Frank Miniter says the Left is out to destroy the Bill of Rights and America. Exaggerate much? Or is his Saving the Bill of Rights: Exposing the Left’s Campaign to Destroy American Exceptionalism a timely wake-up call? He makes his case — and talks about his rescue plan — with National Review Online’s Kathryn Jean Lopez.
KATHRYN JEAN LOPEZ: Surely, after the Casey Anthony trial, you can understand why a defense of the reason we have trial by juries may not be an automatic bestseller? But it may make for a Nancy Grace segment.
FRANK MINITER: Certainly, but ask yourself this: Which is worse, what seems to be an unjust verdict from a jury of our peers or an unjust decision from a judge who prefers his or her politics to the law? A brief look at the history of freedom shows that a runaway judge is far worse than a runaway jury. After all, when the trial is over, the jury is disbanded and a new jury is chosen for the next case. A judge, however, can day after day usurp the law with his or her personal views. But yes, this truth about our freedom requires an understanding of the essence of our liberty and how it was won, which is why I wrote Saving the Bill of Rights — judges stubbornly asserting their will over the state is actually what historically led to the Bill of Rights.
LOPEZ: Do we really need a book on the Bill of Rights? How about just reading them, for a start?
MINITER: Reading them is where we must begin, but we must also know what they were meant to protect and how they have been undermined. Now, I’m not saying we have to take our medicine to be good citizens; the story of our individual freedom is actually so overloaded with dramatic struggles and swashbuckling characters that I’m sure people will find from page one this book doesn’t read like a textbook. But I am saying we do have to understand our rights in order to parry attacks on our liberty.
LOPEZ: Who is your audience here? Can this book cause a constitutional conversion?
MINITER: Saving the Bill of Rights is for freedom-loving Americans. The Constitution and its amendments are not the quaint, antiquated documents the Left claims they are. The First Amendment says, “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.” What is difficult to understand about these words and phrases? Indeed, for a definition of “American exceptionalism” we need look no further than the Bill of Rights, as the individual rights protected in the Bill of Rights restrict the government from obstructing Americans’ pursuit of happiness. So yes, once people clearly see what has made this nation great, I think they’ll cherish their Constitution all the more. Consider, for example, that the U.S. Constitution begins with “WE THE PEOPLE” in huge letters; whereas the European Union’s inaugural charter, the Treaty of Rome, begins, “His Majesty the King of the Belgians,” and you’ll see how unique, important, and fragile our freedom is.
LOPEZ: You hear a good deal about constitutional conservatism these days. Is that what your book is a primer on?
MINITER: Constitutional conservatism is an accurate description, however, as a label it has the taint of political bias. The Constitution was written by a group of men over a hot summer in Philadelphia in 1787, but before it could take effect it had to be ratified by no fewer than nine states (of 13). I point this out because it is important to keep in mind that adopting the Constitution and its amendments (including the first ten, which are the Bill of Rights) was accomplished via the will of the people, through their elected representatives. This is why the Constitution shouldn’t only be defended by conservatives; though, it is fitting that conservatives are leading the way, as the word “conservative” is derived from the Latin word “conservare,” which means “to guard, defend, preserve.”
LOPEZ: Are you sure the Left actually wants to destroy American exceptionalism?
MINITER: I think the Founders would agree that American exceptionalism grows from our right to pursue our own individual paths to happiness. I think this is why the Founders wrote the Bill of Rights as negative liberties (restrictions on government). By placing the people above the state, they did something that made European monarchs sweat in their silk stockings. Next, by affirming in the Declaration of Independence that above the people is the morality of God, they were really saying something. Now realize that it is precisely these individual rights (the very definition of our American exceptionalism) that the Left is philosophically opposed to; after all, a basic belief of the Left is that the state must take care of and guide the populace by redistributing wealth, creating universal health care, and so on as they steamroll individual rights in their statist efforts to create collective rights.
LOPEZ: So how do you save the Bill of Rights?
MINITER: Thomas Jefferson warned in a letter to Col. Charles Yancey, on Jan. 6, 1816, “If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be.” We must understand our freedoms if we are to retain them. This is precisely what this book will do for people.
LOPEZ: You say liberty isn’t liberalism. But classical liberalism had a lot to do with it, didn’t it?
