Up to a Point

P.J. O’Rourke: Who Really Actually Wants This Bill of Rights?

If the first 10 amendments to the Constitution went before today’s voters, how would they fare?

The Daily Beast

Change of Heart About the Bill of Rights?…

Is it possible that some of our constitutional rights aren’t the dreamboats we think they are? Maybe they’re even cheating on us.

For example, the Supreme Court has ruled that rich knuckleheads have the constitutional right to make unlimited political contributions.

We’re Having a Steamy Affair With Rights…

President Obama, sworn defender of our constitutional rights, has said, “In the United States, health care is not a privilege for the fortunate few; it is a right.”

And so far, Chief Justice John Roberts is backing him up.

Meanwhile Duty Sits Home Waiting for Us to Text About Hooking Up Later, Maybe, if Nothing Else Is Going On…

NARAL defends the constitutional right to abortion.

NRA defends the constitutional right to something similar, ex post facto.

Lefty pinko Center for Constitutional Rights embraces the Constitution—says it means government righting wrongs.

Reactionary troglodyte Tea Party embraces the Constitution—says it means government wronging rights.

Then There’s the Constitutional Rights Passion Pit That Is the ACLU…

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In the past 10 years, the ACLU has, on constitutional grounds…

Sued California (twice) to legalize same-sex marriage.


Defended viciously anti-gay demonstrations by the Westboro Baptist Church at veterans’ funerals.

Protested the invasion of Rush Limbaugh’s privacy when his medical records were made public during the criminal investigation of Rush’s alleged illegal drug use.


Sued Los Angeles to protect the rights of the homeless to be, as Rush Limbaugh fans put it, “ditto.”

Gone to court to prevent “intelligent design” from being presented as science in a Pennsylvania high school. (A note of personal thanks from someone who wasn’t intelligent about figuring out the design of the frog we dissected in high-school biology.)


Sued a public library that blocked access to pro-gun websites.

Supported public financing of election campaigns.


Assailed the Federal Election Commission’s campaign contribution limits.

We’re Crazy for Constitutional Rights…

And their Cupid’s bow is…

The Bill of Rights…

But Cupid is famously blind.

Let’s try to keep our heads. What, deep down, do we really think about the Bill of Rights?

If the first 10 amendments were each put to a vote on nation-wide ballot initiatives, how would they fare?

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…

Even Westboro Baptist Church? Scientology, too?

…or abridging the freedom of speech or of the press;…

“Amendment 1” seems to protect bullying on social media and insensitive and hurtful speech as well. Does it give people the right to shout “Gay” in a crowded theater, if a Harvey Fierstein play is being performed?

…or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

If “petition” is defined as a slew of nasty political attack ads on TV, then the Supreme Court is right about unlimited campaign contributions.

(Aside to rich knuckleheads: You can buy a politician. Like you can buy a dog. That won’t keep it from peeing on your rug.)

Personal Endorsement: I’m a member of the press. As far as I can tell from the wording of “Amendment 1,” this makes me free to do anything including rob you in the streets. I’m all for it.

Likelihood of Passage Today: Low.


Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

What does this even mean? “Militia” as in nut-job Michigan Militia protecting us from the New World Order and UN black helicopters? Or is “Amendment 2” saying the National Guard has to accept every recruit including Grampa in the nursing home who thinks he’s still fighting the Korean War and ChiCom hordes are over-running the physical-therapy facility?

No wonder this amendment has caused so may heated debates (and visits to the emergency room). Needs clarification.

Personal Endorsement: I think I represent the average American on Amendment 2. I’m in favor of gun control—for you. Come over to my house at night and break in through a window to find out whether I’m in favor of gun control for me.

Likelihood of Passage: Depends on how many states allow concealed carry at polling places. Uncertain.


Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war blah blah blah.

Let’s assume this covers a situation where the house is in mom’s name and dad’s in the Army and mom catches dad pulling a Gen. Jeffrey Sinclair.

Personal Endorsement: Not being in the military, yes.

Likelihood of Passage: High.


Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, blah blah blah probable cause blah blah blah describing the place to be searched, and the persons or things to be seized.

