So, You're a Constitutionalist?

Many Republicans who voted for Donald Trump said they did so not because they supported him, but that they were Constitutionalists. They believed that the Founding Fathers were endowed with such tremendous knowledge that they wrote the Constitution with such precision so that it could not be misinterpreted. They insist that the very words of the document should be taken literally and not open to interpretation.

They call themselves “Constitutionalists”.

And yet they want us to accept that their reading of the Constitution is the correct one. Like the Bible, they claim that the Constitution is inviolable, yet it is only so if it agrees with their reading. Like a preacher spouting Bible verses to support their point of view, they carefully parse the Constitution to fit their narrative.

It makes you wonder if they have ever read the Constitution, since they parrot the same tired arguments time and again with little understanding of their relevance.

The document itself is divided into seven articles that enumerate the role of the Federal government. In addition, the Founding Fathers sought to further clarify what could and could not be done by adding 10 amendments. These amendments are know as the Bill of Rights. They have served as the hallmark for determining not just the role of government, but also individual freedoms and rights.

The ultimate arbiter of what these rights are is the Supreme Court, which is given the task of interpreting the Constitution without bias or partisan beliefs. Yet, the justices are divided into two camps as well. There are the Liberal justices who see the Constitution as a living, breathing document, ever evolving to adjust to a changing society. Then there are the Conservatives who see the Constitution as being set in stone, with no room for interpretation other than their own decidedly biased reading of the document.

The current make-up of the Supreme Court is evidence of this bias as the justices put their stamp on Republican decisions while curtailing the rights of Liberals by supporting voting restrictions and limiting a woman’s right to choose.

As an equal branch of the federal government, the Supreme Court is tasked with the obligation of determining if specific legislation is in line with the Constitution. Many of the cases brought before the court involve whether or not a particular law violates the Bill of Rights.

So, what exactly are these rights, and do those who call themselves Constitutionalists actually follow these rules?

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

A large part of the Republican Party is comprised of Evangelicals. They call America the Promised Land and insist the Founding Fathers wanted it to be a Christian nation. Yet, the first words of the First Amendment shoot down this assertion. They deny that any one religion should be established.

Those who took part in the January 6th insurrection insist they are protected under both the freedom of assembly and freedom of speech clauses of the First Amendment. Donald Trump is even claiming his incitement of the insurrectionists is protected because he is exercising his own freedom of speech.

Trump is also falsely claiming that his ban from social media is a violation of his freedom of speech while he ignores that individual companies, such as Twitter and Facebook have the right to set their own rules that aren’t protected by the Constitution.

Despite the First Amendment right to a free press, Donald Trump repeatedly tried to shut down this freedom by labeling anything that went against his limited comprehension as Fake News. By doing so, he enabled a right wing media sounding board that has excelled in spreading conspiracy theories and disinformation.

Oddly enough, they are protected by the First Amendment.

Amendment II

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.

If there’s one thing Constitutionalists prize above all others, it’s their “precious Second Amendment” right to bear arms. They insist this is a God given right that cannot be denied.

Yet they conveniently ignore the part about a “well regulated militia” when asserting this right.

They also insist that the Founding Fathers had the remarkable foresight to envision automatic weapons when the primary firearm was the musket.

Like carefully selected Bible verses, these so- called Constitutionalists cherry pick the parts of the Second Amendment that fit their needs.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

While there have been no notable challenges to the Third Amendment, it was included in the Bill of Rights to prevent the common practice British troops used to commandeer homes and other goods from those who opposed their rule. It was repeatedly violated during the Civil War when Federal troops took over the homes of Confederate sympathizers. The most notable example of this is when the Federal government seized the home of Confederate General Robert E.Lee. The place where his house once stood is currently the site of Arlington National Cemetery.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.

This is probably the most violated amendment of the Constitution. Yet those who swear by it insist that it was never the intent of those who committed these actions. The disenfranchisement of Native Americans through the Indian Removal Act, more commonly known as the Trail of Tears, was justified by asserting that Native Americans weren’t American citizens, and therefore were exempt from the protections guaranteed under the Constitution.

The internment of Japanese Americans during World War II was another classic example of violating this amendment. The awarding of reparations for this action gave rise to the insistence that Native Americans and the descendants of African American slaves should also be entitled to reparations.

