Chapter 32 3. A Living Constitution

The new constitution came into force.But this kind of effect is just like the so-called "it comes out after a thousand calls, and you still hold the pipa and half cover your face".That said, approval is conditional.Massachusetts, New Hampshire, Virginia, etc. all required the addition of the Bill of Rights after the new constitution came into operation.These conditions are attached to the resolution to adopt the Federal Constitution, and they are "legislative debts" that must be paid.North Carolina insisted on adding the Bill of Rights before ratifying the Constitution.What's more, this is not the opinion of a few people. Many people are dissatisfied with the lack of provisions in the Federal Constitution to protect citizens' rights. In 1776, Thomas Jefferson, who drafted the Declaration of Independence, was on business in Paris and did not attend the Constitutional Convention. Afterwards, he clamored to make amends.Jefferson wrote to Madison applauding the Constitution, but at the same time expressing that he could never accept a Constitution without a Bill of Rights.He even encouraged states to make it a condition for ratifying the constitution.The Marquis de Lafayette of France also pointed out this flaw in the Constitution after seeing the text of the Federal Constitution sent to him by Washington.We know that the Marquis of Lafayette participated in the American Revolutionary War and served as a major general under Washington.He was also one of the drafters (writing the first draft) of the Declaration of the Rights of Man and the Citizen during the French Revolution, and he can be described as a "hero of two worlds".His words, of course, carry a lot of weight.

In fact, Madison and Washington should have realized the seriousness of the problem long ago.Gerry, Mason, and Randolph should have realized it when they refused to sign. On September 15, in his final speech, Gerry talked about Chen's reasons for disagreeing with the draft constitution. There are 8 articles in total.Then he said that these issues can be compromised, but if civil rights are not guaranteed, they cannot agree anyway.It's a pity that some people were too eager for success at that time, while others were exhausted. Everyone wanted to get things done as soon as possible, so they just ignored this crucial clause.

In hindsight, these omissions are certainly inappropriate.Because the Declaration of Independence clearly declares that all people are born free and that everyone has their own natural human rights.It is to secure these rights that governments are established.This is the revolutionary spirit of the United States and the founding ideal of the United States.So, when the Constitution was drafted, how could there be no Bill of Rights? Thus, when the First Congress began its work in April 1789, enacting the Bill of Rights became its top priority.The new President, Washington, also wrote that he would support Congress to enact this bill. On June 8, Madison proposed to the House of Representatives a bill drafted with reference to the "Bills of Rights" of each state, a total of 12 articles.His intention was to codify these bills into the text of the Constitution, but Sherman and others objected.After debate, it was finally decided to take the form of "Amendments".As a result, not long after the Federal Constitution took effect, it had its own amendments.

According to Article 5 of the Federal Constitution, constitutional amendments passed by the Senate and House of Representatives must be ratified by 3/4 of the states before they can take effect. On September 25, 1789, the Federal Assembly passed a resolution to add 12 constitutional amendments.From November 20th of this year, New Jersey, Maryland, North Carolina, South Carolina, New Hampshire, Delaware, New York, Pennsylvania, Rhode Island, Vermont, and Virginia successively ratified the latter 10 articles within three years.In this way, by December 15, 1791, a total of 11 states ratified (Georgia, Connecticut, and Massachusetts were all delayed until 1939), more than 3/4 of the 14 states at that time, and the 10 approved bills officially became the "Constitution of the United States". component.

The 10 amendments to the Absorption Act, which came into effect on December 15, 1791, are called the "Bill of Rights" because they all protect the rights of citizens.Among them, the most important is the first article, the First Amendment to the Constitution.This article stipulates that the Federal Parliament shall not legislate to establish religion or prohibit freedom of religious belief; shall not legislate to deprive the freedom of speech and press;This article, because the key word is "no legislation", is also called "no legislation clause". Obviously, this article is aimed at Congress.That is to say, the "suspect" that the makers of the amendments must guard against first is Congress.There is no need to talk about the truth, it has been said many times before.The practice is not new, it exists in the text of the Constitution.Article 1, Section 9 of the Constitution stipulates that the Federal Parliament "shall not pass any bill of deprivation of public rights or of retroactive past".Immediately afterwards, in the following paragraph, the tenth paragraph, the U.S. Constitution, which cherishes ink like gold, almost repeats it, stipulating that the states also "shall not pass any bill of deprivation of public rights, retroactive law, or law that impairs contractual obligations."When the Constitutional Convention discussed these two articles, they passed them almost without any hesitation.This shows that everyone is cautious about the abuse of power by Congress.

But the people are still dissatisfied, because the abuse of power is hard to guard against.Moreover, Article I, Section 8 of the Constitution stipulates that "for the exercise of the various powers vested in the Government of the United States, its departments and officers by this Constitution", the Congress of the United States has the power to "make all laws necessary and proper".This clause is often referred to as the "necessary and proper clause".It is of course "necessary and appropriate" to formulate this clause.But it is this vagueness that is most troubling.What is "necessary"?What is "appropriate"?Who has the final say on this "necessary and appropriate"?When the time comes for Congress to enact a law, is it "unnecessary" or "inappropriate"?

