The Dangers of Constitutional Cherry-Picking

The U.S. Constitution was created in order to define the limits of the federal government’s power. When our Republic began the chief focus of our Founding Fathers was to safeguard the unprecedented liberty that their sacrifice and bloodshed had won. The Founders were worried that this experiment in self-government would be short lived if the liberty they fought to secure was not sufficiently protected in the Constitution, and specifically to this end they created the Bill of Rights. However, the Constitution has within it a mechanism in which the Constitution can be amended- Article V. As times changed, the Founders knew, the Constitution would also need to change. We have used this mechanism in the Constitution only 27 times in 240 years. However, the Constitution and the Bill of Rights is ignored and cherry-picked every day.

For example, the Second Amendment states, “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”. However, nearly every state in the Union has laws restricting concealed firearms and handgun sales. The intent of this particular writing is not to argue for or against the merits of more or less guns with more or less restrictions on them. However, I will use guns and how they pertain to the Second Amendment to show the dangers in ignoring our system’s built-in change mechanism. The hazardous tendency of our two political parties is to favor Constitutional cherry-picking, in which groups simply forego the Constitution when it is convenient for what they think is safe or righteous or outdated at a given moment in time, instead of working for a change which they believe is required. Democrats do it on guns and Republicans on due process (think Patriot Act).

Regardless of what you think about gun rights, the constitution is fairly clear with the language “shall not be infringed”. It is often argued that it is not what the founders really meant because they didn’t have access to such deadly weapons like AR-15s among others; they were talking about muskets. True, they probably could not conceive of AR-15s, but they did have cannons…and the amendment does not state, “the right to keep and bear arms shall not be infringed, except when pertaining to cannons”. So, I think it is fair to assume that the founders knew that weaponry would continue to advance as technology advanced. Knowing this, it was their opinion that the right for citizens to keep and bear arms was more important than restricting that right.

Again, my intent here is not to say we should have people owning cannons or F-22s as I am sure some that read this will take away, but instead to suggest that rather than trying to make the amendment say what we want-on either side of the current political spectrum- maybe we should start a conversation to try and re-write it in a way that is more applicable to the situation we face today as a nation. We could even use the tools provided by the Constitution to do just that.

Changing the Constitution in the way prescribed by Article V is not dangerous, but ignoring it all together or interpreting it in a way that is convenient to achieve an expedient political goal is. To highlight the danger further let’s apply the logic of what has been done to the Second Amendment and the arguments made by those trying to restrict it to the First Amendment.

The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This is another cornerstone of our freedom as Americans. However, since in the past it has been allowed that the Second Amendment be cherry-picked instead of properly challenged to meet the new technologies or needs of the times, it is also possible the First Amendment could fall victim to the same cherry-picking, isn’t it? After all, the precedent has been set. Could the founders have envisioned things like Twitter or Facebook when they asserted than no speech should be “abridged”?

The Founders, one could submit, had as a frame of reference only word of mouth, letters, and newspapers in their minds when they wrote the First Amendment. So, they could not have imagined the speed with which and magnitude of audiences that these new technologies could reach with any type of message, from racist Tweets to terrorist plots. So if someone comes along in the government and decides certain speech is too dangerous, and asserts that the Founders were unable to know the true impact of the First Amendment when they wrote it couldn’t any speech or press or religion be suppressed if the model of circumventing the Second Amendment is applied?

Again, I do not bring this up to suggest we should start restricting speech or religion or the press just because a bad precedent has been set. On the contrary, I think it is imperative that we ensure all freedoms guaranteed in the Bill of Rights are equally considered. If the wrong people get into power, the precedent is already set by circumventing the Second Amendment to really trounce any other freedom protected by our Constitution as long as that person in power can make a claim that the freedom they are removing is outdated or that the founders couldn’t have understood the modern implications of what they wrote in the late 1700s. If there is a need to adapt, change or altogether omit some of these tools the founders gave us, there is a mechanism to do so. Let’s have that debate instead of allowing for the insidious removal of our rights and the dangerous precedent that sets, regardless of what our personal thoughts are on individual political issues of the day. Thanks for reading.

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2 thoughts on “The Dangers of Constitutional Cherry-Picking

  1. Nobody gave us these rights, we were born with them. No amount of toying in the government should be able to take away rights, whether legal or illegal. The rights stated in the Constitution (specifically the Bill of Rights) are inherent to every American, given by your very birth as an American, not by any government power.

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    • Thank you for your comment. I do agree with the spirit of what you are saying here. All people (not just Americans) were endowed with certain, inalienable rights by our Creator. Specifically, in the Declaration of Independence the ones mentioned are life, liberty and the pursuit of happiness. However, the Constitution is a framework for protecting these fundamental rights- not an issuance of rights in and of itself. After all, as you mention men and governments do not give rights, we are born with them. Article V of the Constitution gives us a method to amend the Constitution. This was not an accident. Therefore, I disagree that the Bill of Rights can never be changed or “amended”. While no one can ever take away the rights of men to life, liberty, and, the pursuit of happiness the methods with which those fundamental rights are protected are up to men. With that in mind, as times change so too will the best ways to protect those rights. That is the true brilliance of our Founders and the Constitution they created.

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