Posted on 07/01/2009 10:44:06 AM PDT by Turret Gunner A20
Why did the founders of our nation give us the Bill of Rights? The answer is easy. They knew Congress could not be trusted with our God-given rights. Think about it.
Why in the world would they have written the First Amendment prohibiting Congress from enacting any law that abridges freedom of speech and the press? The answer is that in the absence of such a limitation Congress would abridge free speech and free press.
That same distrust of Congress explains the other amendments found in our Bill of Rights protecting rights such as our rights to property, fair trial and to bear arms. The Bill of Rights should serve as a constant reminder of the deep distrust that our founders had of government. They knew that some government was necessary but they rightfully saw government as the enemy of the people and they sought to limit government and provide us with protections.
After the 1787 Constitutional Convention, there were intense ratification debates about the proposed Constitution. Both James Madison and Alexander Hamilton expressed grave reservations about Thomas Jefferson's, George Mason's and others' insistence that the Constitution be amended by the Bill of Rights. Those reservations weren't the result of a lack of concern for liberty. To the contrary, they were concerned about the loss of liberties.
Alexander Hamilton expressed his reservation in Federalist Paper No. 84, "(B)ills of rights ... are not only unnecessary in the proposed Constitution, but would even be dangerous." Hamilton asks, "For why declare that things shall not be done (by Congress) which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given (to Congress) by which restrictions may be imposed?"
Hamilton's argument was that Congress can only do what the Constitution specifically gave it authority to do. Powers not granted belong to the people and the states. Another way of examining Hamilton's concern: Why have an amendment prohibiting Congress from infringing on our right to picnic on our back porch when the Constitution gives Congress no authority to infringe upon that right in the first place?
Alexander Hamilton added that a Bill of Rights would "contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more (powers) than were granted. ... (it) would furnish, to men disposed to usurp, a plausible pretense for claiming that power."
Going back to our picnic example, those who would usurp our God-given liberties might enact a law banning our right to have a picnic. They'd justify their actions by claiming that nowhere in the Constitution is there a guaranteed right to have a picnic.
To mollify Alexander Hamilton's and James Madison's fears about how a Bill of Rights might be used as a pretext to infringe on human rights, the Ninth Amendment was added that reads: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
In essence, the Ninth Amendment says it's impossible to list all of our God-given or natural rights. Just because a right is not listed doesn't mean it can be infringed upon or disparaged by the U.S. Congress. The Tenth Amendment is a reinforcement of the Ninth saying, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
That means if a power is not delegated to Congress, it belongs to the states of the people.
The Ninth and Tenth Amendments mean absolutely nothing today as Americans have developed a level of naive trust for Congress, the White House and the U.S. Supreme Court that would have astonished the founders, a trust that will lead to our undoing as a great nation.
About The Author
Dr. Williams serves on the faculty of George Mason University as John M. Olin Distinguished Professor of Economics and is the author of More Liberty Means Less Government: Our Founders Knew This Well.
The bandoleer looks to have three or four empty pockets.
Not good.
The great Walter Williams repeats the mistake that Marshall made in Barron vs. Baltimore. The founders knew that governments could not be trusted with our God-given rights. The Bill of Rights restrictions did not apply only to Congress except where they were specifically limited to Congress, as they were. Any other interpretation is absurd.
ML/NJ
“In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments.”
Barron v. City of Baltimore 32 U.S. 243, 250, 1833 WL 4189, 6 (U.S.Md.) (U.S.JanuaryTerm 1833).
Where in any of the amendments is a statement that it “improves” the constitution of any one of the several states?
BUMP!
I guess you didn't bother to read what I wrote. The first amendment specifically says "Congress shall make no law ..." For some curious reason the second amendment does not say "Congress shall not infringe upon the right of the People to keep and bare arms. Does anyone with half a brain think the Framers just forgot to include these words in the second amendment because they had forgotten the construction they used in the first? When it says, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb," there was only one Federal offense and that was treason. To suggest that all of this was only to apply to treason is ridiculous. The militias were all organizations by State, but you (and Marshall) say this has nothing to do with the States. The Constitution was supposed to be the "Supreme Law of the Land," so when a part of it says you cannot be tried for the same thing twice, well duh, I think the Framers meant by Government, whatever Government, in this land.
ML/NJ
Marshall died two years after his Barron mistake. He may have been senile by that point... It's the only thing the makes sense of his drastic turn on the BoR and the complete ignorance of the legislation used to pass the BoR.
“The bandoleer looks to have three or four empty pockets”
Ahh, the observant type.
Especially on important things.
“It’s the only thing the makes sense of his drastic turn on the BoR and the complete ignorance of the legislation used to pass the BoR.”
I’m interested in your support for this argument, as it is pretty well accepted that the bill of rights was intended to apply only to the general government, and that is echoed in the debates surrounding the adoption of the amendments. Madison pointed out during the debate, quite correctly, as it turns out, that Art. 1, s. 8 gave Congress significantly broad powers that needed to be checked. Madison stated “[i]f there is any reason for restraining the state governments from this power [through state constitutions], there is like reason for restraining the federal government.”
