“The liberties of our country, the freedom of our civil constitution, are worth defending against all hazards: And it is our duty to defend them against all attacks.” -Samuel Adams
The United States Constitution is a remarkable document. The Framers of the Constitution sought to create a limited federal government with three branches that would act as checks on each other’s powers, and to protect individual rights through the Bill of Rights. Conservatives seek to discern and uphold the original intent of the Framers as expressed in the text of the Constitution, thus “conserving” our uniquely American freedoms. However, those on the leftward side of the political spectrum typically see the Constitution as a “living document” to be reinterpreted in light of changing times. The Constitution-as-living-document mentality facilitates the Left’s efforts to invent imaginary rights that have no constitutional underpinnings and to ignore out of existence constitutional provisions that limit government.
As a general matter, leftists tend to have an overly expansive view of the Establishment Clause (“Congress shall make no law respecting an establishment of religion”) in which almost any acknowledgment of religion by government is off limits. Regarding the First Amendment’s guarantee of free speech, however, leftists are much less suspicious of government; the Left passionately disagrees with the pro-free-speech Supreme Court decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), and most left-wing politicians desire to overturn Citizens United by giving Congress authority to regulate political speech and expenditures in the name of “campaign finance reform.”
When it comes to the Second Amendment, leftists typically do not believe that the right to bear arms is an individual right, but rather a right conferred upon militias. The Left’s ongoing efforts to minimize and dismiss a right that is clearly set forth in the text of the Second Amendment contrast with their view of the Due Process Clauses of the Fifth and Fourteenth Amendments; the Left has used due process language to conjure out of thin air an array of “rights”—including privacy, birth control, abortion, and same-sex “marriage”—that are nowhere mentioned in the Constitution. The Supreme Court has used these fictitious “rights” to curtail the authority of states to pass laws protecting innocent human life, the traditional family, and religious liberty. The Tenth Amendment—which provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”—may be the most unpopular amendment of all to leftists, as it sharply limits the scope of federal power. In practice, our swollen, intrusive, and wasteful federal government generally ignores the Tenth Amendment out of existence.
Attempting to amend the Constitution is a long, arduous, and often unsuccessful process. It is usually much easier for the Left to persuade federal judges (many of whom are leftists themselves) to reinterpret a constitutional provision than it is to go through the difficult work of actually amending that provision. This approach, however, sidesteps the Constitution’s very design by substituting the decisions of unelected judges for the involvement of the American people and their elected representatives.
Suppose for a moment though, that leftists could—without fear of political repercussions—enact a Bill of Rights that truly matched their views. What would that Bill of Rights say? How different would it be from the actual Bill of Rights? Based on the words, actions, and strategies of the Left, one view of what a Progressive Bill of Rights might look like is set forth below. Not surprisingly, it is not a pretty picture, and it departs significantly from the actual Bill of Rights. (By way of comparison, the actual Bill of Rights is available here.)
The Progressive Bill of Rights
Individuals are not endowed with fundamental rights by any nongovernmental source; rather, fundamental rights are conferred by the United States and set forth in this Constitution.
Absent a compelling government interest, Congress shall make no law infringing upon the fundamental rights of individuals, which are: The right to free speech; the right to free assembly; the right to vote; the right to freedom of movement; the right to bodily integrity; the right to be free from enslavement; the right to equal treatment under the law; the right to join a labor union; the right to social security; the right to a free public education; the right to enter and remain in the United States; the right to government-provided medical insurance and medical treatment; the right to privacy; the right to be free from discrimination on the basis of race, color, ethnicity, ancestry, national origin, citizenship, sex, class, religion, age, disability, pregnancy, medical condition, genetic condition, veteran status, marital status, familial status, sexual orientation, and gender identity; the right to be free from sexual harassment; the right to sexual and reproductive freedom; the right to contraceptive and reproductive access, including the right to obtain an abortion at any stage of pregnancy; the right to choose one’s gender identity and to have one’s chosen recognized identity recognized by government; the right to marry the consenting adult(s) of one’s choice; and the right to take one’s own life. The right to the free exercise of religion shall not be considered a fundamental right under this Amendment, but shall be respected to the extent that such free exercise does not conflict with any other provisions of the Constitution or with any permissible government purpose.
The right to free speech guaranteed under this Amendment encompasses sexually oriented speech and performances, public nudity, and desecration of the American flag. The right to free speech guaranteed under this Amendment does not encompass hate speech as defined by Congress. The right to free speech guaranteed under this Amendment does not encompass political speech or expenditures pertaining to political speech, which Congress may regulate to advance democratic self-government and political equality.
The freedom of speech guaranteed under this Amendment shall not be accorded to corporations, but shall be accorded to labor unions.
Human embryos and fetuses shall not be considered individuals and shall not be accorded fundamental rights under this Amendment.
Congress shall make no law respecting an establishment or acknowledgement of religion, and shall not grant preferential treatment—including the provision of tax-exempt status—to any religious organization.
Congress shall provide for the national defense, and may allow members of the United States Armed Forces to bear arms. Congress shall provide for federal law enforcement functions as it deems necessary, and may allow federal law enforcement officials to bear arms. State and local governments may provide for law enforcement functions within their respective boundaries, and Congress may make laws allowing state and local law enforcement officials to bear arms. Congress may make laws allowing certain persons or classes of persons other than law enforcement officials and members of the United States Armed Forces to bear arms, but shall not be obliged to do so.
The United States Armed Forces shall maintain no quarters that are segregated by sex or by gender identity.
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated except in furtherance of a compelling government interest. No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. No person shall be stopped or searched by law enforcement officials without probable cause to believe that said person has committed a crime.
No person shall be held to answer for a felony unless on a presentment or indictment of a grand jury except in cases arising in the United States Armed Forces when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself or herself; nor be deprived of liberty without due process of law.
So long as just compensation is provided, and so long as the requirements of due process are satisfied, the United States government may cause private property to be taken for public uses, or for private uses that the United States government deems to be substantially beneficial to the public.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him or her; to have compulsory process for obtaining witnesses in his or her favor, and to have the assistance of counsel for his defense. If the accused is unable to obtain counsel, the accused shall be entitled to have counsel provided to him or her at the expense of the United States government.
In suits at common law, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. No person shall be subjected to capital punishment under any circumstances.
The language used in this Constitution shall not be construed to deny or disparage the dignity of any individual or group, or to perpetuate any social stigma.
All powers not explicitly reserved to the states or to the people by the Constitution are vested in the federal government.
The American Left has worked very hard to make its vision of America become a reality. Sadly, the protections of our Constitution have been eroded—both by the actions of elected officials and by the wayward decisions of activist courts. The scope of our current federal government far exceeds the limitations placed upon it by the Constitution, and the ever-increasing size of that government results in ever-increasing encroachments upon Americans’ freedoms. If conservatives do not desire to hand down a society with a Progressive Bill of Rights to generations to come, we have a moral obligation to actively work to undo the damage done by the Left, and to restore a truly constitutional, American approach to government. We can accomplish this through prayer, through forming alliances with like-minded Americans, through peaceful demonstrations, through civil debate, through legislative action, and through placing men and women in elected office who have the same desire to defend the Constitution that we do.