Americans love their Constitution, but most of us probably don’t fully understand it.
That became evident this week in major news stories. They both show that we may miss two important facts.
First, most of the Constitution applies to all people within the borders of the United States, even if they are not citizens.
Second, people in the United States have more rights than the relative few listed in the Bill of Rights.
The Framers of the Constitution, the 39 men who agreed in September 1787 on the draft document, wanted the House of Representatives to be directly elected by citizens. The number of seats allocated to each state is to be determined by the state’s population, counting just about everybody, not just citizens.
Remember that women did not have the right to vote, though they were citizens, and the new country was attracting immigrants, not yet citizens. Yet both women and immigrants were directly affected by the federal government. They were part of the population, but only men could the vote.
To know the correct allocation of seats, the Constitution requires that everybody, citizen or not, should be counted every ten years. Slaves were originally counted less, and Indians, when not taxed, not at all. Both are now fully counted. The first census was in 1790, and there is a census every ten years.
Over time, the federal government began to operate some of its activities and provide financing to states based on state populations. As a result, the census, with questions added, became the best way to know about some characteristics of people so that the federal support could be distributed proportionately.
The census was not used for law enforcement out of concern that some people might avoid being counted, which would undermine the basic constitutional purpose of the census.
Now, the Trump administration is proposing to add a question about citizenship to the census questionnaire. Because most government programs are not run for citizens alone, the prime purpose of the question is law enforcement. If people refuse to be counted or lie about citizenship, they may face deportation.
By using the census to remove people from states, the result may be under-representation of some states. Remember, the Constitution says people, not only citizens, should be counted.
That provision is consistent with other parts of the Constitution. For example, the Bill of Rights applies to all people in the United States, not only citizens. Everybody has freedom of speech.
Some states are taking the federal government to court over the citizenship question in the census. One possible result may be that no questions may be asked in the census beyond the simple count required by the Constitution.
The other event this week was an article by John Paul Stevens, a retired justice of the U.S. Supreme Court. Responding to the student gun control demonstrations in the wake of the Parkland shootings, he called for the repeal of the Second Amendment. That would allow the kind of gun control the students wanted.
The N.R.A. immediately responded, seeing his statement as an attempt to sweep away a basic right, protected by the Constitution.
The Declaration of Independence says people are “endowed by their Creator with certain unalienable Rights.” Rights do not come from government. People naturally have rights.
When the Constitution was debated, Alexander Hamilton opposed the Bill of Rights. He argued that people had many rights and listing only some of them would give the mistaken impression that these were the only human rights.
But many states wanted protection from government action that would excessively restrict at least a few of those rights, notably where the British king had cracked down. But the Bill of Rights states there are more rights, “retained by the people.”
Even if the Second Amendment were repealed, the right to “keep and bear Arms” would not have been repealed. But some its supporters say the Second Amendment is needed to ensure it as an absolute right, one the government cannot limit in any way.
The Supreme Court decision that every person has the right to own and use a gun also found that reasonable limits could be placed on the right. Keeping guns out of schools was one example given. The Court had long ago ruled that any right has its limits, especially when its use can harm others.
These two situations – who the census counts and the extent of the Second Amendment – take us back to understanding the Constitution. If only we had paid attention in civics class.