by Diane Rufino, December 30, 2012
December 15 was Bill of Rights Day. It marks the 221st anniversary of the day when the first ten amendments – our Bill of Rights – were ratified in 1791.
The Bill of Rights is among those documents classified as “Charters of Freedom.” It belongs with the list that includes the Magna Carta, the Habeas Corpus Act, the English Petition of Right, the English Bill of Rights, the Virginia Statute for Religious Freedom, and the Virginia Declaration of Rights. We are reminded everyday of regimes all over the world where people enjoy no fundamental rights, no freedom of religion, no freedom of speech, no freedom of assembly. We read about abusive judicial systems that lack of guarantees of due process, jury trials, and protection against self-incrimination. And we hear about oppressive police states where unreasonable searches and seizures and cruel and unusual punishment are commonplace. All of these places lack the protection of basic human rights that make this country the land of the free.
When our Constitution was first established, it was assumed that the description of specific powers granted to the government would leave no doubt as to what the government could and could not do, and that the absence of powers over the rights of the people would leave those rights protected. But Thomas Jefferson and others were wary of leaving such important matters up to inference. They insisted on a Bill of Rights that would state in unmistakable terms those rights of the people that must be left inviolate. In 1787, Jefferson wrote to James Madison: “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 inferences.” September 17, 1787, the delegates to the Constitutional Convention in Philadelphia signed the final draft of the Constitution and left to go back to their states. When Jefferson learned that the draft did not contain a Bill of Rights, he noted that it was reckless. He commented that if the states even considered ratifying it, it would amount to “a degeneracy in the principles of liberty.”
As it turned out, the Madison should have listened to Jefferson because many of the states would not ratify it without a Bill of Rights.
When the delegates at the Convention finished their work in Philadelphia, the only thing they created was a “proposal.” That proposal for a Union, held together by the scheme of federal government outlined in Articles I – III, would have to go to all the states for ratification. Nine of the 13 states would have to ratify it for the Constitution to become effective for those ratifying states. But quickly, a fierce debate broke out in the states – between the Federalists (who were the majority at the Convention) and the Anti-Federalists (who were suspicious of the power delegated to the proposed federal government). The Federalists, of course, argued that the Constitution should be approved, but the Anti-Federalists urged the states not to ratify it. They were aggressive in their criticisms, and soon essays written by several of the anti-Federalists appeared in publications in the several states. They appeared under various assumed names, such as Brutus, Cato, Centinel, Aristocrotis, and the Federal Farmer. George Clinton, the Governor of New York, Richard Henry Lee and James Mason of Virginia, Samuel Adams, John Hancock, Elbridge Gerry, Nathaniel Ames, and James Winthrop of Massachusetts, and even Patrick Henry were anti-Federalists. Alexander Hamilton and John Jay of New York, and James Madison of Virginia, all representing key states that were siding with the anti-Federalists, got together to write a series of 85 essays that explained the Constitution in detail and addressed the criticisms outlined in the Anti-Federalist Papers. These would become known as The Federalist Papers.
For many states, the decision to support or oppose the new plan of government came down to one issue – whether their sovereign powers and the individual liberties of the People were jeopardized by its lack of a Bill of Rights. After all, they had rebelled against Britain because it had in their view ceased to respect their age-old liberties as Englishmen—liberties enshrined in the 1215 Magna Carta and the 1689 English Declaration of Rights. Having fought a long war to protect these rights, were they then to sacrifice them to their own government? Others countered that a bill of rights actually endangered their liberties… that listing the rights a government could not violate implied that unlisted rights could be restricted or abolished. After much discussion at the Philadelphia Convention, the majority of the delegates were of the latter opinion. But that decision cost the signatures of several high-profile delegates, such as George Mason and Edmund Randolph of Virginia and Elbridge Gerry of Massachusetts. George Mason felt that the Constitution did not adequately provide protection for the states’ rights and interests, Elbridge Gerry was not happy with the commerce power delegated to the federal government or with the taxing power which he felt might be burdensome on the states, and Randolph, a lawyer, was not content with the looseness of some of the language, fearing that future generations, and particularly the government itself, would seek sweeping changes to the meaning and intent of the document. [Edmund Randolph was the author of the Virginia Plan which was presented at the Constitutional Convention and George Mason was the author of Virginia’s Bill of Rights].
Many of the state conventions ratified the Constitution, but called for amendments specifically protecting individual rights from abridgement by the federal government. The debate raged for months. By June of 1788, with assurances that a Bill of Rights would be proposed, nine states had ratified the Constitution, ensuring it would go into effect for those nine states. However, key states including Virginia and New York had not ratified and it wasn’t sure that they would without an actual Bill of Rights. After all, the colonies had rebelled against Britain because it had in their view ceased to respect their age-old liberties as Englishmen – liberties enshrined in the Magna Carta (“Great Charter”) of 1215 and the English Bill of Rights of 1689. Having fought a long and bitter war to protect these rights, were the states willing to sacrifice them to their own government?
