
How We Learned to Love the Bill of Rights - pepys
https://www.bunkhistory.org/resources/1837?related=388&relationship_name=RELATED
======
Meekro
Reading the Soviet Bill of Rights is pretty instructive because it'll show you
how much such a thing is worth on its own.

Here is just a subset of the rights guaranteed by the USSR Constitution:
speech; press; religion (both to profess and refuse to profess); assembly
(including a specific right to demonstrate); participation in lawmaking;
inviolability of the person (from warrantless arrest) and of the home (from
unlawful entry or search); privacy of all correspondence (including phone
conversations); right to challenge actions of government officials and bodies
in court; right to a job; work week limited to 40 hours; free medical care;
welfare payments in old age, sickness, or disability; free housing; free
education; academic freedom for scientists.

It's a very good list, and what I listed above isn't even half of it [1].
Precisely none of those were actually respected by the government. Having a
Bill of Rights is great, but having a tradition of limited government, checks
and balances, and rule of law is what gives those guarantees any weight.

[1]
[https://www.departments.bucknell.edu/russian/const/77cons02....](https://www.departments.bucknell.edu/russian/const/77cons02.html)

~~~
danjayh
This is what scares me about the current attitude (nationally) towards gun
control. The right to bear arms is a basic civil right, unambiguously encoded
in the Bill of Rights alongside speech, assembly, religion, due process, etc.
Throughout history, taking away weapons has always been an early step down the
slippery slope to totalitarianism and stripping the populous of their other
rights. Just because it's unlikely to happen here -- that we _think_ it can't
happen here -- doesn't mean it will not. That's what everyone in all of
history has thought, but in fact by the time anyone realizes what's happening,
it's usually too late.

"All political power grows out of the barrel of a gun. The communist party
must command all the guns, that way, no guns can ever be used to command the
party." \-- Mao Zedong

~~~
kelnos
Let's talk in practical terms for a second, though. Do you truly believe that
gun ownership in the US could result in a bunch of citizens overthrowing the
US government should it become tyrannical? I just don't see it happening. The
US military is far too well-trained and -armed, and of _course_ a hypothetical
tyrannical US government would turn the military against its citizens if there
was an armed uprising. And they would win so laughably easily.

Now sure, there's the possibility that factions in the military would turn
against this tyrannical government and save the day, but you don't need the
2nd Amendment for that to work out.

~~~
rgbrenner
Afghanistan. 16 years, still haven't won.

And us citizens have more weapons than the taliban; longer harder to protect
borders than Afghanistan; and a population that would be sympathetic to the
cause. I wouldn’t be so sure the us military would win.

According to current military doctrine[0], counterinsurgency requires a
minimum of 1 counterinsurgent per 50 people in the population. If you assume
ALL us military personnel can serve in combat simultaneously (ie: no troops
required for supply lines, paperwork, management, etc), and you included all
police forces in the US, you would only get to 1 per 100.

So you say they would "win so laughably easily".. but according to the
military itself, it does not have enough troops to handle an insurgency in the
US.

0\. As written in the Army and Marine Corps field manual (and this doctrine
was based on research of past (us and non-us) conflicts)

~~~
rvo
Also, 99 percent of the US military will defect to protect their own country
against a rogue federal government. These are normal, good people who signed
up to protect us.

~~~
ionised
Are you sure about that?

History shows us that typically, soldiers will fight for whoever guarantees
their pay.

Combined with this;

[https://en.wikipedia.org/wiki/Milgram_experiment](https://en.wikipedia.org/wiki/Milgram_experiment)

it shows that money, orders and chain of command are powerful motivators.

 _These are normal, good people who signed up to protect us._

I wouldn't put that number anywhere near 99%. Probably closer to 50%. Maybe
even lower.

I'm sure the people in any given totalitarian regime once thought the same way
about their armed forces.

------
skookumchuck
Unfortunately, pretty much all of the BoR is regularly under attack. Those
rights have to be constantly reaffirmed.

~~~
exabrial
On their defense, people mean well, but 'the road to hell did paved with good
intentions' as they say.

1st Amendment is being attacked by liberals, with pronoun laws, hate speech
regulations, equal opportunity laws, forced cake baking, many other things.

The 2nd is also being attacked from a variety of ways by liberals, which as
said before, is well intentioned, but ultimately destructive.

Thank goodness the 3rd isn't an issue!

The 4th amendment is being attacked by both conservatives and liberals in a
variety of ways. From NSA data collections on Americans under Obama, to
DEA/BATF sponsored civil asset forfeiture under Bush, and unlawful searches by
ICE under the current administration, this Amendment is very important but is
being chipped away by both authoritarian ideologies.

Ah, our 5th amendment has been weakened by both liberals and conservatives.
From No Fly lists and travel bans you can't get out of, to waiting periods on
firearms, we've truly let this very important amendment become weakened.

