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


LOPEZ: “To determine if this is ethical, ask yourself which shocks your conscience more: waterboarding an alleged terrorist who is thought to know about an imminent attack on civilians, or giving such an al-Qaeda operative Miranda rights and, before they can even be questioned, granting the terrorist a lawyer.” Isn’t that way too simplistic — and callous?

MINITER: When taken out of the context of the Eighth Amendment chapter, which covers “cruel and unusual punishments,” it does sounds simplistic and perhaps callous; however, when people read the chapter I’m sure they’ll see through a lot of the political hyperbole on this issue and perceive that the Eighth Amendment was intended to put the people in charge of what’s cruel and unusual, not the government. After all, this is a basic protection from government not a power for government to define. Therefore, if the people decide that it’s ethical to use waterboarding (a technique used to train security professionals in the U.S. government) in very specific instances, then yes, this is a tool that can be used.

LOPEZ: Do you have a favorite amendment?

MINITER: The Ninth, as it is the philosophical basis for our freedom. The Ninth Amendment simply declares, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It was added to the Bill of Rights because some feared that the federal government might someday say, “The Bill of Rights protects certain rights, so all the others are left to the government to give or take away.” By declaring that there are other rights “retained by the people” the Founders were also pointing to natural rights, moral rights that some, such as Thomas Jefferson, say come from God, but that others find in nature. But what I like most about this other body of moral rights the Founders acknowledged is that they are a check on government. Many liberal and progressive Americans now argue that natural rights don’t exist. They say that the power to grant or restrict rights lies solely in the hands of the state. liberal-progressives can’t admit there are real moral restrictions on government, as moral rules that cover everyone equally prevent any king or government from infringing on the people’s inherent rights. This is why the existence of natural rights has long been denied by dictators, kings, and liberals.

LOPEZ: A favorite back-to-the-Bill reform?

MINITER: I want Congress to pass a law stipulating, as many states have, that government can only use eminent domain to seize property for public uses as the Fifth Amendment says (such as for a highway or a dam) not for public purposes, such as by giving someone’s private property to someone who might pay more taxes.

LOPEZ: If everyone who read your book did one thing afterward, what would you hope it is?

MINITER: After reading Saving the Bill of Rights — and thereby understanding how American exceptionalism was unleashed from government by our individual rights — I hope people visualize their individual American dreams on the other side of an open expanse of ground. Next, picture the obstacles that stand in the way of the dream. Are regulations in the way? Maybe taxes? Perhaps red tape crisscrosses the expanse like crime tape in a gun-free zone? Maybe Big Brother is even there waiting like a linebacker ready to pummel you to the ground. Whatever is there, having read the book, you’ll also see the ten amendments in the Bill of Rights as weapons that have cleared paths to individual achievement before. So you’ll see what needs to be done to again win back American prosperity. In this way people will understand what John Stuart Mill was driving at when he wrote in On Liberty (1859), “A people, it appears, may be progressive for a certain length of time, and then stop. When does it stop? When it ceases to possess individuality.”

— Kathryn Jean Lopez is editor-at-large of National Review Online.