In Virginia, Patrick Henry was accusing the proposed government of ‘tending or squinting toward the monarchy’ and being a ‘national’ rather than a ‘federal’ one, with no effective checks and balances against a majority or against a government determined to usurp power and no Bill of Rights to curb government power. He warned: “This proposal of altering our Federal Government is of a most alarming nature. You ought to be extremely cautious, watchful, jealous of your liberty, for instead of securing your rights you may lose them forever. If a wrong step be now made, the republic may be lost forever. If this new Government will not come up to the expectation of the people, and they should be disappointed – their liberty will be lost, and tyranny must and will arise. I repeat it again, and I beg Gentlemen to consider, that a wrong step made now will plunge us into misery, and our Republic will be lost.” He continued: “Liberty, the greatest of all earthly blessings, gave us that precious jewel, and you may take everything else! … The Confederation, this same despised government, merits, in my opinion, the highest encomium; it carried us through a long and dangerous war; it rendered us victorious in that bloody conflict with a powerful nation; it has secured us a territory greater than any European monarch possesses; and shall a government which has been thus strong and vigorous, be accused of imbecility, and abandoned for want of energy? Consider what you are about to do before you part with the government … We are cautioned by the honorable gentleman who presides against faction and turbulence. I acknowledge also the new form of government may effectually prevent it; yet there is another thing it will as effectually do: it will oppress and ruin the people. … This Constitution is said to have beautiful features, but when I come to examine these features, sir, they appear to me horribly frightful; among other deformities, it has an awful squinting-it squints towards monarchy; and does not this raise indignation in the breast of every true American? Your President may easily become king; your senate is so imperfectly constructed that your dearest rights may be sacrificed by what may be a small minority; and a very small minority may continue forever unchangeably this government, although horribly defective: where are your checks in this government?”
James Madison, the principal author of the Constitution, knew that grave doubts would be cast on the Constitution if Virginia and New York (the home states of several of its chief architects, including Madison himself, and the authors of the Federalist Papers) did not adopt it. Perhaps he got that impression after Patrick Henry addressed the Virginia Ratification Convention on June 16, 1788 and spoke the following words:
“Mr. Chairman, the necessity of a Bill of Rights appears to me to be greater in this government than ever it was in any government before. Let us consider the sentiments which have been entertained by the people of America on this subject. At the revolution, it must be admitted that it was their sense to set down those great rights which ought, in all countries, to be held inviolable and sacred. Virginia did so, we all remember. She made a compact to reserve, expressly, certain rights.
When fortified with full, adequate, and abundant representation, was she satisfied with that representation? No. She most cautiously and guardedly reserved and secured those invaluable, inestimable rights and privileges, which no people, inspired with the least glow of patriotic liberty, ever did, or ever can, abandon.
She is called upon now to abandon them and dissolve that compact which secured them to her. She is called upon to accede to another compact, which most infallibly supersedes and annihilates her present one. Will she do it? This is the question. If you intend to reserve your unalienable rights, you must have the most express stipulation; for, if implication be allowed, you are ousted of those rights. If the people do not think it necessary to reserve them, they will be supposed to be given up.
How were the congressional rights defined when the people of America united by a confederacy to defend their liberties and rights against the tyrannical attempts of Great Britain? The states were not then contented with implied reservation. No, Mr. Chairman. It was expressly declared in our Confederation that every right was retained by the states, respectively, which was not given up to the government of the United States. But there is no such thing here. You, therefore, by a natural and unavoidable implication, give up your rights to the general government.
Your own example furnishes an argument against it. If you give up these powers, without a Bill of Rights, you will exhibit the most absurd thing to mankind that ever the world saw – a government that has abandoned all its powers…. the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a Bill of Rights, without check, limitation, or control. And still you have checks and guards; still you keep barriers – pointed where? Pointed against your weakened, prostrated, enervated state government! You have a Bill of Rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power! You arm yourselves against the weak and defenseless, and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity? What barriers have you to oppose to this most strong, energetic government? To that government you have nothing to oppose. All your defense is given up. This is a real, actual defect. It must strike the mind of every gentleman.
When our government was first instituted in Virginia, we declared the common law of England to be in force. By this (federal) Constitution, some of the best barriers of human rights are thrown away. That system of law which has been admired and which has protected us and our ancestors, has been excluded. Is this not enough of a reason to have a Bill of Rights?”
It was during this Ratification Convention in Virginia that Madison promised that a Bill of Rights would be drafted and submitted to the States. His promise reassured the convention delegates and the Constitution was approved in that state by the narrowest margin, 89-87. New York soon followed, but submitted proposed amendments. Two states, Rhode Island and North Carolina, refused to ratify without a Bill of Rights. North Carolina refused to ratify in July 1788, and Rhode Island rejected it by popular referendum in March 1788 and North Carolina refused to ratify it in their convention in July.