I like _all_ of the amendments. I don't want to see any single one of them
weakened any more and some of our rights restored.

~~~
skookumchuck
> I like all of the amendments.

I'm not an NRA member, but the idea of repealing the 2nd Amendment, or worse,
interpreting it out of existence has bothered me in ways I couldn't quite put
my finger on. I finally realized what it was. If we decide one of the rights
is "archaic", "obsolete", "insane", or any of the epithets routinely leveled
at it, we set a terrible precedent. How long will it be before the rest fall
when they are inevitably inconvenient?

We need to stand for _all_ the BoR. Not whatever is convenient.

~~~
arwhatever
Scott Greenfield covered your exact point pretty well over at his "Simple
Justice" law blog [https://blog.simplejustice.us/2015/10/06/ten-favs-from-
the-b...](https://blog.simplejustice.us/2015/10/06/ten-favs-from-the-bill-of-
rights/)

~~~
nraynaud
This amendment feels so random, tho. Why firearms and not other weapons? Why
not general means of defense?

There are also consistency issues, the prohibition was an amendment, what made
that thing negociable?

Other fundamental rules are completely inconsistent like being 21 to drink
while the majority is 18.

~~~
bitwize
> Why firearms and not other weapons?

Something something bringing a knife to a gun fight...

The amendment doesn't specify firearms; it just so happens that firearms are
the most contentious weapons protected under it, for obvious reasons: firearms
are among the most deadly weapons in common use, but hoplophilic citizens do
not want to be denied access to weapons their enemies have access to.
Nevertheless, there was a Second Amendment case brought to the Supremes (
_Caetano v. Massachusetts_ ) about a woman's right to buy a stun gun, which
was illegal in Massachusetts. The Supremes found in her favor.

As for why the Second is considered "special" \-- it's part of the Bill of
Rights. There's nothing stopping anybody from repealing it, but the ten
amendments in the Bill of Rights are considered special in American legal
tradition because the promise of their passage was essential to the
ratification of the Constitution itself. So it would take much more effort to
gather support for repeal of a Bill of Rights amendment than the Eighteenth
Amendment (which was largely passed because of the temporary political vogue
of the temperance movement).

------
adrianratnapala
I am no American, but I think Americans are wise to revere their Bill of
Rights partly because it is a reasonably good model for rights that everyone
should have but also because Americans have lived for a long time with those
particular and have made them mostly work. And as the article makes clear, the
Bill of Rights didn't really just happen in 1789, it has evolved and (mostly)
improved over 200+ years.

And that's a good reason to be skeptical of worries about "fetshising" it and
dreams of how you could "remake the legal and political world". Big changes
happened after the Revolution and the Civil War, how could they not? But
evolution has happened at at all other times.

------
DanielBMarkham
_"...And he worries that this process of reinvention may have stalled, with
Americans now fetishizing the Bill of Rights, having lost sight of their own
ability to remake the legal and political world..."_

And I'm beginning to seriously doubt my time commitment to this article.

The actual history of the Constitution and Bill of Rights is quite interesting
and involved. It covers everything from classical literature and history to
The Enlightenment and the Thirty Years' War. Just talking about how some folks
revere the docs so much now and didn't in the past is breathtakingly shallow.
As an example of how short-sighted this is, note that the BoR wasn't supposed
to say anything that needed saying. Some questioned the need for them at all.
The government wasn't constructed to get that overpowering and intrusive into
all of our lives. It's made not to do that. Why should we start making lists
of things it can't do? It obviously can't do anything we didn't tell it to do.

The founders in the U.S. dispassionately threw together a huge chunk of
natural science, philosophy, and history, made a ton of compromises, and did
the best they could. You don't have to worship or deify the folks or the
documents they made. Just understand what was done and why. That's much more
useful than going on at length about how unhealthy some segments of the
population are being.

This article is a political polemic, not a history lesson (unless you consider
it a lesson on how things get more and less popular over time, which says
absolutely nothing about the BoR) I love political essays that show how public
thought changes over time. These kinds of essays tend to be difficult to
discuss in large diverse online groups -- and many times, sadly, their purpose
is to create false, simplistic narratives that can take the place of
understanding. Best consumed in small doses and with lots of context.

------
protoplant
In the post, Magglioca says that the bill of rights was not what people of the
time thought a bill of rights looked like. Well I find it is not accurate to
say that since many ideas were lifted from the English Bill of Rights 1689. No
standing armies in peacetime, freedom of speech of parliament, peasants
bearing arms, no cruel unusual punishment, no excessive bails, no taxes
without parliament. I hope that I am missing something in translation, because
it is unsettling that he would overlook this. The Virginian Bill of Rights
mentioned in the story took from this as well. In other words, it set a
standard.

------
toomanybeersies
In New Zealand we don't have a constitution. But rather we have a Bill of
Rights defined in law, which can be changed by an act of parliament, and a
series of laws defined around this bill of rights.

It's not the constitution that makes a country free, but the people fighting
for their rights. New Zealand gave women the vote before any other country in
the world, and we didn't need a constitution to do it, but rather the
willpower of the people.

------
IIAOPSW
This article is critical of the "cult" of the bill of rights. But look at
China the other day and how their constitution was changed on a whim. Look at
Russia which has Putin despite of a fairly modern and standard constitution.

