Times change, and a Living Constitution must change with them. Accordingly, I suggest that modernization of the old Bill of Rights is urgently required along the following lines.
1. Congress shall make no law respecting the establishment of fiscal responsibility; or abridging the freedom of shopping at the mall or surfing online porn sites; or the right of the people peaceably to cower in their homes, and to petition the Government for bombing the Iranians back into the Stone Age if they so much as whisper the Farsi word for “nuclear.”
2. A well regulated Militia, being necessary to the security of a free State, such Militia has no place in our country, wherein the people clamor not for freedom, but for the illusion of security — besides the old state militias were effectively incorporated into the national military establishment by the National Defense Act of 1916, so the matter is moot. No private person needs a gun; the police have shown that they can and will protect everybody at all times.
3. No soldier shall, in time of peace be quartered in any house, without the consent of the Department of Defense, nor in time of war, but in a manner to be prescribed by the president or, if he be a moron, by the scheming vice president lurking behind the throne.
4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated unless the government wants to violate this right for national-security or other half-plausible reasons, and no Warrants shall issue, period, because a self-issued warrant known as a National Security Letter, written by any FBI agent with or without a good reason, will do just as well, maybe better, for the government, allowing the judges to get out to the golf course by mid-afternoon at latest.
5. No person shall be held to answer for any capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury or if the government labels him an unlawful enemy combatant or a material witness to something or other; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb unless the judge lets the prosecutor get away with the imposition of such double jeopardy; nor shall be compelled in any criminal case to be a witness against himself unless waterboarded till he confesses to every crime known to man; nor shall be deprived of life, liberty, or property, without due process of law, so the government must go through certain make-believe motions as a pretense of fair dealing; nor shall private property be taken for public use, without just compensation, unless corrupt local officials have entered into a sweetheart deal with real-estate developers who want somebody’s house or business for their own private profit-seeking use, in which case all bets are off.
6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, shall be informed of the nature and cause of the accusation, shall be confronted with witnesses against him, shall have compulsory process for obtaining witnesses in his favor, and shall have the Assistance of Counsel for his defense, except when the government has declared him subject to the Military Commissions Act or peremptorily hauled him off to Guantánamo or Egypt or Bulgaria or some other hellhole where he will be tortured until he wishes he had never been born and tells his assailants whatever he can imagine might make them stop hurting him.
7. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law — but if anybody thinks this provision will help him escape the clutches of an ambitious prosecutor itching for higher office, then he sure as hell hasn’t had much experience in the courts.
8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted except when the judge, not liking the looks of the accused, decides to throw the book at him to impress the law-and-order conservatives who for some reason imagine that only scumbags and ethnic Untermenschen ever become entangled in the legal system’s arbitrary, capricious, and cruel web.
9. Only an ink blot appears here (formerly, before the ink blotted, it appears to have read, “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” but no one now living can imagine what such words might have meant).
10. Only an ink blot appears here, too (formerly, before the ink blotted, it appears to have read, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people,” but such a provision makes no sense whatever, because had it been in effect, it would have prohibited virtually everything the national government has done routinely for the past century or more).
Robert Higgs [send him mail] is senior fellow in political economy at the Independent Institute and editor of The Independent Review. His most recent book is Neither Liberty Nor Safety: Fear, Ideology, and the Growth of Government. He is also the author of Depression, War, and Cold War: Studies in Political Economy, Resurgence of the Warfare State: The Crisis Since 9/11 and Against Leviathan: Government Power and a Free Society.