Does President Trump Have Authority to Secure Our Southern Border?

trump - with wall behind him (jan. 2019)

by Diane Rufino (also referencing an article by Publius Huldah), January 15, 2019

QUESTION:  Can President Trump seal off our southern border?

There are three theories, perhaps even four, upon which President Trump can close our southern border, including providing a permanent, physical barrier:

(1)  IMMIGRATION AUTHORITY.  The President can suspend entry of individuals from Mexico and countries of Central and South America, per an express provision of the US Immigration & Nationality Act, and per the opinion of the Supreme Court in the recent case of the so-called “Muslim ban.”  Since the restraints in place at the order are currently ineffective to prevent the uncontrolled illegal entry into our country, a physical barrier would be necessary (under the “Necessary & Proper Clause”)

If Trump takes this option, he neither needs to get Congressional approval nor approval of (or review from) the courts. Neither can stop him because they have already given him that authority and recognized that he was given that authority. Congress did so in federal law (Title 8, Chapter 12 of the US Code – “Immigration & Nationality Act”) and the Supreme Court re-affirmed (in Trump v. Hawaii, June 2018).

Title 8, Chapter 12 of the U.S. Code, which governs “inadmissible aliens,” reads:

“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Notice some key language in that statutory provision:  “for any such period as he shall deem necessary”  and “impose on the entry of aliens ANY restrictions he may deem to be appropriate.”

Again, every power that Congress is delegated (Article I, Section), including the power it willingly delegated to the President on this particular immigration issue, is subject to the “Necessary & Proper” Clause which the Supreme Court interpreted as “pretty much any means necessary which the government believes will help carry out the particular responsibility.”

The president has the authority to close the borders. And no lower court can stop him with an injunction…..  if he chooses to go this route.

(2)  DUTY TO REPEL INVASION. Congress can seal off the border pursuant to the authority granted to it to call up the militia (“to repel invasions”; Article I, Section 8) and pursuant to the DUTY delegated to the federal government in general to repel invasion (Article V, Section 4).  Additionally, Article II, Section 3 requires the President, as the Chief Executive of government power, to take care that the laws be faithfully executed.

Article I, Section 8 authorize s Congress to call up of the Militia for three (3) purposes: To execute the Laws of the Union; To suppress Insurrections: and To repel Invasions.

Article IV, Section 4 reads: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

Article IV talks about a GUARANTEE.  It delegates an absolute responsibility on the federal government to provide certain protections for the States – to guarantee each State a republican form of government and to protect each against invasion. States are entitled to EXPECT this absolute guarantee. So, if Congress refuses to do its part, then the responsibility shifts to the President. In the end, the federal government MUST – absolutely MUST – protect all states against an invasion.

Indeed, there is an invasion of illegal aliens into our country, imposing severe burdens on our resources (including education, health services, social services, our tax dollars, and our law enforcement system. Taxpayers are entitled to the expectation that the money siphoned off their hard work and property will go only to those who are legal citizens in this country. More seriously, there is an invasion of illegal criminals, gangs, drug cartels and drug traffickers, and human traffickers. Prisons house disproportionate numbers of Hispanic criminals.

There are 48 US-Mexico border crossings – LEGAL crossings. But thousands upon thousands each year evade these legal points of entry to come to this country illegally, hoping to take advantage of our government’s refusal to enforce our country’s immigration laws and to take advantage of every benefit that America offers. (Note though that is the US were to go to war and impose a draft, illegals would not be called). There are approximately 414,000 illegals apprehended each year by a severely-limited and constrained task force of border agents. Imagine how many make it across the border and are not able to be apprehended. The numbers are staggering. And in the past several months, the rate of illegal crossings has increased 37%.  New American (online journal) estimates that 14,000 of these are violent criminals.

Most aliens that come to the United States illegally do so for a better life, for a chance to make more money. But the open border and uncontrolled illegal immigration brings other problems into our country. The United States is one of the key destination countries, if not the key destination country, for thousands of men, women, and children trafficked from all areas of the world. These victims are trafficked for the purposes of sexual and labor exploitation. Many of these victims are lured from their homes with false promises of well-paying jobs; instead, they are forced or coerced into prostitution, domestic servitude, farm or factory labor, or other types of forced labor. Between 14,500 and 17,500 people are trafficked into our country each year, certainly prompting a humanitarian crisis.

And then there is the increase in drug smuggling across the border. Seizures of hard drugs like heroin, methamphetamine (meth), cocaine, and fentanyl spiked to the highest levels in years. The numbers reflect the trend of cartels turning to more potent drugs in pursuit of profits, as many of the individual states have decriminalized the use of marijuana, both for medicinal and recreational purposes. In the past two years, enough fentanyl (a synthetic opioid which is 50 times more potent than heroin and 100 times more potent than morphine, and can be fatal the first time a person takes it) came into our country from across the southern border to kill every person in the United States. Two Hispanic men were arrested last year in NJ with enough fentanyl to kill the entire population of New Jersey and New York City (with intent to distribute). In NJ alone, in 2016, there were over 800 overdoses from fentanyl, and fentanyl was found in 2% of heroin that was tested in the state. Users are unaware of this. Just recently, in Nebraska, two Hispanic men were arrested for possession of enough fentanyl to kill about 28 million people (with intent to distribute and sell).

Finally, there is a significant increase in MS-13 gang membership and activity. MS-13 is a notoriously brutal gang based in El Salvador. In 2005, the Bush administration waged war on the deadly gang (similar to what President Trump is doing), and gang activity was stifled, but under the Obama administration, especially from 2012-2016, the gang has been able to rebuild itself. This resurgence represents a very serious threat to public safety in communities where MS-13 has rebuilt itself. The resurgence is directly connected to the illegal arrival and resettlement of more than 300,000 Central American youths and families that came here, undeterred, during the Obama years. All criminal gangs are a threat to public safety, but MS-13 is a unique problem because of the unusually brutal crimes its members have committed, its success in using intimidation to victimize and control people in its territory, and its focus on recruiting young members, often in schools. Technically, because most of the gang members are illegal, they could be targeted and removed from the communities they terrorize by law enforcement and ICE. However, because of sanctuary policies, and the proliferation of sanctuary states, cities, and communities, these gang members are protected from apprehension.

Taken together, it sure sounds like our country is being invaded. And that being so, every state is entitled to protection against it by the federal government. The simplest way to protect the states is simply to enforce our immigration laws and to seal and secure the border with a physical barrier. Make no mistake, we are suffering an invasion of individuals who are first seeking to evade our laws (the cornerstone of our society), and secondly, to do us harm (whether intentional or not, and whether violent or simply by overloading our resources, inciting protests and instability, or presenting a political crisis).

(3)  DECLARE A NATIONAL EMERGENCY (pursuant to the National Emergencies Act).  The goal of this approach is to get border wall funding thru the National Emergencies Act, by diverting money allocated to the military to use to build the wall.  The reason this option is an attractive option to President Trump is because once he declares a “national emergency,” a decision that is entirely within his discretion (and which many presidents before him did, for much more urgent matters), he is able to set aside many of the legal limits on his authority. He would become vested with certain “emergency powers,” such as by instantly becoming Commander-in-Chief of the armed forces, or by vesting in him a broad, undefined executive powers. President FDR used national emergency powers to intern Japanese-Americans after the attack on Pearl Harbor, President Bush used them to pursue warrantless wiretapping related to the war on terror, and President Obama on account of the Swine Flu outbreak in 2009.  (Actually, Obama claimed a state of emergency, thus invoking the Act, a total of 12 times].

The National Emergencies Act of 1976 authorizes presidents to issue an emergency declaration, but under certain constraints; he can only use powers Congress has already codified by law and he has to say which powers he’s using. The 1976 law was actually passed to rein in presidential abuse with relation to national emergencies. Past presidents such as FDR, Truman, and Nixon abused the power [In the 1952 case, Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court addressed the constitutionality of President Truman’s seizure and control of most of the country’s steel mills, in anticipation of a strike by the United Steelworkers of America. The Court ruled that Truman had over-stepped his authority].

The first thing President Trump would need to do is issue an emergency proclamation, explaining the nature of the emergency. Then he would need to identify which powers he intends to use. If Trump were to try to get border wall funding through the National Emergencies Act, the question then becomes which existing laws he could use to get the money. The Brennan Center for Justice believes there are at least 130 laws that contain special powers Trump could access (other legal experts say there are as much as 136 laws). Apparently, the law Trump is particularly interested in is one that allows him to reallocate military spending on construction projects for the wall. One law allows the defense secretary, after a national emergency declaration, to direct the army’s civil works program to construct a structure needed for national defense and use the military budget to do it. Another lets the secretary direct other military services for construction projects. For example, money could come out of the budget for building housing on military bases for service members and into the budget for the wall.

The White House has also reportedly directed the Army Corps of Engineers to take a look at its budget for potential funds to divert to the wall, including $13.9 billion from a disaster spending bill passed by Congress last year designed for relief projects in California, Florida, Texas, and Puerto Rico.

Alternatively, Trump could declare a “state of immigration emergency,” which unlocks an immigration emergency fund, which is generally supposed to be used to help states feed and house migrants and process their claims. The problem with this choice is that the immigration emergency fund doesn’t have nearly enough money to meet the amount requested – $5.7 billion.

Note, though, that the National Emergencies Act contains a mechanism for Congress to overrule the president by passing a joint resolution (both House and Senate). With Democrats in control of the House, it would presumably pass there easily, but most likely it would not pass the Senate, where Republicans recently increased their majority.

(4)  THE PRESIDENT’S DUTY TO ENSURE THE LAWS ARE ENFORCED.  Again, as mentioned above, Article II, Section 3 requires the President, as the Chief Executive of government power, to take care that the laws be faithfully executed. If Congress won’t provide the necessary funding (less than 1% of the total US budget, and a fraction of what Congress spends on “pork” projects), than President Trump may have to accept funding from other sources, including donations.

Those are my thoughts anyway.

The real authority, however, is my good friend, renown Constitutional attorney and activist, Publius Huldah. In her latest article , “Yes! Trump Has the Constitutional Authority to Secure Our Southern Border,” she goes into detail as to why President Trump has the authority to secure our southern border.  Please take a read:

 

YES!! TRUMP HAS CONSTITUTIONAL AUTHORITY TO SECURE OUR SOUTHERN BORDER, by Publius Huldah

Instead of reading our Constitution and seeing what it says, Americans get their legal advice from what “everybody says.”

Now, they are hearing about “emergency powers”, and are in a tail spin. Did Congress’ “Emergency Powers Act” delegate to the President the power to call whatever he wants an “emergency” and then do what he deems best?

Our focus shouldn’t be on what can be called an “emergency,” but what does our Constitution authorize the federal government to do (if anything) with respect to the hot topic of the day?

Let’s look at Migration (immigration) in the context of the hordes of aliens storming thru our Southern Border. What does our Constitution say about it?

Art. I, § 9, clause 1, delegates power over Migration (immigration) to Congress. So Congress is to make the immigration laws; and the President, as Chief Executive, is to put Congress’ laws into effect.

Art. IV, § 4 REQUIRES the United States to protect each of the States against Invasion.

Art. I, § 8, clauses 15 and 16, authorize the calling up of the Militia for three (3) purposes: to execute the Laws of the Union; to suppress Insurrections; and repel Invasions.

Art. II, § 3 authorizes the President to recommend to Congress such measures as he deems necessary and expedient; to convene Congress on extraordinary occasions; and requires him to take care that the laws be faithfully executed (that includes the immigration laws.)

Art. II, § 2, provides that the President is Commander-in-Chief of the armed forces. He is Commander-in-Chief of the Militia when it is called into active service of the United States. As noted above, the Militia may be called into active service to “repel invasions”.

So those are the Constitutional Provisions which apply to the invasion of our Southern Border.

America is finished if we don’t control our Southern Border. Congress and the President have clear constitutional authority – actually, they have the DUTY – to control our Southern Border.

The best way the control the Southern Border is to build a wall. [I know from personal observation during the Cold War that the wall the Soviets built between East and West Germany prevented people in the East from escaping to the West.]

What if Congress refuses to fund the wall? Must the President tell the American People, “Well, I tried. But my hands are tied. You better get ready for civil war.”

No! Art. IV, § 4 imposes on the United States the Duty to protect each of the States against invasion. If Congress won’t do it, the President must. He is Chief Executive of the United States. For him to refuse to act for the reason that Congress won’t fund the wall would be as contemptible as the Husband and Father who refuses to get armed to protect his Family because the government says he can’t be armed.

So, the President may solicit donations from the American People for funds, labor, and construction materials, to build a wall.

About “calling up the Militia” to “repel invasions” —   Well, we no longer have the Militia provided for at Art. I, §8, clauses 15 and 16. During 1903, the American People and their federal and state legislators (who had all “mainlined” on Progressivism) went along with the federalizing of the Militia. This was done with the federal Dick Act of 1903 (Militia Act of 1903), which converted the Militia into the National Guard, which is an adjunct of the federal military.

If we still had the “Militia of the several States,” it would be obvious that the Militia must be – and could be – called into national service to repel the “invasion” coming through our Southern Border.

But since we no longer have the Militia, we must rely on the closest thing to a Militia we have left, which is the National Guard. Congress has passed laws which authorize the President to call the National Guard into national service. The Militia Act of 1903 established the creation of the National Guard of the United States as the primary organized reserve force for the U.S. armed forces, thus federalizing state militias. The National Defense Act of 1916 gave the President authority, in case of war or national emergency, to mobilize the National Guard for the duration of the emergency. And the National Guard Mobilization Act of 1933 made the National Guard a component of the Army

The point is that the President probably has authority to call up the National Guard to protect our Southern Border and the construction workers while the Wall is being built.

But if push comes to shove, the President has the Clear Duty to protect our Southern Border and to “preserve, protect and defend the Constitution of the United States.”

Remember – the Questions are always: “What does the Constitution authorize” & “What Duties does the Constitution impose on the federal government?”

There is no substitute for reading the Constitution for yourself. Article by Article – and then seeing how the Articles all work together – hand in glove.

 

References:

Publius Huldah, “Yes! Trump Has the Authority to Secure Our Southern Border,” Publius Huldah blog, January 15, 2019.  Referenced at:  https://publiushuldah.wordpress.com/2019/01/15/yes-trump-has-constitutional-authority-to-secure-our-southern-border/

Cort Kirkwood, “Trump Can Close the Border, Former Federal Prosecutor Says,” New American, October 25, 2018.  Referenced at:  https://www.thenewamerican.com/usnews/immigration/item/30446-trump-can-close-the-border-former-federal-prosecutor-says

Hilary Hurd, Yishai Schwartz, “Supreme Court Travel Ban Ruling Summary,” Lawfare, June 26, 2018.  Referenced at:  https://www.lawfareblog.com/supreme-court-travel-ban-ruling-summary

11 Facts About Human Trafficking, Do Something.  Referenced at:  https://www.dosomething.org/us/facts/11-facts-about-human-trafficking

Raphael Carranza, “Harder Drugs, Higher Profits: US-Mexico Border Sees a Shift in the Kinds of Drugs Seized,” azcentral, February 23, 2018.  Referenced at:  https://www.azcentral.com/story/news/politics/border-issues/2018/02/23/united-states-mexico-border-patrol-drugs-seized/353260002/

“Synthetic Opioid Overdose Data,” Center for Disease Control.  Referenced at: https://www.cdc.gov/drugoverdose/data/fentanyl.html

Jessica M. Vaughan, “MS-13 Resurgence: Immigration Enforcement Needed to Take Back Our Streets,” Center for Immigration Studies, February 21, 2018. Referenced at:  https://cis.org/Report/MS13-Resurgence-Immigration-Enforcement-Needed-Take-Back-Our-Streets

Emily Stewart, “How Trump Could Use a National Emergency to Get His Border Wall, Explained,” VOX, January 11, 2019.  Referenced at:  https://www.vox.com/policy-and-politics/2019/1/8/18172749/trump-national-emergency-government-shutdown-wall

Elizabeth Goitein, “What the President Could Do If He Declares a State of Emergency,” The Atlantic, January-February issue.  Referenced at:  https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/    [Elizabeth Goitein is a co-director of the Liberty and National Security Program at the Brennan Center for Justice]

 

 

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Religious Liberty is Still Under Attack

jack phillips - with his cakes, masterpiece cake shop (photo credit - matthew staver for the new york times)

        (Photo Credit – Matthew Staver for The New York Times)

by Diane Rufino, January 11, 2019

GREAT NEWS !!

But first the bad news:  Religious liberty continues to be in jeopardy in Colorado, the home of Christian baker and cake artist, Jack Phillips, and his Masterpiece Cakeshop.

But here is the good news:  The judicial system has once again ruled in its favor. A federal district court in Denver has ruled that Christian cake artist and baker, Jack Phillips, can proceed in his lawsuit against the State of Colorado for its alleged continued harassment of him on account of his religious beliefs. The district court, in allowing the case to go forward, found there is evidence that there continues to be hostility against Phillips on account of his religious beliefs which is responsible for the unequal treatment against him.

You may remember that Phillips was censured by the state of Colorado (the Colorado Civil Rights Commission) for declining to create a cake for a same-sex couple back in 2012. The couple had asked for a 7-layer cake, representing the colors of the rainbow, with two men in tuxedos being married on top. Phillips declined the request, explaining that the message he would be sending through his design would offend his sincerely and deeply-held religious beliefs. The couple filed a complaint with the Colorado Civil Rights Commission claiming Phillips and the Masterpiece Cakeshop discriminated against them in violation of the state’s public accommodations law, the Colorado Anti-Discrimination Act (CADA). The Commission agreed and ordered the cakeshop owner and his staff to undergo a rigorous re-education program (teaching “tolerance”), as well as to invoke certain serious restrictions on them [by requiring that he bake cakes for same-sex couples (ie, he cannot discriminate for any reason) and requiring that he and his staff record, subject to regular state audits, every customer who requests a custom cake and the reasons when a request is denied]. Phillips appealed but was denied, and then finally appealed the Commission’s decision to the Colorado appellate court. The court upheld the Commission’s finding and decision. Phillips chose to stop creating wedding cakes rather than cave to government coercion. He lost a significant portion of his income and could no longer support the staff he had working for him. He, with help from the pro-First Amendment legal team, Alliance Defending Freedom (ADF), appealed the decision to the Supreme Court.

In June 2018, the Supreme Court issued its opinion in the case (Phillips v. Colorado Civil Rights Commission), ruling that Phillips was wrongfully prosecuted for declining to bake the cake. Rather than address the actual issue of “compelled speech” or religious liberty (see below), the decision rested on the obvious hostility towards religion that clearly motivated the Commission to take action and penalize the Christian baker. For example, in 2014, Commissioner Diann Rice makes the following comment just before denying Phillips’ request to temporarily suspend the commission’s re-education order:

“I would also like to reiterate what we said in…the last meeting [concerning Jack Phillips]. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust… I mean, we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use – to use their religion to hurt others.”

On June 26, 2017, the same day that the U.S. Supreme Court agreed to hear Jack Phillip’s appeal, an attorney, Autumn Scardina, called Masterpiece Cakeshop and requested a birthday cake. During a discussion of the customer’s preferred specifications for the confection, Scardina revealed that she wanted the cake to have a pink interior and a blue exterior. Then she added that the colors were to celebrate her coming out as transgender on her birthday, some years earlier. At that point, Debi Phillips (Jack’s wife, and the co-owner of the cake shop) declined to create the cake because of the Phillips’ belief that gender is biological, and immutable.

Scardina later asked Phillips to design a cake with satanic themes and images—a request that Phillips also declined because of the message the cake would communicate. Scardina then filed a civil rights complaint against Phillips and his Masterpiece Cakeshop with the Colorado Civil Rights Commission, charging discrimination on the basis of gender identity, a protected status under Colorado anti-discrimination law.

Less than a month after the Supreme Court ruled for Phillips in his first case (June 2018), the state of Colorado surprised him by finding probable cause to believe that he violated the CADA by declining to create the requested gender-transition cake. The Commission concluded that the statute includes transgender individuals in its prohibition against discrimination based on gender.

As with his decision not to create a cake celebrating gay pride and same-sex marriage, Phillips’ decision not to make the pink/blue cake which clearly was intended to express a message celebrating Scardina’s transgender status was based on his connection to (and what outsiders might view as his acceptance of) that message and not based on the identity of the customer.

In response to this renewed attack against him, Jack Phillips and his lawyers with Alliance Defending Freedom (ADF) filed their own suit, in the US district court in Denver, against the Colorado Civil Rights Commission and specifically, Aubrey Elenis, the director of the Colorado Civil Rights Division. It was Elenis who issued the finding that that there is “sufficient evidence” to support a claim of discrimination against Phillips. ADF argued that “the state of Colorado is violating Phillips’ First Amendment free exercise of religion rights by continuing to treat him differently than other cake artists and by acting with hostility toward him and his faith.”  District court Judge Wiley Y. Daniel issued a ruling on January 4, concluding that Phillips may proceed with a second lawsuit claiming the state of Colorado is again wrongly prosecuting him. Judge Daniel said there is evidence of unequal treatment against Phillips, given that the state of Colorado, through the Commission, allows other cake artists to decline requests to create cakes “that express messages they deem objectionable and would not express for anyone.” This “disparate treatment,” the court said, “reveals” the state officials’ ongoing “hostility towards Phillips, which is sufficient to establish they are pursuing the discrimination charges against Phillips in bad faith, motivated by Phillips’ religion….” The ruling further added that Phillips “has adequately alleged his speech is being chilled by the credible threat of prosecution.”

