The Bill of Things They Thought Were Important in 1791

The United States has an odd relationship with its Bill of Rights. One might say a fetishistic, nigh-sexual obsession with it. Not everyone's obsessed with the same amendments, sure. Hell, you almost never find a hardcore third amendment supporter. Except us. NO SOLDIERS QUARTERED! GET OUTTA MY HOUSE, YOU SOLDIER!

Aww...

But that ol' Bill of Rights, what a thing! What an important thing to wave around! So important that we need to constantly argue about the intent of the Framers! What they thought about these ten sacred amendments should determine what we do now, in the 21st century! Their thoughts were so important!

I guess we just need to ignore the fact that the great majority of them just didn't even want the damn thing in the first place.

No, really. At first only George Mason and Elbridge Gerry (the guy they named Gerrymandering after) wanted a Bill of Rights. Everyone else wanted them to shut up so they could get this damn Constitution thing over with.

Apart from understandable Constitutional Convention Fatigue, there were two big reasons that most of the Founding Fathers didn't want a Bill of Rights tacked onto the end of the thing. One reason was articulated by none other than eventual author of the Bill of Rights James Madison in Federalist 48:

Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government.

What Madison is saying here is that a Bill of Rights is a "parchment barrier," a paper shield that won't actually do anything to protect the rights printed on it. You can make all the bills of rights you want and it won't stop someone who really wants to violate the rights contained in them. Obviously Madison changed his tune over time, but based on his private writings it's thought that his shift to a pro-BoR stance was at least partially a strategic pivot to get the Constitution ratified.

The other major argument against a Bill of Rights was that it would actually end up being counterproductive to the goal of limited government. This was covered by Alexander Hamilton in Federalist 84:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.

I understood that reference.

Hamilton was not throwing away his shot to point out that if you say the government can't regulate thing A, some might argue that such a claim implies a power to do so when none is otherwise stated; moreover a list could be seen as exhaustive, and anything that was not on that list would not be considered a right and thus subject to abridgement.

Not a decade later, President John Adams proved Madison's initial criticism of the idea by passing the Sedition Act of 1798, which made it illegal to publicly oppose the government. Great job, John!

Nowadays we prove the second criticism right every single fucking time some white asshole guns down a bunch of people and is politely taken into custody by the police instead of being shot down like a black kid with a Snickers bar. We prove it every time someone argues against meaningful healthcare reform. We prove it every time some dumbass thing kills a couple of kids and is immediately made illegal. Every time we take a card to the pharmacy to buy our government-allotted two boxes of Sudafed.

Stop us if you've heard the following before.

• I have a right to own a gun! It's right there in the Bill of Rights!
• Healthcare is a privilege, not a right!
• Why should I pay for someone else's kids to go to school?

Sound familiar? If you're American, they should. They're some of the refrains of the Greater American Self-Centered Bill of Rights Twatknuckle, and that's not a rare creature. You probably have at least one in your family, and a dozen or so as friends on Facebook. The Twatknuckle believes that the ten rights inked onto parchment 200 years ago by James Madison are the only rights that anyone has, and everything else is "a privilege," or "special rights," or "socialism" or whatever stupid-ass snarl word they've chosen to use today.

The Twatknuckle is a fundamentalist, a Bill of Rights ideologue, who views that list of ten things as Holy Writ, timeless, perfect, and unimpeachable. Moreover, it is a list that cannot be added to, either formally or informally. This, despite the fact that the ninth amendment explicitly states, *ahem*

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

Healthcare is a privilege, not a right! Shelter, food, clean water, clothing! All privileges, not rights! But owning 72 semi-automatic firearms just in case? THAT IS A MOTHERFUCKING RIGHT CAUSE THEY DONE SAID IT IN THEM THERE BILL.

Let's take our time machine back to 1789, however, when a bunch of rich white dudes, some of whom owned black people as property, were trying to figure out which rights should be in this bill that they had finally agreed to put together. They started with 17, collapsed them down to 12, and then 10 of them passed (one never did and another went on to become the 27th Amendment two centuries later). One of the things they did think all Americans needed guaranteed was the right to an attorney. Behold, the sixth amendment.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...blah blah blah jury and charges and blah blah blah...and to have the assistance of counsel for his defense.

Emphasis ours. Since we took our time machine back, let's put on some powdered wigs and get in there and harrumph with the rest of them.

You watch your ass.