MINITER: I don’t believe I’ve ever heard a politician claim to be a “classical liberal.” Recently some Democrats began referring to themselves as “Blue Dogs” in order to differentiate themselves from the liberals in their party. The term “Blue Dog,” though, always makes me think of a blue-tick hound a friend of mine owned. The big, floppy-eared dog was very loud and a product of the South, but it was all bluster and no bite. It’s actually too bad some of the Blue Dog Democrats didn’t instead call themselves “classical liberals,” as this would have made the urban intelligentsia who seem to bandy about that term most choke on the olives in their martinis. It may have even forced intelligent editorial writers to attempt to define the term, which, gasp, just might have helped push the Democratic party back from the precipice of socialism.
LOPEZ: You say we have adopted a second Bill of Rights. Did it go to a vote? Is it that moment when Barack Obama believes America became great?
MINITER: I wasn’t aware Pres. Barack Obama thought America had become great. President Obama said in 2001 on WBEZ, a Chicago public-radio station, that the Constitution “says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.” By saying this he was reaching back to Franklin D. Roosevelt’s State of the Union address on Jan. 11, 1944. In it FDR outlined what is often referred to as his “second bill of rights.” He said the government should be required to give each citizen a job, health care, a home, and a good education. FDR didn’t get his way, but Obama used the government to take over the student-loan program to grant a right to an education and he passed Obamacare, which is a new entitlement to health care. So yes, it’s clear what Obama meant when he said he wants to “fundamentally transform America.” He wants to pass new positive rights that put the government in charge of what were once personal choices decided in a free marketplace. These positive rights are fundamentally destroying our Bill of Rights.
LOPEZ: Do you feel the need to destroy that second Bill of Rights?
MINITER: The battle to stop the federal government from being empowered by positive rights is the battle for our freedom. A colorful analogy would be to compare this struggle between negative and positive rights to Luke Skywalker resisting the attempts from his father, Darth Vader, to go over to the dark side. They’re powerful and alluring but in the end positive rights placed in the hands of government will destroy you, the individual you.
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.
LOPEZ: You write, “Every fourth grader knows the First Amendment’s protection of the freedom of speech and of the press are fundamental liberties that were earned on the battlefield and later safeguarded within the Bill of Rights.” Are you so sure?
MINITER: Perhaps it’s wishful thinking to suppose that most Americans have, at the very least, a vague notion that once upon a time our independence was won on the battlefield, but please allow me a little wishful thinking. It is my last defense against cynicism.
LOPEZ: Why is the Second Amendment worth adamantly defending?
MINITER: The right to self-preservation is our most basic human birthright. From a purely practical point of view, it’s worth noting that in those hair-raising moments when a rapist, robber, or murderer comes for someone, no matter their political persuasion, they learn that Col. Samuel Colt wasn’t joking when he ran ads declaring, “God made man, but Samuel Colt made them equal.” After all, though 911 is an important lifeline, 911 is no more real than good intentions until the police actually arrive. This is why I say that gun rights are also women’s rights.
LOPEZ: “Understanding this period of history makes you realize how appalling it is that today’s inner-city and largely black neighborhoods, which often have the highest murder rates, have some of the strictest gun-control laws in the nation. Honest people in those neighborhoods are barred from defending themselves just as southern blacks once were.” Are you actually making your absolutism a civil-rights issue?
MINITER: Absolutism? Black codes were once used in the South, predominantly by Democrats, to disarm African Americans so Caucasians could more easily control people of color. George Mason, long remembered as the “Father of the U.S. Bill of Rights,” showed he understood this threat when he said, “To disarm the people, that was the best and most effectual way to enslave them.” After the American Civil War, Congress saw that blacks in the South still weren’t really free, so they decided that a constitutional amendment was necessary to provide full protection for them. In 2010, the conservative bloc on the Supreme Court noted this by writing in McDonald v. Chicago, a ruling that requires state and local governments to abide by the Second Amendment, that “it is generally accepted that the Fourteenth Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act of 1866.”
With this history in mind, look around the country today and note which local governments have most infringed upon their citizens’ Second Amendment rights. You’ll soon see it is the Democratically controlled inner-city neighborhoods, areas with high percentages of minorities, that do the most to prevent law-abiding Americans from attaining firearms for personal defense. The result of these gun-control policies has been the creation of an unarmed class of victims for thugs to prey on. Yeah, that’s a civil-rights issue.