These cases have yet to be decided.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

According to Donald Trump, pleading the Fifth Amendment right against self incrimination is something ‘the mob’ would do. He further posed the question, “If you’re innocent, why are you taking the Fifth Amendment?”

So, of course when those in Trump’s orbit bothered to show up to testify for the Select Committee Investigating the January 6th insurrection, they routinely invoked their Fifth Amendment rights against self incrimination when questioned about his role in planning the Capitol riots.

When he and his children are finally deposed in relation to financial irregularities, they will no doubt avail themselves of this right rather than speak the truth. Trump’s attorneys are also trying to claim some variation of the Double Jeopardy clause of this amendment by claiming evidence uncovered in the civil suit should not be used in the accompanying criminal trial.

The Fifth Amendment was designed to prevent someone from being forced to give testimony that could result in their incarceration. It’s such a vital element of the Constitution that it has been incorporated into the Miranda Warnings every police officer is required to give upon a person’s arrest.

Nevertheless, it has been used to escape punishment, to prevent facts from coming out and to allow guilty people to go free. It’s also one of the most widely cited amendments of the Constitution.

Amendment VI

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; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

While the Constitution guarantees a speedy trial, it by no means prevents those with the financial means to use their wealth and legal chicanery to prevent themselves from being brought to justice. This process, called “running out the clock” has been used to avoid punishment by exhausting the legal process to the extent they call “uncle” and give up the pursuit.

Donald Trump’s desire to regain the White House is as much about ego as it is about escaping his legal issues. If he does win, it’s likely the cases for which he’s currently under investigation will reach their statutory limits.

Oh, the unfair advantages of wealth!

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, 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, than according to the rules of the common law.

A trial by jury has been a vital, though flawed, component of the legal process. For years a “jury of one’s peers” consisted of only White men. This made it virtually impossible for a person of color to obtain a fair verdict. Often a capable attorney will find a way to create reasonable doubt in the minds of one or more jurors to allow an otherwise guilty person to go free.

Lawyers use the process of voir dire to get a jury that is sympathetic to their client, whether they be the prosecutor or the defense attorney. This makes it difficult to get a truly impartial jury due to the fact they are limited in the number of challenges they can make.

As flawed as it maybe, a trial by jury is both the best and worst type of justice.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

There is certainly debate as to what constitutes “cruel and unusual”. Many countries ban the death penalty, while it is still (excuse the pun) alive and well as a punishment in our judicial system.

In his final days in office, Donald Trump cruelly sped up executions as what many viewed as a vile way to vent his anger at being forcibly evicted from the White House.

Following 9/11, waterboarding was the preferred interrogation method employed by intelligence officials when dealing with those associated with the terrorist attacks. Again, many countries have outlawed this practice.

Lethal injection has become the approved method of execution in the United States, but this supposedly “painless” method has resulted in some botched executions with the prisoner suffering excruciating pain before expiring. Many doctors have refused to conduct executions, citing it as a violation of medical ethics.

Twenty seven states still allow the death penalty. Yet, no one can say for sure if it is truly a deterrent to crime.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Put simply, American citizens are “endowed with certain inalienable rights” and are protected by the Constitution. These protections are limited when it comes to Native Americans. Included in the protections granted by the Ninth Amendment is the right to vote. This is a right that is being challenged as many Republican-led states seek to restrict access to the polls by enacting more restrictive voting regulations as a knee-jerk reaction to Biden winning the 2020 presidential election.

Instead of making it harder to vote, voting should be a simple process. Anyone trying to hinder this process should be prosecuted under the provisions of the Ninth Amendment.

Amendment X

The 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.

The language of the Tenth Amendment has been used most recently as a defense of states’ rights in relation to mask and vaccine mandates in response to the coronavirus. Both state and federal representatives have declared this to be a classic case of government overreach.

Those who call themselves Constitutionalists are claiming the Founding Fathers had tremendous foresight in writing this important document, and it should be taken literally. Yet it has been changed 27 times. The first 10 amendments are collectively known as the Bill of Rights, and it is certain the interpretations mentioned here are certainly different from theirs.

If we were to strictly adhere to the Constitution, what qualifies as a citizen would only be a landed White male. African-Americans would only count as three-fifths of a person, women would not have the right to vote, and America would be restricted to a narrow strip of states along the east coast.

Here’s a suggestion for those who claim to be Constitutionalists. Try reading the Constitution before commenting on it.