Constitutional Limits

The Colorado Freedom Report:  A libertarian journal of politics and culture.

The Colorado Freedom

Constitutional Limits

by John K. Berntson, December 31, 2003

The highest court in the land upholds the muzzling of free speech -- specifically: political speech. The US Army sits in Iraq for the second time in two decades and in neither case was a declaration of war issued. Law enforcement officers routinely stage surprise attacks in the execution of search warrants and can now conduct searches without even notifying the suspect after the fact. Rick Stanley sits in jail for daring to wear an appliance strapped to his hip on the wrong side of an imaginary line.

How did we come to such a place? Why are the most basic provisions of the US Constitution so routinely ignored by those who are supposed to be our servants? Why does the Constitution fail to protect us as it once did?

It is that last question that is the key to understanding the problem. It assumes a belief, held by generations of Americans, including many of our friends today, that the Constitution offers us some form of protection, that this wonderful document was responsible for the liberty this nation once enjoyed, and that it should be able to provide the same today. It is this mistaken notion that leads so many of us to make strategic errors and waste time and effort in the fight to regain our liberty.

It is not the job of the Constitution to protect the people. It cannot do so. It never did. Rather, it is the job of the people to protect the Constitution.

The Constitution of the United States is a brilliant document, though not without flaws, that describes a world in which most of us in the freedom movement would like to reside. Most of us who pay attention to such things know that this Constitution does not grant us our rights, but merely says that the government must not infringe upon them. Most of us believe that these rights are actually granted either by God or by nature. This notion is also in error.

When I play a game of chess, I am not protected by the rules of chess. Rather, I am protected by my opponent's agreement to obey the same rules that I do. If my opponent breaks the rules, either by volition or honest mistake, I would have to convince him of his error and persuade him to obey the rules in future. If he refuses, my only option is to stop playing with him, but I have no way to force him to play by the rules. If I were to play tournament chess -- extremely unlikely -- then there would be an agreement between all parties, enforced by the organizers, as to exactly what the rules are and what will happen if they are violated.

Likewise, the Constitution represents an agreement between free people. It defines the role and limitations of government and, specifically, what rights the government must not infringe upon. It was drawn up by brilliant men and ratified by a people who understood and desired freedom. In other words: we granted our rights to each other. The document only has power when a strong majority in this country is willing to protect the agreement.

McCain-Feingold is the law of the land today because enough people have been convinced, rightly or wrongly, that money is the root of all corruption in politics and that preventing this corruption is more important than free speech. Our soldiers sit in Iraq today, without proper declaration, because one president after another has ignored this provision of the Constitution, Congress does nothing to protect its authority, and the people continue to vote for the politicians that allow it to happen. SWAT teams in ninja suits continue to batter down our doors -- and occasionally maim or kill the innocent -- because enough people believe that the fight against drugs is important enough to trump the Fourth Amendment. One gun restriction after another is enacted and upheld, because enough people are afraid -- or have been made afraid -- of seeing guns in their neighbors' hands.

In democracies, the politicians will always do what gets them the most votes, what pleases the voters, Constitution be damned. Libertarians and Constitutionalists delight in reminding us that our country is not a democracy, but a constitutional republic. In fact, we are both, because all countries, even the worst tyrannies, are ultimately democratic, in a crude fashion. Even the most evil dictator worries about the will of the people and only the stupidest of them tries to go too far, too fast, lest the people rise up and exact their revenge. In any country, the ultimate power rests with her people. If we demand rights that the majority no longer respects, then we are ultimately on the losing side of the battle.

There is, perhaps, nothing more pathetic than watching certain members of today's gun lobby engaged in protest, angrily demanding their Second Amendment rights. They resemble three-year-olds, demanding to stay up past bedtime. They act as though, because the Second Amendment is there, enshrined in the Constitution, that this is all the argument they need and that others must obey it. Of course, as history has shown, others need not obey it. So long as our political class perceives that the majority do not support gun rights, neither will they.

This is how people waste time and effort in the struggle. If gun owners wish to retain their gun rights, the very worst thing they can do is to continue to act as if their rights are sacrosanct. The only way they are ever going to win their battle, in more or less permanent fashion, is to convince their neighbors that they, the neighbors, want guns for themselves and that they need not be frightened of guns in the hands of honest citizens.

It is the same way for the rest of us. We must convince the people -- our neighbors, our families, our coworkers -- that they want to protect the Constitution as written. We must sell them on the idea that their lives will be better if their constitutional rights -- and, consequently, their neighbors' rights -- are protected.

The Constitution once seemed to have power, because the people understood the importance of protecting each other's rights, even in situations that led to what they perceived as undesirable outcomes. They understood why it was wrong to forcibly take money from others, even in a good cause. They understood that they must not interfere with the rights of others to say that which offended them, if only to protect their own right to speak. They understood that they needed to protect the minority, in order to protect themselves when they were in the minority. People understood the agreement and defended it.

While we often enjoy a lag time during which the courts continue to support constitutional provisions against the public will, while some people will still defer to the Constitution in much the same way as the British bow to their queen, and while we enjoy basking in the illusion that a piece of paper can somehow protect us, we slowly but surely lose the battle for freedom, because we fail to understand the nature of our protections. In the end, public opinion is the only coin of the realm. No amount of logical argument or legal precedence will long protect us from what the people believe is right or wrong. This is the difference between law and politics.

If we ever want to get our rights back, then we must stop demanding and start explaining. We must get the majority back on our side. We must be the Ghosts of Liberty -- past, present, and future -- showing America the true meaning of freedom. We must describe a better world, one in which people would want to live.

We must talk to people.

The Colorado Freedom