Should we rewrite the First and Second Amendments? In a contribution to a Boston Globe series on "editing the Constitution," law professor Mary Anne Franks of the University of Miami proposes replacing the first two items in the Bill of Rights with more qualified versions. You can catch Franks' drift from the subtitle of her book: The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech.
"As legal texts go, neither of the two amendments is a model of clarity or precision," Franks wrote at the Globe. But her rewrites don't improve the situation. The core idea is to make the amendments more consistent with promoting the general welfare, as promised in the Constitution's preamble. But Americans have traditionally — and rightly — believed strong protections for individual rights themselves promote the general welfare. Franks' versions offer much too little in that regard.
Her edit of the First Amendment would on its face sharply curtail freedom of speech, affirming "the right to freedom of expression, association, peaceful assembly, and petition of the government for redress of grievance" but making them "subject to responsibility for abuses." All "conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all person," she says.
Who will determine the nature of these abuses, enforce that responsibility, and resolve the conflicts? What does "the principle of equality and dignity" mean in practice? After complaining of imprecision, Franks doesn't say. Her proposal sounds rife for abuse by a government that won't always be run by people who share her political preferences.
Her Second Amendment is tweaked to get rid of all the icky stuff about guns and militias. Instead, self-defense is rooted in bodily autonomy, which is fair enough. But Franks would also give the government the right to take "reasonable measures to protect the health and safety of the public as a whole." More than a year into the pandemic, we can safely say there is no real consensus on what that means. And adding abortion to the Second Amendment, as she also does, may be the only possible way to make our most controversial amendment even more contentious.
Nobody would ratify these complex reboots of the first two amendments. Yet liberals are increasingly openly hostile to the limitations the basic structure of the Constitution imposes on their political agenda, as Franks' piece and most of the Globe's other articles in this section demonstrate anew. Conservatives had better answer.