Constitutional mythbusters

Posted on September 19, 2011. Filed under: Arkansas Democrat-Gazette Columns | Tags: , , |

The expansion of cable television has resulted in a sort of magazine-esque approach to programming: There’s a show for almost every niche interest.

One of my favorites is a program called Mythbusters. Its premise is the simple idea of separating truth from fiction on widely held or commonly understood myths, rumors, movie scenes, adages, news stories or other popular suppositions. After experimentation to test the validity of a myth, the show hosts ultimately proclaim it either “confirmed,” “plausible” or “busted.”

As Constitution Week marks another year of distance between us and our self-governmental roots, it’s a good time to apply a 21st Century television show concept to the sometimes foggy education citizens have about our 18th Century Constitution.

Myth #1: The Constitution established a “wall of separation” between church and state.

Next to “we the people,” the “separation of church and state” is one of the most popularly circulated phrases associated with the Constitution. It makes the rounds every Winter Solstice as government entities across America confuse Christmas cheer with religious tyranny.

The only problem is, the wording itself never appears in the Constitution.

Instead, it was lifted from a letter Thomas Jefferson wrote to the Danbury Baptist Association in 1802 when he was president. The local Baptists there were complaining that their religious freedom was incomplete, given as it was by the Connecticut legislature as a “favor” since Connecticut had an official state church.

(Yes, even a dozen years after the First Amendment, several states still had official churches. Massachusetts was the last holdout, finally disestablishing tax-supported religion in 1833.)

Ironically, Jefferson was using the “wall of separation” phrase to explain why the federal government could not help them. He consulted with some New England officials to make sure his language wouldn’t be offensive. But the Constitution was clear: Congress could make no law respecting the establishment of religion. If Connecticut wanted an established church, that wasn’t a federal problem.

So Myth #1 is BUSTED. The Constitution did not create a wall of separation between church and state governments. Not even close.

Myth #2: The Constitutional framers didn’t want a Bill of Rights.

There is no dispute that the original Constitution was crafted, written, approved and signed without a Bill of Rights. That’s why the individual rights we most commonly understand to be constitutional these days are called “amendments.”

A First Amendment right to free speech and freedom of religion. A Second Amendment right to bear arms, and so forth.

So the puzzle about this myth isn’t whether, but rather why no bill of rights was included. And the answer, at least looking back, seems implausible at first glance.

The framers simply didn’t think a bill of rights was necessary.

At second glance, however, it becomes easier to see their reasoning.

To begin with, the convention wasn’t called to espouse grand theories of liberty or natural rights. Those had been eloquently covered 11 years prior with the Declaration of Independence. In addition, most state constitutions already had bills of rights protecting their citizens.

The convention had a practical, operational focus and an officially narrow purview: to fix the ineffective Articles of Confederation, the system of government in place since the end of the Revolutionary War. So many delegates felt no need to repeat what in their mind had already been stated officially and accepted.

Logically, to many of these learned men, it seemed impractical to list all the conceivable things Congress had no power to do. They chose instead to keep with their fervent philosophy that all powers rested with the people (and the states), except those explicitly granted to Congress.

Throughout that summer, a bill of rights was never mentioned on the convention floor until September 12th, when Virginia’s Bill of Rights author, George Mason, suggested it be added. But when brought to a vote, it failed 10 states to none, with even Virginia voting nay.

Popular support for a bill of rights surprised the framers once ratification began, but the sharp-tongued delegates defended their decision.

New York’s Alexander Hamilton didn’t hide his disdain for the illogical idea of disallowing activities that the government had no authority over in the first place. “Why declare that things shall not be done which there is no power to do?” he argued.

Noah Webster used sarcasm to dismantle another delegate’s argument that a bill of rights was necessary, and proposed a catch-all clause at the end of the list of enumerated rights:

“That everybody shall, in good weather, hunt on his own land, and catch fish in rivers that are public property . . . and that Congress shall never restrain any inhabitant of America from eating and drinking, at seasonable times, or prevent his lying on his left side, in a long winter’s night, or even on his back, when he is fatigued by lying on his right.”

Myth #2 is CONFIRMED. The Framers thought a federal bill of rights superfluous. It’s one of the few instances they got something wrong, however, and our federal Bill of Rights proved a wise addition.

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