I meet regularly with a group of crotchety old vets; all of them smarter and better educated than I am. This is nothing official, just a few hours of chewing the cud and telling old stories. I assure you; “First Liar” doesn’t have a chance with this group.
At our most recent meeting one of the guys, a retired State Justice asked me what I thought was the most important amendment to the Constitution. My immediate and automatic reaction was: “The Second”.
He laughed and corrected me saying: “No dumbass… the 21st.” I should have known it was a trick question but it stuck with me and I decided to find the answer.
So, I pose the same question to you: “What is the most important amendment?” There is no wrong answer; there are 26 to choose from so before you continue reading please take a moment and answer that question to yourself.
What did you come up with? Was it the 2nd? The rights to bear arms and have an organized State Militia are bastions of freedom. These two provisions are our only guarantee that we will never again be outgunned by tyranny.
How about the 4th or 3rd? A man’s home is his castle; the right to be secure in your home is simply non-negotiable. Or did you choose the 1st? Freedom of expression, religion and speech are all essential to a free Republic. Did you possibly venture beyond the “Big 10” maybe to the 25th? Good choice; Progression and transfer of presidential power; a biggie no matter how you look at it. I discovered it is hard to nail an answer down so I decided to consider why we even have amendments to the constitution; maybe that would help narrow the field.
Amendments are just afterthoughts, edits, issues the founders forgot to address in the original draft. No one considered the need to codify a man’s right to speak his mind or carry a gun until one of the founders, specifically James Madison, realized that our Constitution as written left some gaping loopholes that a tyrant could easily use to take away those basic rights. In 1789 Madison proposed twelve amendments; ten of which were ratified and are now referred to as “The Bill of Rights”.
Over succeeding years various issues rose up that were addressed by constitutional amendment. Amendments address everything from individual issues of common sense like who is covered under constitutional protections and the idea that no man can own another man all the way to purely political issues as are addressed in the 18th. (Repealed).
The founders designed our system to allow the law to be a fluid reflection of the values for which our republic stands. It is one of the things I love most about our system of law. It is however this very fluidity that endangers the freedoms the founders intended.
Technically, anything in the constitution can be amended. Every freedom, every right, every check and balance that our constitution provides can be legally stripped by constitutional amendment. “Sure… but it is almost impossible to get an amendment passed… Right?”
Wrong… It has happened 27 times and while it is an arduous process, it is possible and has happened as recent as 1992. Remember Madison’s twelve amendments that I mentioned earlier? Number two was never ratified but it was also never vacated; so it just kind of hung out there from 1789 until 1992 when it was reconsidered and ratified becoming the 27th amendment.
So what good is the constitution as a whole if it can be changed so easily? The answer is in the amendment I believe is most important: The Tenth, the last of Madison’s twelve amendments.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Amendment – X, The Constitution for the United States. Ratified – 1789
Paraphrased it says “any authority not SPECIFICALLY given to the Federal Government by constitutional provision automatically resides with the States and the people” According to the 10th Amendment the Government has ONLY the power we give it. Without the Tenth Amendment the Executive branch would have full authority to change the constitution at will.
McCulloch -v- Maryland (SCOTUS – 1819) does give Congress certain implied powers not specifically outlined in the body of the constitution but also places reasonable limitation on such powers stating: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution… ”
What a profound declaration of the delegation of power in a representative republic. Instead of authority automatically being assigned to government it automatically resides with the states and people. All governmental authority has its foundation in the Constitution. This is one of the major differences between our Republic and other democracy based governments.
This concept of ultimate authority reaches all the way to the US military. We are one of very few groups of warriors in the world who DO NOT swear an oath to a person, an office, a monarch or even to a government. Our oath is essentially to our people. The first clause of the oath we took includes the words:
“I will support and defend the Constitution of the United States against all enemies, foreign and domestic… I will bear true faith and allegiance to the same…”
For ME that oath is a life commitment, a blood covenant; so I decided to educate myself to the content of this document I deemed so sacred that I swore my life to uphold it. If you are not as familiar with our constitution as you would like to be; I attached two links to a searchable copy of the entire library of relevant documents including the pre-republic period right up to present and a full library of US law.
Try to remember that the founders selected “e pluribus Unum” as the motto of our Republic for a reason and that Lady Liberty’s only true defense is the ability and resolve of those who love her to wage revolution in the event she ever be in peril from tyranny.
McCulloch v. Maryland, 17 U.S. 316 p.421 (1819) http://www.law.cornell.edu/supremecourt/text/17/316#ZO-17_US_316ast
This article first appeared in The Havok Journal on 19FEB15.