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Posted on 07/30/2009 5:02:27 AM PDT by Loud Mime
We now see people clamoring for their right of health care, their right of same-sex marriage, their right to reveal information that will damage national security and so on. None of these rights are listed in our first ten amendments, yet the claims continue unheeded. Such claims were forecasted by several of the founding fathers; Alexander Hamilton penned his thoughts on the dangers of a Bill of Rights in Federalist 84.
What follows here is a small section of the essay. Prior to this section he sets a foundation for his argument that is worthy of serious study.
“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done 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 by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.”
The entire essay is HERE.
I have often wondered what would have happened if the founders had listed a set of laws defining the limits of government without calling it a bill of rights. Perhaps a section on rights and another on limitations would have worked? After all, the term "bill of rights" is a reference point made by people; it is not an expressed term in the Constitution.
Here is a larger section, to give some context:
“It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done 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 by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that "the liberty of the press shall be inviolably preserved"? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.3 And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights.
There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing.
The government does not grant rights. It recognizes them.
Ping
When liberals claim they have a right to health care from the federal government, cite Federalist 84 and watch the deer in the headlights.
It does both.
Anytime I discuss the first ten amendments to the Constitution, I always refer to them as the “Bill of Prohibitions”. As correctly stated above, no government can grant rights. Governments often do their best to suppress natural rights, and the “Bill of Prohibitions” lists rights that our government is specifically prohibited from trampling upon.
I’d never thought about the dangers of specifically listing these prohibitions, but then again, I’m constantly amazed at how timeless the thoughts and actions of our founders were.
If we had followed the Constitution any of our present socialists laws would of had to be done by amendment. How far Commie would we of gone if all this crap had to be ratified by 2/3 of State legislatures. No we had a good system. Unfortunatly it is history. None of this Communism would be possible if we had of stayed with the us Constitution. We are going to pay a terrible price. There is no good outcome possible at this point.
Government can grant rights within a legalistic framework; it’s their laws and their power to exercise.
The Second Amendment is a good example.
The Ninth and Tenth SHOULD have covered everything he was worried about.
Notice something in the present debates over health care and cap & tax -
NO ONE is arguing that the fedgov is not Constitutionally authorized to do these things. It’s as if the Constitution is now a dead letter... which, indeed, it is in the minds of the statists.
No, it does NOT. Rights are INHERENT, endowed by the Creator. Government is not a power that has capability to confer rights on humanity.
Perhaps you need to re-read this document and the Declaration of our founding...for clarity.
I’ve given this a lot of thought over the years, and I’ve concluded that we were screwed either way. The only safeguard against the gubmint is a populace that jealously and vigilantly guards and preserves its own freedom. Short of that, scheming politicians, lawyers, and thieves will always find a way to have their way.
There is more to this; I'll have it in September.
Rights that are inalienable are not the government's to grant. If they were, they could just as easily be revoked by the same government.
If you can direct me to language in the Constitution or the Declaration that references the government granting rights, I will appreciate the education.
I agree with you 100% Mace. I think you want the other guy to point that out to you.
ding ding ding.................we have a winner!!!!
I acknowledge your belief that rights are inherent; and yes, I have read the Declaration carefully and I study the Constitution and our history of abusing it.
Your point that government is not a power that has a capability to confer rights on humanity is partially valid. But there is more to the argument.
George Washington: “Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.”
I believe I made it clear by putting my remark in the context of law. You put yours in a theological context. Please reconsider your argument with those differences in mind. We are talking of two different authorities. Despite your adherence to one, I believe it is prudent to admit that both exist and that both have the power to enforce their will in ways that they see fit.
This is the Liberal viewpoint...oft stated publicly by the likes of Obama, and John Kerry.
----------------
It depends on the laws enacted and power exercised, doesn't it?
LOL! I never bother citing anything. Just say CONSTITUTION...and their eyes glaze over . :-)
There should have been term limits written into the Constitution.
You are correct.
I believe that we are heating up to a boiling point in the US.
Err...Mr. Franklin. :-)
I disagree with your point about the 17th. The ‘states’ didnt lose their Senators, the state party beauracracy lost their power over the Senators. The people of the states gained more control over their Senators.
Well, that’s one way of looking at it....
I prefer to go a few steps further in the course of events. The people having control of their Senators may be mistaken for the Senators controlling the people. They do this by providing benefits from the treasury.
The States are unable to stop this theft. To dismiss state powers as a simple bureaucracy is minimizing an important facet of government power. With the 17th, the States lost all official influence in the legislative courses of the US government (a very important point) and the Tenth Amendment lost its guardians.
Please consider these points; it was not just bureaucratic power.
LOL! How different can two people get! (Franken v. Franklin)
The Government grants privileges.. and alienates rights..
Thats what gov't does... alienates unalienable rights and converts them to privileges..
No democracy has ever yet been democratic..
Democracys always become Oligarchys..
Because democracy is defacto Mob Rule by mobsters..
The U.S. Constitution has NO WHERE in it the words democracy, democratic, or democrat.. by design.. it was not a clerical error..
****When liberals claim they have a right to health care from the federal government, cite Federalist 84 and watch the deer in the headlights.*****
I remember under the X42 admin there was a claim that poor folks had a constitutional right to have government paid AIR CONDITIONING.
