwitting procreator of more Enlightenment. It’s a shapeshifting meme-machine. It evolves. Every time you say something out loud and the Pope doesn’t kick you in the balls for it, you should thank the people who started the Enlightenment meme. And you should be proud that you just propagated more Enlightenment (even if you’re full of shit.)

I’m sorry for the even longer paragraph but the Enlightenment needs to be defended once in a while. Sometimes it gets taken for granted and I’ve noticed that when things get taken for granted they can fade away.

2 – Individual Sovereignty

And now that the Enlightenment has been defined and defended we can talk about the first ten amendments to the Constitution of America.

The first one is pretty good:

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.

If the whole Enlightenment ever got reduced to a single sentence it’s probably this one, because it establishes the sovereignty of the individual. That’s what it means to be ‘free’ – instead of yielding sovereignty to some overlord you take that responsibility on yourself, then share it with your friends and neighbors. In the Social Contract, Rousseau says that a person starts out in a natural and feral state of ‘independence’, which state is transformed to ‘freedom’ when the person makes a bargain with other persons under a common law. A sovereignty of the ‘general will’ can arise out this bargain if the people write their own laws (and subscribe to those laws). I think he was pretty much right about that. Individual sovereignty is what happens when feral savages come together and make a pact, and the pact is overall more beneficial to each individual than the original state of ‘independence’.

If we scrape away all of the pomp and drama, we can see that the American revolution (and its Constitution) was a very simple thing: Some people came together and decided they made a bad deal, and in order to make a new one they had to briefly become savages again. The Declaration of Independence is perfectly straightforward about this. And though Jefferson probably meant something different than Rousseau when he said ‘independence’, I think he purposefully refrained from titling his essay ‘The Declaration of Freedom.’ I’ve read that he was a pretty bright guy, and I bet he understood that ‘freedom’ is more complex and more difficult to attain than a simple and lawless anarchy. Telling the King to fuck off is sufficient for independence but not for freedom. First you savagely declare independence, then you remake the people with a new Constitution, and finally you secure the freedoms of individual persons with a Bill of Rights.

Therefore the first amendment, to the historically trained and philosophically discerning eye, reads a bit like this –

Under the new Government each individual may tell groups of individuals to fuck off, especially if those groups are religious or otherwise censorious; orgies are permitted, but only if the People is a Bear and the Government is Bottom Bitch.

Maybe you think that’s too vulgar and jarring, but the eloquence of the original isn’t less volatile. It’s easy to get transfixed by the monuments of our progenitors, and our basic impulse is to thoughtlessly worship them as if they’ve become sacred. They aren’t sacred, though; exorcising divinity from the government was half the point of the revolution. Our ‘rights’ are only as good as, and even more fragile than, the minds that uphold them. They are precious but never sacred. It’s also easy to forget, for similar reasons, that the brilliant minds which first engineered these rights had to tell the known world to fuck off.

And that’s how we got the freedom of speech. So, like, fuck you and fuck your cult, man.

3 – The Implication

The second amendment to the Constitution of America strikes a curious juxtaposition. Whatever your current political fetish may be, the ‘right to bear arms’ is a funny way to punctuate the Enlightenment. Here it is in full:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Imagine an average person who hears the news about the first two amendments for the first time. I think it’s likely that such a person would react like this:

“Extra! Read all about it! Bill of Rights passed in New York City!”
“Bill of Rights?”
“Ten Amendments to the Constitution, sir. Read all about it!”
“I’m out of pennies. How about a tease?”
“It’s an extra. Extras are two pennies.”
“Be a patriot – what’s the first one?”
“Well, alright. The first law they passed is that Congress shall make no law–”
“The first law of Congress is that Congress shall make no law?!”
“There’s more to it, sir. Congress shall make no law–”
“What’s the second law, then? Be a sport.”
“The second amendment is the right to bear arms.”
“Bear arms?”
“The right of the people to have guns, sir.”
“The first law of Congress is that Congress shall make no law, and the Second law of Congress is that I can have a gun?”
“As you like it, sir.”
“That’s a far out Congress!”
“Two pennies will getcha eight more amendments.”
“Who needs em?!”

