William Tucker responds to Harvard American History Professor Jill Lepore’s prolix rant in the New Yorker, attempting to trivialize the Constitution and bury Originalism beneath an avalanche of anecdotes.
During the First Congress’s debates over the Bill of Rights, one wise Congressman noted that someone better include a right of men to “wear hats, go to bed and get up when they please,” because someone was sure to come along and say if it wasn’t a “right” specified in the Constitution, it wasn’t allowed. The Congress recognized this problem and attempted to avoid it with the Ninth and Tenth Amendments:
IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people.
Conservatives have rightly seized upon the Ninth and Tenth Amendment as the basic concepts underlying the Constitution. It is a document in which the people grant rights to the government, not one in which the government grants rights to the people. Liberals never stop misinterpreting this formula. Bill Moyers once asked a Supreme Court Justice, “When are you going to grant us more rights?” as if we were all beggars huddled outside some royal palace petitioning for an extra slice of bread or another holiday. But liberals like it that way because a “Living Constitution” allows them to write their own preferences into stone as “constitutional rights” rather than achieving them through legislation. Abortion is a constitutional right, the death penalty is unconstitutional, and on and on. In some states the right of public employees to collect their pensions has been written into the constitution. Now how did that ever happen?
When conservatives argue that the Constitution is silent on such issues, they are accused of “Originalism” and forcing us to live in the past. How could a bunch of 18th century white men have possibly anticipated all the problems of the 21st century? But the Founding Fathers weren’t trying to solve our problems for us. They were simply giving us a set of ground rules that would allow us to solve problems ourselves. So far the system has worked magnificently. Let’s hope it stays that way.