Let's convince them that sure, a speedy and public jury trial is great, knowing your accusers is important, sure...But just fuck having counsel. That's not a right. That's a privilege! If you can't afford a lawyer, you shouldn't have stolen those Johnny Cakes! Or whatever kinds of shit got stolen in 1789. We don't know.

In the current timeline, a Twatknuckle who gets arrested can, should, and probably will demand a lawyer, and if he cannot afford one, the state has a handy Public Defender whose entire job is to represent the Twatknuckle to the best of their ability. Public Defenders are overworked, to be sure, and underpaid, but the system is there because dammit, it's right there in the Bill of Rights.

In the new timeline we created, though, when the Twatknuckle gets arrested he's fucked if he can't afford an attorney, and he'd never have it any other way. After all, IT'S NOT A RIGHT! IT'S A PRIVILEGE! I DON'T WANT NO SOCIALIZED LEGAL REPRESENTATION IN MY US OF A!

Let's put our powdered wigs back on and make one more change. Let's point out to the other Founding Fathers how it is certain that the progress of science and medicine will continue to grow and mature. That as the country becomes larger and medical intervention necessarily more specialized, more powerful, and thus more expensive, there is little doubt that in the future a large part of the citizenry will be unable to procure quality doctoring and thus be forced to suffer. That this is a clear violation of the Preamble's prescription that the government organized in the Constitution provide for the general welfare. Thus we must provide an amendment guaranteeing quality healthcare to all citizens of the Republic.

Now we've created a timeline where the Twatknuckle is a violent defender of universal, government-funded healthcare because of some words on some parchment a couple of centuries ago...But denigrates state-provided legal representation as [insert stupid adjective here] because it was not written on the same parchment.

Do you see how silly this is? How insane it is to hold fast to these ten items as if they are the be-all, end-all of human rights? If anything in that list had turned out differently, and many things easily could have, there'd be a nation of Twatknuckles loudly crowing about that version of the Bill of Rights instead of the one we have.

The Bill of Rights is a product of its time. This is inarguable, and if you try to argue otherwise you are a flaming fucking idiot. How do we know it is a product of its time? Because literally every bloody thing ever written is a product of its time. It is impossible for something not to be. Look at that damn third amendment! Nothing says "We just finished a war with Great Britain and are still butthurt about them quartering soldiers in our houses" than an amendment that was limited in its applicability then and has exactly zero now. It's like when a 10 year old sees a movie and suddenly it's his favorite movie for the next 6 weeks.

"But the Framers were so prescient! They could see what the country would need!" says the Twatknuckle, in its spring mating call.

Two counters. One: the third fucking amendment. If they didn't know that was a waste of ink right there, they weren't as prescient as the Twatknuckle thinks. Two: sure, at least a little, which is why there's a damn ninth amendment that says what it does and why amendments exist in the first place.

We here at Lifeguarding the Gene Pool do not believe in basing our current moral and political opinions wholly on the writings of dead people from centuries ago. We do not believe in any sort of religious fundamentalism, and that disdain for "things some dude wrote down" as a guidestar for modern life extends to the Bill of Rights. There are good ideas in there, but none are immutable and none are perfect and none are timeless and none fully represent the breadth of human experience and need.

"That's not a right because it's not in the Bill of Rights!" is a weak argument offered by ideologues and fundamentalists. "I get to do that regardless of the harm it causes because it's in the Bill of Rights" is the converse, and equally pathetic. We cannot have a realistic discussion of how to fix  the major problems in modern America as long as the conversation is mired in this kind of inflexible religious reverence for the Bill of Rights. Because it's not perfect; its contents are not all relevant to the modern world (THIRD AMENDMENT). Nor is it full and conclusive by its own admission.

The conversation needs to be wrested from the ideologues by people willing to have a conversation about what the nation needs now, and how best to achieve those ends. What really is sacrosanct in 2018? What outcomes do we desire, and what practices will lead to those outcomes?

Because remember: if we don't give two shits about the threat of quartered soldiers, and we don't (well, maybe you don't, but WE definitely do. I SAID OUTTA MY HOUSE, SOLDIER!), then why is it so god damned important to own a gun? And why is it so god damned important to make a right/privilege distinction for literally anything that isn't on that list?

Oh yeah: it's worth pointing out that the Greater American Self-Centered Bill of Rights Twatknuckle is often the exact same person who will declare that a cake shop has a right to not make a gay cake if they don't want to.

Really, friend? Where's that in your Holy Writ?