We might be tempted to ridicule such simplicity, but there’s a funny kind of logic in it. After all, many of the subsequent ‘constitutional rights’ seem implicit in the synthesis of the first two. (Such a synthesis might read like this: The individual is sovereign, imbued with the right to defend that sovereignty with deadly force.) Once a people has the freedom to believe and speak as it chooses, and the right to defend that freedom with Arms, what more does it actually require? The third and fourth amendments, for instance, appear to be unnecessary. They are, respectively, the prohibition of quartering and the affirmation of personal privacy – a person is neither compelled to allow soldiers into his home nor is he expected to part quietly with his property. While I wouldn’t want to argue against these principles, and I’m glad that they are in fact explicit, I nevertheless feel some solidarity with the above silly gentleman. I mean, Congress already gave me the right to talk shit and carry a shotgun; my privacy is in the resulting implication.

So just for a bit of fun we chuck out the 3rd and 4th amendments. Who needs em?

(Now just you wait a minute, says the conscientious reader – This exegesis has gone too far. I for one prefer more rights to fewer rights, and I won’t have some joker deconstructing my Constitution. Such readers are reminded, with parenthetic empathy, that they didn’t even know about the 3rd amendment and that their right to privacy is historically tenuous. It’s things like the Patriot Act and Civil Forfeiture that make the 4th amendment a joke.)

4 – A New World Solidarity

If you’re paying attention and I’m making cogent remarks, we’ve stumbled together upon the following conclusion: The first four amendments in the Bill of Rights can be reduced to the first two amendments which can then be reduced to a single amendment, and a silly way to say that amendment is that all upstanding citizens have the right to talk shit and party with guns. If you’re paying attention really hard then you probably foresee that this is problematic. By embracing the individual sovereignty of Enlightenment and protecting it with Arms, we have indeed succeeded in banishing away the repressions of God and the despotism of Kings. But it’s a Pyrrhic victory because now we’re just going to get drunk and kill each other. We haven’t gained ‘freedom’ at all but instead reverted back to the feral state of ‘independence’.

So let’s skip ahead to the 9th amendment:

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

If the first four amendments can be understood as a general endorsement of individual sovereignty, and if the American way to express that sovereignty is to talk shit and party with guns, then the 9th amendment is the suggestion that we talk shit and party with guns in solidarity. It’s a reminder that the sovereignty of the self implies the sovereignty of others. You can, for instance, tell your neighbor that she is a ‘godless baby-murdering whore’ – but only insofar as the invective is reciprocal and invites an appropriate reply, in this case the imputation that you are an ‘ignorant fuckpuppet in a fascist ballet.’ In other words, you retain your right to talk shit to the extent that it does not impede your neighbor’s shit-talking. As for the guns – I suppose it is possible that neither party obtains satisfaction from such exchanges, in which case each is at liberty to ‘take offense’ and brandish a gun. However, similar to the reciprocity of speech, you may only shoot your neighbor to the extent that it does not impede your neighbor’s shot. A bit of inductive reasoning leads us to the conclusion that you probably shouldn’t shoot your neighbor because of words.

A cynic might construe all of this as an injunction to speak only with flippancy and to act only with impotency, resulting in ochlocracy rather than democracy. Individual sovereignty is great until you factor in all the individuals, at which point you discover that you traded in your cozy little cage for a frenzied mosh pit. The cynic might be right about that. But I’m an optimist so I tend to think everything is for the best.

5 – Digression Concerning Sovereign Citizens

I should pause here and explain more clearly what it means to be a ‘sovereign individual’ – because there are people who call themselves ‘sovereign citizens’ with whom I might otherwise be mistaken. In case you are familiar with this group and your suspicions have been aroused, I say plainly that the ‘sovereign citizen’ movement is bad. There are many sound arguments against it; I’ll briefly demonstrate that it’s a nonstarter and then we can get back to the Constitution.

