I have a great admiration for the Founders of this nation. Many of them thought more deeply about political processes, especially the innate dynamic of governments to grow over time, than anyone who’s come since them. This morning I find myself reflecting on the wisdom of one in particular: the celebrated yet underappreciated Alexander Hamilton.
Hamilton is generally portrayed as an arch-Federalist, who wanted the federal government to be much more powerful than the rest of the Constitutional Convention. And that is true in some respects. For example, he originally proposed that U.S. Senators and the President, once elected, should serve for life. The argument, which bears a strong resemblance to that of the Constantians for a monarchy, is that an official who cannot be removed by an electoral process is independent of any supporter or group thereof. Hamilton also proposed that the President should have considerably more power than the Constitution gives him.
However, speaking from today’s vantage, Hamilton’s most telling analysis was of the undesirability of a Bill of Rights. The core of his argument touches on one of the key problems of our time: interpretation and its vagaries:
I go further, and affirm that bills of rights, in the sense and in 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 which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
Hamilton is at his most cogent here. Say a thing once: its import is beyond dispute. Say it twice: it becomes vague, elusive, capable of ambiguity. History has validated Hamilton’s reasoning: Twentieth Century scholars, including many a federal judge or Justice, rejected the Constitution as a document that limits the powers of the federal government! They prefer to see those powers bounded solely by the exclusions stated in the first eight Amendments; Amendments IX and X are treated as “mere truisms,” without binding force.
Here’s another telling stroke:
On the subject of the liberty of the press, as much has been said, I cannot forbear adding a remark or two: In the first place, I observe that there is not a syllable concerning it in the constitution of this state, and in the next, I contend that whatever has been said about it in that of any other state, amounts to nothing. What signifies a declaration that “the liberty of the press shall be inviolably preserved?” What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this, I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. And here, after all, as intimated upon another occasion, must we seek for the only solid basis of all our rights. [Emphasis added]
This is the foundation for my thoughts this morning.
I’ve just encountered a powerful statement by Archbishop Carlo Maria Vigano:
The totem of freedom of worship allows Satan worshippers to erect a blasphemous monument to Baphomet in front of the Arkansas State Capitol in Little Rock or a statue of a demon on the façade of the New York Courthouse to celebrate an abortionist Supreme Court judge; while in New Mexico the Satanic Temple inaugurates a clinic that performs ritual abortions and benefits from state recognition. Meanwhile, the Secret Service of the Biden Administration has nothing better to do than profile traditional Catholics and keep an eye on the communities in which the Liturgy is celebrated in Latin, as if they represented a threat to the established order and a potential danger to the institutions of the State.
His Excellency is irrefutably correct, for a reason that hearkens back to Hamilton’s critique: You say we have freedom of religion? Tell us, please: what is a religion? There is no universally accepted definition. I’ve tried to compose one, and for all my efforts I’ve failed to satisfy the central criterion I intended to serve: to exclude creeds hostile to justice.
In these post-Constitutional times, just about any corpus of belief can claim to be a “religion,” and thus to gain some measure of protection from those who find it hostile to them. Parallel to this we have the militant atheists clamoring for “freedom from religion,” as if Amendment I gave Washington the power to drive religious expression out of all public places, confining it to churches and private homes. Amendment I’s attempt to guarantee this undefined freedom, through the efforts of demagogues and word-twisters, has created chaos where liberty was intended.
The Constitution as written did not confer upon Washington the power to ban or regulate any creed or its observance. (Neither did it forbid any state to do so, but that’s a subject for another screed.) By incorporating the common law of England, it conferred upon juries the power to punish crimes; nothing more. Amendment I was what muddied the waters, giving rise to a milieu in which any creed, Satanism among them, could claim protection for its vilenesses.
It should come as no surprise that judges have conferred protection upon some of the most execrable displays now blighting our public places in the name of “freedom of religion.” Declaring “freedom of religion” while leaving religion undefined could have had no other result.
I could detail the obscenities that have arisen from such ambiguities, one Amendment after another. But there’s little point, other than this:
Good intentions are no shield.
This might be the ultimate argument against government itself.
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Selective enforcement of the constitution’s provisions, and our inability to penalize that, is undoubtedly another aspect of the problem facing us.
How so? I have seen no cases of law charging any Federal bureaucracy with violating Art VI, clause 3 of the Constituton (preceding the Bill of Rights) that states “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
For instance, without a doubt one cannot get a job at the EPA today when one does not affirm the belief of one consensus or another such as “humans are responsible for climate change.” When one hears the screams and moans from adherents of that one aspect, one is witnessing the behavior of a true believer who will not tolerate the utterance of any evidence to the contrary.
And this supports your earlier concern about the vagueness of religion. That is sustained by finding this braodest definition, the origins of which remain vague as well: Religion – a pursuit or interest to which someone ascribes supreme importance.
We assuredly may find many other instances besides this one. Yet where are the cases of scientists denied employ or advancement because they refuse to affirm such dogma? They do not exist. That suggests the legal profession will not take such cases for reasons unknown but suspicious. It’s been a very long time since I met an attorney, still wishing to practice, will go against the grain of “what is worth risking my license to practice law” would permit.
So once again I believe your final cogent observation about men desirous of power to be most applicable to your whole essay today.
It really doesn’t matter what a document says. Evil people intent on wielding power will twist, contort or simply ignore anything that puts constraints on their power. The only realistic tool we have to rein in those who abuse power is the power of arms….of violence. It is the only power evil will hear, listen to or respect. History proves this beyond any debate.
This may be the most egregious demonstration of the wisdom displayed by the Framer who pointed out that ‘this Constitution is only for a moral people; it will serve no other’ or to that effect (I am no scholar, by any means; forgive my inaccuracy in this case. I hope the point is made).
For a moral people, such questions would have no bases in general; they would be unthinkable. I would suggest that they would also be unnecessary, since everyone would know the difference between right and wrong, and that understanding would be reinforced through social graces and the education received at the hand of one’s family.
Since all would be, in effect, of one mind on such questions, there would be little need for these arguments. It is a cruel thing that they seem to be in need of elucidation.
Peripherally related: I have a hard time swallowing any “religious exemption” from any law. First, it gives the government the ability to define religion, and exclude anyone it chooses from said exemption. Second, having exemptions is in contradiction to equal application of the law. If we are going to have laws, there must be no exceptions. If a law cannot exist without exemptions, it cannot be a law.
And, I think Hamilton had it right.