A commissioner set to decide the state’s new case against Phillips has publicly referred to him as a ‘hater’ on Twitter, which was just one of several clear indications of the commission’s ongoing bias against him, the bad faith motivating its continued harassment of him, and its outright hostility towards his beliefs.

ADF also argued that Colorado is infringing Phillips’s due process rights, and that the Colorado Anti-Discrimination Commission’s adjudicative process is flawed because the same commissioners act as both accusers and adjudicators in the same case, an arrangement that the Supreme Court condemned in a 2016 decision. There is probably a 14th Amendment challenge as well, alleging arbitrary treatment under its Anti-Discrimination statute.

It is important to understand the issues at the center of this continued hostility towards Jack Phillips. It is not simply the case of one person claiming another violated his civil rights or aggieved him in some way. It is not simply the case of an employer being sued because he offer a job to someone else instead of the minority candidate. This situation is one where the state itself has taken a formal position that anti-discrimination rights and the rights of groups like the LGBT and transgender community are more important than the historic and founding right of religious freedom. Today it may be the state that is trying to take away our religious liberty right, but tomorrow, it may be 30 states, and then the federal government itself. The landmark U.S. Supreme Court ruling in Phillips v. Colorado Civil Rights Commission stemmed from the baker’s refusal, on the basis of his faith, to design a custom cake celebrating a same-sex wedding. The Colorado government then attempted to compel him to do so, and the Colorado Civil Rights Commission treated Phillips with open hostility, even comparing his invocation of sincere religious beliefs to defense of the Holocaust. Additionally, they treated him differently from other cake artists who had declined to design custom cakes because of the images they would have conveyed.

The Supreme Court found that Jack Phillips did not act out of animus (hatred) when he politely declined to make the same-sex couple a cake celebrating gay pride and same-sex marriage [which was not allowed, by the way, in the state of Colorado at the time of the suit (2012); in fact, according to the state constitution, the only marriage recognized in the state was between a man and a woman]. He offered them any other cake he had in the shop and offered to bake them any cake they liked, but he just could not “create” an artistic cake to celebrate same-sex marriage.

Animus and blind intolerance form the crux that makes discrimination so offensive. But that is not what happened in the case of Phillips v. Colorado Civil Rights Commission. It was a case of a man, a Christian, believing the First Amendment protected him in his right to exercise his deeply-held religious beliefs (Free Exercise of Religion) and protected him from being coerced into expressing a viewpoint that goes directly against what he believes (Free Speech and the Right to be free from compelled Speech).

The Colorado Anti-Discrimination Act (or CADA) outlaws discrimination in the area of public services, goods, and accommodations – yet it makes several exceptions for certain groups of people who have particular sensitivities – such as Muslims (can refuse a customer if they feel it offends Allah or the Koran), atheists (obvious; they don’t have to be compelled to make anything with a cross or a bible verse, etc), and African-Americans (don’t have to accept business which they feel discriminates against them, or which represents white supremacy). We all know that discrimination, in many forms, continues to exist in the marketplace. Fashion designers who were outraged over Trump’s election refused to design for our stunning First Lady, Melania (wow, what a stupid decision there!)  Bruce Springsteen and other artists refused to perform concerts for those who hold political views they don’t agree with. Businesses choose states to move to or expand to that are favorable to their political views, and reject those that are unfavorable. The list goes on.

Indeed, over his years as a cake artist, Phillips has declined to create cakes with various messages that violate his faith, including messages that demean LGBT people, express racism, celebrate Halloween, promote marijuana use, and celebrate or support Satan. It was the refusal to create a custom cake for the same-sex couple, Charlie Craig and David Mullins, and the backlash created by the LGBT community, that prompted the Colorado Civil Rights Commission (tasked with reviewing challenges under the Colorado Anti-Discrimination Act) to file a suit against him. As the ADA continues to explain: “Jack serves all customers…But Jack doesn’t create custom cakes that express messages or celebrate events in conflict with his deeply-held beliefs.”  He will tell you the same thing himself.

Apparently, tolerance is not a two-way street.

In addressing the issues presented in Jack Phillip’s case against the Colorado Anti-Discrimination Commission – Phillips v. Colorado Civil Rights Commission (2018 decision), the Supreme Court focused primarily on his claim that CADA, and the Commission itself (ie, the state of Colorado) was forcing or compelling him to engage in speech that he disagreed with.  The creative process whereby Phillips designed a custom cake to represent and mark the particular occasion is a form “expression” or “expressive speech,” which is protected under the First Amendment’s Freedom of Speech provision. Therefore, as his ADF lawyers argued, he cannot be compelled or forced to create a cake that delivers a message that the government demands him to deliver but that he personally opposes.

And the Supreme Court has upheld such a view. In its “compelled speech” rulings, the Supreme Court has protected the right not to be forced to say, do, or create anything expressing a message that one rejects. Its most famous cases are West Virginia v. Barnette (1943) and Wooley v. Maynard (1977). In the Barnette opinion, the Court barred a state from denying Jehovah’s Witnesses the right to attend public schools if they refused to salute the flag, and in the Maynard opinion, it prevented New Hampshire from denying people the right to drive if they refused to display on license plates the state’s libertarian-flavored motto “live free or die.” The justices of the Supreme Court addressed both cases during oral arguments and referenced them in the Court’s opinion as well.

The question, of course, was whether the liberal members of the Supreme Court would agree that cake design constitutes “expression.”  It turned out that all agreed that it does.

The main purpose of having a cake “created,” as opposed to buying a ready-made cake, isn’t to satisfy a sweet tooth or to top off the meal; the main purpose is aesthetic and expressive. That is why they are displayed in such a creative way or in a choreographed fashion at receptions or parties, and that is why they are often the center of a live program (such as the feeding of the cake by the bride and groom to one another), much like a prop in a play.  Luckily, the Court was able to distinguish between simple goods and services (not requiring expression) and services like those offered by Jack in creating a custom cake, which involve expression.

In that case, NC Family co-signed a “friend-of-the-court” brief to the U.S. Supreme Court and, in November 2017, led a North Carolina delegation of concerned citizens (including myself and several of my friends) to Washington, D.C. to show support for religious liberty and Phillips. In June 2018, the Supreme Court ruled 7-2 in Phillips’ favor.

While progressives (like those who sued Phillips in the 2017 case for not baking a gay marriage celebration theme for a same-sex couple, and now those currently suing him, transgenders) believe the First Amendment must remain silent when a person’s views make another feel uncomfortable or hurt their feelings or make them feel undignified, or when a person’s religious beliefs result in what may be viewed as discrimination against a group of persons, the reality is that the First Amendment has no “conditions” on it. And, as the plain language of the Amendment, as well as the Preamble to the Bill of Rights, makes clear, there is no right for the federal government to impose any conditions on it.  Incorporation of the First Amendment on the States (thru the 14th Amendment, or even per the Bill of Rights included in the state constitution) prohibits the state legislature as well from making any law that abridges the right of free speech and the right to exercise one’s religious beliefs. The First Amendment is precisely needed when one’s ideas offend others or when it contradicts the orthodoxies of the reigning social and political majority. In those times, in particular, it protects more than one’s freedom to speak one’s mind; it also guards one’s freedom not to be forced, compelled, or coerced (including by law) to speak the mind of another.

Here is some sobering information:  Since 2014, approximately $9.9 million in grant funding has been collected for the sole purpose to oppose religious liberty and protections for religious freedom.  Welcome to the new America. The grants predominantly come from LGBT groups, backers of the LGBT movement, abortion supporters, and those calling for government-provided contraception coverage. These grantees, in general, hold the position that abortion rights and anti-discrimination laws protecting LGBT individuals are equally important, or more important than religious freedom. Next time you hear the LGBT community demand tolerance, keep this in mind.

Again, welcome to the new America.

Friends, the fight continues.  Either we have the Right to Speak freely or we don’t.  Either we have the Right to Believe as we want and to Freely Exercise our Religion or we don’t. In other words, either we are free or we are not.

I will keep you updated as this new case develops.

 

- 000000 (7)

References:

NC Family Staff, “Jack Phillips Can Continue His Fight Against Government Harassment,” NC Family Policy Council bulletin, January 11, 2019.  Referenced at:  http://my.ncfamily.org/site/MessageViewer?em_id=5170.0&dlv_id=9031

Robert P. George and Sherif Girgis, “Opinion: First Amendment Wedding Cake,” New York Times, December 4, 2017.  Referenced at:  https://www.nytimes.com/2017/12/04/opinion/first-amendment-wedding-cake.html

“Colorado Loses Bd to Dismiss Cake Artist’s Lawsuit,” Alliance Defending Freedom, January 7, 2019.  Referenced at:  https://www.adflegal.org/detailspages/press-release-details/colorado-loses-bid-to-dismiss-cake-artist-s-lawsuit

“Christian Cake Baker’s Second Lawsuit Can Go Forward, Federal Judge Says,” Catholic News Agency, January 7, 2019.  Referenced at:  https://www.catholicnewsagency.com/news/christian-cake-bakers-second-lawsuit-can-go-forward-federal-judge-says-24315

“Revealed: Colorado Commission Compared Cake Artist to Nazi,” Alliance Defending Freedom, January 12, 2015.  Referenced at:  http://www.adfmedia.org/News/PRDetail/9479

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New from the APA: Masculinity is a Bad Thing

toxic masculinity

by Diane Rufino, January 11, 2019

OK, the loony left has struck again. Liberals/progressives have finally left the planet. Lights out, nobody is home. They’ve “opened their minds” so much that their brains have literally fallen out.

Here is their latest mind-numbing thesis —

For the first time in its history, the American Psychological Association (APA) released guidelines concerning men and boys, saying that so-called ‘traditional masculinity’ is harmful to them.  Not only is it ‘harmful,’ according to the APA, but it could also lead to homophobia and sexual harassment.

The main thrust of their so-called research is that traditional masculinity – marked by stoicism, competitiveness, dominance and aggression – is, on the whole, harmful. According to the APA, their research shows “traditional masculinity is psychologically harmful and that socializing boys to suppress their emotions causes damage that echoes both inwardly and outwardly.”  The 36-page document goes on to coin the phrase “masculinity ideology,” which, as the APA defines, is “a particular constellation of standards that have held sway over large segments of the population, including: anti-femininity, achievement, eschewal of the appearance of weakness, and adventure, risk, and violence.” Of course, “masculine ideology” is understood to stem from traditional masculinity.

“Traditional masculinity ideology has been shown to limit males’ psychological development, constrain their behavior, result in gender role strain and gender role conflict and negatively influence mental health and physical health,” the report warns.

The research goes on to suggest that masculine boys may put their energy toward disruptive behaviors such as homophobia, bullying and even sexual harassment rather than strive for academic excellence.

The left is becoming more and more hostile to traditional masculinity, even coining the term “toxic masculinity.”  Liberal scholars use the term “toxic masculinity” to refer to stereotypically masculine gender roles that restrict the kinds of emotions allowable for boys and men to express and furthers conduct that solidifies men’s dominant position in society.  Some on the Left think “manliness” is something they must eradicate. Some on the left believe it causes violence, including rape. “Manning up,” they say is a toxic idea, forcing boys to act in a way they may not otherwise feel comfortable with. The left, clearly, has come up with a solution – we must emasculate them.  Let’s not understand men; let’s emasculate them. And that is now what the left is pushing in our schools.

As usual, schools are less about actual learning than allowing the government the opportunity to mold our children’s brains and to take our place as parents in raising them.

I don’t know about the APA, but shouldn’t we be grateful for traditional masculinity?  Hasn’t it been traditional masculinity that has safeguarded and taken care of women and children all through the ages. If men put their feelings first, would they have been able to “man up” all these years to do the hard work and make the hard choices to overcome adversity and to take care of their families?

The bottom line, it seems, is that liberals/progressives know better. All these years, we’ve apparently been raising our sons wrong.

 

References:

Lukas Mikelionis, “’Traditional Masculinity’ Deemed Harmful, Could Lead to Sexual Harassment, Medical Group Says ,” Fox News, January 9, 2019.  Referenced at:  https://www.foxnews.com/health/american-psychological-association-deems-traditional-masculinity-harmful-could-lead-to-sexual-harassment

Frank Miniter, “Is Toxic Masculinity Toxic?” Forbes, November 15, 2016.  Referenced at:  https://www.forbes.com/sites/frankminiter/2016/11/15/is-masculinity-toxic/#2307531a3c3f

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TAKE ACTION NOW! Tell Congress to Fund the Wall

 

(Photo Credit:  National Border Patrol Council, NGPC)

by Diane Rufino, January 9, 2019

I’m writing this to all Immigration Activists and Concerned Citizens…..

The time for action is NOW !!

Last night President Trump delivered a straightforward message to the American people regarding the situation on the southern border. He called that situation a “crisis.”

That crisis includes uncheck immigration, violent crimes by illegal aliens, drug trafficking, child trafficking, a rise in MS-13 gang activity, rape, scores of hard drugs pouring across the border, lawlessness, over-crowding of our jails, and an unnecessary burden on all our resources (social services, healthcare, education, criminal justice, etc).

Anybody with eyes and ears, anybody who reads the real news, anybody who talks to their legislators, anyone who has a pulse on what’s going on in their community, in their state, and in this country is aware of the negative impact of open borders and unchecked immigration across our southern border. Have we already forgotten the caravan crisis?  Do we not understand that there are reasons why so many aliens are pouring into our country, choosing to take the illegal route – because we are NOT enforcing our laws, not trying to flesh them out once they get here, providing sanctuary cities and communities for them, providing them free education and healthcare, allowing them to go on our welfare system and to receive benefits and social programs (that US citizens must pay for)?

Several years ago, a student that had just graduated from a school I was teaching died of a fentanyl overdose. Someone slipped it to him unsuspectedly at a concert. A year or so later, a young man at my church overdosed from a heroin/fentanyl overdose. No one would have ever suspected him of doing drugs. The young man who treats my lawn recently passed away from an overdose. And my longtime friend and neighbor lost his son to a fentanyl overdose. A few years ago, I spoke with some town officials and they told me that MS-13 gangs have moved into Greenville from the Kinston area (Kiinston, which is Lenoir County, is next to Duplin County, which houses the highest concentration of illegal Hispanics in NC). MS-13 started pushing drugs on ECU’s campus and violence followed. There was a drive-by shooting downtown which killed at least one or two innocent young people, and about two years ago, there was a shooting at an ECU student apartment complex (at a party) involving drugs.

Our state officials talk about the opioid crisis and the enormous toll it is taking on our young and they suggest that we need to provide healthcare for them so they can kick the addiction. Not once has anyone addressed the root cause of the problem – the border “crisis” — yes, a “crisis.” Without the drugs pouring into the country (90% of hard-core drugs such as heroin and fentanyl), we wouldn’t have this epidemic of overdoses, and without the addictions and drug use, we wouldn’t have to consider the increased costs in healthcare to cover this problem.

The same can be said for the burden on education, our healthcare system (how many times have you gone to the emergency room only to see it filled with Hispanics – of which at least 45% are here, in NC, illegally). How many unskilled Americans can’t provide for their families because an illegal has taken a job they could have been hired for?

Again, it’s not hard to understand how the situation at the border has finally escalated to a crisis.

Yet, in response to President Trump’s Oval Office message last night, Democratic leaders, Senator Chuck Schumer and Rep. Nancy Pelosi, had the nerve to call his characterization of the situation a “manufactured crisis.” It was an insult to every mother, father, wife, husband, brother, sister, family member, friend, neighbor who lost someone they love to an illegal alien, it was an insult to everyone who has to close their eyes at night and try to shut out the horrible thoughts of the torture and pain their loved one suffered before being killed by an illegal, an insult to everyone who lost a child or other loved one to an opioid overdose, an insult to everyone harmed by the increase in drug trafficking, and an insult to every federal taxpayer whose tax dollars are being siphoned to address the uncontrolled border situation and to provide welfare and other services to illegals. To them, the situation is not a manufactured crisis but rather a manufactured situation – manufactured intentionally by Democrats as a way to grow the Democratic Party.

They call the wall “immoral” yet live in walled and gated communities themselves. They care little about the threats and burdens to our communities because they don’t live in those communities. They don’t worry about violence because they enjoy the protection of armed security. The don’t care that our laws are broken because as career politicians, they have made sure that they are exempt from the laws they pass (or refuse to pass, or refuse to provide the tools for enforcement).

They mock the President for his campaign promise to have Mexico pay for the wall. Other Democrats and liberals mock him as well for that. But Mexican assets can easily be converted to pay for the border wall, as Trump has alluded to. Trade deals can be negotiated that result in funding for the wall. There are drug forfeiture laws that would allow the government to use money and property confiscated because they were illegally obtained by drug trafficking for the wall. And then there is the simple math – If illegals cost the American people $150 billion each year (EVERY YEAR), and wall funding is only $5 billion, then doesn’t it just make sense to invest a one-time $5 billion allocation for the wall to save $150 billion every year?

Others reject the notion of an actual wall (a physical impenetrable barrier) saying that Trump will never get the $5 billion he is asking for. Well, that’s just a ridiculous, typical-Democratic /liberal response. They have a hard time understanding the concept of “constitutional spending” anyway. A border wall is related to immigration and national security, both of which are expressly delegated tasks to the federal government in the US Constitution. So, funding for the wall would actually be characterized as “constitutional spending,” something our government rarely takes into consideration. Right now, Congress spends far too much on unconstitutional objects – such as funding to South American countries, Afghanistan, Pakistan, other Middle Eastern countries (all of which give us nothing of real value in return), funding for abortion overseas, funding for research on stupid things that have absolutely no relevance or usefulness, funding for education (yep, it’s unconstitutional), funding in the form of state grants, most times simply for the purpose of bribing the states into complying with government guidelines and policies that it technically can’t impose on them (thus enabling the government to do an end-run around the Constitution). Take away the unconstitutional spending and the government has plenty to spend on constitutional obligations such as a border wall to enhance our safety and security and to help enforce our duly-enacted immigration laws.

Schumer and Pelosi fault President Trump alone for the government shutdown, telling the American people that government officials aren’t getting paid because of him, his insistence on dwelling on a “manufactured crisis.,” and his refusal to work with the Democratic leadership in Congress.

As Senator Lindsey Graham commented, the federal employees affected by the government shutdown will get all their back pay. They’ll be OK. But Officer Ronil Singh’s wife will never see her husband again and their baby daughter will never know her father. Angel Moms will never see or hug their children again.

The question is whether all those deaths and tortures of Americans at the hand of illegal aliens, all the drugs (including heroin and fentanyl) pouring onto our country and killing our college-age children, the rise in MS-13 activity which terrorizes our communities, the rise in violent crime, and the very admissions of our border agents amounts to a “manufactured” crisis or an actual crisis.

Remember the faces and the stories of those Americans taken from us because of our border situation – Officer Ronil Singh (shot because the illegal didn’t want a traffic ticket), Pierce Corcoran (killed by a drunk driver, an illegal alien), Kate Steinle (shot while walking on a pier in San Francisco with her parents), Molly Tibbetts (abducted and killed by an alien while she was jogging), Josh Wilkerson (a high school student beaten, tortured, and set on fire by an illegal alien), Jamiel Shaw (high school student killed by an illegal released earlier that same day on his 3rd gun charge), Ronald da Silva (murdered by an illegal who had previously been deported), Kayla Cuevas and Nisa Mickens (best friends who were killed in 2016 by illegal MS-13 gang members), Sandra Duran (killed in a car crash in 2017 at the hands of an illegal alien who had been deported five times), Indianapolis Colts’ linebacker Edwin Jackson (killed by an illegal driving drunk), Rebecca Ann Johnson (murdered by an illegal), and so many others.

Anyway, President Trump NEEDS OUR HELP……

Please read the following and TAKE ACTION NOW – to support President Trump’s request for funding tall steel fence barriers at our southern border and apply pressure to members of Congress.

Here is the contact info. I suggest you call now instead of email, but email if you prefer.

CALL your Member of Congress and our two US Senators today (For those in the Third Congressional District, who knows if a call to Rep. Walter Jones will accomplish anything). This is what you’ll want to tell them:

  • Honor their oath to support and defend the Constitution;
  • Give President Trump the money he wants to fund the tall border fence barriers;
  • If they can’t find the funding for the wall, tell them to cut out all the “unconstitutional” spending and then the money will be available;
  • Close the asylum loopholes that are attracting these ridiculous caravans;
  • An Amnesty should NOT be part of any securing the border deal.
  • Remember that they represent you — not illegal alien smugglers and employers!

Contact your member of the U.S House. If you don’t know, go to: http://www.house.gov [look at the upper right corner of the webpage and enter your Zip Code and then click “GO”].