It is necessary to put the ugly words first, and determine the rights that the people consider the least inviolable, so that Congress will not infringe arbitrarily under the pretext of "necessary and appropriate".That is to say, use the "no legislation clause" to check and balance the "necessary and appropriate clause".In this way, not only the administrative organs violated by the people will be restricted, but also the Congress, which is usually regarded as the organ of public opinion, will also be restricted.Although the Americans at the beginning of the founding of the People's Republic of China were just country bumpkins on a wild continent, they would not be sloppy when it comes to fundamental issues.They know very well that absolute power will inevitably lead to absolute corruption and absolute tyranny, even if this power comes from the masses or is in the hands of honest men.Democracy and morality are not infallible.Democracy is entirely likely to lead to "tyranny of the majority", thus turning "people's democracy" into "dictatorship of the masses"; morality is likely to lead to "ideal tyranny", from an ideal "paradise on earth" to an actual "world on earth". hell".Only the rule of law and constitutional government can be relied upon.Therefore, they strongly demand that their own constitution expressly stipulate that even if the conditions for passing the bill are fully met-the Senate and the House of Representatives pass it separately, the president does not veto it, and the Supreme Court does not judge it as "unconstitutional", some bills still cannot be established, and they cannot even be considered. .For example, there must be no legislation to deprive freedom of speech and the freedom of the press, etc.

Therefore, the American people, who guard against officials like thieves, guard against power like fire prevention, and guard against abuse of power like floods, set up a fourth firewall for their rights.We know that on the issue of legislation, the Federal Constitution originally designed three firewalls: one for separate legislation between the two chambers, one for legislative review by the President, and another for judicial review by the courts.So, what is the need for this fourth way? Is it superfluous?Obviously not, because what the Civil Rights Act wants to protect cannot be guaranteed by the previous three firewalls. What does the Civil Rights Act guarantee?As long as you read the short 10 articles carefully, you will understand that what it wants to protect are "citizens' rights", not "people's rights".The rights of the people are not equal to the rights of citizens. Although the people are a collection of citizens, it is precisely because the people are a collection of citizens that the rights of the people are integrated, while the rights of citizens are scattered and belong to everyone. .Overall rights are not difficult to secure.After all, the president is nominally elected by the people, and the parliament is theoretically an "organ of public opinion."It is unlikely that they would risk the disapproval of the world by blatantly violating the rights of the people as a collective.Even if some individuals make legislative mistakes, there are still three firewalls, so there is no need to worry about it.

The rights of citizens are hard to say.As a "representative of the people", the legislature is entirely possible to infringe and deprive individual citizens of their rights in the name of the people.For example, requiring the part to obey the whole and so on.This cannot but be guarded against.That's right, the part is to obey the whole. For the country and the people, citizens sometimes (such as during wartime) have to sacrifice their personal interests.Moreover, in order to obtain citizenship, individuals must also surrender some rights.But it must be made clear that, first, rights are not equal to interests.Benefits can be sacrificed, but rights may not.Second, the transfer of rights must have a bottom line.That said, some rights are inalienable, such as the rights to religious belief and freedom of expression.Third, how to exercise civil rights is the freedom of individual citizens.States and governments cannot deprive citizens of these rights because they do not exercise them.For example, if someone is willing to disclose his privacy, this is his freedom, and you cannot deprive him of his right to privacy.Xi Zhe said: "This is my broken house, the wind can enter, the rain can enter, but the king cannot enter."This sentence is just right here.

The Civil Rights Act, appended to the text of the Federal Constitution, does just that.It clearly stipulates which rights belong to each citizen, "the wind can enter, the rain can enter, and the king cannot enter" the "broken house".These "broken houses" may be insignificant and inconspicuous, but with them, individual citizens have a sense of security.Only then can they truly enjoy the rights of "Life, Liberty, and the Pursuit of Happiness" proclaimed in the "Declaration of Independence" under the protection of the law.We know that the date of the Declaration of Independence is regarded as the birthday of the United States of America.Then, the date of approval of the "Civil Rights Act" should at least be regarded as the day when this country planted "BCG vaccine".

Of course, what is written on paper does not equal reality. On December 15, 1791, and for quite a long time afterwards, the United States did not realize the ideal of "all men are created equal", and truly realized that everyone has the right to "survive, liberty and the pursuit of happiness".The rights of women, the rights of blacks, the rights of Indians, and many others still have to be fought for.But we must remember that in these struggles the Declaration of Independence and the Bill of Rights were their intellectual and negotiating weapons for their rights.In this sense, Mason's contribution is by no means less than that of Madison. The passage of the Constitutional Amendment also has another meaning, which is to make the US Constitution a "living constitution".We know that since the Constitution came into effect on March 4, 1789, not a single word has been amended for more than two hundred years, but it has 27 amendments.It is precisely because of such amendments that the defects of the constitution are made up for, and the foundation of the country is not shaken by frequent constitutional revisions, thus ensuring the long-term stability of the country.In fact, the life of this constitution has greatly exceeded the original expectations and was beyond the expectation of the constitutional leaders (Washington thought it could last at most 20 years).Of course, the lingering sound and aftermath it left behind will not only linger for three days, or it will be fleeting.