Excerpt: 'Don't Vote It Just Encourages the Bastards,' By P.J. O'Rourke

According to the Third Amendment the Pentagon can't just randomly send the U.S. Marines to sleep on our fold-out couch. This is something that, as a home owner, you'd think would be obvious. Although, in fairness, there are people elsewhere who wish they had an amendment keeping the Marines out of their house.

The Third Amendment and the Seventh Amendment (concerning jury appeals), are undercut by weasel words: "but in a manner to be prescribed by law" and "otherwise ... than according to the rules of the common law." The Fourth Amendment (mandating warrants) and the Eighth Amendment (limiting punishments) include strange pairs of modifiers -- "unreasonable" and "probable," "cruel" and "unusual" -- better suited to a drunken description of my first marriage than to a sober writ of law.

And the message of the Ninth and Tenth Amendments is: You have other rights but you have to guess what they are.

There was opposition to the Bill of Rights. The modern mind expects it to have come from slave owners. But this is too modern. Support for the first ten amendments had little to do with dictionary definitions of freedom and liberty and a great deal to do with qualms that old-line Revolutionary patriots -- including Sam Adams -- had about the new federal government. Alexander Hamilton, who had other qualms, made a case against the Bill of Rights in that supposed ur-text of American freedoms The Federalist Papers, in number 84.

Hamilton put forth various arguments opposing the addition of any bill of rights to the U.S. Constitution. Some of the arguments were weak. Hamilton claimed that the Constitution, as it was, affirmed and maintained the ancient protections of individual liberty embodied in British common law. Maybe. But a less dangerous and expensive way to retain British common law had been available in 1776.

Hamilton claimed that previous, precedent-setting bills of rights, starting with the Magna Carta, were merely bargains between a sovereign and his subjects about a ruler's prerogatives. Hamilton felt that no such sharp dealing and unseemly horse trading was necessary in a social contract freely made among equals. But if Nietzsche was right about what liberal institutions do once they're institutionalized -- and there's no evidence he wasn't -- then Hamilton was wrong. And Hamilton believed the Constitution already included the most important safeguards of freedom: establishment of habeas corpus, prohibition of ex post facto laws, and a ban on titles of nobility. Hamilton was listing the principal instruments in the tyranny tool chest of his era. He didn't foresee the future inventions of oppression such as ethnic cleansing, even though ethnic cleansing of North America was well under way at the time the Federalist essays were written.

But Hamilton's other objections to the Bill of Rights were prescient. Don't give the government ideas, he warned.

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 pretense for claiming that power. They might urge ... 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.

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