Call: U.S. Senator Richard Burr (202) 224-3154 at his Washington, DC office or email at: https://www.burr.senate.gov/contact/email

Call: U.S. Senator Thom Tillis (202) 224-6342 at his Washington, DC office or email at:  https://www.tillis.senate.gov/public/index.cfm/email-me

 

References:

President Donald J. Trump addresses the nation from the Oval Office, January 8, 2019 –  https://www.youtube.com/watch?v=694Kmic4CKY

Senator Lindsey Graham’s Response to President Trump’s border address, Jan. 8, 2019 – https://www.youtube.com/watch?v=Q2GD0YMzE2Q

Schumer and Pelosi’s Response to President Trump’s border address, Jan. 8, 2019 –  https://www.youtube.com/watch?v=Gyb-DjVT5_c

Mark Levin’s Response to President Trump’s border address, Jan. 8, 2019 –

https://www.youtube.com/watch?v=O9QS9gnd3gU

Derek Thompson, “How Immigration Became So Controversial,” The Atlantic, February 2, 2018.  Referenced at:  https://www.theatlantic.com/politics/archive/2018/02/why-immigration-divides/552125/

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Liberal Insanity

 

trump - and the wall (wall funding - photo credit - golifa)

(Photo credit:  LIFA – http://www.golifa.com)

by Diane Rufino, January 6, 2019

There is a disabling disease going around; epidemiologists believe it hit sometime in the fall of 2016.

No, I’m not talking about the Swine Flu, or the H1N1 or H3N2 virus strains, all three of which can be deadly if not caught and treated early enough. I’m talking about the derangement syndrome that causes once-ordinary, rational-thinking people to start speaking irrationally, to speak as if they haven’t a single brain cell in their cranium, to spew obscenities, to engage in hate speech, to throw a tantrum when offended in any way, shape, or form, to shout robotically (like paid protesters) when a conservative speaks, to throw the word “racist” around like it was just another common adjective, to manage to turn every story and every bit of news into an occasion to bash Trump, to express their political views cloaked as “humor” (no one is fooled by that), to hate their country, to side with those who would do harm to the country, to think foreigners who have no entitlement to the jurisdiction or benefits of the United States have more rights than legal and other naturalized citizens, to make idle threats (such as, “I’m moving to Canada”), to demand that everything be free except speech, to wish harm on others (usually involving rape or something shoved in some orifice), to be willing to sacrifice traditionally-held human rights like the right to speech, conscience, religion, and firearms for the un-natural right not to be offended, to be willing to minimize or sacrifice most of the expressly-listed human rights in the Bill of Rights for one not listed (the unfettered right to an abortion), to demonize the historically-American right to the free exercise of one’s religion (including the right to have it influence one’s conscience) in order that persons living an alternative lifestyle (gays, lesbians, transgenders, cross-dressers, etc) not have to be confronted by the rationality of religious doctrine and natural law, and often, to wish death on others or to make death threats.

I’m talking about Trump Derangement Syndrome. From what I can deduce so far, it is brought on by extreme hatred combined with a general inability to tolerate opposing viewpoints and especially an inability to deal with people in power who don’t talk and think like them. TDS has hit all ranks of the Democratic Party, has hit nearly all liberals and progressives, is prevalent among the Deep State, and has infected some high-ranking and other Democratic members of Congress, such as crying Chuck Schumer (the crying over illegals while never crying over any American an illegal has killed gave his sickness away), Maxine Waters (a rock has more intelligence and inherent worth than Maxine; consistently voted the most corrupt member of Congress; she is a modern-day reverse KKK leader, and thinks Congress serves only one purpose – to impeach Donald Trump), Nancy Pelosi (another one whose intelligence and common sense is eclipsed by a rock), Bernie Sanders (an avowed socialist), Kamala Harris (a race baiter), Cory Booker (a race baiter and moron), Shiela Jackson (a race baiter), Elizabeth Warren (a liar, a misappropriator of an entitlement for a class of persons actually aggrieved by past US social policies, socialist), Keith Ellison (a Muslim race-baiter and hate-mongerer), willingly associated with the anti-Semitic Louis Farrakhan and his Nation of Islam), Diane Feinstein (so blinded by hatred that she helped hatch a scheme to subvert Judge Brett Kavanaugh during his confirmation hearings by springing unfounded accusations of sexual misconduct by Christine Blasey Ford), Richard Blumenthal (a liar and hypocrite), and others. Obama-era officials, especially with the DOJ and FBI, and other Deep State officials, such as James Comey, Rod Rosenstein, James Mueller, Andrew McCabe, Loretta Lynch, Peter Strzok, Lisa Page, and others (including Hillary Clinton), were so stricken that they funded opposition research on Trump by a known partisan ex-M16 intelligence agent, they fabricated information, created unfounded dossiers, tricked FISA court judges, obtained illegal FISA warrants, rigged the investigation against repeat criminal Hillary Clinton, initiated an investigation by Special Counsel (even though there was no underlying crime; essentially an investigation hoping to find a crime), unconscionably coerced members of Trump’s campaign and indicted them on crimes that Clinton herself and other ranking Democrats themselves had committed, leaked classified government information, and in general, doing anything and everything possible to make good on their “insurance policy” which is to come up with grounds to impeach our duly-elected president.

Every day, ordinary Americans, simply wanting to turn on the news (the mainstream news) to find out what good President Trump and Congress are doing on behalf of the country, its people, its business climate, and its world status, are confronted with nothing more than unfair accusations against Trump, personal political attacks against him, and an unrelenting stream of criticism of every single thing he says and every single thing he does. President Trump has done wonderful, historic things to improve the status of our country, the lives of its people, and the safety and security of our communities, and the results are often staggering, yet the mainstream media shows no decency to deliver such important news to the American people. This is yet another symptom of the Trump Derangement Syndrome.

There is not a day goes by when ordinary people of sound mind and common sense are confronted with a case of TDS – whether it be on social media, in conversation with a diseased friend of family member, on the news, on any of the late night talk shows, in a google search, in print, in a rap song, a music video, on Saturday Night Live, on Comedy Central or other Celebrity Roast show, on an awards show, in an acceptance speech at a correspondence or awards show, on a college campus, in a liberal college or law school classroom, or at a Women’s March or other liberal protest.

Personally, I try to stay away from almost all those venues. But on social media, a conservative post will almost always attract an individual suffering from TSD.  Most times, the individual will post an insult or explicative, reinforcing the horrible ravages of the disease, but sometimes – yes sometimes, they will try to address the post and offer their particular viewpoint.  Most times, that viewpoint will reflect far-left ideology and an outright hostility to our country, our system of government, our Constitution, and our traditional values.

I’d like to share with you one such example.

Right before Christmas, my friend (and columnist) Stan Deatherage wrote a post on social media addressing the looming government shut-down, and the fact that President Trump is more than willing to allow it over funding for the wall.

Here is what Stan wrote:

I can’t believe I am watching the Democrats shutting down the government a second time, since the election of Donald J. Trump, with their arguing point that they must politically “Resist” this President, regardless of the tangible damage committed to this nation.

We see that at every turn: Democrats, who have voted for a wall and border security in the recent past, now continually advocate for “Open Borders” and an open abdication for the rule of law at every possible political point.

Like it or not, this President knows his base of patriotic voters, and will follow their lead to secure our borders, and protect our people at home and abroad, just as passionately as the Democrat base advocates that their Liberal politicians create Open Borders to allow more supposed future voters beginning as illegal immigrants; abdication of national defense whenever possible in hopes of acceptance within the political trappings of the New World Order; and their complete defense and anxious acceptance of the accelerated growth of Socialism.

Never in the history of this Constitutional Republican have two groups of base voters been more different. Democrats can blame President Donald J. Trump all they wish, but, if it was not this President, it would be another one who would stand up for the patriots that still inhabit this nation.

It is my prayer that President Trump will not back down and stand for those patriots that know that securing our borders in a necessity for the continued sovereignty of this nation.

I personally agree with Stan. Several of my previous articles outline my support for border control, including the most persuasive argument of all, which is that national security is probably the #1 responsibility of the federal government. Allowing people to pour into our country illegally and unaccounted for runs completely counter to our Constitution and our Rule of Law. There aren’t a lot of things I feel I pay federal income taxes for (because the federal government doesn’t actually provide me and my family with much) but I do feel that national security and safety together are the one true consolation I get – I SHOULD get – for the exorbitant amount of taxes I pay every April 15th. In fact, if the government ignores that one primary responsibility, I have a hard time believing I should have to pay taxes.

Anyway, a Ms. Angela (full name withheld out of decency) responded to Stan’s post with this with a typical liberal, Democrat, socialist comment:

“Here’s a thought, Trump come up with something other than a wall. For 5 billion dollars every American can be insured. Just a thought. We all know a wall won’t stop the immigrants. History has proven this time and again.”

Frist of all, she makes the outrageous claim that walls don’t work – that “history has proven this time and again.”  I don’t know what history she is referring to, but I think most of us who can read books and who have paid attention to the news recognize that statement as “fake news.”

Let’s look at some of the walls that work – that keep people out:  First, we have the Israel-West Bank Wall (which is actually more a security fence). Almost immediately after it was constructed, in 2001-2002, the number of successful terror attacks in the Jewish state dropped by 90%).  Second, we have the Berlin Wall, which effectively prevented any movement between East and West Berlin (mostly to keep East Berliners from leaving). Third, we have the Cyprus Wall, which, built in 1974 after Turkey invaded the island, divides Cyprus between the northern Turkish portion and the remaining Greek section. Fourth, we have the India-Pakistan Wall (actually a border fence and wall system), built by India to keep Pakistanis out. Thank God for that wall because nowhere else in the world could a simple border incident so quickly escalate into nuclear war. (That’s a testament to how effective the wall is !!)  Fifth, we have the Turkey-Syria Wall, which was built by Turkey during the 1990’s to prevent an Kurdish militant insurgency. It worked very well, for over 15 years. It was only when Turkey’s leader, Erdogan, removed many of the defenses and turned a blind eye to border security that the terrorism problem in Syria, with repercussions in Turkey as well, grew so great. Sixth, we have the Morocco-Algeria Wall, which was a 1,700-mile system of sand berms, fences, mine fields, and ditches built by Morocco to defend against Algerian terrorists. Like the others, it was an effective wall.

There are other walls as well:  Saudi Arabia just built a wall along its disputed border with Yemen to keep Yemeni-based terrorists out. India has a long-standing border fence with Bangladesh to prevent illegal immigration. Hungary is building a fence to protect its borders. Greece maintains a heavily protected border with Turkey. Spain fortifies its enclaves in Africa.  [See Michael Rubin’s article “The Places Where Walls Work” and the article by Simon Tomlinson, “World of Walls”)

And, of course, let’s not forget Hadrian’s Wall (73 miles of heavily fortified wall, in the Roman province of Britannia, begun in AD 122 during the reign of the Roman emperor Hadrian), the wall around the Vatican, the wall erected at the Academy Awards (to keep the ordinary folk out so that Hollywood elite could lump praise on one another and party in privacy), the gated homes of celebrities (like the one Ryan Seacrest is buying from Ellen DeGeneres), and the gated communities that too many US Congressmen live in. Why do they have walls??  To keep those that don’t belong out !

As the organization, Legal Immigrants for America (LIFA), has long stated: “A nation without walls is not a nation, and a nation without borders is not a nation.”

Second of all, when she suggests that we use the $5 billion President Trump wants to fund the wall instead “to insure every American,” she is really saying this:  Those that can afford their own healthcare will still be forced to do so, and in fact, we’ll ask them to pay more so that everyone else who can’t afford healthcare insurance will be provided it for free. And because she wants the government to neglect the border and allow uncontrolled immigration, she suggests that hard-working, law-abiding, LEGAL Americans provide free healthcare for illegals as well.

So, what she is suggesting is that we not only continue to allow anyone who wants to come here to do so, and by any means they can, but we should also provide more and more magnets to attract them here.

In California, 73% of its illegal aliens are on welfare, other means-tested programs (such as Food Stamps, Housing Assistance, Federal Tax Credits), and on social programs. Nationally, 63% – 70% of all illegal aliens  (non-citizens) are on welfare, other means-tested programs, and social programs. Of course, there is no way for the government to know exactly how many illegals are in our country (that’s what “undocumented” means), and so their numbers admittedly are always on the low side. The number we are given, however, is 4.6 million illegal households that are on welfare. For those illegals in this country 10 years or more, the average is over 70%, which goes to show that once illegals go on welfare and get other “free stuff” (programs that citizens have to pay for), they tend to stay on them.  [See Paul Bedard’s article “Census Confirms 63 Percent of Non-Citizens on Welfare, 4.6 Million Households”]

Put compassion aside, because laws are about right and wrong, and not about feelings or compassion or heartstrings. That is what volunteer organizations are for. Government and laws are designed to work for the benefit of legal members of society. Every country not only has limited resources (including tax dollars, because every government of a free people has the obligation to tax its people as little as possible) but has the sovereign right to control who enters the country and the right to know exactly who is entering the country. The rightful expectation of an American citizen is that government MUST enforce the laws that carry out the core functions delegated to it under the Constitution. If the government doesn’t obey laws, why should its citizens?

If we were to use the wall funding instead to insure everyone, that will be a bust since it won’t go very far. Instead, while the borders are open and migrants continue to pour into our country, at the rate of 65-70% going on our welfare and other social programs, American taxpayers will continue and continue and continue to pay for those who come here illegally. The amount we pay to insure them today will exponentially increase as they multiply like crazy and continue on the current trend (which is that they remain in low-skilled jobs generation to generation). We were a “Land of Immigrants” many many years ago when our country was growing, developing, and becoming the greatest production powerhouse on the planet. But those days are long gone – our American union essentially ceased expanding by 1912 when New Mexico and Arizona became states (#47 and #48, respectively; Hawaii and Alaska would join in 1959) and we have shifted from a production economy to a more “service” economy. We do not need to continue bringing in more immigrants to our country simply to feed that onetime notion. People only have the privilege to come here as long as there is a need for them. That need HAS to be that they benefit our country somehow while being able to fully support themselves and their families; preferably, they should ADD to the wealth of the country, as our Founders advised.

Liberal Sharon didn’t address the bigger question: How do Open Borders benefit the American taxpayer?  Maybe she likes having her house cleaned by an illegal who she can pay less to (and of course, pay under the table). Maybe she likes finding illegals to do construction and landscaping projects so she can get away with paying less. But clearly – CLEARLY – these unethical benefits do not outweigh the burdens. She has to realize that.  Everyone has to realize that. If not, I have to doubt their ability to think and reason and use common sense.

Oh, and let’s not forget that today’s illegal immigrant is tomorrow’s Democratic voter. Considering that fact that Republicans pay far and above what Democrats pay in all levels of taxation (local, state, and especially federal), the FACT is that in many areas of the country, every Republican taxpayer’s vote is cancelled by a Democratic voter who in fact very likely does NOT pay federal income tax. Approximately 50% of people have no federal income liability. In other words, there is a very high percentage of people (Democrats) who have too much power to vote to spend the money that OTHERS earn and pay in taxation. Actual taxpayers who want to keep more of their money are losing out at the ballot box, and open borders will continue that trend. It is not the traditional “American Way” or the “Christian Way” to take what others had to earn but those on the left clearly despise traditional values…

Healthcare will become our next national black hole, where any possible tax break will go to die. Entitled (government-provided) healthcare is another one of those essentials in life that motivates a person to work, get a good job, move up the ladder, get a good education, breed responsibly, etc. Taking that pressure off of Americans is just another social program benefit that makes people comfortable and content in their poverty and relieves them of taking care of themselves. Why work? Why apply yourself in high school when you can get by with the absolute minimum and the government will provide you all the rest to allow you to live on par with those who’ve studied, worked hard, and didn’t settle for poverty ? Why invest in learning a trade, a skill, going to college, or starting a business?? I absolutely hate the mentality that says we should do more for those who aren’t making enough money with funding that others worked hard to earn and which is taken from their own families that rightfully should go to national and border security and to stop the insanity that is our current immigration and border problem — uncontrolled illegal entry into the country, human trafficking, more and more drugs flooding into our communities (most of the heroine that is killing our young people comes in across our southern border), gang members and drug traffickers terrorizing our cities and towns and preying on our children. Our OBLIGATION is spelled out in the Constitution — Congress has supreme power to tax and spend for our security, safety, and defense as a nation. Our obligation is NOT to people from other countries.

Liberals, progressives, Democrats, socialists, and Trump-haters are dangerous to this country for many reasons: First because they presume to be motivated by compassion (but its really ideology and politics) rather than intellect, common sense, and rationality, second, because they have no concept or understanding whatsoever of the Constitution and rightful government power, and third, because they have absolutely no respect for decency and the Rule of Law.  Liberals, progressives, Democrats, socialists, and Trump-haters want everything free in this country except free speech. They want everyone to have a better standard of living, while soaking money from those actually working hard, studying hard, and building careers to do that very same thing for their own families. They think everyone everywhere is entitled to America’s wealth except those who earn it.

When you see someone like Ms Angela make a stupid comment like the one she made regarding the wall funding, please take the time to respond with common sense, the law, and facts (As Homeland Security Kirstjen Nielsen told Nancy Pelosi after the latter chided: “I reject your facts..” –  “They are THE facts, not my facts”). We need to educate these mis-informed, soft-brained, often diseased-minded people, one at a time.  You may want to be far kinder than I have been in this article.

 

References:

Michael Rubin, “The Places Where Walls Work,” AEI, January 27, 2017.  Referenced at:  http://www.aei.org/publication/the-places-where-walls-work/

Simon Tomlinson, “World of Walls: How 65 Countries Have Erected Fences On Their Borders – Four Times As Many As When the Berlin Wall Was Toppled – As Governments Try to Hold Back the Tide of Migrants,” Daily Mail, August 21, 2015.  Referenced at:  https://www.dailymail.co.uk/news/article-3205724/How-65-countries-erected-security-walls-borders.html

Steve Watson, “Walls and Fences Are Bad Except If You’re a Hollywood Elite Attending the Oscars,” InfoWars, February 27, 2017.  Referenced at:  https://www.infowars.com/walls-and-fences-are-bad-except-if-youre-a-hollywood-elitist-attending-the-oscars/

Paul Bedard, “Census Confirms 63 Percent of Non-Citizens on Welfare, 4.6 Million Households,” Washington Examiner, December 3, 2018.  Referenced at:  https://www.washingtonexaminer.com/washington-secrets/census-confirms-63-percent-of-non-citizens-on-welfare-4-6-million-households

“FAKE NEWS: AP Tries to Discredit Trump’s Border Wall,” golifa, December 28, 2016.  Referenced at:  https://www.golifa.com/fake-news-ap-tries-discredit-trumps-border-wall/

 

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A Bill of Rights is What All Free People Are Entitled To Against Every Government

bill of rights - with james madison

by Diane Rufino, January 3, 2019

Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference……”    –  Thomas Jefferson, in a letter to James Madison, December 20, 1787

December 15 marks a very special day in our founding history – On that date in 1791, the first 14 states (Vermont had just been admitted to the Union as the 14th state), ratified the first 10 amendments to the US Constitution, known collectively as our Bill of Rights. We often take it for granted that these first ten amendments, our Bill of Rights, are included in our Constitution, but if we want to point to one reason the colonies went to war for their independence from Great Britain, it was to permanently secure the rights embodied in our Bill of Rights from all reaches of government. Without the Bill of Rights, the revolution would have been in vein.  Thomas Jefferson, probably the Founder who exerted the most pressure on James Madison for a Bill of Rights, advised: “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”  He wrote this to Madison on December 20, 1787, almost three months after the Constitution had been signed by its drafters in Philadelphia.

On Bill of Rights Day, we reflect upon those rights guaranteed in the first nine amendments (the tenth being a restatement of federalism – the strict separation of power between the federal government and the States) but more importantly, we should come to appreciate the efforts of certain particularly liberty-minded Founders who fought against great odds to make sure that our Constitution in fact included a Bill of Rights. After all, James Madison, considered the Constitution’s author, and most of the other Federalists did not see the need for a Bill of Rights and thought the Constitution wholly sufficient without it. That was the status of the Constitution when it went to the states for ratification.

What is a “Bill of Rights”?  A bill of rights, sometimes called a Declaration of Rights or a Charter of Rights, is a list of the most important rights belonging to the citizens of a country – rights that the King or other form of government must respect. The purpose is to protect those rights against infringement either by law or by conduct from public officials. The US Bill of Rights is the Declaration and enumeration is the individual rights memorialized in the Constitution intended to protect the individual against violations and abuses of power by the government. In that respect, our Bill of Rights is like most other bill of rights (including the English Bill of Rights is 1689 and the great Magna Carta of 1215).  This history of England, including the movement of groups of people (like the Puritans and Pilgrims), to the New World, is a history continually seeking for the recognition and security of fundamental human liberties. And early colonial history continued that tradition of setting out the rights and privileges of the individual in their government charters.

The Preamble to the Bill of Rights explains its clear purpose. It reads: “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.”

In other words, the Bill of Rights is a further limitation on the power of government, above and beyond those limitations already imposed by its very design and delegation of limited powers.

HISTORY:

Again, a Bill of Rights (or Declaration of Rights, or Charter of Rights), is a list of the most important rights belonging to the citizens of a country that the King or other form of government must respect. Bills of rights may be “entrenched” or “unentrenched.”  A bill of rights that is “entrenched” cannot be amended or repealed by the governing legislature through regular procedure, but rather, it would require a supermajority or referendum. Bills of rights that are “entrenched” are often those which are part of a country’s constitution, and therefore subject to special procedures applicable to constitutional amendments. A bill of rights that is not entrenched (“unentrenched”) is merely statutory in form and as such can be modified or repealed by the legislature at will.