Constitutions and laws are mere pieces of paper until the society within which
they live endow them with sacred status. Without the "cult" and the moral
indignation at violations surely civil liberties would erode at a much faster
rate. As another comment says "Unfortunately, pretty much all of the BoR is
regularly under attack." If the BoR didn't have the same nearly religious
status one of those attacks would have succeeded by now.

~~~
freddie_mercury
> If the BoR didn't have the same nearly religious status one of those attacks
> would have succeeded by now.

I don't think this follows at all from the article. After all, one of the main
points is that there WASN'T a cult until the 1940s...yet those rights were
able to stand for 160 years without a religious status supporting them.

Your argument that the Bill of Rights had a religious status for all 200+
years of its history seems a direct contradiction of one of the book's central
claims and I don't see that you've presented any arguments in support of your
counter-claim.

If the Bill of Rights didn't have religious status for those 200+ years then
your subsequent claim that the religious status is a necessary part of keeping
it intact would seem to wither.

~~~
tlrobinson
Perhaps the religious status evolved in response to increasing attacks on the
BoR?

~~~
freddie_mercury
Sure, that's a possibility but is yet another variant that wasn't claimed and
provided with no backing evidence.

------
arca_vorago
I ctrl+f'd "natural rights" and came up with nothing, which is how I knew from
the start this wasn't a very good article on the subject.

Look, here is the thing that people have forgotten, or were never taught (due
to a failing civics education system):

People have natural rights, independent of any government, and governments are
formed among the people in order to protect those rights. _The government does
not grant rights!_ _It can not take them without due process!_

This is the fundamental principle of what I consider real American
exceptionalism, and why American government at least in principle is the most
free system of government in existence. (despite it's failings to live up
those principles often) It's why Christopher Hitchens became an American and
called it "the last revolution that stands a chance".

This was the original debate about the Bill of Rights in the first place. That
by listing a few important rights the government would then think anything not
listed would be allowed for the government to violate. Hence the "right to
wear a hat" argument. That's not how things work though, and that's not what
our government was founded on.

I'll give you a good example. Locke calls the right to self defense the first
natural right. I agree. The second amendment is about defense against a
tyrannic government. You could take it away and I would still have a right to
bear arms independent of the (theoretically) absent second amendment.

Both parties hate stating this sort of thing out loud though because what they
both are is authoritarian. For the conservatives, it would undermine all kinds
of their moves like the drug war (unconstitutional abuse of commerce clause,
states rights), and the same can be said of the left. This is why I get tired
of all the cries anytime someone sees through the bullshit and calls them both
equally corrupt, which they are, and are immediately hit with logically
fallacious half-retorts of "whataboutism" and other rebuttle du jours.

I swore an oath to the Constitution, and I stand on those principles even when
they make me uncomfortable. I'll give you another example. I always thought
FDR's New Deal was one of the best things ever, a brilliant move we should
seek to emulate in the modern day. When I dug into it though, I have to admit
I have seen enough evidence that many of the New Deal policies were
unconstitutional that I have an entire reading list prepped just to dig into
the matter. So you can see how for someone who really wants more wealth
equality how difficult it is to potentially admit minimum wage just might be
unconstiutional. At least I am meeting those hard questions head on though,
instead of burying my head in the sand.

~~~
kelnos
> _People have natural rights, independent of any government, and governments
> are formed among the people in order to protect those rights._

Not really. We've come up with that fiction because we believe -- and we're
probably right -- that it gives us the best chance at living together
peacefully and without interfering too much with each people's lives.

But it really is a fiction. I personally believe in what you call a person's
natural rights, but that's all it is, just a belief. It takes all of us to
band together and form structures to enforce and protect those rights for
people to be able to enjoy them.

> _The second amendment is about defense against a tyrannic government. You
> could take it away and I would still have a right to bear arms independent
> of the (theoretically) absent second amendment._

I mean, sure, if you define "right" in that way, then you can say you have the
"right" to literally anything. If the 2nd Amendment were repealed, that
imagined "natural right" won't help you much when the government comes and
takes your guns away, or jails or kills you for having them when you try to
fight back.

There is no absolute moral truth here. It's only what we've collectively
decided on, and we still have a long way to go before everyone in the world is
treated equally and with dignity. We look at the world 500 years ago and think
of how uncivilized everything was, and how poorly people treated each other.
In another 500 years they'll be saying the same about us, assuming we don't
destroy ourselves before then.

~~~
zaroth
“Natural rights” don’t come naturally. Something is a “natural right” not
because laws of physics dictate they are inviolable but because they are
essential to humanity and peaceful existence, and every human is born into
them.

The “natural rights” to life, liberty, pursuit of happiness, assembly,
association, religion, arms, etc. are the closest we’ve come as a race to
“absolute moral truth”.

------
mattnewport
Why does the headline say "the Bill the Rights" instead of "the Bill of
Rights"? Is this the glaringly obvious typo it appears to be or am I missing
something?

This is the actual headline of the article, not just the HN headline.

