The Future of the Bill of Rights
Can this top-ten list be saved?


LOPEZ: Isn’t the way to do it to get in the classroom and teach kids about the real Bill of Rights?

MINITER: The story of the freeing of the individual from the control of the state is the greatest, most fundamental story of our time. It’s filled with dramatic fights against tyranny. It’s rife with flamboyant characters. It turned America into the light of the world. Yet we’re losing the narrative — and the light. People don’t know the players or understand the philosophies of the competing viewpoints. Yeah, understanding the Bill of Rights begins in the classroom — if they’d only teach the truth about individual rights. But this story also needs to be heralded by adults.

LOPEZ: What’s the most common misconception about the Bill of Rights?

MINITER: That the amendments are positive rights granted by the government. The Founders realized that governments don’t grant rights; they only take them away. This is why they wrote the amendments in the Bill of Rights as restrictions on government (negative liberties).

LOPEZ: Why is this an important point to make? “The right to the freedom of speech doesn’t bar censorship by individuals on their private property, it only restricts the government from unreasonably censoring speech.”

MINITER: When we forget that the First Amendment doesn’t prevent others from telling us to shut up, but that it only restricts government censorship, we begin to lose everything. For example, a restaurant owner can tell us to quiet down or leave without infringing on our right to free speech. The First Amendment restriction only applies to the government. The only exceptions to this are reasonable restrictions the government can enact to prevent people from infringing on the rights of others. When we forget this, people tend to then look to the government to give them the right to free speech. If you empower the government to give you a right, then you are also empowering the government to decide who gets this right, how much, and when.

LOPEZ: Why is campaign-finance reform such an affront and why do Republicans buy in?

MINITER: McCain-Feingold empowered the government to censor the speech of corporations, associations, and unions near elections. In the U.S. Supreme Court’s 5–4 decision in Citizens United v. FCC, Justice Antonin Scalia summed up the conservative outrage over the loss of our free speech, of our right to pool our money together to criticize politicians near elections, by writing: “The notion which follows from the dissent’s view, that modern newspapers, since they are incorporated, have free-speech rights only at the sufferance of Congress, boggles the mind. . . . If speech can be prohibited because, in the view of the Government, it leads to ‘moral decay’ or does not serve ‘public ends,’ then there is no limit to the Government’s censorship power.”

LOPEZ: How can your book stop the Fairness Doctrine?

MINITER: By showcasing how ridiculous the idea is that the government can be a neutral enforcer. Just consider the basic facts: The government is run by politicians who are members of political parties; when one party is in power they nominate and appoint bureaucrats to run arms of government, as well judges who sit in judgment of the law; when doing so they purposely pick people who agree with them politically. . . . This is how the system is supposed to work. It also shows why the government can’t be a neutral enforcer trusted with deciding what is fair and balanced on the radio (which is what the Fairness Doctrine did until Pres. Ronald Reagan did away with it) or on the Internet with net neutrality. Only the people, through their personal choices in a free marketplace, are fair and neutral. Actually, from the hindsight of two centuries and more, it doesn’t seem to be mere happenstance that Adam Smith published his first part of the Wealth of Nations in 1776, the same year Thomas Jefferson penned the Declaration of Independence, as Smith clearly saw the marketplace as the fairest means to create wealth and to safeguard freedom.