Amendment XYZ: Well-nourished children being essential for the productivity

[hack89]

3. Turns out it is not so straight forward

To begin with, so long as the Second Amendment seems strikingly unusual -- so long as it appears to be the only provision with a justification clause -- people will naturally wonder whether this oddity is some sort of signal: Perhaps, for instance, the Framers were themselves so hesitant about the right that they intentionally tried to limit its force; in any event, they must have been telling us something, or else why would they have written the Amendment so strangely?

The state provisions show that the Second Amendment is just one of many constitutional provisions that happen to be structured this way, and that the federal Bill of Rights is just one of many that contain only one or a few justification clauses. I have seen no evidence of a correlation between the presence of a justification clause and the provision's perceived importance.

These state provisions also remind us that early constitutions were political documents as well as legal ones. They were meant to capture people's allegiance, both in order to get the provision approved, and to persuade future generations to adhere to it. In this context, setting forth the justifications for a provision makes perfect rhetorical sense. This observation doesn't dispose of the question of what legal significance should be given to the clauses once they are enacted, but it does counsel against viewing the presence of the clauses as something deeply portentous.

http://www2.law.ucla.edu/volokh/common.htm