I just don’t think the debates back up the contention that the bill of rights was intended to apply to the states. The history just doesn’t bear it out.
I read it, but I am not familiar with the argument. I must have been sleeping that day in con law. Next time I will be more circumspect about engaging someone in a conversation. That you were calling a Supreme Court Justice an idiot should have been ample warning for me to remain lurking and thus stay free of your self absorbed condescention.
The militias were all organizations by State, but you (and Marshall) say this has nothing to do with the States.
Funny, I thought I asked a question and did not make a statement of fact.
Regardless, thanks for you illuminated discussion. I understand the issue better now.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Read it, then read this:
The First 10 Amendments to the Constitution as Ratified by the States December 15, 1791
Preamble
Congress OF THE United States begun and held at the City of New York, on Wednesday the Fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
"The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals .... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." -- Albert Gallatin, New York Historical Society, October 7, 1789
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both. William Rawle on the Second Amendment
The BoR was a Declaration of our Rights. Not a complete list, but protected as part of the "Supreme law of the Land" the "Laws of any State to the Contrary notwithstanding".
It was understood that States could add further protections, but could not detract from this common pool of our Rights. These were to be off limits. From anyone...
Learning ConLaw today's Academia is a bit like learning Climate Science from Algore...
That’s very interesting and all, but it just ignores the debates that went on in Congress. Madison proposed amendments that would have bound the states. They were voted down. There was great argument over this. Those that wanted to bind the states lost.
I suggest that you read the debates surrounding the introduction of these amendments in Congress.
The words in the amendments are pretty darn clear. The suggestion that the Framers didn't say what they intended to say rings pretty hollow with me given their incredible precision in all these other documents they left around. It is only "by words multiplied" that anyone could have a different interpretation here.
ML/NJ
LOL ! That's why you come here.
ML/NJ
Not according to what I've read in Elliot's. Or was all that talk of "inalienable Rights of Man" and "gift from the Supreme Author that no mere earthly agency has a power to revoke" just bluff and bluster?
You'd better cough up a link to the pertinent chapter in Elliot's to support your contention.
Something like this would probably work:
The difficulties which present themselves are on one side almost sufficient to dismay the most sanguine, whilst on the other side the most timid are compelled to encounter them by the mortal diseases of the existing constitution. These diseases need not be pointed out to you who so well understand them. Suffice it to say that they are at present marked by symptoms which are truly alarming, which have tainted the faith of the most orthodox republicans, and which challenge from the votaries of liberty every concession in favor of stable Government not infringing fundamental principles, as the only security against an opposite extreme of our present situation. I think myself that it will be expedient in the first place to lay the foundation of the new system in such a ratification by the people themselves of the several States as will render it clearly paramount to their Legislative authorities. 2dly. Over & above the positive power of regulating trade and sundry other matters in which uniformity is proper, to arm the federal head with a negative in all cases whatsoever on the local Legislatures. Without this defensive power experience and reflection have satisfied me that however ample the federal powers may be made, or however Clearly their boundaries may be delineated, on paper, they will be easily and continually baffled by the Legislative sovereignties of the States. The effects of this provision would be not only to guard the national rights and interests against invasion, but also to restrain the States from thwarting and molesting each other, and even from oppressing the minority within themselves by papermoney and other unrighteous measures which favor the interest of the majority. - James Madison to Thomas Jefferson. Letters of Delegates to Congress: Volume 24 November 6, 1786-February 29, 1788
"The great object is, that every man be armed.... Every one who is able may have a gun." -Patrick Henry (Elliot p.3:386)
"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms." - Tenche Coxe (introduction to his discussion, and support, of the 2nd Amend) "Remarks on the First Part of the Amendments to the Federal Constitution" Philadelphia Federal Gazette, 18 June 1789, pg.2
And of course this one again...
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both. William Rawle on the Second Amendment
IOW... It's your contention that needs a bit more propping up.
Why do you think I was sleeping?
Here is how the Court saw it in a 8th Amendment case, Fox v. State of Ohio 46 U.S. 410, 434-435, 1847 WL 5973, 23 (U.S.Ohio (U.S.JanuaryTerm 1847):
Such has been the interpretation given to those amendments by this court, in the case of Barron v. The Mayor and City Council of Baltimore, 7 Pet., 243; and such indeed is the only rational and intelligible*435 interpretation which those amendments can bear, since it is neither probable nor credible that the States should have anxiously insisted to ingraft upon the federal constitution restrictions upon their own authority,-restrictions which some of the States regarded as the sine qua non of its adoption by them.
Think for a minute about what it wouild be like if Barron were decided differently. Federal power would have ascended far more quickly, without having to wind its way through the incorporation process. Is a powerful central government what was advocated for when the adoption of the Bill of Rights were being considered? So did the Justices just get it wrong again in Fox v. Ohio?
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