In an effort to update and upgrade our national anthem, Washington Post columnist Gene Weingarten has penned his own replacement, with music set to the tune of the William Tell Overture and lyrics drawn from the Bill of Rights, "those 10 simple guarantees of individual liberty that," Weingarten correctly notes, "are truly great." With all due respect to Francis Scott Key, I think Weingarten's done something remarkable here.
The most striking thing about Weingarten's adaptation of the Bill of Rights isn't the rhyme scheme or meter: it's the extent to which his light-hearted cover version reflects an appreciation of the Bill's true purpose that seems to far exceed that of the ruling elite in this country (including, sadly, the Supreme Court itself).
Take, for example, Weingarten's translation of the Ninth Amendment. James Madison's original version tells us that "[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Weingarten's playful-but-accurate update says, "Just because these/are the rights that we are hereby/to you doling/Doesn't mean you/Don't have others/(for example,/going bowling)."
And he's right! You do have a right to do things that aren't specifically listed in the Bill of Rights, whether you want to go bowling, wear a hat, or earn a living in the occupation of your choice free from arbitrary government interference. Try telling most modern lawyers that you have a right to go bowling, though, and they'll look at you cross-eyed, demanding to know what in the Constitution protects that specific right - instead of focusing on the more relevant question of what in the Constitution tells us you don't have a right to go bowling.
Or take the song's straightforward reminder that "Other laws ... are left to the states," a nod to the Tenth Amendment's emphasis that the Constitution created a federal government of strictly limited powers and left all other powers "to the States, respectively, or to the people." That concept seems clear enough, but ask the average law professor to list the powers she thinks the Tenth Amendment leaves to the states. Precious few!
So why is Weingarten's tongue-in-cheek ditty about the Bill of Rights so different from - and so much more powerful than - the understanding shared today by most scholars and pundits on the left and right alike? Mostly because the national discourse (on the left and right alike) has been largely taken over by people who object to the Constitution's limits on government power - and particularly dislike it when judges try to enforce those limits. Among other things, these people reflexively scream "judicial activism" at virtually any decision striking down a law they personally favor, regardless of what the Constitution says about that law.
The fact that Weingarten's gloss on the Bill of Rights - which recognizes it as a charter of liberty and a meaningful check on government - differs so markedly from the current elite understanding speaks volumes about the power of the false narrative of "judicial activism" and the damage it has done to the concept of limited government and individual liberty. And it underscores how important it is to defeat that narrative by moving to a better understanding of the power of the Constitution and the need for meaningful judicial engagement.
A humor columnist's faux national anthem seems an unlikely place to find such a robust defense of our freedom - as well as such as strong implicit condemnation of the state of our national discourse. But, without even seeming to try, Gene Weingarten's cover of the Bill of Rights rings closer to the tune of the original than anything you'd be able to glean from most of our nation's constitutional scholarship or political commentary. Maybe that's because, before Weingarten wrote a song about the Bill of Rights, he read it. Many of the nation's political elites could stand to do the same.
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