The history of the world shows that there have been limited instances where the rights of the people have been enumerated and/or protected by a Bill of Rights. This history includes the following charters, documents, or bills of right:

  • Magna Carta (1215; England) rights for barons
  • Great Charter of Ireland (1216; Ireland) rights for barons – Ireland became independent of Great Britain in 1937
  • Golden Bull of 1222 (1222; Hungary) rights for nobles – which interestingly, included the right of Nullification
  • Charter of Kortenberg (1312; Belgium) rights for all citizens “rich and poor”
  • Twelve Articles (1525; Germany) – considered the first draft of human rights and civil liberties in continental Europe after the Roman Empire.
  • Petition of Right (1628; England)
  • English Bill of Rights 1689
  • Declaration of the Rights of Man and of the Citizen (1789; France) – inspired by Thomas Jefferson
  • The US Bill of Rights (1791)

The roots of our modern-day liberty originated in England, as far back as 1100, culminating there with the English Bill of Rights in 1689 and ultimately providing the blueprint for our very own US Bill of Rights in 1791. The roots of liberty, including the roots of our very own American liberty rights, can be found in the selection of charters and documents listed below:

  • The 1100 Charter of Liberties (also called the Coronation Charter) – The 1100 Charter of Liberties was a written proclamation offered by Henry I of England and issued upon his accession to the throne in 1100. It sought to bind the King to certain laws regarding the treatment of nobles, church officials, and individuals – most notably, certain marriage rights, rights of inheritance, amnesty rights, rights for the criminally-accused, and environmental protection (forests). It is considered to be the precursor to the Magna Carta.

 

  • The Magna Carta of 1215 (“the Great Charter”) – The barons at the time, frustrated by ten years of excessive taxation by King John in order to finance a campaign to regain lands in France only to watch the King return home in defeat, consolidated their power and threatened to renounce him. Over the next eight months, they made repeated demands to the King, requesting that he give them a guarantee that he would observe their rights. But these negotiations amounted to nothing. And so, on May 5, 1215, the barons gathered and agreed to declare war on him. On May 17, the barons captured London, the largest town in England, without a fight, and finally, King John took notice. With London lost and ever more supporters flocking to the side of the barons, he sent word that he would meet with them to discuss terms of peace.. Over the next few days, the barons assembled in great numbers on the fields of Runnymede, a relatively obscure meadow that lies between the town of Staines and Windsor castle, where King John was based. Negotiations took place over the next several days and finally, on June 15, King John affixed his seal to the document that would become known as the Magna Carta (or “The Great Charter”). The Magna Carta enumerated an expansive list (63 “chapters”) of rights for barons, and also provided the remedy of Nullification.  The principles extended beyond the often-recognized origin of the “No Taxation Without Representation” doctrine in chapter 12 (and hence the creation of a “people’s body” which addressed matters of taxation and spending) and the Due Process clause of chapter 39. The concepts of “Trial by Jury” and “No Cruel Punishments” are present in chapter 21; and the forerunner of the “Confrontation Clause” of our 6th Amendment addressed in chapters 38, 40, and 44. But the most important contribution of the Magna Carta is the claim that there is a fundamental set of principles which even the King must respect. Above all else, Magna Carta makes the case that the people have a “right” to expect boundaries from the King in their lives and with respect to their property. They have a right to expect “reasonable” conduct.  [King John would go on to ignore the promises he made in signing the Magna Carta]

 

  • The Petition of Right of 1628 – In 1628, under the leadership of Sir Edward Coke, a legal scholar-turned-practical politician, Parliament petitioned Charles I, son of the recently deceased King James I, to uphold the traditional rights of Englishmen, as set forth in the Magna Carta. It was an appeal to his sense of being a just King. Charles was already on his way to being a notorious tyrant. Parliament was not only fed up with is participation in the Thirty Years War (a highly destructive European war) against its consent, but when it refused to provide Charles the revenue to fight the war, he dissolved the body (several times, actually). That would lead Charles to raise revenue other ways – by gathering “forced loans” and “ship money” without Parliamentary approval (hence, taxation without representation in violation of the Magna Carta) and arbitrarily imprisoning those who refused to pay. Among the customary “diverse rights and liberties of the subjects” listed in the Petition of Right were no taxation without consent (as mentioned), “due process of law,” the right to habeas corpus, no quartering of troops, the respect for private property, and the imposition of no cruel punishment. King Charles did not consider himself bound by the Petition and so, he simply disregarded it. He would later be officially tried for high treason by a rump Parliament and beheaded in 1649. [The Petition of Right would have a profound effect on our US Bill of Rights: The Due Process clause of the 5th Amendment, the “Criminal Trials” clause of the 6th Amendment, and the “Civil Jury Trial” clause of the 7th Amendment all are influenced by the Petition of Right.  Furthermore, during the 1760s, the American colonists articulated their grievances against King George in terms similar to those used by Lord Coke in the Petition of Right to uphold the rights of Englishmen].

 

  • The English Bill of Rights of 1689 – After the Bloodless Revolution or “Glorious Revolution” (in which the English Parliament instigated a bloodless coup, replacing King James II with his daughter, Mary II and her husband, William III), Parliament set to right the abuses of its previous kings – Charles I, Charles II, and James II. It drafted and adopted a bill of rights, known as the English Bill of Rights, as which set out certain basic civil rights and clarified the right of secession for the British Crown. It was presented to William and Mary in February 1689 as a condition to the offer to become joint ruling sovereigns of England.  It was contractual in nature so that the acceptance of the throne was tied to their express promise to recognize the rights set forth in the Bill of Rights. A violation of that agreement would terminate the right of William and Mary to rule. The Bill of Rights lays down limits on the powers of the monarch and sets out the rights of Parliament. It further, and most importantly for this discussion, sets out certain rights of the individual, including:  the right to bear arms for self-defense, the right of Due Process, the right to petition government, such criminal defense rights as the right to be free from excessive bail, the right to a jury trial for the crime of high treason, and the right against any cruel and/or unusual punishment, the guarantee that there would be no taxation without representation, the right to be free of a standing army in times of peace, and the right to be free of any quartering of troops.  [Great Britain is unlike the United States in that it has no formal Constitution; rather, the English Bill of Rights, taken together with the Magna Carta, the Petition of Right, the Habeas Corpus Act 1679 and the Parliament Acts of 1911 and 1949 are considered, in total, as the uncodified British constitution].

 

  • The colonies being organized under grants and agreements from England, it was assumed that English traditions applied. The colonists considered themselves British subjects and as such, they believed they were entitled to all the rights and privileges of Englishmen. That is why they reacted as they did to the taxes imposed by Parliament, why one protest theme was “No Taxation Without Representation,” why the Sons of Liberty formed, why they harassed the colonial stamp collectors and stamp masters until they resigned, why they engaged in acts of civil disobedience (such as preventing the British from unloading their ships at colonial ports) or hanging colonial governors in effigy, why they tossed crates of tea into the Boston Harbor, why men like Patrick Henry called for the raising and training of colonial militias, and why they were willing to confront the Redcoats with their muskets when they sought to destroy the stockpiles of colonial ammunition. It seemed that once again, as English history has shown true, Englishmen would have to exert their rights and demand that the King to respect them. Proper boundaries would once again have to be established.

 

  • King John’s rejection of the Magna Carta (1215) and King Charles’s rejection of the Petition of Right (1628) proved to our Founding Fathers that the system established in Great Britain provided only arbitrary security for individual rights. They would need to come up with a different system of government, grounded on more “enlightened” principles and “enlightened” government philosophy. And that is exactly what they did in the Declaration of Independence – announcing that the American states were united on the concept of Individual Sovereignty, that government power originated from the People, to serve the People, and not from kings (“the Divine Right of Kings”) to serve kings.

With what many believe to be divine guidance and protection, the thirteen original colonies fought and won their independence from Great Britain in 1781. Lord Cornwallis surrendered his British troops to General George Washington, Commander of the Continental Army, on October 19, 1781 and the Treaty of Paris, signed in September 1783, marked the official end of the struggle. Since the colonies worked together in a collaborative effort to communicate grievances and concerns to King George and Parliament and to engage in a concerted effort to prevent war, but then once war came, to fight and manage the war effort, it seemed only natural to continue to collaborate in their independence. The first attempt at a loose union of states, under the Articles of Confederation, was not very successful. The government lacked the enforcement power needed to effectively act on behalf of the states, such as the power to collect revenue to pay the war debt.

Taking note of the limitations of the common government (the Confederation Congress, aka, Congress of the Confederation, or sometimes even referred to still as the Continental Congress), certain members of our founding generation instigated for a Convention to amend that government. Eventually, in February 1787, Congress called for such a Convention to meet in May in Philadelphia “to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government [the Articles of Confederation] adequate to the exigencies of the Union.” And so, the Convention did convene on May 25, 1787 in Philadelphia with delegates from all the states except Rhode Island. The Constitutional Convention, as it came to be known, quickly changed direction – from amending the Articles of Confederation to designing an altogether different form of government. James Madison would be the architect of that plan (the Virginia Plan).  The collective wisdom of the delegates at the Convention identified the weakness of the Virginia Plan, which for the colonies was the creation of a “national” government, with concentrated power in that government, rather than a “federal” government which left most of the sovereign power with the states. A federal government, with the sovereignty of the States keeping the sovereign power of the federal government in check, was the form of government that the delegates preferred. A government that could remain checked against abuses was one that honored the fiercely independent and freedom-loving nature of the colonies and one which would address the reasons for the revolution against Great Britain.

In the summer of 1787, delegates from the 13 states convened in Philadelphia and drafted a remarkable blueprint for self-government — the Constitution of the United States. The first draft set up a system of checks and balances that included a strong executive branch, a representative legislature and a federal judiciary.

The Constitution was remarkable, but deeply flawed. For one thing, it did not include a specific declaration – or bill – of individual rights. As it turned out, and luckily for us as depositories of certain “inalienable rights” as well as civil rights (those belonging to individuals living in a society, subject to the rule of law), the lack of a Bill of Rights turned out to be an obstacle to the Constitution’s ratification by the states that could not be overcome. The Federalists opposed including a bill of rights on the ground that it was unnecessary. According to James Madison, a leading Federalist, a Bill of Rights was not necessary, arguing that because the general government was one of limited powers, having only those powers specifically delegated to it and none touching on individual rights. Besides, he said, a Bill of Rights would only create confusion (inferring that any other right or privilege not listed in the Bill of Rights would be fair game for federal regulation) and also, state governments could ensure these freedoms without the need for a federal mandate. The Anti-Federalists, who were afraid of a strong centralized government and knowing that history has clearly shown that governments tend to concentrate power and tend towards centralization and then tyranny/abuse, refused to support the Constitution without one.

At the close of the Philadelphia Convention, on September 20, 1787, the delegates left with mixed feelings about the document they drafted. Of the 55 delegates to the Convention, only 39 signed it.  Of the 16 that did not sign, some left early (for business, health reasons, family concerns, or out of protest) and some refused to sign out of protest. Some of the more important delegates (ie, position and/or influence in their states) who refused to sign were the following:  George Mason of Virginia (because it did not contain a Bill of Rights), Luther Martin of Maryland (because it violated states’ rights), John Mercer of Maryland (because it did not contain a Bill of Rights), Elbridge Gerry of Massachusetts (because it did not contain a Bill of Rights), John Lansing and Robert Yates, both of New York (because it created too strong of a government, which he characterized as much more “national” than “federal”), and Edmund Randolph of Virginia (because it contained insufficient checks and balances to prevent government abuse). Had some of our most active and influential founding fathers attended the Convention, there would have been far greater opposition to the final product. Those who refused to attend or who were unable to included: Patrick Henry (refused to attend, he “smelled a rat” who he believed would try to vest the common government with too much power), Richard Henry Lee (refused to attend because he too didn’t trust the motives of those who called it), Thomas Jefferson (was acting as Ambassador to France at the time, but offered to advise the delegates by correspondence), John Adams (was acting as Ambassador to Great Britain at the time), Samuel Adams (refused to attend because he rejected the purpose of the Convention) and John Hancock (refused to attend for the same reason as Sam Adams).

Many of those who refused to sign the Constitution vowed to fight its ratification at the state conventions – George Mason, Elbridge Gerry, the delegates from Maryland, Luther Martin and John Mercer, and the delegates from New York, John Lansing and Robert Yates. And some strong anti-Federalists who were not delegates at Philadelphia would oppose it as well –Richard Henry Lee, Sam Adams, John Hancock, James Monroe (Virginia), and New York’s Governor George Clinton (who wrote several anti-Federalist essays under the pen name “Cato”). Add to these “big guns” the biggest ones of all – Thomas Jefferson, who was as strong a proponent of a Bill of Rights as one could be, and Patrick Henry, perhaps our most vocal and passionate orator for liberty. Jefferson would have advised Madison to include one, and certainly would have taken issue with Madison’s position on the matter, even though he would have had to do so by correspondence. Perhaps that is the reason why Madison lapsed during the final days of the Convention in updating Jefferson as to the discussions and decisions made in the Convention. It wasn’t until a month after the Convention wrapped up, on October 24, that he finally wrote to him again and sent him a copy of the draft Constitution. We do know that as the debate intensified over a Bill of Rights, Jefferson wrote Madison with his strong opinion, including his letter of December 20, 1787, in which he wrote: “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”   [The Appendix at the end of this article contains the full commentary in Jefferson’s letter relating to the lack of Bill of Rights in the new Constitution].

On September 28, 1787, the Confederation Congress (aka, Congress of the Confederation) advised the states to begin calling their ratifying conventions, and several did so immediately. Madison left the Philadelphia Convention uncertain what the outcome of the ratification process would be. The dissent by Edmund Randolph and George Mason, both from his home state, and then their refusal to attach their names to the Constitution weighed very heavily on his mind. As Kevin Gutzman pointed out in his book James Madison and the Making of America, the influence that those two men alone had in the overall ratification process potentially could more than counter the entire “unanimity” of the Convention.

As we will see, Madison not only played a leading role in bringing about the Philadelphia Convention (he and Alexander Hamilton orchestrated the report to the Confederation Congress – the Annapolis Report – which made the recommendation that a convention be called in May 1787 in Philadelphia to address the defects of the Articles of Confederation), but he also played a critical supporting role (through his writings) in the debates in the state ratifying conventions, and then a more formal role when ratification seemed to be doomed. The Constitution was “his baby” and he was going to do all he could to see it adopted and a stronger union created. [In September 1786, a conference was called in Annapolis, Maryland to discuss the state of commerce in the fledgling nation. The national government had no authority to regulate trade between and among the states. The conference was called by Virginia, at the urging of Madison, to discuss ways to facilitate commerce and establish standard rules and regulations. Only five of the 13 states sent any delegates at all].

Between November 20, 1787 and January 9, 1788, five states – Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut – ratified the Constitution with relative ease, although the bitter minority report of the Pennsylvania opposition was widely circulated. Despite overwhelming success with these early conventions, the Federalists were well aware of the difficulties that lay ahead. Massachusetts, New Hampshire, Virginia, and New York were still to come and they knew that North Carolina and Rhode Island weren’t going to sign. In other words, the difficult journey still lied ahead because the anti-Federalist (opponents of the proposed Constitution) were aggressively campaigning against ratification, six states were in doubt, and the magic number of 9 states (Article VII – when 9 states ratified the Constitution, it would take effect) might never be achieved.

In the month after the close of the Convention, Madison found himself in New York and with some time to spare. It didn’t look good; too many political heavyweights were lining up against ratification. New York was unlikely to approve the Constitution. When John Lansing and Robert Yates abandoned the Philadelphia Convention, as Gutzman wrote, “they said that they had not been sent to Philadelphia to replace the Confederation with a national government.” New York’s strongest political figure, its Governor, George Clinton, sided with Lansing and Yates. Alexander Hamilton, a delegate to the Convention from NY, advised Madison that the best way to improve the chances of ratification in his state was to appeal directly to the electorate through the newspapers. After all, several anti-Federalists were already writing articles and other publications criticizing the Constitution and condemning the ambitious government it believed it created.

In addition to the anti-Federalist essays written by Governor Clinton (“Cato”), there were other, also powerful, essays published to criticize the Constitution and to highlight its many flaws. There was “Brutus” from New York (likely Robert Yates or Melancton Smith, or maybe even John Williams), “Centinel” from Pennsylvania (Samuel Bryan), “Agrippa” from Massachusetts (James Winthrop), and the “Federal Farmer” from Virginia (most likely Richard Henry Lee, or maybe Mercy Otis Warren). The is no list to identify with certainty which individuals authored the essays. Agrippa published 11 Letters “To the people,” and 5 essays “To the Massachusetts Convention” by February 5. Brutus published 11 of his 16 essays, Cato published all of his 7 essays, Centinel published 14 of his 18 letters, and Federal Farmer published all of his 18 letters between October 1787 and the start of the Massachusetts ratifying convention, which was January 9, 1788. Much to the dismay of the Federalists, the flood of Anti-federalist essays were starting to have their impact on the electorate and on more importantly, on the election of delegates, and key conventions were yet to meet (namely, New York and Virginia).  In fact, in both those states, the majority of delegates selected would be anti-Federalists.

[New York would call for its convention on February 1, select its delegates from April 29 to May 3, and set its date for June 17. Virginia would select its delegates in March, and set a date of June 2 for its convention].

Alexander Hamilton, James Madison, and prominent NY figure, lawyer John Jay agreed to address the anti-Federalist campaign, convinced that rejection of the Constitution would condemn the states to an unworkable union. It is likely that Madison took charge from the beginning, laying out a theme or roadmap for the essays, making sure that the criticisms of the anti-federalists were addressed, making sure the provisions of the Constitution that were most contentious were addressed and effectively explained, and that the arguments in favor of the Constitution were made that he wanted. When Jay became very ill, the bulk of the essays would have to be split between Hamilton and Madison; Jay would only be able to write 3 essays. The three men responded to each and every one of the criticisms of the anti-Federalist, in essay form, under the pen name “Publius.” Beginning in October 1787, these men penned 85 essays for New York newspapers and later collected them into 2 volumes entitled The Federalist (later to be referred to as The Federalist Papers), which addressed each concern of the anti-Federalists, analyzed the Constitution, detailed the thinking of the framers, anticipated scenarios posed by the critics, and explained what each provision meant. The Federalist Papers gave assurances that the fears of the anti-Federalists were unfounded and mere speculation and conjecture. One reading the Federalist Papers would believe the federal government to be one of strict and limited powers and without any threat of overstepping or abusing its powers. Comparing the government explained in the Federalist Papers to the one today would be to compare a pea to a grapefruit.

In contrast to its predecessor states (Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut), the Massachusetts convention was angry and contentious, and at one point, it erupted into a fistfight between Federalist delegate Francis Dana and anti-Federalist Elbridge Gerry when the latter was not allowed to speak. The impasse was resolved only when revolutionary heroes and leading anti-Federalists Samuel Adams and John Hancock agreed to ratification on the condition that the convention also propose amendments. In other words, Massachusetts’ ratification was a “conditional” one. [The convention’s proposed amendments included a requirement for grand jury indictment in capital cases, which would form part of the Fifth Amendment, and an amendment reserving powers to the states not expressly given to the federal government, which would later form the basis for the Tenth Amendment. Massachusetts’ Ratification is provided in the Appendix at the end of this article].

The next contentious convention would be in Virginia – in June.

At this point, I wanted to provide a timeline of the State Ratifying Conventions:

Timeline of State Ratifying Conventions:

Delaware – December 7, 1787 –  Delaware ratified the Constitution, 30-0.  [http://teachingamericanhistory.org/library/document/delaware-ratifies-30-0/ ]

Pennsylvania – December 12, 1787 – Pennsylvania ratified, 46-23.  [http://teachingamericanhistory.org/library/document/pennsylvania-ratifies-46-23/ ]

New Jersey – December 18, 1787 –  New Jersey ratified, 38-0.  [http://teachingamericanhistory.org/library/document/new-jersey-ratifies-38-0/ ]

Georgia – December 31, 1787 – Georgia ratified, 20-0.  [http://teachingamericanhistory.org/library/document/georgia-deed-of-ratification/ ]

Connecticut – January 9, 1787 –  Connecticut ratified 128-40.  [http://teachingamericanhistory.org/library/document/connecticut-ratifies-128-40/]  

Massachusetts – February 6, 1788 – The delegates to the Massachusetts Ratifying Convention were split on whether to ratify the Constitution or reject it, and so they came up with a compromise.  The high road explanation is that responsible leaders from both parties, including Adams and Hancock, convened and said, “Look, we’ve been at this now for nearly a month. We’re not making any progress whatsoever. The country is in crisis and if Massachusetts doesn’t sign, then we’re down the tubes. Is there some way we can come to some common ground on this?” And the common ground was that Massachusetts would ratify now with an expectation that in the First Congress amendments would be proposed to alter the Constitution. This is known as the Massachusetts Compromise. And enough people bought into it because Hancock bought into it, that it swayed enough delegates to ensure ratification. So the high ground is the sense of crisis, the sense of duty, the sense of Hamilton‘s remark in Federalist 85 that states would be better off signing quickly and working within the system, and that sense that Massachusetts had a responsibility to step up and take the lead. Ultimately, the Massachusetts Ratifying Convention ratified 187-168 with 9 proposed amendments – again with the understanding and expectation that a Bill of Rights would be added.  [http://teachingamericanhistory.org/ratification/stagethree/ ]

New Hampshire – February 14, 1788  – A majority of the delegates to the New Hampshire Ratifying Convention were opposed to ratification, and so the delegates to the convention voted to postpone until June 18, at which time they would take up the issue of ratification again.  [http://teachingamericanhistory.org/ratification/stagethree/ ]

Rhode Island – March 24, 1788 – Rhode Island rejected the call for a state ratifying convention; the state had no intention of even considering a new constitution.

