*The 1780s was a very different time in this country. What was important then is not necessarily what is important now.
So while the Bill of Rights was created because it protected universal truths, there are some things that could stand to be changed; some things have changed already.
The First Amendment protects freedom of speech, petition, assembly, press, and religion. Within ten years of this Amendment being ratified it was ignored as Congress passed the Sedition Act which criminalized criticizing government officials. The thinking was that there should be no shots taken at officials while the country was navigating neutrality during the Napoleonic Wars. I’m not sure such a restriction on free speech is wise; it would lead to the government mandating total compliance with any policy because nowadays there is always a military conflict we are participating in or mediating. But if we are going accept that some speech doesn’t fall under this Amendment, then we should amend the Constitution to reflect that thinking.
The Second Amendment is probably the most controversial in current American society. I have argued in this space before in favor of gun control; I have argued in favor of gun registration; I have argued that this amendment is not about individual arsenals for no other reason than a person likes guns. None of that matters though. We are a nation of gun owners and while I’d like their guns to be registered and I wish folks didn’t want so many, I do not think the government should be in the business of confiscating guns from lawful owners. But because I think the way this Amendment was written was about public service rather than private use, another Amendment is necessary to codify that personal use of guns is lawful.
The Fourth Amendment masquerades as a very concrete restriction on government power but is actually so abstract it can be interpreted to allow almost any government action. The idea of probable cause is at the discretion of a judge who will ultimately look at how government (in the form of a law enforcement agent) behaved and determine if the government could reasonably conclude that the person they arrested or detained could have been committing a crime. That is too low a bar to hurdle. An amendment should be ratified to clarify the concepts of personal security (important) and societal security from criminals (also important).
I have two problems with the Fifth Amendment. First the ability of accused criminals to avoid testifying in criminal cases and second the idea of just compensation. Someone’s guilt or innocence of a crime is not going to really change how they testify (the accused is going to deny guilt), and it is the job of the prosecuting lawyers to either get to the bottom of a false story or give up a flimsy case. In what scenario does an accused criminal speaking at a trial become a problem? Also who decides what is just compensation when a corporation or municipality has determined your land is in the way of progress? Progress is worth millions to the corporation/municipality but only a fraction of their projected revenue is given to you. This seems imbalanced. Of course if I have this wrong, and someone who was displaced because of a public road was given millions of dollars – let me know.
The Eighth Amendment is perhaps the most vague part of the Bill of Rights. “No cruel and unusual punishment.” Cruel is a function of the people deciding the punishment. The soldiers at Guantanamo Bay didn’t think they were being cruel to the detainees in their care but society at large disagreed. States can decide that convicts can be kept in isolation with only a little time each day to be in semi-social situations and society at large finds this okay even though humans are social creatures. In addition unusual is really simply a matter of timing. If only one state starts making convicts guinea pigs for medical experiments then it is by definition unusual; if forty states create programs like that it can be argued that the program is widespread.
I will admit that it is difficult to change the situation regarding the Fifth and Eighth Amendments because just compensation will change with the details of each individual case. The collective understanding of what is cruel and unusual also changes depending on time and place so it is impossible to nail down the Eighth Amendment. Nevertheless the situation the way it stands is problematic.
Also I acknowledge that it is unlikely that the Constitution will be amended again anytime soon. The process of ratifying an amendment is slow (as it should be) and the attention span of the country is such that nothing is a hot button issue long enough to garner the sustained attention and support.
Still the idea behind the Constitution is that the country and our governing system needed to be improved upon (“a more perfect Union”). If the current group of legislators are still serious about perfecting our country they would take action in clarifying some of the above issues.
Trevor Brookins is a freelance writer in Rockland County, New York. He is currently working on a book about American culture during the Cold War. His writing has appeared in The Journal News. You can reach him at [email protected] or be disappointed in his lack of output on Twitter @historictrev.