LOPEZ: What does the recent rent-control debate in the New York statehouse have to do with the Bill of Rights?
MINITER: Property rights are protected by the Fifth Amendment. Economic takings through burdensome regulations, such as rent control, are Fifth Amendment infringements that require just compensation. The trouble is left-leaning justices have too often ruled that a complete taking is necessary before the government has to pay for property-rights infringements. But what really appalls me about New York rent control is how families, such as Jerrold and Ellen Ziman, are being treated. The Zimans moved to Manhattan and bought a townhouse. At the time the state’s rent-control laws said they could evict the tenants from their private property so they could turn the building into a home for their two kids. But after they purchased the property the state changed the law and the Zimans found that by law three men were allowed to occupy 80 percent of their home for life — at ridiculously low rent-control rates that barely put a dent in the Zimans’ mortgage. There are a lot of dramatic stories in this book that will make any freedom-loving American’s blood boil, but this one, oh this one will make blood shoot from your eyes.
LOPEZ: Why would you quote Ayn Rand?
MINITER: I noted, among other things, that she said, “Remember also that the smallest minority on earth is the individual. Those who deny individual rights, cannot claim to be defenders of minorities.” This isn’t said enough. We are a nation of rights, a constitutional republic in which the people demanded a bill of rights as a condition for ratifying the U.S. Constitution. But during our two-plus century long quest for equality, our special interests, and our struggle for minority rights, has caused us to forget that the smallest minority is the individual.
LOPEZ: What’s the Tea Party’s relationship to the Bill of Rights?
MINITER: The Tea Party, to a large degree, is a counter-reaction to our runaway federal government. The Tenth Amendment was designed to prevent the federal government from growing into a bloated, liberty-devouring monster. But today the Tenth Amendment’s restriction on the federal government has been almost completely routed. What I think the Tea Party movement is accomplishing, first and foremost, is re-establishing the basic idea that the federal government is restricted to its enumerated powers as outlined in the Constitution.
LOPEZ: Does it need to get more worked up about some of it? The Fourth Amendment, maybe?
MINITER: Yes. The Left howled about the PATRIOT Act when Pres. George W. Bush was in office, but they now say that the Fourth Amendment’s protection of our “persons, houses, papers, and effects, against unreasonable searches and seizures” doesn’t cover cellphones, computers, digitized documents, and websites. Just because our “papers” appear on a screen shouldn’t mean the Fourth Amendment doesn’t protect them from warrantless searches. And just because we move about in public shouldn’t mean the government can use a new technology to track us without a warrant. Yet the Obama administration, for example, will argue before the U.S. Supreme Court this fall that law enforcement should be able to affix a GPS device to someone’s vehicle to track their every move without the benefit of a warrant. I think the reason the Tea Party hasn’t gotten really angry about the deterioration of the Fourth Amendment is because the government has done a good job clouding out the truth about this basic constitutional restriction. When people read my book, however, I think they’ll get it and demand their Fourth Amendment back.
LOPEZ: How would you undo the “big, fat” privacy-right “lie”?
MINITER: This is easy. All people have to do is acknowledge that while it’s true that today our papers are more often digital (something that was unfathomable in 1776), this doesn’t end their constitutional protections; after all, no one argues the First Amendment protection of free speech ends when our voices go over the Internet or on television.
LOPEZ: Why is Kelo so important?
MINITER: Private property is the basis of a free society. When the government can nail an eviction notice to your door (they did this to Susette Kelo) to tell you to get off of your property so they can give your land to Pfizer, the largest pharmaceutical company in the world, because Pfizer will pay more taxes, then we’ve lost the basis for our freedom. That the Supreme Court went along with this theft, as they did in Kelo v. New London (2005) is especially horrendous. The Fifth Amendment says property can only be taken for a “public use,” but the court decided the word “use” can be construed to mean “purpose,” and ruled that more tax revenue is a just purpose. When researching this portion of the book I went to New London, Conn., and saw the place where Kelo’s little, pink house once stood. It’s now an empty lot. Pfizer never even built there.
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.