At least a vast majority of us Americans think of our Constitution as the perfect example of philosophical ideals put into the best practical model of government and political system on the planet Earth. Historically and philosophically speaking, I think we are justified in that thinking. As far as actual governments and ‘rights’ were concerned, the 18th century was filled with old world ‘governments’ based on old world ideas.
But, the thinking of 18th century Europe was far from homogenous. Our Declaration of Independence and Constitution were the cumulative result of previous legal documents like England’s Magna Carta, The English Bill of Rights (1689), advancements in Science, and philosophical, historical and legal treatises from men like William Blackstone, Theodore Mommsen, Thomas Hobbes, John Locke, Thomas Moore, and David Hume. These works of the European Enlightenment began the gradual shift in the focus of the ideas of government and the very idea of ‘rights’ from being top heavy and authoritarian, to being equally distributed to all members of a society.
And while our primary American Enlightenment Founding Fathers- Thomas Jefferson, Alexander Hamilton, Samuel Adams, and Benjamin Franklin- were far from perfect human beings, their practical philosophical ideas of ‘rights’ transcended their personal faults in wording and spirit, which allowed for just three other needed elements to resolve many historical issues related to rights: time, knowledge and change in societal attitudes.
According to the criteria of history, degree of oppression/repression, and specificity, the four top issues still needing resolution at the time of the adoption of the original U.S. Constitution by all 13 original states are: Race, gender, religion, and sexual orientation. The first of these to be tackled were religion- in the First Amendment. The Founding Fathers who had an actual hand in the writing and support of the U.S. Constitution were well educated in European and Colonial history, and had much to say about it’s first Amendments. They made their intentions pretty clear concerning the necessity and practicality of the division between 1. Establishment of the right to private worship, associate with those who similarly believe, to invite and encourage others to similarly believe and worship, and to raise one’s family according to one’s beliefs without any government interference; and 2. a Separation of all levels and branches of government from religion to ensure that clergy or other members of religious denominations, or those united in common cause didn’t unduly influence policy or laws that infringe upon the religious (or nonreligious) rights of others via government. The degree of and even the existence of this Separation is still under contention by fundamentalist religionists.
The second issue is that of race and the basic right of rights to life, liberty, and pursuit of happiness. Of particular interest here are specifically the cases relating to African-Americans and Native-Americans. In the case of the former, unfortunately this issue could only at first be partially resolved in a civil war, and then tackled again nearly one hundred years later, through brave civil disobedience and judicial intervention. In the case of the latter, the primary actions taken by the federal government are recognition of tribes, and leaving it up to the leaders of their dispirited and broken communities to use the funds thrown at them as needed. It is a sad fact that after centuries, both these minorities still struggle for equal rights to varying degrees.
The third of these issues is gender. Women were acknowledged as having the right to vote only in 1922. Other issues relating to women’s rights of Life, Liberty, and the Pursuit of Happiness are still in dispute and being fought out in the arenas of media and government.
The fourth of these issues has been in contention for millennia: sexual orientation. Actual known historical perspectives on homosexuality and bisexuality go as far back as the ancient Persians, Chinese, Greek and Roman civilizations, and they varied greatly according to time and perceptions of greater societal needs. The Founding Fathers, however, said nothing that specifically address this issue, so once again we are left with their intentional open mindedness that makes room for time and societal change to resolve them. Since the primary Founding Fathers Thomas Jefferson, Benjamin Franklin, Alexander Hamilton, and John Adams were: highly educated, Deists, philosophers, proponents of science and technology, and since: the social and specific sciences have made new discoveries in many respective fields, since societal attitudes have changed with that marked increase in knowledge and understanding, and they would had no doubtedly be angered and fearful of the inroads that fundamentalist religionists have made into all levels of government- it can be logically inferred that were they alive today, they would no doubt agree that in the least sexual orientation was a matter of nature.
They would then, in high probability, logically infer from that that those of varying sexual orientation were indeed to be included as being equal in civil and social rights. Unfortunately, there are those who even more so on this issue than others- except certain women’s rights issues- still insist on an ‘originalist Constitutional jurisprudence’ that is based on an 18th century knowledge and understanding of the world, and which ignores the facts that Founding Fathers left room for what may be resolved later and what they could not foresee. In fact, the ‘traditionalist’, the ‘original intent’ and the ‘Conservative’ ideas and jurisprudence of the Constitution are one in the same, and it has been these strict ‘Conservatives’ on social issues that have been wrong on all four of these issues across all American periods and political parties that have or do exist. It’s time our society moved on down the evolutionary chain of social progress by once again accepting scientific, medical and philosophical facts and theorems relating to these issues, and then by letting them guide us to our next great period of social evolution.