UNDER ANALYSIS: Is it time to amend the federal Bill of Rights?

By Charles Kramer

The activities covered by the literal words of the amendments that comprise the Bill of Rights have, over the years, been joined by other closely related activities. Whether the courts have determined that such actions are literally covered by the language used, or fall within the "penumbra" of one or more provisions, methods have been used to ensure that the basic freedoms that make us Americans are not whittled down by narrow interpretation of verbiage. For this reason, many Americans probably believe that the U.S. Constitution and its Bill of Rights already guarantee us all Freedom to Think or that the Freedom to Choose applies to much more than unwanted pregnancies. Apparently, however, those who believe such Freedoms exist are mistaken.

Think about it. When was the last time you heard anyone mention a Freedom to Think or a Freedom to Choose when discussing the Bill of Rights or any claimed Right to Bear Arms or when debating Freedom of Speech?

Recently, in the wake of a young white supremacist's murder of nine parishioners inside a predominantly black church in South Carolina, we have seen a rise in debate on two fronts. Does Freedom of Expression mean that southern states have a right to exhibit the Confederate flag that cannot be restricted? Should the young assassin's right to bear arms have been further curtailed?

As arguments on these questions rage across the halls of government and all aspects of media, social networks, and restaurant dinner tables, both sides put forward their views of what rights are guaranteed by our nation's foundational documents and what those guarantees mean. Missing from the conversations, however, more often than not, is the word "should."

On a much more root level, the question is not whether South Carolina has the "right" to fly the flag of the vanquished south and the slavery for which it stood, but whether, right or no right, they SHOULD ( or at least that should be the question). The debate should not be over whether people have a "right" to bear arms, but whether they should exercise that right by shooting people whose skin tone annoys them. The discussion should not be whether South Carolina has the "right" to fly a flag over its state court house, but rather whether it should do so, knowing the impact it has on some of its very own citizens.

Yet, these discussions seldom if ever occur. The reason is probably that in order for individuals, state governments, and even private establishments to focus on this more important issue, they would first need to examine their freedom to learn, their freedom to think and their freedom to choose - freedoms that the position-instillers never mention. So, I put the question directly to all those out there who claim to care about such issues, regardless of the side you take. Rather than merely reciting the buzz words and sound bites each dogmatic side has spewed over the years, and rather than clinging tightly to positions adopted years ago when we knew nothing and when the world was a vastly different place, why not actually exercise our freedom to think for ourselves? Why not exercise our right to examine not just our rights and freedoms to act, but all available information about the direct and indirect consequences and impacts of the decisions we make and the actions we do in fact take? Why not then legitimately weigh the pros and cons we find against each other, and then exercise our freedom to choose, before automatically saying what's on our mind, flying the flag we like, or brandishing our new weapon?

No doubt there will be times when the balancing act leads some or most to choose to ignore the protests of the few, and proudly make their point or take their action. However, there will also be the times when even the most stalwart are forced, not by the law but by themselves, to change their position when they seriously consider the issues. For example, when all the pros and cons are weighed, would the government of South Carolina actually be able to justify CHOOSING to fly the flag of enslavement above the capital, regardless of whether they have the right to do so? Could a journalist ever be able to justify publishing our troops' deployment routes in a manner that she knows has a good chance of reaching the enemy before the troops do?

It is ironic that people who take the time to learn, think and choose about so much in every day life, do not take the time to do so when considering important rights. Perhaps it is because, for many, the principal involved is just that, a principal. If you don't have to actually confront the issue in your daily life, it may not be worth the time and effort to get it right. When our neighbor mentions a provision of the Bill of Rights over the fence before cutting his lawn, we simply respond with our opinion, or the soundbites we've heard from "our side" repeatedly over the years, because whether we are actually right doesn't affect our daily lives. Yet, mindless, rote responses, are perhaps the biggest threat of all, when it comes to our rights. The Bill of Rights was designed to protect the fundamental ability of citizens to make informed choices about their government and hold it accountable or advocate for change. The loss of investigation and choice in this arena, is more than a slippery slope, it is a rain enhanced mudslide.

"Learn," "Analyze," "Think," "Choose" are not as sexy as "Freedom of Speech," or "Right to Bear Arms." They are tools, but they are not rights and perhaps that's the problem. If so, it is one we can easily change.

If the only way to get people to focus on whether their action is the proper CHOICE, is to literally adopt new "freedoms" into the Bill of Rights - the Freedoms to learn and decide, and the freedom to choose NOT to exercise one of the other granted rights or freedoms, then we should so so. If such a proposal was presented to me, I know that I'd choose to vote "yes."

Under Analysis is a nationally syndicated column of the Levison Group. Charles Kramer is a principal of the St. Louis, Missouri law firm Riezman Berger PC. Comments or criticisms about this column may be sent to the Levison Group c/o this newspaper or to the Levison Group at comments@levisongroup.com.

© 2015 Under Analysis L.L.C.

Published: Fri, Jun 26, 2015

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