Some Problems Imbedded in the Constitution

Some Problems Imbedded in the Constitution

     There is an unending public and legal debate in our society over two issues that affect two fundamental concepts in our Constitution: the right to bear arms, and freedom of religion, including secular government. Since only the Congress can propose amendments to the Constitution, it must be Congress’ duty to tackle these hard-to-crack issues.

1.   The second amendment to the Constitution contained in the Bill of Rights provides that: “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”. The most common arguments in defense of this Amendment are that it stands for the right of self defense and of sports. The claim that it is for self defense begs the question "against whom?". This claim is tantamount to believing that we are living in an uncivilized society. As to the right of sports such mundane right does not need constitutional protection any more than the right to play basketball does.

The modern world did not cite arms as a right when they drafted the Universal Declaration of Human Rights, nor did the Covenants of Economic, Social and Cultural Rights and Civil and Political Rights. As I see it, although keeping and bearing arms is conceived in the Constitution as a right, this right is conditioned by a) the security of individual States, and b) maintaining a regular militia. While States may have considered plausible a conflict between them and/or with the federal government in 1791, it is obviously out of the question today. The Supreme Court may decide that the Second Amendment was intended for those purposes only, and it may not be interpreted in an absolute sense. And, if there are still some skeptics about the intentions of the federal government or of States against each other, a non-aggression pact may be concluded between all of them.

It is argued that an arms prohibition may be introduced if the Second Amendment is rendered ineffective. However, prohibitions never work. Amendment XVIII prohibited a much less noxious material, liquor. The embarrassment it created had to be ended by its repeal by Amendment XXI.

The Second Amendment is also causing a terrible embarrassment, though in this instance with the freedom it claims. Being an embarrassment nevertheless, it could be ended also by repealing it. Arms are just another possession; they need not be singled out in the Constitution either as a right or as a prohibition. No mention, no debate. Let arms be regulated like many other hazardous things in life, like alcohol, drugs or driving that did not need a special treatment in the Constitution.

2.      There is no general provision in the Constitution on freedom of religion, equality, or on separation of Church and State. The only reference to non-discrimination on grounds of religion is found in the very last sentence of the Constitution (almost like an after-thought). That last sentence reads, “…no religious test shall ever be required as a qualification to any office or public trust under the United States”. This provision ensures religious equality for federal employment only. The Jeffersonian separation of church and federal state did not find its way to the Constitution.

The Constitution regulates mostly the rights and duties of the United States (the Federal government), and some of its relations with individual States. When the Constitution was submitted to all States for ratification many demanded amendments to secure more rights for States and for the people. The adoption of the Bill of Rights two years later was the result. Article I enumerated the basic freedoms of the people, and enjoined the United States making laws prohibiting the free exercise of religion. It also forbade making laws that “establish religion”. This, of course, means that the Federal government may not legislate or govern by religion. However, there is no such proscription for individual States. In fact, Article X of the Bill of Rights provides, “The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. Therefore, States can theoretically declare a State religion.

            Bearing in mind that both the Federal and individual States are enjoined by the Constitution and the Bill of Rights not to interfere with religion, but the same prohibition does not apply to the interference by religion in politics, it may be ideal to imbed in the Constitution -without any ambiguity- the oft-boasted secularity of the federal state as well as of the States.

            I have no doubt that a large majority of “we the people” does not want to waste any more time, resources and lives with these debates. Can’t we depend on our representatives in Congress to spare time from political bickering and have enough courage to tackle these issues fundamental to human rights and to democracy, instead of always passing the hot potato to the Supreme Court?

September 9, 2003