The sovereignty of the individual is derived from the sovereignty of the many. This is only obvious after you think about it, so I understand why some people are fooled. A small person cannot alone conjure up a great authority, but many small people who come together can create such an authority. They may eventually lose it, or willingly surrender it to a few, but their initial cooperation is necessary for its creation. And while a people retains authority as a whole, each individual person has the ability to ‘usurp’ it at need. We call this usurpation of the general authority ‘rights’, and we say that under a common law a single small person can sometimes be as big as the whole group. This is the sovereignty of the individual, which you can also think of as the transcendence of the person in a sovereignty of the people.

Those who call themselves ‘sovereign citizens’ want to be transcendent persons without being part of a people. But that doesn’t make sense because if there is no ‘people’ then there is nothing to ‘transcend’. If they denied the social contract in its entirety and chose to live in the feral state of ‘independence’ I would respect them. If they called themselves wildlings and roamed naked in Montana I wouldn’t bother with a counterargument. But ‘sovereign citizens’, far from reverting to beasts of the field, live air-conditioned lives and use their cellular telephones to tweet about their ‘rights’. The contradiction is twofold: they want independence without the savagery and freedom without the responsibility. Unless the ‘sovereign citizen’ is willing to go full savage, such a person must seek out other such persons and form a group of people. But should an actual sovereignty arise in the new people, all the persons who formed it will reject it because their rejection of just such a sovereignty is the bond that united them in the first place. Theirs is a movement that cannot move – a nonstarter.

6 – Pleading the 5th

I’m glad we cleared that up. Now we can get back to the Constitution, and I can finally misquote James Madison:

“If all upstanding citizens have the right to talk shit and party with guns, then they’re going to spend a lot of time in court. I propose these four amendments which I believe will establish the rights of the defendant.”

James Madison was smart because he understood that shit-talking and party-gunning were both necessary for and corrosive to individual freedom. If people lawlessly ran around telling each other to fuck off and then shot each other for telling each other to fuck off, then they weren’t really a people. If, on the other hand, the Government rounded up all the fuckers and the shooters and locked them up and threw away the key, then the remaining people would interpret this as a revocation of their ‘inalienable rights.’ So he decided that the solution was to extend individual rights into the court of law.

We are all familiar with these amendments because of cop shows and courtroom dramas, so I will just briefly summarize them. The 5th establishes a Grand Jury in cases of ‘infamous crime’, then protects the individual against double jeopardy and self-incrimination, and then it says that an individual shall not be ‘deprived of life, liberty, or property, without due process of law.” The 6th follows this up with the right to a ‘speedy and public trial’, an ‘impartial jury’, and also the right to confront accusers and have a lawyer. The 7th is above my pay-grade because it only applies to persons with more than ‘twenty dollars’; so if you have more than ‘twenty dollars’ you’ll have to look into it yourself. And the 8th is short enough to be quoted in full: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ These are altogether the individual rights that extend into the court of law.

First, the 8th amendment is almost as bad as the 4th – not because it’s a bad amendment but because we never followed it in the whole history of America. Thirty-one states still practice the death penalty, and Delaware even hanged a guy as recently as 1996. Death in itself isn’t unusual, but it’s certainly the moment at which all cruelty converges. And those states that prohibit death nevertheless consign themselves to the lesser cruelties of solitary confinement, overcrowding, forced labor, draconian sentencing, and probably a few things I’m glad to be ignorant about. But we don’t require the ‘cruel and unusual’ clause to make the 8th look silly. ‘Excessive bail’ and ‘excessive fines’ are ubiquitous; they’re the lifeblood of American jurisprudence. The sovereign individual who is hauled before these magistrates is suddenly terrified of his own wallet.

And if we don’t use it that must mean we don’t need it. Bon voyage, 8th amendment – and take the 7th with you.

That leaves us with the 5th and 6th, which I admit are good and necessary. But we can tighten them up and combine them into one:

The sovereignty of naughty citizens shall not be revoked without the due process of law, by which we mean a public circus.

Detractors of such a rendering will object to its vagueness, and they’ll probably want their lawyers back – but I suspect that our courts would be unaffected by the circus clause. And I for one would much rather have circus duty than jury duty. At any rate the lawyers can sort it out among themselves; what’s important is that we have made a successful observation.

