President Biden, introducing an executive order aimed at curbing gun violence last week, said no amendment to the Constitution is absolute. In doing so, he reasoned the First Amendment right to free speech is not absolute, as it does not extend the right to yell “fire” in a crowded theater. This limitation on free speech exists because it passes the “clear and present danger” test, whereas yelling “fire” in a crowded theatre where there is no fire creates a clear and present danger which may result in such consequences that Congress has a duty to prevent, such as avoidable deaths.
The Amendments are the Constitution and have equal force of law, so if the Amendments are not “absolute”, then nothing in the entire Constitution is absolute. Mr. Biden applied this logic to the Second Amendment, saying “from the very beginning, you couldn’t own any weapon you wanted to own. From the very beginning the Second Amendment existed, certain people weren’t allowed to have weapons.”
There is ongoing debate about the accuracy of these statements. They allude to the power of the government to place restrictions on the right to bear arms. Considering everything James Madison wrote in his Federalist Papers about this topic and Sam Adams’ effort to include in the Constitution a guarantee that nothing in its text should ever be construed as to grant Congress the power to prevent American citizens from keeping their own arms, it is fair to question the accuracy of the president’s words – at least as to what the founding fathers thought about the matter in the very beginning. Yet, the president said what the president said.
Moving forward with the new Biden axiom that nothing in the Constitution is absolute, the next logical conclusion is that the Union is not, after all, perpetual. For instance, the Supreme Court has reasoned that because the Articles of Confederation and Perpetual Union (more commonly known as simply ‘Articles of Confederation’), declared the Union to be “perpetual,” and that the Constitution replacing it in 1789 was written to make that perpetual union more perfect, the Union is not only perpetual but is now more perfect. You may recall the preamble to the Constitution says, “We the People, in order to form a more perfect Union…”
There are two problems with this. First, it is not possible to make something more perfect. You can make something more expensive, more beautiful, or more exciting by shifting its position on a scale of increasing cost, beauty, or excitement. But perfect is not that kind of adjective. Perfect is an absolute – something either is or is not perfect. It means unable to be further improved, without flaw or defect. If something is perfect, that is the furthest one can go on a scale of increasing quality. The only available movement is in the opposite direction of declining quality – in the direction of being less than perfect (note: not less perfect).
The second problem is that the Articles of Confederation were replaced with the Constitution because they were in fact far from perfect. Had the Articles of Confederation been perfect – to then try and make them more perfect – there would not have been cause to do so in the first place. This creates a cyclical fallacy.
Thought experiment: the word “perpetual” never made it into the Constitution, yet it shows up six times in the Articles of Confederation in reference to the longevity of the Union. Perhaps this word was intentionally omitted as part of their effort to make the Union “more perfect.” You may recall the preamble to the Constitution says, “…do ordain and establish this Constitution for the United States of America”, not for the perpetual Union of the United States of America, or something to that effect.
Yet the Supreme Court reasoned in Texas v. White that the Constitution says the Union is perpetual. But then again, nothing in the Constitution is absolute.