CBS Sports: Your Source for Misinformation about the Constitution

By Charles C. W. Cooke

Monday, December 21, 2015

Last night, CBS Sports broadcaster Doug Gottlieb embarked upon an extended rant against the Second Amendment, during which he offered up this little pearl of historical illiteracy:

Clearly, this is untrue. Amendments to the Constitution are every bit as much a “part” of the Constitution as the rest of it. Yes, contrary to James Madison’s wishes, we physically list our alterations after the original text. But we do this in order to make clear what has been changed, not because the 27 amendments carry diminished legal force. Were this not the case, amendments would of course be entirely pointless. Indeed, were this not the case, Gottlieb’s own project would be futile. If, per his own reasoning, the Second Amendment is not really “in our constitution,” then neither would his coveted repeal be.

For the sake of clarity, I might note that I don’t especially care if Doug Gottlieb is against the right to keep and bear arms. In fact, being a foreigner who is only just getting into American sports, I didn’t know who he was until this morning. Nevertheless, the view he is channeling here needs to be countered. Why? Well, because during our contemporary constitutional debates, Gottlieb’s approach is a popular one. “The Second Amendment,” we hear it said, “is itself an amendment, and, as such, it can be amended.” The same case is made against the First, the Fourth, the Fifth, and so forth.

Legally, this is of course true. The Second Amendment is indeed an “amendment,” and it can thus “be amended” in precisely the same way as can the rest of the document. But, historically and philosophically, it is not an “amendment” in the sense that, say, the Seventeenth Amendment is. As with the other provisions within the Bill of Rights, the Second Amendment was not intended to fix a serious flaw that had become apparent with the passage of time, nor to render the charter more appropriate to a changing world; rather, it was a part of the original compromise that led to the Constitution’s passage. Unlike the “Connecticut Compromise,” which created the Senate, the first ten amendments were not included within Madison’s final draft of 1787. Nevertheless, their inclusion was the price of ratification, and without them there would have been no Constitution for Gottlieb to criticize. As a result, we should regard them as part of — not distinct from — the original American settlement.

It cannot be repeated often enough that the debate over the addition of the Bill of Rights was the product of a disagreement over structure and not over content. Back in 1787, there was no serious controversy over whether the federal government should be kept from interfering with speech, religion, assembly, the right to bear arms, privacy, due process, and so forth — indeed, as the documents of the era show, these liberties were regarded by almost everybody as the natural birthrights of man. There was, however, a raging disagreement as to how well the Constitution as written would protect these rights from usurpation. On one side of this argument were James Madison and Alexander Hamilton; on the other were “Anti-Federalists” such as Patrick Henry and Sam Adams. And, frankly, both sides made a great deal of sense.

For their part, Hamilton and Madison contended that, because the Constitution was a charter of enumerated rights, the federal government had been accorded no power to interfere with the pre-existing liberties of the people. To put a Bill of Rights into the document, Hamilton submitted, would be to invert its logic. “Bills of rights,” he proposed in Federalist 84, “are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince.” Moreover,

    bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They 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. For why declare that things shall not be done which there is no power to do? 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.

Although not as staunchly opposed to the idea as was Hamilton, Madison essentially agreed with this assessment. “The rights in question,” he wrote to a nervous Thomas Jefferson in 1788, “are reserved by the manner in which the federal powers are granted.”

The Anti-Federalists comprehended well this line of reasoning. But they did not trust it. In part, this apprehension was the product of a keen and prescient reading of human history. But it was also the result of a worrying lack of clarity within the text itself. As the Anti-Federalist “Brutus” noted caustically in his second treatise, the Constitution as submitted did not always support Hamilton’s description of the enumerated powers doctrine and its limits, and in fact already contained a host of prohibitions on the use of powers that the government did not technically enjoy:

    We find they have, in the ninth section of the first article declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion — that no bill of attainder, or ex post facto law, shall be passed — that no title of nobility shall be granted by the United States, etc. If every thing which is not given is reserved, what propriety is there in these exceptions? Does this Constitution any where grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is, that these are implied in the general powers granted. With equal truth it may be said, that all the powers which the bills of rights guard against the abuse of, are contained or implied in the general ones granted by this Constitution.

By Hamilton’s logic, Brutus noted, these “exceptions” should have been wholly unnecessary. So why weren’t they?

Ultimately, a deal was struck. In exchange for their crucial pro-ratification votes, the still-skeptical Anti-Federalist contingent was promised that a series of explicit protections would be added to the charter as soon as the new government met. Despite some initial griping, this promise was kept, and, in 1791, ten new sections were added, one of which attempted to square the thorny enumerated-powers circle by confirming the Madisonian presumption that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Today, we call these amendments the “Bill of Rights.” We should cherish them as if they had been included from the start. Why? Because they were.