Maryland – April 26, 1788 – Maryland ratified 63-11.   [http://teachingamericanhistory.org/ratification/stagefour/#maryland ]

South Carolina – May 23, 1788 – South Carolina ratified, 149-73, with 5 Declarations and Resolves.  [http://teachingamericanhistory.org/ratification/tansill/ratification-southcarolina/ ]

New Hampshire – June 21, 1788 – New Hampshire ratified 57-47, with 12 proposed amendments.  [http://teachingamericanhistory.org/library/document/new-hampshire-ratifies-57-47-with-12-proposed-amendments/ ]

Virginia – June 25, 1788 –  Virginia ratified 89-79, with 20 Bill of Rights and 20 proposed amendments.  [http://teachingamericanhistory.org/library/document/virginia-ratifies-89-79-with-20-proposed-amendments/ ]

On July 2, 1788, the Confederation Congress (still under the Articles of Confederation at the time), adopted the ratification of the US Constitution. The old union (13 colonies-turned-states) was dissolved at that point and a new union, comprising the states that had ratified up until this point (DE, PA, NJ, GA, CT, MA, NH, MD, SC, and VA) was formed.

New York – July 25-26, 1788 – New York ratified on July 26, after debating the day before whether to ratify with amendments or not. It ratified by a slim margin, 30-27, with 25 Bill of Rights and 31 proposed amendments.  [http://teachingamericanhistory.org/library/document/new-york-ratifies-30-27-with-31-proposed-amendments/ ].  The first three Bill of Rights read:

(1)  That all Power is originally vested in and consequently derived from the People, and that Government is instituted by them for their common Interest Protection and Security.

(2)  That the enjoyment of Life, Liberty and the pursuit of Happiness are essential rights which every Government ought to respect and preserve.

(3)  That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.  [= “RESUMPTION CLAUSE.”  This condition to ratification, as the states of Virginia and Rhode Island also exercised this condition, is critical to understanding the reserved right of a state to secede from the Union].

(4)  That the People have an equal, natural and unalienable right, freely and peaceably to Exercise their Religion according to the dictates of Conscience, and that no Religious Sect or Society ought to be favored or established by Law in preference of others.

(5)  That the People have a right to keep and bear Arms; that a well-regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defense of a free State;

North Carolina – August 2, 1788 – North Carolina voted 184-84 against ratification.  [http://teachingamericanhistory.org/ratification/elliot/vol4/northcarolina0802/ ]

On September 13, 1788, the Confederation Congress prepared for the new government to take its place. On January 7, 1789, presidential electors were selected, and on February 4, the first election was held to select representatives to the new government under the US Constitution. The candidates receiving the top votes for president were George Washington and John Adams, and so they became the country’s first president and vice-president, respectively. James Madison was elected to the first US Congress from the state of Virginia. The first US Congress was inaugurated on March 4, and finally, on March 30, Washington was inaugurated. He delivered what would become one of the most memorable and often-cited Inaugural addresses.

The first government created by the US Constitution was installed.

North Carolina – November 21, 1789 –  North Carolina ratified 194-77, with 20 Bill of Rights and 21 proposed amendments

Rhode Island – May 29, 1790 –  Rhode Island ratified 34-32, with 18 Bill of Rights and 21 proposed amendments.  [Reference:  http://teachingamericanhistory.org/ratification/tansill/ratification-rhodeisland/ ]

***  Timeline of Ratification of the US Constitution, Reference:  http://teachingamericanhistory.org/bor/timeline/.  By clicking on the State Ratifying Convention, you can pull up the debates, the votes, and the proposed amendments associated with each state’s vote.  Also, I have included, in the Appendix at the end of this article, the proposed Bill of Rights and/or proposed amendments proposed by the certain states in their ratifications].

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Having co-written The Federalist Papers to help secure ratification in New York, James Madison left the state for Virginia, to take up the battle there. [The Virginia Convention would be held before the New York Convention, two weeks before, but as it turned out, they would continue simultaneously].  Back in Virginia, Madison would have to face Patrick Henry, George Mason, Edmund Randolph, James Monroe, Richard Henry Lee (one-time president of the Continental Congress) and William Grayson (VA representative in the Continental Congress). George Mason had authored the 1776 Virginia Declaration of Rights and the state constitution (chief author, at least) so he would clearly be a forceful authority on the necessity of a Bill of Rights. Mason and Lee would mount the most strenuous opposition to the proposed Constitution, in favor of amending it to include a Bill of Rights. Patrick Henry would oppose it on states’ rights grounds as well. He urged that Virginia hold out for amendments.

Virginia elected its delegates to the Convention in March 1788, and many men – many prominent men – ran for a seat. Interestingly, some of the more prominent men who chose not to run, or who did not win, included George Washington, Thomas Jefferson, Beverley Randolph, Richard Henry Lee, and a few others. The most prominent men who were elected included James Madison, Patrick Henry, George Mason, Governor Edmund Randolph, James Monroe, William Grayson, Edmund Pendleton, George Wythe, George Nicholas, former VA Governor Benjamin Harrison V, and John Marshall (who would go on to become our most influential Supreme Court Chief Justice). Of the 168 delegates, the majority were anti-Federalists.

In his book James Madison and the Making of America, Gutzman goes into detail with respect to Mason’s objections to the proposed Constitution. He wrote:

On October 7, Mason sent a letter to [George] Washington including his objections to the Constitution. An amended version of notes he had made during the Philadelphia Convention, this document essentially repeated complaints Mason had raised then: There was no Declaration of Rights, and the Supremacy Clause meant state declarations would be unavailing; the House was too small; the Senate had money powers, although it did not represent the people; the combination of legislative and executive powers in the Senate endangered liberty’ the federal judiciary would swallow up the state judiciaries and thus allow the rich to oppress the poor; the president lacked an executive council, which meant he would be led by the Senate; and the vice-president, in limbo between the Senate and the executive branch, was a dangerous personage – besides which he would give one state three Senate votes, which was unfair.

In addition to these objections, Mason also went public with his Philadelphia Convention prediction that the Commerce Clause would empower the eight northern states to abuse the five southern ones. There would be a tendency for Congress to read almost anything into the Necessary & Proper Clause, which threatened both states’ rights and individuals’ rights.  [James Madison and the Making of America, pg. 189]

Virginia’s Convention met from June 2 – June 27. The Convention would end up pitting Patrick Henry against James Madison, with the former spending much more time on the floor speaking.  Henry was Madison’s most formidable antagonist in the ratification fight.  Henry was perhaps our most passionate founding father, being known for his fiery speeches and his imagery. He was the voice of the revolution. As Gutzman wrote: “He was the great guardian of Virginians’ self-government and inherited rights. He was also an orator without parallel, one who could cause hair to stand up on the necks even of his most devout opponents.”  He did not disappoint at the Convention.

On June 8, he took to the floor to accuse the proposed government created by the Constitution of being a consolidated one. His position was that a confederated government (under the Articles) was being replaced by a consolidated government. He objected to the introductory phrase “We the People…,” claiming that it conjured up the notion that the government would be a consolidated national one. He wanted the language changed to “We the States…”  In his speech that day, he said:

“It is said eight States have adopted this plan. I declare that if twelve States and a half had adopted it, I would, with manly firmness, and in spite of an erring world, reject it. You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your Government. Having premised these things, I shall, with the aid of my judgment and information, which, I confess, are not extensive, go into the discussion of this system more minutely. Is it necessary for your liberty that you should abandon those great rights by the adoption of this system? Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings-give us that precious jewel, and you may take every thing else: But I am fearful I have lived long enough to become an fellow: Perhaps an invincible attachment to the dearest rights of man, may, in these refined, enlightened days, be deemed old fashioned: If so, I am contented to be so: I say, the time has been when every pore of my heart beat for American liberty, and which, I believe, had a counterpart in the breast of every true American: But suspicions have gone forth-suspicions of my integrity-publicly reported that my professions are not real. 23 years ago was I supposed a traitor to my country; I was then said to be the bane of sedition, because I supported the rights of my country: I may be thought suspicious when I say our privileges and rights are in danger.”

One of the more contentious days came on June 24; the Convention was winding down. George Wythe opened the day’s proceedings with a speech in favor of ratifying the Constitution before amending it. Madison followed, emphasizing many of the same themes he and Hamilton and Jay had addressed in The Federalist essays. Just as the elderly Benjamin Franklin had urged his fellow delegates in Philadelphia to quit their bickering and work together for the greater good at, Madison essentially tried to make the same point in Richmond. As to the position that amendments should be added before Virginia ratified, Madison argued that it was unreasonable. He didn’t think it was reasonable to expect the other states (eight of them) to retract their unconditional ratifications in order to accommodate Virginia’s demand that the Constitution be first amended, and particularly to include a Bill of Rights. Up until that point, Madison had remained relatively quiet at the Convention. And even when he spoke, he came across as meek. But he was never one to project very well. When he spoke on the 24th, it was in a strained, quiet tone. But he spoke articulately and rationally, and he addressed the many concerns of the anti-Federalists.

When he concluded, he yielded the floor to Henry. From Gutzman’s book:

An account given by Federalist Archibald Stuart proves the point. Henry concluded his speech by calling attention to ‘the awful dangers” attendant upon their vote. “I see beings of a higher order, Henry thundered, “anxious concerning our decision.”  “Our own happiness alone is not affected by the event – All nations are interested in the determination. We have it in our power to secure the happiness of one half of the human race….”    [James Madison and the Making of America, pg. 233]

The Convention was getting ready to take a vote when an obscure delegate endorsed Patrick Henry’s call for a list of amendments. “The delegate said that he could not vote for ratification until he was assured that amendments protecting Virginians’ historic rights would be recommended. Madison answered that he would not oppose any ‘safe’ amendments (but continued to assert that he believed it unnecessary, and perhaps even dangerous.’” [Ibid, pg. 235]

Ultimately, on June 25, the delegates voted against first proposing amendments to the other states prior to Virginia’s ratification (ie, having the other states recall their unconditional ratification and re-consider ratification after amendments were added) and voted 89-79 in favor of ratification, with proposed amendments.  On June 27, the Convention adopted a set of 40 proposed amendments. A committee, headed by law professor George Wythe, drafted the amendments – 20 enumerated individual rights (Bill of Rights) and the other 20 enumerated states’ rights. The amendments were forwarded to the Confederation Congress. [Virginia’s Ratification is provided in the Appendix at the end of this article. Take note of its Bill of Rights – it includes a “Resumption Clause”].

While there were delegates at several conventions who supported an “amendments before” approach to ratification, it soon shifted to an “amendments after” for the sake of trying to hold the Union together. Ultimately, only North Carolina and Rhode Island waited for amendments from Congress before ratifying.

Four days prior to the conclusion of the Virginia Convention, on June 21, 1788, New Hampshire ratified the Constitution. What makes that date special is that when New Hampshire ratified, with its 12 proposed amendments, the required number of state ratifications, according to Article VII of the Constitution, had been met to establish the Constitution. [Article VII – “The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.”} The Constitution would become operational. A new union (comprised of those states that had ratified) was created and the new frame of government would be established.

The New York ratification convention met on June 17, 1788, while the Virginia Convention was still debating ratification. As with Virginia, a majority of its 67 delegates were anti-Federalists. (The New York Convention would last over month – from June 17 until July 26). On the opening day, the anti-Federalists, led by Governor Clinton, clamored for a Bill of Rights and fought to preserve the autonomy of the state against what it believed were actual and potential federal encroachments. Hamilton (the only NY delegate to the Philadelphia Convention to sign the Constitution) and the Federalists, on the other hand, contended that a stronger central government would provide a solid base from which New York could grow and prosper. While the debates were contentious, the Federalists were ultimately successful and on July 26, the Constitution was ratified by a very slim margin, 30-27, but with 25 Bill of Rights and 31 proposed amendments. The Convention also voted to call for a second federal convention.  [New York’s Ratification is provided in the Appendix at the end of this article. Take note of its Bill of Rights – it includes a “Resumption Clause”].

On September 13, 1788, the Articles of Confederation Congress certified that the new Constitution had been ratified by more than enough states for the new system to be implemented and directed the new government to meet in New York City on the first Wednesday in March the following year. On March 4, 1789, the new frame of government came into force with eleven of the thirteen states participating – and without a Bill of Rights.

Opposition to the new Constitution among leading Virginians lingered. It would continue to be a thorn in James Madison’s ass…  the man who deceived the states into sending delegates to Philadelphia believing they were tasked with proposing amendments to the Articles of Confederation (when all along, he wanted them to take up the issue of an all-new scheme of government – his scheme, the “Virginia Plan”), the man who thought his scheme had finally been realized, and the man who supposedly held that “not a letter of the Constitution” should be altered.

After Virginia’s ratification and New York’s ratification, the future of the Constitution, as ratified, was not certain.  New York wanted to call another federal convention (to amend the new Constitution?  To get rid of the new Constitution?) and several powerful Virginians, with Patrick Henry taking the lead, seemed likely to move for the same.

As fate would have it, Madison set his sights on the US Senate. But there was one problem for him – the Constitution (pre-17th Amendment) empowered the state legislatures to elect senators, but the VA state legislature (VA General Assembly) was comprised of many enemies he had made in his efforts to deceive the states at the Philadelphia Convention, to write the Constitution, and to secure its ratification, including the great Patrick Henry. And Henry and his fellow anti-Federalists got the chance to get even: in its selection of Senators,  the legislature chose Richard Henry Lee and William Grayson.

Both Richard Henry Lee and William Grayson agreed with Patrick Henry that the Constitution should have been amended to include a Bill of Rights (at the least) before it was ratified. Both, it seems, would favor a second convention.

Madison, at this point, was warming somewhat to the notion of amendments, but it’s not sure if he was warming because he agreed that a Bill of Rights is essential to limit powers of government or if he was just nervous that the issue might be the one to sink his Constitution. One thing is for certain though, he would have rather the Constitution be amended by the first option in Article V (amendments proposed by Congress and then sent to the states for adoption) than by a second convention (the second option in Article V; a convention of states). Kevin Gutzman addressed this in his book:

For one thing, some states would oppose a convention so strongly that they would reflexively oppose any amendment it might propose. For another, it would be easier to have Congress propose amendments than to follow the process in Article V of the Constitution for convening another meeting like the one at Philadelphia. Finally, another convention would include members with extreme views on both ends of the political spectrum, enflame the public mind, and produce nothing conductive to the general good. He had seen how the first convention had worked, and he did not want to hazard a second – which, too, would undermine the impression of the American republic’s stability left in European capitals by the success of the recent ratification campaign.  [James Madison and the Making of America, pg. 241]

Defeated in his bid for the US Senate, Madison decided to stand for the House of Representatives. But again, he would be at the mercy of his nemesis, Patrick Henry. Henry wielded power in the General Assembly, and that power included the ability to draw congressional districts. To spite Madison, he helped draw a map that put Montpelier (Madison’s home) in the same district as James Monroe’s house. In the Richmond Convention, Monroe had aligned himself with Henry, Mason, and Grayson and had voted “nay” on the vote for ratification. “Because Monroe had been an authentic hero in the revolution – suffering a significant wound in Washington’s great victory at Trenton – and had established a respectable legislative record in both Virginia and in the Congress of the Confederation, his opposition would be formidable.” [Ibid, pg. 241]

Madison campaigned against Monroe, and due to the contentious issue of the Constitution lacking a Bill of Rights, Madison softened on the issue of adding amendments. Perhaps all the letters that Jefferson sent him at this time emphasizing the need for a Bill of Rights had something to do with it.  “If pursued with a proper moderation and in a proper mode [meaning that the First Congress would propose amendments for the states’ approval, per Article V], they would serve the double purpose of satisfying the minds of well-meaning opponents and of providing additional guards in favor of liberty.”  [Ibid, pg. 242].  Taking Madison at his word and believing him to be a man of his word, voters selected him over Monroe for the US House of Representatives.

On March 4, 1789, the first US Congress was seated, in New York City’s Federal Hall. The first thing to do was to organize itself. On April 1, the House of Representatives elected its officers, and the Senate did the same on April 6. Also on the 6th, the House and Senate met in joint session and counted the Electoral College ballots for the selection of president. George Washington was certified as president (having been unanimously selected) and John Adams as vice president.

On April 30, 1789, George Washington was inaugurated as the nation’s first president, also at Federal Hall, delivering the Inaugural Address that James Madison had written for him. In that message, Washington addressed the subject of amending the Constitution. He urged the legislators:

“Whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, or which ought to await the future lessons of experience; a reverence for the characteristic rights of freemen, and a regard for public harmony, will sufficiently influence your deliberations on the question, how far the former can be impregnably fortified or the latter be safely and advantageously promoted…..”

Madison knew that as long as the concerns of the anti-Federalists regarding the Constitution remained unaddressed, the threat of a new convention would remain, and so he would take the initiative to propose amendments (comprising a Bill of Rights) himself.  By taking the initiative to propose amendments himself through the Congress, he hoped to preempt a second constitutional convention that might, it was feared, undo  the difficult compromises of 1787, and open the entire Constitution to reconsideration, thus risking the dissolution of the new federal government. Writing to Jefferson, he stated, “The friends of the Constitution, some from an approbation of particular amendments, others from a spirit of conciliation, are generally agreed that the System should be revised. But they wish the revisal to be carried no farther than to supply additional guards for liberty.” He also felt that amendments guaranteeing personal liberties would “give to the Government its due popularity and stability.” Finally, he hoped that the amendments “would acquire by degrees the character of fundamental maxims of free government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.” [Historians continue to debate the degree to which Madison considered the amendments of the Bill of Rights necessary, and to what degree he considered them politically expedient; in the outline of his address, he wrote, “Bill of Rights—useful—not essential—”].  (see Wikipedia)

On June 8, Madison introduced a series of Constitutional amendments in the House of Representatives for consideration. Among his proposals was one that would have added introductory language stressing natural rights to the Preamble. Another would apply parts of the Bill of Rights to the states as well as the federal government. Several sought to protect individual personal rights by limiting various Constitutional powers of Congress. He urged Congress to keep the revision to the Constitution “a moderate one,” limited to protecting individual rights.

Madison was deeply read in the history of government and used a range of sources in composing the amendments. The English Magna Carta inspired the right to petition and to trial by jury, for example, while the English Bill of Rights of 1689 provided an early draft for the right to keep and bear arms and also for the right against cruel and unusual punishment.

The greatest influence on Madison’s text, however, was existing state constitutions, and especially Virginia’s. Many of his amendments, including his proposed new preamble, were based on the Virginia Declaration of Rights, which were drafted in 1776 by another great nemesis, anti-Federalist George Mason. To reduce future opposition to ratification, Madison also looked for recommendations shared by many states. He did provide one, however, that no state had specifically requested: “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” He did not include an amendment that every state had asked for, one that would have made tax assessments voluntary instead of contributions. Madison’s proposed the following constitutional amendments:

First. That there be prefixed to the Constitution a declaration, that all power is originally vested in, and consequently derived from, the people.

That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.

Secondly. That in article 1st, section 2, clause 3, these words be struck out, to wit: “The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative, and until such enumeration shall be made;” and in place thereof be inserted these words, to wit: “After the first actual enumeration, there shall be one Representative for every thirty thousand, until the number amounts to—, after which the proportion shall be so regulated by Congress, that the number shall never be less than—, nor more than—, but each State shall, after the first enumeration, have at least two Representatives; and prior thereto.”

Thirdly. That in article 1st, section 6, clause 1, there be added to the end of the first sentence, these words, to wit: “But no law varying the compensation last ascertained shall operate before the next ensuing election of Representatives.”

Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.

No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Fifthly. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit: No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

Sixthly. That, in article 3d, section 2, be annexed to the end of clause 2d, these words, to wit: But no appeal to such court shall be allowed where the value in controversy shall not amount to — dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.

Seventhly. That in article 3d, section 2, the third clause be struck out, and in its place be inserted the clauses following, to wit: The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service, in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same State, as near as may be to the seat of the offence.

In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.

Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit: The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments.

The powers not delegated by this Constitution, nor prohibited by it to the states, are reserved to the States respectively.

Ninthly. That article 7th, be numbered as article 8th.

[References:  See the Appendix, at the end of this article, for James Madison’s Speech in the House of Representatives, June 8, 1789, proposing a Bill of Rights, and also see Wikipedia: “United States Bill of Rights”].

The House passed a joint resolution containing 17 amendments based on Madison’s proposal. The Senate changed the joint resolution to consist of 12 amendments and rejected Madison’s suggestions for the Preamble. A joint House and Senate Conference Committee settled remaining disagreements in September. On October 2, 1789, President Washington sent copies of the 12 amendments adopted by Congress to the states. Again, the states would have to call up conventions – this time to debate and ratify the proposed amendments.

In the meantime, North Carolina finally ratified the Constitution, 194-77, with 20 Bill of Rights and 21 proposed amendments. She remained true to her principles – that she would not ratify a constitution without a Bill of Rights included.  Note that while North Carolina was second to last to ratify the Constitution, she was third to ratify the Bill of Rights, on December 22, 1789).