7 – Between two X’s

That leaves us with the tenth and final phrase in the Bill of Rights:

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 unassuming tidbit, which is rarely considered among the ‘rights of the people’, is casually the most profound part of the Constitution. Having established individual sovereignty and endowed it with tongues and arms, having circumscribed those tongues and arms by mutual injunction, having provided for the inevitable frictions of that injunction – the authors are themselves subjected to a flabbergasting reflection: Who the hell are we and what did we just write? Are we philosophers? politicians? soldiers and freedom-fighters? wise despots? aristocrats? Have we chiseled a federal dogma into stone or is this just a bit of sound advice? And their answer is simply that they are persons, and as persons they brainstormed a framework for a new kind of people. Nothing more and nothing less. The Constitution, according to the 10th, is the intellectual property of any person who believes in it, and as such it is an incomplete document and supine under the quill of the people.

If that feels like an old hat to you, snug but not exactly thought-provoking, I’d impose on your patience for just one more paragraph and then I promise I’ll wrap everything up.

There is another ‘top ten list’ with which the Bill of Rights is sometimes compared. The Ten Commandments, as revealed by Moses in Exodus 20, are the bedrock of the Judeo-Christian ethos and many people take them very seriously. It’s a list of thou-shalt-nots considered by billions to be sacred and revealed wisdom. Most of us can rattle off the important ones: no killing, no stealing, no fornicating, something about the Sabbath, be good to your parents, etc. The fact that we, in the 21st century, can manage even a vulgar recitation of the Commandments is a testament to their efficacy: the people who upheld this moral code survived. Many other codes were written down, the majority of which we probably don’t even know about, but those codes turned to dust along with their people. If surviving is a moral virtue then the Ten Commandments must be a virtuous (if outmoded) collection of laws. I don’t need to denigrate it. But imagine that Moses anticipated Madison and rounded out his list with an egalitarian flourish. Imagine that the 10th Commandment, instead of condemning thought-crime, vested in the Faithful a scrap of moral agency. Imagine that the 10th Commandment, uttered on the slope of Sinai, sounded like this: Take these laws, keep them in trust, and render them unto the times. Instead of dogma, instead of the expectation of a fearful and mindless compliance, God suddenly reflects a people’s faith back at them. These are good laws, He says, but they are incomplete and I trust humanity to finish the job. Imagine that sentiment as the crux of the Judeo-Christian ethos, and then imagine how different history might be.

The chasm between the old world and the new world, between divine sanction and human rights, sits more or less between these two X’s. One X marks the spot where God outlawed our thoughts, and the other X marks the spot where our thoughts constituted the law. The gulf between commandments and amendments is at least as wide as the Atlantic.

8 – A More Perfect Bill of Rights

Now I better wrap it up because I made that promise – which I’m already regretting because I have many more cogent remarks. But a promise is a promise.

Here’s the summary. Amendments 1 and 2 are happily conserved in a synthesis, which I call the ‘sovereignty clause’. Amendments 5 and 6 are also happily conserved in a synthesis, which I call the ‘circus clause’. Amendments 9 and 10 somehow survived the exegesis, and they form the ‘reciprocity clause’ and the ‘people’s clause’ respectively. Meanwhile, amendments 3,4,7, and 8 are declared dead or nugatory.

So without further ado I present a more perfect Bill of Rights:

Amendment I – The Sovereignty Clause
Under the new Government you are encouraged to talk shit and party with guns.

Amendment II – The Reciprocity Clause
That first bit applies to everyone; act accordingly.

Amendment III – The Circus Clause
Should the first two bits come into conflict, you’ll get a public trial.

Amendment IV – The People’s Clause
This is an incomplete list of rights.

And my final cogent remark is that, while I am obviously a swarthy piss-taker, you will find it difficult to argue that my version of the Bill of Rights is not in fact the operative one. That’s because privacy is dead, nobody has twenty dollars anymore, the American gulags are excessive and cruel and unusual, and soldiers won’t have sleepovers with me even when I invite them. These more perfect amendments to the Constitution of America are only ridiculous because America is a ridiculous person.


One thought on “Bill of Rights Redux

  1. Adam, love this. Great argument, so many wonderful lines. Excellent. I have missed your writing!!! Beth

    Sent from my iPhone


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