Testing our Constitution

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By Mike Cronin

Today ought to be a national holiday.  229 years ago today, the Constitution was created.  It was ratified and became the highest law of the land two years later in March of 1789.  Contrary to popular opinion, or even popular “fact” taught in many of our schools, the Constitution didn’t give us a democracy, even though it specified certain democratic processes for electing the president and members of Congress and for proposing and enacting legislation.  It gave us a republic – a form of government where the people’s rights were protected by law and could not be voted away at the whim of the majority.  It gave us the first country in the history of mankind founded on the ideal of individual liberty and personal freedom.

The Constitution, and our republic, has been under attack, either literally or rhetorically, ever since.  Some, like Supreme Court Justice Thurgood Marshall, would have us believe the Constitution is a “living document,” i.e. open to re-interpretation through whatever cultural lens exists at a given time.  The Framers knew better than that.  They knew America would not be the same in 1887 or 1987 as it was in 1787, so they crafted a mechanism into the Constitution that would allow for it to be changed: via amendments. They deliberately made the amendment process challenging, but not impossible.  It has worked just fine at least 17 times over the last 229 years.  The most recent, the 27th Amendment, was ratified in 1992.  (Yes, there are 27 amendments, but the first ten were enacted simultaneously as the Bill of Rights, hence 17 instances the amendment process has been carried out.)

One of those amendments, the first in fact, is being tested right before our eyes today. There is a public controversy over several NFL players who are refusing to stand during the playing of the National Anthem.  As a veteran, I am in the curious position of both feeling pained and proud.  It pains me to see people disdain the anthem, because so many have fought and died to protect the freedom and liberty the flag stands for. And yet, the very first freedom protected by the Bill of Rights is the freedom of expression.  As much as it galls me to admit it, our country has not always acted in accord with its own highest law.  As I’ve mentioned elsewhere, for nearly a century after the Constitution was ratified, men could own other men in this country…if they were black. Our history has other examples of its failure to abide by the Constitution and the principles of individual freedom it protects: Confiscatory income taxes. The draft. Excessive bureaucracy and scandalous deficits and debt. Spying on citizens. Obamacare. Failures to hold officials accountable for their transgressions in office. The list is not short.

So when an NFL player refuses to stand for the National Anthem, and no government sanction ensues, I can be proud to witness an instance where the Constitution itself is being honored by the government, even if those who have given everything in its defense are being dishonored.

Of course that works both ways.  Just as those few players have the right not to stand, the fans, the teams, and the league have the right to express their displeasure at the offending players.  It would not pain me at all to see the league fine, or the teams discharge, the players in question!

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