On December 15, Virginia was the eleventh state to adopt the amendments. Having been adopted by the requisite three-fourths of the several states (there being 14 States in the Union at the time, as Vermont had been admitted into the Union on March 4, 1791), the ratification of Articles Three through Twelve was completed and they became Amendments 1 through 10 of the Constitution – also known as our US Bill of Rights. President Washington informed Congress of this on January 18, 1792.

The original First and Second amendments fell short of the required 3/4 majority to make it into the Constitution, but interestingly, the original proposed second amendment (which addressed when Congress can change its pay) finally was adopted in 1992 to become our last amendment, the 27th amendment.

Note that the US Bill of Rights applies only to action by the federal government. It places limits only on its power. As most of you may know from your state constitutions, states have included similar guarantees of liberty of their own. Article I of the North Carolina State Constitution, for example, lists the NC Bill of Rights. The 14th Amendment has been mis-applied to incorporate all guarantees of rights and privileges on the states, and in fact, the 14th amendment, even though it was never constitutionally ratified, is the number one basis for all constitutional challenges.

It is a shame that the cartoon depiction of the Bill of Rights attached leaves off the 9th and 10th Amendments. The 9th Amendment states that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. And the 10th Amendment states that all powers not expressly delegated to the federal government by the Constitution nor prohibited by it to the states are reserved to the states or to the people. These amendments underscore the unique foundation of American liberty – that government is not the ultimate sovereign and individuals enjoy only those rights and privileges the government is generous enough to grant them. In America, rights are endowed on each individual by the Creator, inseparable from our very humanity, and government power derives from the natural and inherent right of each person to govern himself and to protect himself, his family, and his property. This is the concept of Individual Sovereignty referred to in the Declaration of Independence, the document that provides the foundational principles, the rights, and expectations for each State in this Union (despite what the federal government might say). It is the document that recognized each state as an independent sovereign for the world to take note; it is the document for which the Treaty of Paris of 1783 addressed to end the war for American Independence. The treaty included this provision: “Britain acknowledges the United States (New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia[15]) to be free, sovereign, and independent states…..

James Madison wrote: “In Europe, charters of liberty have been granted by power. America has set the example … of charters of power granted by liberty. This revolution in the practice of the world, may, with an honest praise, be pronounced the most triumphant epoch of its history, and the most consoling presage of its happiness.”

I urge everyone to take time today and read the Bill of Rights and understand what each guarantees and why. After all, they protect your most essential liberty rights.

 

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References:

Kevin R.C. Gutzman, James Madison and the Making of America; St. Martin’s Press (NY), 2012.

Gordon Lloyd, “The Bill of Rights,” Teaching American History. Referenced at:  http://teachingamericanhistory.org/bor/roots-chart/

The Six Stages of Ratification – Stage III: Winter in New England: Postpone and Compromise (Massachusetts – February 6, 1788 and New Hampshire (postpones) – February 24, 1788) –http://teachingamericanhistory.org/ratification/stagethree/

Report of the House Select Committee, July 28, 1789 –  http://teachingamericanhistory.org/library/document/report-of-the-house-select-committee/

House Debates Select Committee Report, August 13-24, 1789 –  http://teachingamericanhistory.org/library/document/house-debates-select-committee-report/

Ratification of the Constitution, State-by-State –  http://teachingamericanhistory.org/ratification/overview/

US Constitution, Virginia’s Ratification, from the Library of Congress (from its copy of Elliot’s Debates) –   https://www.usconstitution.net/rat_va.html

Day-to-Day Summary of the Virginia Ratifying Convention  –   http://teachingamericanhistory.org/ratification/virginiatimeline/   OR  http://teachingamericanhistory.org/ratification/virginia/

US Constitution, New York’s Ratification, from the Library of Congress (from its copy of Elliot’s Debates) – https://www.usconstitution.net/rat_ny.html

Day-to-Day Summary of the New York Ratifying Convention  –  http://teachingamericanhistory.org/ratification/newyorktimeline/     OR:  http://teachingamericanhistory.org/ratification/newyork/

The Debates in the Several State Ratifying Conventions (Elliott’s Debates) – http://teachingamericanhistory.org/ratification/elliot/   [On this site, you can click on links for the following state conventions and it will bring you to calendars so you can see what they did on a day-by-day basis: Massachusetts, Connecticut, New Hampshire, New York, Pennsylvania, Maryland, Virginia, North Carolina, and South Carolina]

James Madison Proposes a Bill of Rights to Congress, June 8, 1789) – http://www.let.rug.nl/usa/documents/1786-1800/madison-speech-proposing-the-bill-of-rights-june-8-1789.php

United States Bill of Rights,” Wikipedia.  https://en.wikipedia.org/wiki/United_States_Bill_of_Rights

Patrick Henry’s Speech at the Virginia Ratifying Convention, June 8, 1788 – http://www.let.rug.nl/usa/documents/1786-1800/the-anti-federalist-papers/speech-of-patrick-henry-(june-5-1788).php

Letter from Thomas Jefferson to James Madison, dated December 20, 1787, Founders Online –  https://founders.archives.gov/documents/Jefferson/01-12-02-0454

Chart: Approval of the Bill of Rights in Congress and the States — https://en.wikipedia.org/wiki/United_States_Bill_of_Rights

 

APPENDIX #1  (Letter from Thomas Jefferson to James Madison, dated December 20, 1787, on the topic of the new Constitution and the lack of a Bill of Rights)

“…….I have little to fill a letter. I will therefore make up the deficiency by adding a few words on the Constitution proposed by our Convention. I like much the general idea of framing a government which should go on of itself peaceably, without needing continual recurrence to the state legislatures. I like the organization of the government into Legislative, Judiciary and Executive. I like the power given the Legislature to levy taxes; and for that reason solely approve of the greater house being chosen by the people directly. For though I think a house chosen by them will be very ill-qualified to legislate for the Union, for foreign nations etc. yet this evil does not weigh against the good of preserving inviolate the fundamental principle that the people are not to be taxed but by representatives chosen immediately by themselves. I am captivated by the compromise of the opposite claims of the great and little states, of the latter to equal, and the former to proportional influence. I am much pleased too with the substitution of the method of voting by persons, instead of that of voting by states….  There are other good things of less moment. I will now add what I do not like. First the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land and not by the law of Nations. To say, as Mr. Wilson does that a bill of rights was not necessary because all is reserved in the case of the general government which is not given, while in the particular ones all is given which is not reserved might do for the Audience to whom it was addressed, but is surely gratis dictum, opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present confederation which had declared that in express terms. It was a hard conclusion to say because there has been no uniformity among the states as to the cases triable by jury, because some have been so incautious as to abandon this mode of trial, therefore the more prudent states shall be reduced to the same level of calamity. It would have been much more just and wise to have concluded the other way that as most of the states had judiciously preserved this palladium, those who had wandered should be brought back to it, and to have established general right instead of general wrong. Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference……”

[Reference:  https://founders.archives.gov/documents/Jefferson/01-12-02-0454 ]

 

APPENDIX #2  (James Madison’s Speech in Congress, June 8, 1789, proposing a Bill of Rights)

I am sorry to be accessary to the loss of a single moment of time by the house. If I had been indulged in my motion, and we had gone into a committee of the whole, I think we might have rose, and resumed the consideration of other business before this time; that is, so far as it depended on what I proposed to bring forward. As that mode seems not to give satisfaction, I will withdraw the motion, and move you, sir, that a select committee be appointed to consider and report such amendments as are proper for Congress to propose to the legislatures of the several States, conformably to the 5th article of the constitution.

I will state my reasons why I think it proper to propose amendments; and state the amendments themselves, so far as I think they ought to be proposed. If I thought I could fulfil the duty which I owe to myself and my constituents, to let the subject pass over in silence, I most certainly should not trespass upon the indulgence of this house. But I cannot do this; and am therefore compelled to beg a patient hearing to what I have to lay before you. And I do most sincerely believe that if congress will devote but one day to this subjects, so far as to satisfy the public that we do not disregard their wishes, it will have a salutary influence on the public councils, and prepare the way for a favorable reception of our future measures.

It appears to me that this house is bound by every motive of prudence, not to let the first session pass over without proposing to the state legislatures some things to be incorporated into the constitution, as will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who have been friendly to the adoption of this constitution, may have the opportunity of proving to those who were opposed to it, that they were as sincerely devoted to liberty and a republican government, as those who charged them with wishing the adoption of this constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions, that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired, of such a nature as will not injure the constitution, and they can be ingrafted so as to give satisfaction to the doubting part of our fellow citizens; the friends of the federal government will evince that spirit of deference and concession for which they have hitherto been distinguished.

It cannot be a secret to the gentlemen in this house, that, notwithstanding the ratification of this system of government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents, their patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who as present feel much inclined to join their support to the cause of federalism, if they were satisfied in this one point: We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution. The acquiescence which our fellow citizens shew under the government, calls upon us for a like return of moderation. But perhaps there is a stronger motive than this for our going into a consideration of the subject; it is to provide those securities for liberty which are required by a part of the community. I allude in a particular manner to those two states who have not thought fit to throw themselves into the bosom of the confederacy: it is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible. I have no doubt, if we proceed to take those steps which would be prudent and requisite at this juncture, that in a short time we should see that disposition prevailing in those states that are not come in, that we have seen prevailing [in] those states which are.

But I will candidly acknowledge, that, over and above all these considerations, I do conceive that the constitution may be amended; that is to say, if all power is subject to abuse, that then it is possible the abuse of the powers of the general government may be guarded against in a more secure manner than is now done, while no one advantage, arising from the exercise of that power, shall be damaged or endangered by it. We have in this way something to gain, and, if we proceed with caution, nothing to lose; and in this case it is necessary to proceed with caution; for while we feel all these inducements to go into a revisal of the constitution, we must feel for the constitution itself, and make that revisal a moderate one. I should be unwilling to see a door opened for a re-consideration of the whole structure of the government, for a re-consideration of the principles and the substance of the powers given; because I doubt, if such a door was opened, if we should be very likely to stop at that point which would be safe to the government itself: But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents, such as would be likely to meet with the concurrence of two-thirds of both houses, and the approbation of three-fourths of the state legislatures. I will not propose a single alteration which I do not wish to see take place, as intrinsically proper in itself, or proper because it is wished for by a respectable number of my fellow citizens; and therefore I shall not propose a single alteration but is likely to meet the concurrence required by the constitution.

There have been objections of various kinds made against the constitution: Some were levelled against its structure, because the president was without a council; because the senate, which is a legislative body, had judicial powers in trials on impeachments; and because the powers of that body were compounded in other respects, in a manner that did not correspond with a particular theory; because it grants more power than is supposed to be necessary for every good purpose; and controls the ordinary powers of the state governments. I know some respectable characters who opposed this government on these grounds; but I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought we to consider them safe, while a great number of our fellow citizens think these securities necessary.

It has been a fortunate thing that the objection to the government has been made on the ground I stated; because it will be practicable on that ground to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the constitution, which is considered as essential to the existence of the government by those who promoted its adoption.

The amendments which have occurred to me, proper to be recommended by congress to the state legislatures are these:

First. That there be prefixed to the constitution a declaration–That all power is originally vested in, and consequently derived from the people. That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety. That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.

Secondly. That in article 2st. section 2, clause 3, these words be struck out, to wit, “The number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative, and until such enumeration shall be made.” And that in place thereof be inserted these words, to wit, “After the first actual enumeration, there shall be one representative for every thirty thousand, until the number amount to after which the proportion shall be so regulated by congress, that the number shall never be less than nor more than but each state shall after the first enumeration, have at least two representatives; and prior thereto.”

Thirdly. That in article 2st, section 6, clause 1, there be added to the end of the first sentence, these words, to wit, “But no law varying the compensation last ascertained shall operate before the next ensuing election of representatives.”

Fourthly. That in article 2st, section 9, between clauses 3 and 4, be inserted these clauses, to wit, The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good, nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

The right of the people to keep and bear arms shall not be infringed; a well-armed, and well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.

No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same office; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Fifthly. That in article 2st, section 10, between clauses 1 and 2, be inserted this clause, to wit:

No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

Sixthly. That article 3d, section 2, be annexed to the end of clause 2d, these words to wit: but no appeal to such court shall be allowed where the value in controversy shall not amount to___dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.

Seventhly. That in article 3d, section 2, the third clause be struck out, and in its place be inserted the classes following, to wit:

The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury, shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same state, as near as may be to the seat of the offence.

In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.

Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit:

The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial; nor the executive exercise the powers vested in the legislative or judicial; nor the judicial exercise the powers vested in the legislative or executive departments.

The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively.

Ninthly. That article 7th, be numbered as article 8th.  The first of these amendments, relates to what may be called a Bill of Rights; I will own that I never considered this provision so essential to the federal constitution, as to make it improper to ratify it, until such an amendment was added; at the same time, I always conceived, that in a certain form and to a certain extent, such a provision was neither improper nor altogether useless. I am aware, that a great number of the most respectable friends to the government and champions for republican liberty, have thought such a provision, not only unnecessary, but even improper, nay, I believe some have gone so far as to think it even dangerous. Some policy has been made use of perhaps by gentlemen on both sides of the question: I acknowledge the ingenuity of those arguments which were drawn against the constitution, by a comparison with the policy of Great Britain, in establishing a declaration of rights; but there is too great a difference in the case to warrant the comparison: therefore the arguments drawn from that source, were in a great measure inapplicable. In the declaration of rights which that country has established, the truth is, they have gone no farther, than to raise a barrier against the power of the crown; the power of the legislature is left altogether indefinite. Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, came in question in that body, the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which, the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British constitution.

But although the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many states, have thought it necessary to raise barriers against power in all forms and departments of government, and I am inclined to believe, if once bills of rights are established in all the states as well as the federal constitution, we shall find the although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.

It may be said, in some instances they do no more than state the perfect equality of mankind; this to be sure is an absolute truth, yet it is not absolutely necessary to be inserted at the head of a constitution.

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances they lay down dogmatic maxims with respect to the construction of the government; declaring, that the legislative, executive, and judicial branches shall be kept separate and distinct: Perhaps the best way of securing this in practice is to provide such checks, as will prevent the encroachment of the one upon the other.

But whatever may be [the] form which the several states have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

In our government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be levelled against the legislative, for it is the most powerful, and most likely to be abused, because it is under the least control; hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. The prescriptions in favor of liberty, ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power: But this [is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.

It may be thought all paper barriers against the power of the community are too weak to be worthy of attention. I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defense; yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one mean to control the majority from those acts to which they might be otherwise inclined.

It has been said by way of objection to a bill of rights, by many respectable gentlemen out of doors, and I find opposition on the same principles likely to be made by gentlemen on this floor, that they are unnecessary articles of a republican government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. It would be a sufficient answer to say that this objection lies against such provisions under the state governments as well as under the general government; and there are, I believe, but few gentlemen who are inclined to push their theory so far as to say that a declaration of rights in those cases is either ineffectual or improper.

It has been said that in the federal government they are unnecessary, because the powers are enumerated, and it follows that all that are not granted by the constitution are retained: that the constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the state governments under their constitutions may to an indefinite extent; because in the constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the government was established. Now, may not laws be considered necessary and proper by Congress, for it is them who are to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary or proper; as well as improper laws could be enacted by the state legislatures, for fulfilling the more extended objects of those governments. I will state an instance which I think in point, and proves that this might be the case. The general government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the state governments had in view. If there was reason for restraining the state governments from exercising this power, there is like reason for restraining the federal government.

It may be said, because it has been said, that a Bill of Rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions: that those rights of the people, which had been established by the most solemn act, could not be annihilated by a subsequent act of the people, who meant, and declared at the head of the instrument, that they ordained and established a new system, for the express purpose of securing to themselves and posterity the liberties they had gained by an arduous conflict.

I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this constitution. Beside some states have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.

It has been said, that it is necessary to load the constitution with this provision, because it was not found effectual in the constitution of the particular states. It is true, there are a few particular states in which some of the most valuable articles have not, at one time or other, been violated; but does it not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Beside this security, there is a great probability that such a declaration in the federal system would be enforced; because the state legislatures will jealously and closely watch the operation of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people’s liberty. I conclude from this view of the subject, that it will be proper in itself, and highly politic, for the tranquility of the public mind, and the stability of the government, that we should offer something, in the form I have proposed, to be incorporated in the system of government, as a Declaration of the Rights of the people.

In the next place I wish to see that part of the constitution revised which declares, that the number of representatives shall not exceed the proportion of one for every thirty thousand persons, and allows one representative to every state which rates below that proportion. If we attend to the discussion of this subject, which has taken place in the state conventions, and even in the opinion of the friends to the constitution, an alteration here is proper. It is the sense of the people of America, that the number of representatives ought to be increased, but particularly that it should not be left in the discretion of the government to diminish them, below that proportion which certainly is in the power of the legislature as the constitution now stands; and they may, as the population of the country increases, increase the house of representatives to a very unwieldy degree. I confess I always thought this part of the constitution defective, though not dangerous; and that it ought to be particularly attended to whenever congress should go into the consideration of amendments.

There are several lesser cases enumerated in my proposition, in which I wish also to see some alteration take place. That article which leaves it in the power of the legislature to ascertain its own emolument is one to which I allude. I do not believe this is a power which, in the ordinary course of government, is likely to be abused, perhaps of all the powers granted, it is least likely to abuse; but there is a seeming impropriety in leaving any set of men without control to put their hand into the public coffers, to take out money to put in their pockets; there is a seeming indecorum in such power, which leads me to propose a change. We have a guide to this alteration in several of the amendments which the different conventions have proposed. I have gone therefore so far as to fix it, that no law, varying the compensation, shall operate until there is a change in the legislature; in which case it cannot be for the particular benefit of those who are concerned in determining the value of the service.

I wish also, in revising the constitution, we may throw into that section, which interdicts the abuse of certain powers in the state legislatures, some other provisions of equal if not greater importance than those already made. The words, “No state shall pass any bill of attainder, ex post facto law, etc.” were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the state governments than by the government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. I know in some of the state constitutions the power of the government is controlled by such a declaration, but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the state governments are as liable to attack these invaluable privileges as the general government is, and therefore ought to be as cautiously guarded against.

I think it will be proper, with respect to the judiciary powers, to satisfy the public mind on those points which I have mentioned. Great inconvenience has been apprehended to suitors from the distance they would be dragged to obtain justice in the supreme court of the United States, upon an appeal on an action for a small debt. To remedy this, declare, that no appeal shall be made unless the matter in controvers amounts to a particular sum:

This, with the regulations respecting jury trials in criminal cases, and suits at common law, it is to be hoped will quiet and reconcile the minds of the people to that part of the constitution.

I find, from looking into the amendments proposed by the state conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated, should be reserved to the several states. Perhaps words which may define this more precisely, than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary; but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.

These are the points on which I wish to see a revision of the Constitution take place. How far they will accord with the sense of this body, I cannot take upon me absolutely to determine; but I believe every gentlemen will readily admit that nothing is in contemplation, so far as I have mentioned, that can endanger the beauty of the government in any one important feature, even in the eyes of its most sanguine admirers. I have proposed nothing that does not appear to me as proper in itself, or eligible as patronized by a respectable number of our fellow citizens; and if we can make the constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness, in the judgment of those who are attached to it, we act the part of wise and liberal men to make such alterations as shall produce that effect.

Having done what I conceived was my duty, in bringing before this house the subject of amendments, and also stated such as wish for and approve, and offered the reasons which occurred to me in their support; I shall content myself for the present with moving, that a committee be appointed to consider of and report such amendments as ought to be proposed by congress to the legislatures of the states, to become, if ratified by three-fourths thereof, part of the Constitution of the United States. By agreeing to this motion, the subject may be going on in the committee, while other important business is proceeding to a conclusion in the house. I should advocate greater dispatch in the business of amendments, if I was not convinced of the absolute necessity there is of pursuing the organization of the government; because I think we should obtain the confidence of our fellow citizens, in proportion as we fortify the rights of the people against the encroachments of the government.

[Reference:  http://www.let.rug.nl/usa/documents/1786-1800/madison-speech-proposing-the-bill-of-rights-june-8-1789.php ]

 

APPENDIX #3  (STATE RATIFICATIONS):

I.  NEW YORK RATIFICATION (on July 26, 1788), with 25 Bill of Rights:

WE the Delegates of the People of the State of New York, duly elected and Met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year One thousand Seven hundred and Eighty seven, by the Convention then assembled at Philadelphia in the Common—wealth of Pennsylvania (a Copy whereof precedes these presents) and having also seriously and deliberately considered the present situation of the United States, Do declare and make known.

— That all Power is originally vested in and consequently derived from the People, and that Government is instituted by them for their common Interest Protection and Security.

—  That the enjoyment of Life, Liberty and the pursuit of Happiness are essential rights which every Government ought to respect and preserve.

—  That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.  [Note:  This provision, or condition is known as a “RESUMPTION CLAUSE.”  This condition to ratification, as the states of Virginia and Rhode Island also exercised this condition, is critical to understanding the reserved right of a state to secede from the Union].

—  That the People have an equal, natural and unalienable right, freely and peaceably to Exercise their Religion according to the dictates of Conscience, and that no Religious Sect or Society ought to be favored or established by Law in preference of others.

—  That the People have a right to keep and bear Arms; that a well-regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defense of a free State;

—  That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection.

—  That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.

