Madison Cawthorn’s Warped Washington

Hi,

I once heard Robert Goldwin, a great constitutional scholar, give a talk about gun rights. It was remarkably nuanced and I think many of my Second Amendment enthusiast friends would have objected to it. He believed the Second Amendment was not about private ownership of guns, but about the right of states to have militias. That said, he also believed that if you asked any of the Founders whether you had a right to own a gun, they’d say, “Yes. Of course. It goes without saying. Everyone has firearms in the home. Everyone hunts. Why do you ask?” For Goldwin, the individual right to own a gun was like the right to own a dog: You have that right, but the state can regulate it to one extent or another. In short, it is an “unenumerated right” and the Founders were perfectly reasonable in not listing every right Americans have in the Constitution.

The problem with not listing every right we have is that it leaves other things we obviously have a right to do less secure than the rights that are listed. Parents have the right to name their child whatever they want. So you can name your kid “Quarter Pounder With Cheese” or “Le Big Mac” even though it’s not in the Constitution. You have a right to wear mismatched socks, eat soup with a fork, and spell everyday words with silent Qs riddled throughout, and the Squpreme Coqurt can’t say jack about it.

James Madison was so concerned about these rights getting trampled that he insisted on the Ninth Amendment, which says, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

I bring this up for two reasons. First, because I thought I should cram some eggheady substance into this “news”letter before I got to the point.

The second reason is that this popped into my head when I started thinking about what you might call unenumerated rules. In life, there are lots of rules people follow that they are only vaguely aware are actual rules. In fact, they materialize from the ether of our consciousness only when specific circumstances emerge that allow us to inductively draft them on the fly. We were all told, “Don’t run with scissors.” But few of us were similarly informed that we shouldn’t run with chainsaws smeared with Vaseline (of course, we shouldn’t have to tell people not to smear really dangerous tools with Vaseline in the first place). We were all told to say “please” and “thank you” when asking for small favors, like “Please pass the salt.”  But no one told us that we shouldn’t say, “My fingers really smell like dog butt” while preparing sushi for paying customers. I’ve given lots of career advice over the years, but I’ve never told anyone, “Don’t tap on your glass eye with a pen during a job interview. It’s distracting.”