So what if Brennan took the oath on an original draft of the Constitution from 1787?!

March 9th, 2013

This story is so silly. It’s almost as if someone just realized that the Constitution lacked a Bill of Rights from 1789 until 1791. Well, duh. Our Constitution has been amended many times throughout the years. That’s the point of Article V.

The political compromise that allowed our Constitution to be authored in the steaming summer of 1787 was based on it not yet having a Bill of Rights, yet one would be added as soon as practicable. Indeed, within two years of the Constitutions ratification in 1789, Ten Amendments were ratified (and several were left on the ash heap of history, one of which would ultimately become the 27th Amendment two centuries later).

Randy Barnett often poses a thought experiment that I found fascinating. What was the state of our liberties during that brief interregnum between 1789 and 1791? Could the federal government have established a church, or taken private property without just compensation, or searched a house without a warrant, or killed a U.S. citizen by firing a hellfire missile from the sky (or a cannon)?

In any event, our Constitution is framed to allow it to become a more perfect document through the Amendment process. Our Constitution did not stop in 1787. The first Ten Amendments, the Reconstruction Amendments, and others helped shape and guide our constitutional governance. Would it have been better if he used a draft of the Constitution from 1791 that lacked a 14th Amendment? Such a silly argument.

Kudos to Brennan for taking an oath on a document that had our first President’s handwriting on it. Now, let’s just hope Brennan remembers how our first Commander in Chief viewed the separation of powers.