—  That in time of Peace no Soldier ought to be quartered in any House without the consent of the Owner, and in time of War only by the Civil Magistrate in such manner as the Laws may direct.

—  That no Person ought to be taken imprisoned, or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law.

—  That no Person ought to be put twice in Jeopardy of Life or Limb for one and the same Offence, nor, unless in case of impeachment, be punished more than once for the same Offence.

—  That every Person restrained of his Liberty is entitled to an enquiry into the lawfulness of such restraint, and to a removal thereof if unlawful, and that such enquiry and removal ought not to be denied or delayed, except when on account of Public Danger the Congress shall suspend the privilege of the Writ of Habeas Corpus.

—  That excessive Bail ought not to be required; nor excessive Fines imposed; nor Cruel or unusual Punishments inflicted.

—  That (except in the Government of the Land and Naval Forces, and of the Militia when in actual Service, and in cases of Impeachment) a Presentment or Indictment by a Grand Jury ought to be observed as a necessary preliminary to the trial of all Crimes cognizable by the Judiciary of the United States, and such Trial should be speedy, public, and by an impartial Jury of the County where the Crime was committed; and that no person can be found Guilty without the unanimous consent of such Jury. But in cases of Crimes not committed within any County of any of the United States, and in Cases of Crimes committed within any County in which a general Insurrection may prevail, or which may be in the possession of a foreign Enemy, the enquiry and trial may be in such County as the Congress shall by Law direct; which County in the two Cases last mentioned should be as near as conveniently may be to that County in which the Crime may have been committed. And that in all Criminal Prosecutions, the Accused ought to be informed of the cause and nature of his Accusation, to be confronted with his accusers and the Witnesses against him, to have the means of producing his Witnesses, and the assistance of Council for his defense, and should not be compelled to give Evidence against himself.

—  That the trial by Jury in the extent that it obtains by the Common Law of England is one of the greatest securities to the rights of a free People, and ought to remain inviolate.

—  That every Freeman has a right to be secure from all unreasonable searches and seizures of his person his papers or his property, and therefore, that all Warrants to search suspected places or seize any Freeman his papers or property, without information upon Oath or Affirmation of sufficient cause, are grievous and oppressive; and that all general Warrants (or such in which the place or person suspected are not particularly designated) are dangerous and ought not to be granted.

—  That the People have a right peaceably to assemble together to consult for their common good, or to instruct their Representatives; and that every person has a right to Petition or apply to the Legislature for redress of Grievances.

—  That the Freedom of the Press ought not to be violated or restrained.

—  That there should be once in four years an Election of the President and Vice President, so that no Officer who may be appointed by the Congress to act as President in case of the removal, death, resignation or inability of the President and Vice President can in any case continue to act beyond the termination of the period for which the last President and Vice President were elected.

—  That nothing contained in the said Constitution is to be construed to prevent the Legislature of any State from passing Laws at its discretion from time to time to divide such State into convenient Districts, and to apportion its Representatives to and amongst such Districts.

—  That the Prohibition contained in the said Constitution against ex post facto Laws, extends only to Laws concerning Crimes.

—  That all Appeals in Causes determineable according to the course of the common Law, ought to be by Writ of Error and not otherwise.

—  That the Judicial Power of the United States in cases in which a State may be a party, does not extend to criminal Prosecutions, or to authorize any Suit by any Person against a State.

—  That the Judicial Power of the United States as to Controversies between Citizens of the same State claiming Lands under Grants of different States is not to be construed to extend to any other Controversies between them except those which relate to such Lands, so claimed under Grants of different States.

—  That the Jurisdiction of the Supreme Court of the United States, or of any other Court to be instituted by the Congress, is not in any case to be increased enlarged or extended by any Fiction Collusion or mere suggestion;

—  And That no Treaty is to be construed so to operate as to alter the Constitution of any State.

Under these impressions and declaring that the rights aforesaid cannot be abridged or violated, and that the Explanations aforesaid are consistent with the said Constitution, And in confidence that the Amendments which shall have been proposed to the said Constitution will receive an early and mature Consideration: We the said Delegates, in the Name and in the behalf of the People of the State of New York Do by these presents Assent to and Ratify the said Constitution. In full Confidence nevertheless that until a Convention shall be called and convened for proposing Amendments to the said Constitution, the Militia of this State will not be continued in Service out of this State for a longer term than six weeks without the Consent of the Legislature thereof; — that the Congress will not make or alter any Regulation in this State respecting the times places and manner of holding Elections for Senators or Representatives unless the Legislature of this State shall neglect or refuse to make Laws or regulations for the purpose, or from any circumstance be incapable of making the same, and that in those cases such power will only be exercised until the Legislature of this State shall make provision in the Premises; — that no Excise will be imposed on any Article of the Growth production or Manufacture of the United States, or any of them within this State, Ardent Spirits excepted; And that the Congress will not lay direct Taxes within this State, but when the Monies arising from the Impost and Excise shall be insufficient for the public Exigencies, nor then, until Congress shall first have made a Requisition upon this State to assess levy and pay the Amount of such Requisition made agreeably to the Census fixed in the said Constitution in such way and manner as the Legislature of this State shall judge best, but that in such case, if the State shall neglect or refuse to pay its proportion pursuant to such Requisition, then the Congress may assess and levy this States proportion together with Interest at the Rate of six per Centum per Annum from the time at which the same was required to be paid.

[Reference:  http://teachingamericanhistory.org/library/document/new-york-ratifies-30-27-with-31-proposed-amendments/ ].

 

II.  VIRGINIA RATIFICATION (June 25, 1788), with 20 Bill of Rights and 20 proposed amendments:

Ratification of the Constitution by the State of Virginia, June 26, 1788. Virginia ratified the Constitution in two steps. The first was the declaration of ratification. The second was a recommendation that a bill of rights be added to the Constitution, and that a list of amendments also be added in accordance with Article 5.  [Reference: https://www.usconstitution.net/rat_va.html ]

Step 1:

WE the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination, can be cancelled, abridged, restrained or modified, by the Congress, by the Senate or House of Representatives acting in any capacity, by the President or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes: and that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States.  [Note:  This provision, or condition is known as a “RESUMPTION CLAUSE.”  This condition to ratification, as the states of New York and Rhode Island also exercised this condition, is critical to understanding the reserved right of a state to secede from the Union].

With these impressions, with a solemn appeal to the searcher of hearts for the purity of our intentions, and under the conviction, that, whatsoever imperfections may exist in the Constitution, ought rather to be examined in the mode prescribed therein, than to bring the Union into danger by a delay, with a hope of obtaining amendments previous to the ratification.

Step 2:  Virginia, do by these presents assent to, and ratify the Constitution recommended on the seventeenth day of September, one thousand seven hundred and eighty seven (September 17, 1787), by the Federal Convention for the Government of the United States; hereby announcing to all those whom it may concern, that the said Constitution is binding upon the said People, according to an authentic copy hereto annexed, in the words following:

Wythe reported, from the Committee appointed, such amendments to the proposed Constitution of Government for the United States, as were by them deemed necessary to be recommended to the consideration of the Congress which shall first assemble under the said Constitution, to be acted upon according to the mode prescribed in the fifth article thereof; and he read the same in his place, and afterwards delivered them in at the clerk’s table, where the same were again read, and are as follows:

That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable rights of the people in some such manner as the following:

1st. That there are certain natural rights of which men when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

2d. That all power is naturally vested in, and consequently derived from, the people; that magistrates therefore are their trustees, and agents, and at all times amenable to them.

3d. That the Government ought to be instituted for the common benefit, protection and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression, is absurd, slavish, and destructive to the good and happiness of mankind.

4th. That no man or set of men are entitled to exclusive or separate public emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate, legislator or judge, or any other public office to be hereditary.

5th. That the legislative, executive and judiciary powers of government should be separate and distinct, and that the members of the two first may be restrained from oppression by feeling and participating the public burthens, they should at fixed periods be reduced to a private station, return into the mass of the people; and the vacancies be supplied by certain and regular elections, in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of Government, and the laws shall direct.

6th. That elections of Representatives in the legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to the community, ought to have the right of suffrage: and no aid, charge, tax or fee can be set, rated, or levied upon the people without their own consent, or that of their representatives, so elected, nor can they be bound by any law, to which they have not in like manner assented for the public good.

7th. That all power of suspending laws, or the execution of laws by any authority without the consent of the representatives, of the people in the legislature, is injurious to their rights, and ought not to be exercised.

8th. That in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

9th. That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges or franchises, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty, or property but by the law of the land.

10th. That every freeman restrained of his liberty is entitled to a remedy to enquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

11th. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolable.

12th. That every freeman ought to find a certain remedy by recourse to the laws for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay, and that all establishments, or regulations contravening these rights, are oppressive and unjust.

13th. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

14th. That every freeman has a right to be secure from all unreasonable searches, and seizures of his person, his papers, and property; all warrants therefore to search suspected places, or seize any freeman, his papers or property, without information upon oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive, and all general warrants to search suspected places, or to apprehend any suspected person without specially naming or describing the place or person, are dangerous and ought not to be granted.

15th. That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the Legislature for redress of grievances.

16th. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

17th. That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms, is the proper, natural and safe defense of a free state. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to and governed by the civil power.

18th. That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the laws direct.

19th. That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.

20th. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the exercise of religion according to the dictates of conscience, and that no particular sect or society ought to be favored or established by law in preference to others.

[References:  https://www.usconstitution.net/rat_va.html  and http://teachingamericanhistory.org/library/document/virginia-ratifies-89-79-with-20-proposed-amendments/ ]

 

III.  MASSACUSETTS RATIFICATION (“Conditional Ratification,” February 6, 1788), with 9 proposed amendments:

The Convention have impartially discussed, and fully considered the Constitution for the United States of America, reported to Congress by the Convention of Delegates from the United States of America, and submitted to us by a resolution of the General Court of the said Commonwealth, passed the twenty fifth day of October last past, and acknowledging with grateful hearts, the goodness of the Supreme Ruler of the Universe in affording the People of the United States in the course of his providence an opportunity deliberately and peaceably without fraud or surprise of entering into an explicit and solemn Compact with each other by assenting to and ratifying a New Constitution in order to form a more perfect Union, establish Justice, insure Domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of Liberty to themselves and their posterity; Do in the name and in behalf of the People of the Commonwealth of Massachusetts assent to and ratify the said Constitution for the United States of America.

And as it is the opinion of this Convention that certain amendments and alterations in the said Constitution would remove the fears and quiet the apprehensions of many of the good people of this Commonwealth and more effectually guard against an undue administration of the Federal Government, The Convention do therefore recommend that the following alterations and provisions be introduced into the said Constitution.

First, That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.

Secondly, That there shall be one representative to every thirty thousand persons according to the Census mentioned in the Constitution until the whole number of the Representatives amounts to Two hundred.

Thirdly, That Congress do not exercise the powers vested in them by the fourth Section of the first article, but in cases when a State shall neglect or refuse to make the regulations therein mentioned or shall make regulations subversive of the rights of the People to a free and equal representation in Congress agreeably to the Constitution.

Fourthly, That Congress do not lay direct Taxes but when the Monies arising from the Impost and Excise are insufficient for the public exigencies nor then until Congress shall have first made a requisition upon the States to assess levy and pay their respective proportions of such Requisition agreeably to the Census fixed in the said Constitution; in such way and manner as the Legislature of the States shall think best, and in such case if any State shall neglect or refuse to pay its proportion pursuant to such requisition then Congress may assess and levy such State’s proportion together with interest thereon at the rate of Six per cent per annum from the time of payment prescribed in such requisition.

Fifthly, That Congress erect no Company of Merchants with exclusive advantages of commerce.

Sixthly, That no person shall be tried for any Crime by which he may incur an infamous punishment or loss of life until he be first indicted by a Grand Jury, except in such cases as may arise in the Government and regulation of the Land and Naval forces.

Seventhly, The Supreme Judicial Federal Court shall have no jurisdiction of Causes between Citizens of different States unless the matter in dispute whether it concerns the realty or personally be of the value of three thousand dollars at the least. nor shall the Federal Judicial Powers extend to any actions between Citizens of different States where the matter in dispute whether it concerns the Realty or personally is not of the value of Fifteen hundred dollars at the least.

Eighthly, In civil actions between Citizens of different States every issue of fact arising in Actions at common law shall be tried by a Jury if the parties or either of them request it.

Ninthly, Congress shall at no time consent that any person holding an office of trust or profit under the United States shall accept of a title of Nobility or any other title or office from any King, prince or Foreign State.

And the Convention do in the name and in behalf of the People of this Commonwealth enjoin it upon their Representatives in Congress at all times until the alterations and provisions aforesaid have been considered agreeably to the Fifth article of the said Constitution to exert all their influence and use all reasonable and legal methods to obtain a ratification of the said alterations and provisions in such manner as is provided in the said Article.

[Reference:  http://teachingamericanhistory.org/library/document/massachusetts-ratifies-187-168-with-9-proposed-amendments/ ]

 

 IV.  SOUTH CAROLINA RATIFICATION (May 23, 1788), with 5 Declarations and Resolves

And Whereas it is essential to the preservation of the rights reserved to the several states, and the freedom of the people under the operations of a General government that the right of prescribing the manner time and places of holding the Elections to the Federal Legislature, should be forever inseparably annexed to the sovereignty of the several states. This convention doth declare that the same ought to remain to all posterity a perpetual and fundamental right in the local, exclusive of the interference of the General Government except in cases where the Legislatures of the States, shall refuse or neglect to perform and fulfil the same according to the tenor of the said Constitution.

This Convention doth also declare that no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.

Resolved that the general Government of the United States ought never to impose direct taxes, but where the monies arising from the duties, imposts and excise are insufficient for the public exigencies nor then until Congress shall have made a requisition upon the states to Assess levy and pay their respective proportions of such requisitions And in case any state shall neglect or refuse to pay its proportion pursuant to such requisition then Congress may assess and levy such state’s proportion together with Interest thereon at the rate of six per centum per annum from the time of payment prescribed by such requisition

Resolved that the third section of the Sixth Article ought to be amended by inserting the word “other” between the words “no” and “religious,”

Resolved that it be a standing instruction to all such delegates as may hereafter be elected to represent this State in the general Government to exert their utmost abilities and influence to effect an Alteration of the Constitution conformably to the foregoing Resolutions.

Done in Convention the twenty third day of May in the year of our Lord One thousand Seven hundred and eighty eight and of the Independence of the United States of America the twelfth

[Reference:  http://teachingamericanhistory.org/ratification/tansill/ratification-southcarolina/ ]

 

V.  NEW HAMPSHIRE RATIFICATION (June 21, 1788), with 12 proposed amendments:

In Convention of the Delegates of the People of the State of New—Hampshire June the Twenty first 1788.

The Convention having Impartially discussed and fully considered the Constitution for the United States of America, reported to Congress by the Convention of Delegates from the United States of America & submitted to us by a Resolution of the General Court of said State passed the fourteenth Day of December last past and acknowleging with grateful Hearts the goodness of the Supreme ruler of the Universe in affording the People of the United States in the Course of his Providence an Opportunity, deliberately & peaceably without fraud or surprise of entering into an Explicit and solemn compact with each other by assenting to & ratifying a new Constitution in Order to form a more perfect Union, establish Justice, Insure domestic Tranquility, provide for the common defence, promote the general welfare and secure the Blessings of Liberty to themselves & their Posterity—Do In the Name & behalf of the People of the State of New—Hampshire assent to & ratify the said Constitution for the United States of America. And as it is the Opinion of this Convention that certain amendments & alterations in the said Constitution would remove the fears & quiet the apprehensions of many of the good People of this State & more Effectually guard against an undue Administration of the Federal Government— The Convention do therefore recommend that the following alterations & provisions be introduced into the said Constitution.—

First, That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them Exercised.—

Secondly, That there shall be one Representative to every Thirty thousand Persons according to the Census mentioned in the Constitution, until the whole number of Representatives amount to Two hundred.—

Thirdly, That Congress do not Exercise the Powers vested in them, by the fourth Section of the first Article, but in Cases when a State shall neglect or refuse to make the Regulations therein mentioned, or shall make regulations Subversive of the rights of the People to a free and equal Representation in Congress. Nor shall Congress in any Case make regulations contrary to a free and equal Representation.—

Fourthly, That Congress do not lay direct Taxes but when the money arising from Impost, Excise and their other resources are insufficient for the Public Exigencies; nor then, untill Congress shall have first made a Requisition upon the States, to Assess, Levy, & pay their respective proportions, of such requisitions agreeably to the Census fixed in the said Constitution in such way & manner as the Legislature of the State shall think best and in such Case if any State shall neglect, then Congress may Assess & Levy such States proportion together with the Interest thereon at the rate of six per Cent per Annum from the Time of payment prescribed in such requisition—

Fifthly. That Congress shall erect no Company of Merchants with exclusive advantages of Commerce.—

Sixthly, That no Person shall be Tried for any Crime by which he may incur an Infamous Punishment, or loss of Life, until he first be indicted by a Grand Jury except in such Cases as may arise in the Government and regulation of the Land & Naval Forces.—

Seventhly, All Common Law Cases between Citizens of different States shall be commenced in the Common Law—Courts of the respective States & no appeal shall be allowed to the Federal Court in such Cases unless the sum or value of the thing in Controversy amount to three Thousand Dollars.—

Eighthly, In Civil Actions between Citizens of different States every Issue of Fact arising in Actions at Common Law shall be Tried by Jury, if the Parties, or either of them request it—

Ninthly, Congress shall at no Time consent that any Person holding an Office of Trust or profit under the United States shall accept any Title of Nobility or any other Title or Office from any King, Prince, or Foreign State.—

Tenth, That no standing Army shall be Kept up in time of Peace unless with the consent of three fourths of the Members of each branch of Congress, nor shall Soldiers in Time of Peace be quartered upon private Houses without the consent—of the Owners.—

Eleventh, Congress shall make no Laws touching Religion, or to infringe the rights of Conscience—

Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.—

And the Convention Do. In the Name & behalf of the People of this State enjoin it upon their Representatives in Congress, at all Times untill the alterations and provisions aforesaid have been Considered agreeably to the fifth Article of the said Constitution to exert all their Influence & use all reasonable & Legal methods to obtain a ratification of the said alterations & Provisions, in such manner as is provided in the said article—And That the United States in Congress Assembled may have due notice of the assent & Ratification of the said Constitution by this Convention.—It is resolved that the Assent & Ratification aforesaid be engrossed on Parchment, together with the Recommendation & injunction aforesaid & with this Resolution—And that John Sullivan Esquire President of Convention, & John Langdon Esquire President of the State Transmit the same Countersigned by the Secretary of Convention & the Secretary of the State under their hands & Seals to the United States in Congress Assembled.

[Reference:  http://teachingamericanhistory.org/library/document/new-hampshire-ratifies-57-47-with-12-proposed-amendments/ ]

 

VI.  NORTH CAROLINA RATIFICATION (November 21, 1789), with 20 Bill of Rights:

Resolved, That a Declaration of Rights, asserting and securing from encroachment the great Principles of civil and religious Liberty, and the unalienable Rights of the People, together with Amendments to the most ambiguous and exceptional Parts of the said Constitution of Government, ought to be laid before Congress, and the Convention of the States that shall or may be called for the Purpose of Amending the said Constitution, for their consideration, previous to the Ratification of the Constitution aforesaid, on the part of the State of North Carolina.

Declaration of Rights:

1st. That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

2d. That all power is naturally vested in, and consequently derived from the people; that magistrates therefore are their trustees, and agents, and at all times amenable to them.

3d. That Government ought to be instituted for the common benefit, protection and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.

4th That no man or set of men are entitled to exclusive or separate public emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate, legislator or judge, or any other public office to be hereditary.

5th. That the legislative, executive and judiciary powers of government should be separate and distinct, and that the members of the two first may be restrained from oppression by feeling and participating the public burthens, they should at fixed periods be reduced to a private station, return into the mass of the people; and the vacancies be supplied by certain and regular elections; in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of Government, and the laws shall direct.

6th. That elections of Representatives in the legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to the community, ought to have the right of suffrage: and no aid, charge, tax or fee can be set, rated, or levied upon the people without their own consent, or that of their representatives, so elected, nor can they be bound by any law, to which they have not in like manner assented for the public good.

7th. That all power of suspending laws, or the execution of laws by any authority without the consent of the representatives, of the people in the Legislature, is injurious to their rights, and ought not to be exercised.

8th. That in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

9th That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges or franchises, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty, or property but by the law of the land.

10th. That every freeman restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

11th. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolable.

12th. That every freeman ought to find a certain remedy by recourse to the laws for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay, and that all establishments, or regulations contravening these rights, are oppressive and unjust.

13th. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

14th. That every freeman has a right to be secure from all unreasonable searches, and seizures of his person, his papers, and property: all warrants therefore to search suspected places, or seize any freeman, his papers or property, without information upon oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive, and all general warrants to search suspected places, or to apprehend any suspected person without specially naming or describing the place or person, are dangerous and ought not to be granted.

15th. That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the Legislature for redress of grievances.

16th. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of Liberty, and ought not to be violated.

17th. That the people have a right to keep and bear arms; that a well-regulated militia composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free state. That standing armies in time of peace are dangerous to Liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to, and governed by the civil power.

18th. That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the Laws direct

19th. That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.

20th. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by law in preference to others.