The bill of rights was created to protect our God given rights. The states, using legal frame works can grant priviliges that can be taken away. IE: driving a car. There is no comparison to the 2nd amendment.
Bump~
http://www.youtube.com/watch?v=y98HxYbsdBM
everyone should watch this video
A soldier is telling his senator he wants an apology for supporting the health care bill.
he knows his stuff.
God bless this guy
However, the other reason--a foundation for other rights--is right on target. An enumeration of rights could not but eventually be interpreted as a granting of rights, and if government grants these rights, why not more?
Plus the "Bill of Rights" has been for about sixty years or so the number one excuse for centralizing all power in the Federal Government--specifically the US Supreme Court, allowing it to sit in judgment on ever local ordinance in the country. And conservatives are at fault as well as liberals (though not so egregiously). But if a high school principal is "violating the First Amendment" by censoring the "f-word" out of a student newspaper, of course universities are "violating the First Amendment" by enacting speech codes. In other words, only the Federal Government can violate the "Bill of Rights." Conservatives who want to apply them to universities are as wrong as liberals who want to apply them to high school football prayers.
We'd have been much better off without a "Bill of Rights."
My take on Hamilton’s writings (and Madison) is that they understood the balances of the initial Constitution. As it was originally designed it worked well and preserved rights and liberties.
But when the first serious challenge of limited government was debated (the Cod Fisheries Act) Madison rose and challenged the proposal for all he was worth.
We now have no such member of Congress. Heck, they do not even understand the Constitution. How else could they take an oath to preserve, protect and defend the Constitution and then nominate and confirm a character such as Sotomayor?
The pressure continues to build......
Good video. Keep passing it on and stand up and say the same when the moment arises.
Your knowledge of the early Federal period far exceeds my own, but my understanding is that Hamilton and Madison eventually parted ways, Hamilton opting for federal supremacy and implied powers, and Madison adopting (or perhaps retaining) a more “Jeffersonian” position.
The Second Amendment is a good example.
Could you explain?
You are too kind. My studies continue in these areas and are dwarfed by the knowledge of others such as “Publius” a freeper of tremendous knowledge. We have many others who contribute to these threads with tremendous comments. I am honored to post the initial essay and then watch the comments grow.
Madison and Hamilton are an interesting pair. After the Constitution was ratified they had different roles. Hamilton focused on banking and the industrial revolution. Madison went to the House of Representatives and held great power. Madison was suspicious of Hamilton’s constant dealings.
Hamilton seemed to run wild with his political comments; that, along with his being a poor shot, led to his death.
Darn, I would love to see that sort of stuff in today’s politics! Patrick Leahy and Miguel Estrada come to mind...
The Bill of rights is not all rights, some of the amendments are limitations of federal power. The word "right" appears in Amendments II, IV, VII and to some point IX. These are recognized by government and its enforcement mechanisms.
There was. They didn't get paid. Congress critters were supposed to serve two years and Senators six. It was never intended for the them to become perpetual lords.
Hamilton was right on many points. He was wrong on some too. There has yet to be a man since Jesus who was always right.
Oh gosh and golly. (blush blush)
Once our FReeper Book Club on Ayn Rand's Atlas Shrugged is finished, Billthedrill and I are looking at a project where we would take the "Federalist Papers" and "Anti-Federalist Papers" in strict chronological order in an interleaved manner so as to follow the point and counterpoint of the debate over the Consitution. We would intersperse this with commentary about what was happening in the state ratifying conventions during the period.
Bill and I are debating about reformating the papers. He thinks that the "process and logic of the quill pen" should be kept intact, while I want to reformat each sentence into Structured English with separate lines and indentations for clauses so as to permit easier comprehension by modern readers not used to extremely long sentences and paragraphs that take up several pages.
There is also another problem with the "Anti-Federalist Papers". They are not as organized as the "Federalist Papers" and are not as easily avaiable in complete form, but mostly as fragments. Someone believed that if there are 85 "Federalist Papers", there must logically be 85 "Anti-Federalist Papers", so he cut and pasted the "Anti-federalist Papers" to form 85 cogent documents. I question that move.
...along with his being a poor shot, led to his death...Darn, I would love to see that sort of stuff in today’s politics! Patrick Leahy and Miguel Estrada come to mind...
The site where Burr shot Hamilton is now a New Jersey state park in Weehauken. I have long believed that it should be established as our national dueling grounds with the duels covered by ABC Sports. (What a shame Howard Cosell is gone!)
My own first choice was for Zell Miller to challenge Chris Matthews to a duel over his dishonorable and ungentlemanly treatment of Michelle Malkin on his show.
Then we see things alike, but may be describing differing shades of the same color.
My point has been that the political parties have replaced the States in the Senate’s influence mechanisms.
Next on the dueling fantasy list:
Howard Liman v. Oliver North (too late, I know)
George W. Bush v. Keith Olbermann
Sarah Palin v. Jeoffrey Dunn
and afterwards
Sarah Palin v. Stephen Branchflower
and afterwards
Sarah Palin v. David Kernell
then she can take a few days off....
This is only true if the governors accede to the premise that the government is "under God"; for, if it is not, the authority of the government is absolute and all rights derive from it.
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