At first, Constitution architect James Madison resisted attaching a Bill of Rights to the document the Framers drafted in 1787. After all, he argued, we gave the federal government only 17 enumerated powers, and our clear implication is that we give it no other powers whatsoever. If we stick on a codicil saying what the government can’t do to the citizen, some slick lawyer in the future will argue that government can do anything we haven’t expressly forbidden. His Virginia colleagues replied that it was all very well to limit the powers of government by his document, but surely he understood human nature realistically enough to know that men love power, that constitutions are but paper, and ambitious politicians will overstep any boundaries with which you try to restrain them, so let’s at least make those boundaries as horse-high and bull-strong as we can make them. If the Constitution is a belt, what harm would it do to add a Bill of Rights as suspenders, given that what we are trying to uphold is the citizens’ liberty?
Madison couldn’t argue with that logic, so we got the first Ten Amendments. And you can appreciate how prophetic those who argued for a Bill of Rights were, seeing how bent out of shape the Constitution has been over the past century and more.
But even a Bill of Rights is no protection against the zeal of self-aggrandizing pols. A handful of state attorneys general, including New York’s ever-officious Eric Schneiderman, has sued Exxon Mobil Corp. to force hugely expensive disclosure of its climate research over the last decade, in what most observers agree is a campaign to chill the freedom of speech guaranteed in the First Amendment—in this case, to shut up those who deny that there is such thing as significant, man-made climate change—not to mention the infringement of the Fourth Amendment’s ban on unreasonable searches and seizures. It’s outrageous enough when assaults against free speech erupt on college campuses—so regularly that it’s front-page news when the University of Chicago, in the mildest and most liberal terms, informs its incoming freshman that a college is a place of inquiry, where speech is always and unquestionably free. But when the power of government steps forth to stamp out free speech, as the state attorneys general have done, that’s flat-out tyranny.
Now, Schneiderman has doubled down on his assault on the First Amendment. As overseer of the state’s nonprofit corporations, he decreed that 501(c)(4) advocacy groups must disclose the names of all donors of more than $5,000, and federal district judge Sidney Stein has just upheld his rule against a challenge from conservative nonprofit Citizens United. Citizens United argued that its donors’ First Amendment rights were being infringed, since having their names disclosed would expose them to possible backlash in ultra-left-wing New York State. This is not a silly fear, as the donors to the 2008 campaign for Proposition 8, a successful California initiative outlawing same-sex marriage, discovered when death threats poured in and when boycotts of their businesses forced them out of their jobs. And that’s because ultra-left-wing California had also chilled free speech with a donor-disclosure diktat. (The U.S. Supreme Court later nullified the proposition, which received 52 percent of all votes cast.)
Madison would not get the joke that the Constitution’s imagined “right to privacy” allows unrestricted abortion but doesn’t protect anonymous donations to those advocating political propositions they support. And since he believed that the freedom to believe what you want and to say so were the most fundamental of all liberties, he would throw up his hands at an Eric Schneiderman.
Lesser mortals would say, General Schneiderman, what about the Clinton Foundation?
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