Left and right can come together here. Progressives decry Stop and Frisk. The 1 percent protests IRS audits. We’re all creeped out by NSA having that SnapChat of our group moon behind the boss’s back at the office Xmas party.

And yet Amendment 4 might lead to an America with a high rate of urban crime, extensive tax evasion, and national intelligence agencies so clueless they couldn’t predict a Crimea invasion, which…

Personal Endorsement: Come to think of it, yes.

Likelihood of Passage: High.

Likelihood of Passage Among Segment of the Electorate Sexting on their iPhones with Rolling Papers Littering the Car Seats: Higher than a kite.


Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime,…

This goes against the spirit of our confessional age. And I think it makes memoirs illegal.

blah blah blah except in cases arising in the land or naval forces, blah blah blah in time of War or public danger;…

You have to be in the Army and standing in a New York City bike lane while writing your memoir.

…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;…

Which I think means you can keep selling crack on the school playground until you put your hand into your pocket in a suspicious manner and the police shoot you.

…nor shall be compelled in any criminal case to be a witness against himself,…

Even though everybody knows “I plead the Fifth” means “I’m guilty as shit.”

…nor be deprived of life, liberty, or property, without due process of law;…

Something lawyers slipped in to give lawyers jobs.

…nor shall private property be taken for public use, without just compensation.

I’m betting the courts won’t enforce this when the millennials get bupkis from their Social Security and Medicare contributions.

Personal Endorsement: Might write a memoir someday. No.

Likelihood of Passage: Low.


Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,…

Don’t get it, what I’m supposed to enjoy.

…by an impartial jury blah blah blah wherein the crime shall have been committed,…

But the jury’s going to convict me if “the crime shall have been committed.”

blah blah blah, and to be informed of the nature and cause of the accusation;…

The jury’s really going to convict me if they know that.

…to be confronted with the witnesses against him;…

Don’t like that “confronted.” Do they get to confront me in the parking lot?

…to have compulsory process for obtaining witnesses in his favor,…

Do I get to confront them in the parking lot? Sounds like it could lead to even more trouble.

…and to have the Assistance of Counsel for his defense.

Another thing lawyers slipped in to give lawyers jobs.

Personal Endorsement: Not sure.

Likelihood of Passage: Low.


Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars…

For Pete’s sake, you can hardly get a decent martini in New York for $20 anymore.

…blah blah blah than according to the rules of the common law.

And knock Judge Judy off the air?

Personal Endorsement: No.

Likelihood of Passage: None.


Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Personal Endorsement: I’m broke, so any fine is excessive. If it isn’t cruel, it isn’t punishment. And being in jail is unusual for me, now that I’m out of my twenties. Yes.

Likelihood of Passage: I can’t be the only person who feels this way. High.


Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Personal Endorsement: I like that rights thing—“others retained by the people.” Maybe we the people can, constitutionally, figure out things for ourselves and/or just leave each other the hell alone. Yes.

Likelihood of Passage: Possible.


Amendment X

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.

I voted yes on Amendment 9. But now I’m confused. When the Constitution says “the people,” does it mean people like President Obama, with all his executive orders and ideas to give us new rights?

Language is unclear. Our Founding Fathers should have downloaded StyleWriter 4 on their laptops.

Personal Endorsement: As things stand, no.

Likelihood of Passage: This fall’s congressional elections will tell. Uncertain.


We love our constitutional rights, but only three or four of the 10 in the Bill of Rights would pass a referendum.

Maybe this “conscious uncoupling” is a good thing. Alexander Hamilton was the Founding Father most in favor of a strong central government. And we’ve certainly got that. But Hamilton argued against a Bill of Rights, for fear it would make the central government too strong.

In Federalist Paper No. 84, Hamilton said the Constitution was “merely intended to regulate the general political interests of the nation.” He contended that a Bill of Rights “would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.” He asked, “why declare that things shall not be done which there is no power to do?” He warned against “a Constitution which has the regulation of every species of personal and private concerns.” And we’ve certainly got that.

So let us be, with our Desdemona of rights, unlike Othello “that loved not wisely, but too well.”