by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Having watched closely the manner in which questions of liberty and power are batted around in the first part of the 21st century — most recently during the disgraceful contretemps that Indiana’s rather tame Religious Freedom Restoration Act provoked across the land — I have come to wonder of late whether the Bill of Rights could be ratified today.
In its classical mode, liberalism requires the citizenry that it serves to respect the crucial distinction that obtains between the principle of a given rule and the consequences that the rule might feasibly yield. Simply put, a country in which the people regard certain individual rights as inviolable axioms of nature — and who accept with alacrity, therefore, that they will often be used for ill — will be a country that boasts protections of those rights within its national charter. A country in which the people are focused primarily on what might be done with those rights, by contrast, will be a country that prefers to elevate and to abide by the whims of transient majorities — or, perhaps, by the discretion of a supposedly enlightened few. In Indiana, we were given an insight into which of these countries the people of the United States would rather live in. …
… One can only imagine the attack ads that would today be marshaled against the Bill of Rights. Posited in 2015, the First Amendment’s speech protections would likely be characterized as “anti-gay” or “pro-racist” measures that had been cynically contrived to protect the capacity of bigots to say disgraceful things with impunity and to reinforce the various power structures and privileges that are at present claimed to be destroying America. The “freedom of the press,” meanwhile, would be openly disdained as an overture to the corporate purchase of elections; the “right of the people peaceably to assemble” would be regarded as a direct threat to the sanctity of the land around the entrance to abortion clinics; and the wide-ranging conscience protections contained within both the establishment and the free-exercise clauses would be cast as a devilish recipe for theocracy that would allow the irrational to operate without oversight and the backward to undermine the great cause of Science.
To run down the list is to see the modern objections fall neatly into place. As it is so often, the Second Amendment would be cast as a recipe for “Wild West” anarchy, an open invitation to sedition for those white, mountain-dwelling racists of the Southern Poverty Law Center’s nightmares, and an overture to the execution of children. The Fourth, the Fifth, and the Eighth would be denounced by both overzealous law-and-order types and totalitarian feminists as damnable “soft on crime” provisions intended to help dastardly types get away with raping college students and selling drugs to the vulnerable. And the Ninth and Tenth would be attacked viciously by our seemingly endless plague of ambitious public-policy graduates, almost all of whom believe down to their ill-fitting boots that there is no problem so small or so personal that it cannot be solved nationally. Precisely because it has such a limited effect in restraining the government, the only provision that would remain would be the Third, about quartering soldiers, although one can only suppose that John McCain and Lindsey Graham would put up quite the fight.