Newsflash! You've Never Had Any Rights: Three Good Reasons Why The US Constitution and Bill of Rights are Not Worth the Paper They Were Written On
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Libertarians and limited government proponents etc. generally share one similar belief, or assumption - that is, broadly stated : that the government should only do the things they believe it should - based on a particular idea of what the constitution and bill of rights actually "means", and was "originally supposed to mean".
And in actuality, even many outside of the limited government movement , such as modern "liberals" or "conservatives" , often seem to have fairly fixed ideas about what " it" all means.
I see two big problems with this idea [i.e. that it meant one thing, and one thing only]. The first is philosophical, the second, historically factual.
Trouble Comes in Three's
And then, no doubt because bad news and trouble traditionally comes in three's, there is a third problem which I shall briefly call attention to at the end of my article.
Problem [1]: Subjective Value [ "Human Action"] Theory
Human action theory [which many libertarians claim to believe], tells us that each of us is a unique individual, with our own tastes, values, preferences and life experiences- and, as we grow and experience new things in life, our values change - they are not set in stone. http://www.mises.org/humanaction/chap2sec4.asp
These individually subjective value interpretations are just as true of the interpretation of words we read as of actual "real life" events; meaning that any collection of words on a piece of paper, including laws and constitutions, is going to be subjectively interpreted per individual - inevitably meaning that what Jefferson may have thought the constitution "meant" was entirely different from what Madison thought it meant , and that what Hamilton Washington or Adams et al thought it "meant" was also bound to be different.
And further, that what they thought it actually meant at any one point in time was bound to change over time according to their own newer prejudices and life experiences.
As the arguments of the founders are a matter of historical record, this point is of course widely known, even in "the mainstream", although the inevitable conclusions I have drawn here via human action theory are just as widely ignored.
Then and Now
To me, the principles of applied human action theory must inevitably also apply to federal or state judges either then or now, or to any member of the government, living or dead. [ A great book on this, covering the individual economic prejudices of the founders, was written by the somewhat left-wing economic historian Charles Beard- e.g. see his "Economic Interpretation of the Constitution of the United States" http://www.amazon.com/exec/obidos/ASIN/0029024803/lewrockwell/002-1812875-5295257
A Real World "Bottom Line"
The bottom line here is : even if it were possible for the constitution and Bill of Rights to be written to mean one thing and one thing only, as libertarians and others argue via "original intent" arguments e.g.: http://www.lewrockwell.com/north/north150.html
or,http://harrybrowne.org/articles/PrivacyRight.htm
the plain fact of the matter is that in the real world, they are _still_ going to be subjectively interpreted by individuals both inside or outside of the government and judiciary, who have their own, constantly changing and evolving value systems, experiences, biases, agendas etc. ,
This is inevitable, according to the very philosophy that supposedly underpins much of libertarian thought [i.e. subjective valuation and "Human Action theory"]
Problem [2] The Historical Record
Problem 2 is historically and factually a little more obscure to most libertarians I know, and starts with the anti-federalist arguments.
The anti-federalists, as you know, successfully argued that the constitution should _not_ be passed , simply _because_ it was a ridiculously open-ended document which would bring tyranny [e.g. see http://www.amazon.com/exec/obidos/tg/detail/-/0451625250/002-1812875-5295257?v=glance ].
Intentionally Open -Ended
The bald truth, as Brutus and the other anti-federalists pointed out, is that the constitution was intentionally, a totally open ended document. [ Also see the Pennsylvania Minority's writings, as with Brutus, included in Ralph Ketchum's "Anti-Federalist Papers" : http://www.amazon.com/exec/obidos/tg/detail/-/0451625250/002-1812875-5295257?v=glance
and : "The Secret Proceedings and Debates of The Convention To Form the US Constitution" by Yates, a convention delegate: http://lists.washlaw.edu/pipermail/marketing/Week-of-Mon-20040209/000643.html
Madison's Promise- the "Bait and Switch"
As you might know, the anti-federalist arguments at that time led to Madison's promised concession of the addition of a Bill of Rights, to further supposedly "define" constitutional limits, IF and WHEN the constitution was ratified [i.e. a political "bait and switch"].
Of course, this brilliant political move by Madison , second only to naming his side "Federalists" - when in fact the anti-federalists were the true "federalist"[!], pulled any remaining rug out from under the feet of the so-called "anti-federalists", and the constitution effectively became law when New Hampshire, the 9th colony, ratified on June 21st. 1788 , although it is not "officially" in effect until March 4th 1789.
What You Are Probably Not Aware Of - The Judiciary Act of 1789............
What few are aware of is the historical fact that the day before the new congress signed the Bill of Rights, to be returned for review and approval or rejection by individual states before becoming law, it passed the Judiciary Act of 1789, which was not subject to review by any of those same states.
To learn exactly how the Judiciary Act of 1789 guarantees the destruction of the rights you think you might have [or had!] under the 10 ammendments of the Bill of Rights , please ask here in the comments section and I will get back to you ASAP!
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ARTICLE EDIT/UPDATE 01/24/11: click here to learn about the Judiciary Act of 1789