Amendments to the Constitution:  (21 amendments were proposed, but I only included the first here):

  1. THAT each state in the union shall, respectively, retain every power, jurisdiction and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.

[Reference:  http://teachingamericanhistory.org/ratification/tansill/ratification-northcarolina/ ]

 

VII.  RHODE ISLAND RATIFICATION (November 21, 1789), with 18 Bill of Rights:

We the Delegates of the People of the State of Rhode-Island, and Providence Plantations, duly elected and met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year one thousand seven hundred and eighty seven, by the Convention then assembled at Philadelphia, in the Commonwealth of Pennsylvania (a Copy whereof precedes these presents) and having also seriously and deliberately considered the present situation of this State, do declare and make known

1st That there are certain natural rights, of which men when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of Life and Liberty, with the means of acquiring, possessing and protecting Property, and pursuing and obtaining happiness and safety.

2d That all power is naturally vested in, and consequently derived from the People; that magistrates therefore are their trustees and agents, and at all times amenable to them.

3d That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness [Note: This is a “RESUMPTION CLAUSE.”  New York and Virginia also included such a clause/condition in their ratifications], :-That the rights of the States respectively, to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same; and that those clauses in the said constitution which declare that Congress shall not have or exercise certain powers, do not imply, that Congress is entitled to any powers not given by the said constitution, but such clauses are to be construed as exceptions to certain specified powers, or as inserted merely for greater caution.

4th That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, and not by force or violence, and therefore all men, have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored, or established by law in preference to others.

5th That the legislative, executive and judiciary powers of government, should be separate and distinct, and that the members of the two first may be restrained from oppression, by feeling and participating the public burthens, they should at fixed periods be reduced to a private station, return into the mass of the people, and the vacancies be supplied by certain and regular elections, in which all, or any part of the former members, to be eligible or ineligible, as the rules of the constitution of government and the laws shall direct.

6th That elections of representatives in legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to the community ought to have the right of suffrage, and no aid, charge tax or fee can be set, rated or levied upon the people, without their own consent or that of their representatives so elected, nor can they be bound by any law, to which they have not in like manner assented for the public good.

7th That all power of suspending laws or the execution of laws, by any authority without the consent of the representatives of the people in the legislature, is injurious to their rights, and ought not to be exercised.

8th That in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

9th That no freeman ought to be taken, imprisoned or disseised of his freehold, liberties, privileges, or franchises, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property but by the trial by jury, or by the law of the land.

10th That every freeman restrained of his liberty, is intitled to a remedy, to enquire into the lawfulness thereof, and to remove the same if unlawful, and that such remedy ought not to be denied or delayed.

11th That in controversies respecting property, and in suits between man and man the antient trial by jury, as hath been exercised by us and our ancestors, from the time whereof the memory of man is not to the contrary, is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolate.

12th That every freeman ought to obtain right and justice, freely and without sale, completely and without denial, promptly and without delay, and that a establishments or regulations contravening these rights, are oppressive and unjust.

13th That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.

14th That every person has a right to be secure from all unreasonable searches and seizures of his person, his papers or his property, and therefore that all warrants to search suspected places or seize any person, his papers or his property, without information upon oath, or affirmation, of sufficient cause, are grievous and oppressive, and that all general warrants (or such in which the place or person suspected, are not particularly designated,) are dangerous, and ought not to be granted.

15th That the people have a right peaceably to assemble together, to consult for their common good, or to instruct their representatives; and that every person has a right to petition or apply to the legislature for redress of grievances.

16th That the people have a right to freedom of speech and of writing, and publishing their sentiments, that freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

17th That the people have a right to keep and bear arms, that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural and safe defense of a free state; that the militia shall not be subject to martial law except in time of war, rebellion or insurrection; that standing armies in time of peace, axe dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times the military should be under strict subordination to the civil power; that in time of peace no soldier ought to be quartered in any house, without the consent of the owner, and in time of war, only by the civil magistrate, in such manner as the law directs.

18th That any person religiously scrupulous of bearing arms, ought to be exempted, upon payment of an equivalent, to employ another to bear arms in his stead.

Under these impressions, and declaring, that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid, are consistent with the said constitution, and in confidence that the amendments hereafter mentioned, will receive early and mature consideration, and conformably to the fifth article of said constitution, speedily become a part thereof; We the said delegates, in the name, and in the behalf of the People, of the State of Rhode-Island and Providence-Plantations, do by these Presents, assent to, and ratify the said Constitution. In full confidence nevertheless, that until the amendments hereafter proposed and undermentioned shall be agreed to and ratified pursuant to the aforesaid fifth article, the militia of this State will not be continued in service out of this State for a longer term than six weeks, without the consent of the legislature thereof; That the Congress will not make or alter any regulation in this State, respecting the times, places and manner of holding elections for senators or representatives, unless the legislature of this state shall neglect, or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same; and that n those cases, such power will only be exercised, until the legislature of this State shall make provision in the Premises, that the Congress will not lay direct taxes within this State, but when the monies arising from the Impost, Tonnage and Excise shall be insufficient for the public exigencies, nor until the Congress shall be have first made a requisition upon this State to assess, levy and pay the amount of such requisition, made agreeable to the census fixed in the said constitution, in such way and manner, as the legislature of this State shall judge best, and that the Congress will not lay any capitation or poll tax.

[Reference:  http://teachingamericanhistory.org/ratification/tansill/ratification-rhodeisland/ ]

 

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Why Open Borders Should Be a Non-Issue for America

IMMIGRATION - OPEN BORDERS (Credit Jonathan McIntosh, Wikimedia Commons)

(Photo credit: Jonathan McIntosh, Wikimedia Commons)

by Diane Rufino, December 22, 2018

On October 16, 2018, Francisco Gonzalez wrote an article, or more aptly, a book review, entitled “ Why Open Borders Are Bad for America’s Immigrants”; it was published by The Federalist. In that article, Gonzalez reviewed and commented (apparently in support of) Reihan Salam’s book ‘Melting Pot or Civil War? A Son of Immigrants Makes the Case Against Open Borders.”

In this article below, I am providing some thoughts and commentary, and some opinions and counter-arguments as well, on both Gonzalez’ article and the underlying work which is Salam’s book. I write this with no disrespect at all for either Mr. Gonzalez or Mr. Salam, and I hope that my commentary does not suggest so. I am grateful to both for their coverage and thoughts on this hot topic of open borders because it helps to further a robust debate on the issue. Immigration reform is certainly the defining issue of our time, with the current administration. I believe strongly in the First Amendment and the need for all viewpoints in order that Americans can have the most exhaustive discussions and debates on matters touching on their country, their government, and their communities. Exhaustive discussions and debates helps us to form our opinions, to keep us most acutely informed, and to decide on the best course of action. The First Amendment was adopted first and foremost for political speech and expression, with the intent that a “marketplace of ideas” would be robust and full of diverse opinions and viewpoints and thus, enable Americans to make the most informed choices at the ballot box and to keep tabs on government.

I should begin by saying that I agree with Salam’s ultimate conclusion, which is that an “open borders” immigration policy is bad for the United States. But I want to emphasize that I believe it is bad for the country in general, for the population as a whole, and for the fatal threats it poses to our safety and security, and not simply for the reason that Salam suggests – which is that it is bad for America’s more recent immigrants.  I also believe it is a reckless and illegitimate attempt to advance a political party’s interests way and above any other interests (including moral) that key political leaders may offer.

Gonzalez’s article begins:

Immigration has long been one of the hottest topics in America with no agreed upon policy solutions. We are often presented with one of two polarized choices. The first favors an open borders policy, where the free flow of migrants across our borders is welcomed and amnesty is granted to those who previously crossed the border unlawfully. The second option would seal the border, perhaps with a “wall,” and find and hunt down all illegal immigrants and deport them.

The election of Donald Trump, who clearly leans towards that second choice, has forced a needed argument about immigration. We can disagree on the tactics and the rhetoric Trump uses about immigration, but he has certainly compelled the nation to have the discussion and has moved the nation – including Congress – as close as it’s been to taking some kind of action to remedy this long standoff.

This is as timely a moment as ever for the release Reihan Salam’s book, “Melting Pot or Civil War? A Son of Immigrants Makes the Case Against Open Borders.” Salam, a son of Bangladeshi immigrants, the executive director of National Review, and a fellow with National Review Institute (where I also work), argues that the real choice we have in our immigration debate “is whether we see the immigrants we welcome to our shores as permanent strangers to whom we have no obligation other than to deliver them from the relative poverty of their homelands, or as free and equal citizens to whom we are pledging our loyalty in this generation and in those to come.”

Clearly, Gonzalez says, Reihan Salam’s book provides an important viewpoint to the on-going discussion about immigration policy, and in particular, an open-borders policy.

However, what Gonzalez fails to recognize, fails to criticize, and fails to comment on is that Salam is insincere and intellectually dishonest about the issues surrounding the immigration debate. If Gonzalez is indeed framing the debate correctly according to Salam’s point of view, it is clear that Salam neglects the real issue in the immigration debate – which is “legal immigration” versus “illegal immigration.” Are we a nation of laws?  Do we believe in the Rule of Law and the Constitution as the foundation of that law?  If so, then we must demand that immigrants come here legally and our policy must enforce that and discourage illegal entry. If we don’t believe in the Rule of Law, if we believe laws are only for tax-burdened citizens to adhere to, if we believe that enforcement of federal laws is arbitrary, and we’ve abandoned the notion that the federal government is absolutely responsible for the objects expressly delegated to it by the Constitution, then open borders makes sense.

Salam also neglects the true nature of the push for an open borders immigration policy. The truth is that a relaxed immigration policy (ie, open borders policy) is a political issue with no concern at all for national security (a very real reason for the power to regulate immigration) but rather for political ends. Today’s illegal immigrants are tomorrow’s Democratic voters.

In his book, Salam argues that if we are to live up to the standards of America’s principles, which he hopes we will do, we would certainly want to move in a direction more towards an open immigration policy and a welcoming of illegals “as free and equal citizens.”

Salam argues that US immigration policy needs to address the concerns of those immigrants newly added to our country. He notes that, unfortunately, most immigrants and children of immigrants are not moving up the economic ladder. That is simply the truth of the matter. They are also not taking advantage of college and secondary education opportunities (or have as successful graduation rates) compared with their counterparts.

Gonzalez writes:

When they don’t do that, as Salam shows, they become stuck in ethnic enclaves. When they remain poor and only around other poor immigrants from their own ethnic backgrounds, not only do they not assimilate into America’s melting pot, but they also start forming grievances against their new host country. That’s a dangerous proposition not only for the American economy, but also for the American identity.

One of the key factors that contributes to this situation is that most immigrants are low-skilled workers who have traditionally been welcomed into our economy by those seeking cheap labor. However, as Salam shows throughout this book, low-skilled workers are less and less needed, as our modern economy shifts to automation and off-shoring of labor becomes a more likely proposition.

Note that others, economic experts, assert that since the United States has moved from a production economy to a “service” economy, low-skilled workers (such as servers, maids, housecleaners, landscapers, etc), will continue to be needed. In other words, there will always be a need (a “magnet”) for immigration – legal and illegal…. After all, we can’t forget that “there are certain jobs that Americans just won’t do,” even those who need jobs to support themselves and their families.

Gonzalez continues in his review of Salam’s book:

Salam points out that traditional free-market libertarians tend to favor a more open border policy, coupled with free trade, that is open to a more globalized labor pool, where products and services are manufactured abroad and imported at lower rates for consumers in the United States. At the same time, those who favor more protectionism in trade tend to be more limiting on immigration. He observes both of these sides can’t have their cake and eat it, too. “The decline of protectionism has made restricting low-skill immigration a more viable option,” says Salam. If we are to pursue more egalitarianism, this is a good thing. Salam argues that we need to shift our immigration policies towards a more selective, skills-based approach.

A selective, skills-based approach is the same approach that President Trump favors. He believes in an immigration policy that is not only based on legal entry into this country but also that focuses on merit-based entry as well. In other words, he wants immigrants to join our country who can add to our country – wealth, advanced skills, intellect – rather than to drain from taxpayers and otherwise burden our towns, cities, and communities.

Salam believes that such an approach will favor immigrants who are likely to be more economically stable and upwardly mobile. It will also favor our un-skilled citizenry who need jobs yet often find them given to immigrants (legal and illegal).

As Gonzalez points out, Salam’s concern regarding U.S. immigration policy is not simply for immigrants already in the United States, but also for those who need to emigrate to the United States because they are impoverished in the countries they currently reside:

Salam does not ignore that there are hundreds of millions of people living in poverty around the world who are on the move. He goes one further and recognizes that “the international poverty line is fundamentally arbitrary. It grossly underestimates the number of people around the world who are desperate to better their lot.”

In fact, it often takes that first lift out of poverty to be able to afford to move at all. That’s part of the reason we are seeing many migrants move from impoverished places in Latin America, Africa, and Asia. To this end, Salam provides many ways we can help those people. He goes so far as to suggest that “it’s time for Americans to roll up their sleeves and help.”

Why is it always “America’s problem” ?  Why does it always seem to become America’s obligation to “help impoverished people,” to “help people around the world to better their lot,” and to help them “move from impoverished places.”  Why must it become America’s moral imperative “to roll up our sleeves and help”?  Last I remember, we have a United Nations and a concept known as “shared responsibility.”

Just because America is deemed a “wealthy” country (indeed, where on Earth are those considered poor and living in poverty seen so obese and living so relatively comfortably?), where does it say that she is obligated to share that wealth with those who need it?  Where does it say that the money earned by hard-working Americans must be re-distributed to those who have no legal entitlement to it?  Why must America’s wealth be constantly re-distributed all over the globe?  Again, when are we going to recognize the concept of “shared responsibility”?  (And let’s be clear, it’s not an actual responsibility, like that of a parent to raise and take care of his children; it’s more of a moral responsibility, one that helps relieve our collective conscience)

I know what our country’s actual prime responsibility is… It is a responsibility to its citizens. It is a responsibility to enforce the laws tasked to it by our government’s creation to regulate immigration (to enforce a common-sense effective immigration policy) and to keep us safe from harm and any threat of it, and to keep us secure at home in our way of life.

Gonzalez article continues and concludes:

Salam doesn’t say we have to tackle any one or all of the ideas he proposes in one of the later chapters of the book; however, he does add some innovative concepts on how Americans could help those in poverty abroad. They include: international development; incentivizing older Americans to retire abroad (including investing their Medicare and Social Security benefits in developing countries, which alleviates the stress on America’s health-care sector); working with other countries to develop charter cities that would employ low-skill workers without them having to enter the United States; and creating financial incentives and trade concessions to spur industrial development in zones that consist of large multitudes of displaced refugees.

Some of these solutions may be a hard pill to swallow for those who believe in smaller government and even smaller U.S. foreign aid, but it seems Salam proposes these ideas mostly to counter advocates who claim the United States has a moral obligation to open its borders to those in impoverished nations who are migrating to improve their circumstances.

He smartly weighs the short-term and long-term costs to the U.S. government and economy for each of these proposals. However, one wonders what will happen once these ideas go from a scholarly book like Salam’s into the hands of policymakers in Congress. At that point, how much more will that budget increase and for how long will America’s ruling class want to keep these new programs in place?

Salam’s book should add weight to many of the policy proposals in the RAISE Act (the bill from U.S. Sens. Tom Cotton and David Perdue that has found some favor with President Trump). It creates a points system that rewards immigrants who have higher skills and won’t burden U.S. taxpayers.

Salam also suggests the United States should be working closer with Mexico rather than the keeping our currently strained relationship. He points out that as the Mexican economy has been improving, we have seen fewer Mexicans coming into the United States. The largest sector of immigrants crossing the U.S. border from Mexico – mostly illegally – has been from poorer Central American countries. A stronger U.S. partnership would encourage Mexico to stop the flow of migrants coming through Mexico from Central America into the United States. Salam also argues that we should partner with Mexico in a combined effort to help the economies of Central American nations improve, so that citizens of those countries have less need to uproot themselves for a better opportunity in the United States.

Throughout his book Melting Pot or Civil War? Salam forces us to look at the effects more than 8 million unauthorized immigrants have on the U.S. economy and government spending, not to mention the ethnic tensions their economic stagnation could contribute towards fracturing America’s culture.

That is perhaps what Salam considers the most important element of his argument. If we do not create conditions that allow immigrants who come to the United States from all over the world to assimilate and build a melting pot culture, then we are doomed to move towards cultural fragmentation and the polarization of different peoples in our country. There will be an increasingly widening gap between the affluent and the poor. Working-class Americans, as well as immigrants, will continue to fight for a scarcity of low-skill jobs, struggle to achieve economic mobility, and fail to move towards the cultural mainstream of America.

Just as Trump’s election has forced an argument over immigration, Salam’s book has the opportunity to persuade us to look at innovative policy solutions to transform America’s mired immigration system into one that works for migrants seeking to better their lot. At the same time, these solutions will also help American citizens and the immigrants we welcome work towards building a melting pot, rather than continue to intensify ethnic conflict and economic strife.

Salam overemphasizes the obligation we owe to immigrants – both those who seek to come here and those who are here illegally, hoping for some kind of amnesty policy. He overemphasizes the obligation we owe to people from other parts of the world, especially unilaterally.

It is in this respect that Salam, like so very many others, commits another erroneous assumption. Salam and others like to say that “America is a land of immigrants,” not to underscore how the country was created and developed, but to suggest that our immigration system MUST ensure that the country continues to bring on more and more immigrants. America had no choice at one time but to grow as a land of “immigrants” because its only native population were the American Indians. Immigrants are, by definition, people who leave their country to move to another with the intent of making that new country their home. For over two hundred years, in three major waves, our country grew and benefitted from immigration:  During the colonial era, during the first part of the 19th century, and finally, from the 1880s to 1920. (For now, let’s ignore the recent immigration crisis we are experiencing from Mexico and other Hispanic countries). The last two waves saw immigrants coming to America for greater economic opportunity, while the first wave, particularly with such groups as the Pilgrims and the Puritans, who arrived to here in 1620 and then 1630, respectively, saw immigrants seeking religious freedom. By 1912, the United States was just about completely formed (New Mexico and Arizona became states that year, becoming the 47th and 48th states to join the union; Hawaii and Alaska would complete the union in 1959). While America had become a land of immigrants, the country began to re-consider how exactly it wanted to grow even before the start of the 20th century, which is its sovereign right. The first significant pieces of federal legislation restricting immigration were passed in 1875 and then in 1882, when they specifically restricted Chinese immigrants. The Page Act of 1875 restricted the immigration of forced laborers coming from Asia, the Chinese Exclusion Act of 1882 halted all legal immigration of Chinese laborers (our country’s first major exclusionary immigration restriction), and then the Immigration Act of 1882 which restricted other classes of persons from entering the country. Additional restrictions, including compete bans, followed in the early 1920’s.

Yesterday’s immigrants have become generational Americans. Many can trace their roots to colonial times and to the American Revolution. Many can point to relatives that were killed during the American Civil War. And still more can take immense pride in the fact that great-grandparents and grandparents fought for our country in World War I and in World War II, respectively. These one-time immigrants truly contributed and help build this country; they came here legally with nothing to support them but the money in their pockets and the desire to work or find a niche in the community to support themselves and their families. There were no welfare checks, no social programs, no Food Stamps, no tax credits, no free healthcare. There were ethnic communities but no ethnic protesting or ethnic rage; no flying of home country flags and burning of American flags.

During her years of robust immigration, America offered something special – opportunity and freedom, two things that other countries around the world could not offer or deliver. The inscription on the base of the Statue of Liberty is a poignant reminder of how the United States embraced immigrants to its shored: “Give me your tired, your poor, Your huddled masses yearning to breathe free…” Indeed, Lady Liberty represents an exciting new chapter in Lady Liberty’s story of freedom. ” The statue was given to America as a gift of friendship from the people of France and dedicated on October 28, 1886. France gave it the name “Statue of Liberty Enlightening the World” to recognize its mission of freedom and democracy. The very design of the statue reflects that message of freedom and democracy: At the feet of Lady Liberty, partially hidden by her robe, are broken shackles (signify a breaking away from tyranny and oppression), in her outstretched hand, she carries a torch, lighting the way to freedom and showing the path to Liberty, in her other arm, she cradles a tablet (evoking law; the Rule of Law), and on her head rests a crown with seven rays (representing the seven continents).

The years after our Civil War and then Reconstruction were years of rapid industrialization, western expansion, and rapid growth. Yes, it was a time for immigration. It was a time when immigration was necessary and important for the growth that the country was experiencing and the production it was becoming world famous for.  So yes, at one time (and for many years at that), “America was a land of immigrants.”

But it is false and misleading to think that our country needs to perpetuate the idea that our country  still a land of ” – that notion that we need to continue being a “land of immigrants.”  Our country is now fully developed and fully populated (lest we truly believe in a diminished quality of life) and our focus is to grow our country mostly from within. The country belongs to its citizens and its citizens have spoken clearly – they want a wall and they want legal immigration – with a sensible policy to guide immigration here.

 

Reference:  Francisco Gonzalez, “Open Borders Are Bad for America’s Immigrants,” The Federalist, October 16, 2018.  Referenced at:  http://thefederalist.com/2018/10/16/open-borders-are-bad-for-americas-immigrants/

***  Francisco Gonzalez is the director of philanthropy at National Review Institute.

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