A year later, on June 8, 1789, referring to Virginia’s Declaration of Rights and the recommendations of the several state ratifying conventions, Madison proposed a series of 20 amendments to the first Congress. He had kept his promise and did so with utmost urgency, for the First US Congress only convened three months earlier, on March 4 (and George Washington had only been inaugurated as the nation’s first US President on April 31st). In the speech he gave to Congress to propose the amendments, he said:
“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 (amendments) to be incorporated into the Constitution, as will render it as acceptable to the whole people of the United States…. 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.
In some instances the states 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 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.
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.
I am convinced of the absolute necessity (of these amendments). 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.”
In his speech, Madison emphasized the great concern of the states – How to prevent the encroachments of government? As he explained, the ten amendments to the Constitution – the Bill of Rights – were crafted 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.” It was not individual freedom that the states wanted. After all, under the American system, all men were created with inalienable rights that come from our Creator and not government. No, our Founders and state leaders wanted freedom from government. The Bill of Rights doesn’t grant rights. Rather, it recognizes rights. It requires that the government not interfere with those rights. In other words, our Founders and state leaders wanted constitutional liberty. “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.” It was a hopeful plan.
In fact is that the plan was not the brainchild of the Federalists, who won the day at the Constitutional Convention in Philadelphia. It wasn’t the brainchild of James Madison, initially an avowed Nationalist. The Constitution was amended by the States because of the influence of the anti-Federalists. While it was the Federalists (in the true sense of their name) who rejected the Virginia Plan and supported state representation in the legislature (giving the government itself a “federal” nature), it wasn’t enough for those who wanted more protection and security for the rights of the States and individuals.
[Note that our Founders, as early as the Constitutional Convention in 1787, came to appreciate state representation in government. They referred to it as providing a state ‘negative’ (a veto power) in government, in order to safeguard the rights, powers, and interests of the states. The same sentiment was emphasized in the state ratifying conventions, only in stronger language. For those who question the legitimacy of nullification, we can see its very origins in the states’ representation in government. It is clear that the doctrine was part of the dialogue in our nation’s very founding and was implicit in the very design of government].
It was Thomas Jefferson who impressed upon Madison the need for a Bill of Rights. He urged him to heed the concerns of the anti-Federalists, which now became the concern of the various states. The over-arching concern was the rise of national power at the expense of state power. For example, the Federal Farmer (authored most likely by Richard Henry Lee, of Virginia), in stressing the necessity of a Bill of Rights and protections against a consolidation of power in government, wrote: “Our object has been all along to reform our federal system and to strengthen our governments… However, the plan of government is evidently calculated totally to change, in time, our condition as a people. Instead of being thirteen republics under a federal head, it is clearly designed to make us one consolidated government.” George Mason, a delegate to the Philadelphia Convention who refused to support the Constitution, explained that the plan was “totally subversive of every principle which has hitherto governed us. This power is calculated to annihilate totally the state governments.” Brutus, another anti-Federalist, wrote: “The best government for America is a confederation of independent states for the conducting of certain general concerns, in which they have a common interest, leaving the management of their internal and local affairs to their separate governments. How far shall the powers of the states extend is the question.”
Centinel, yet another Anti-Federalist, reminded readers of the nature of republics. Agreeing with Montesquieu (one of the philosophers our Founders relied heavily on), that a republic government could only survive in a small territory, the anti-Federalists came to the conclusion that America would have to be a federal republic and a union of states (and NOT the states united!). As small republics themselves, the states would provide the foundation for republican and limited government in our new Union. “From the nature of things, from the opinions of the greatest writers and from the peculiar circumstances of the United States, it is not practical to establish and maintain one government on the principles of freedom in so extensive a territory. The only plausible system by which so extensive a country can be governed consistent with freedom is a confederation of republics, possessing all the powers of internal government and united in the management of their general and foreign concerns….” [from Centinel]
Brutus agreed. “Neither the general government nor the state governments ought to be vested with all the powers to be exercised for promoting the ends of government. The powers are divided between them – certain ends are to be attained by the one and other certain ends by the other, and these, taken together, include all the ends of good government.” [articulating our system of dual sovereignty].
Nathaniel Ames, of Massachusetts, wrote: “The state governments represent the wishes and feelings of the people. They are the safeguards and ornament of our liberties – they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights.” Patrick Henry of Virginia agreed. He referred to the proposed government under the new Constitution a “consolidated and a dangerous” one, and added: “The States are the character and soul of a confederation. If the states be not the agents of this compact, it must be one great consolidated national government, of the people of all the states… The people sent delegates, but the states did.”
Taken together, the anti-Federalists concluded that the United States could only exist successfully as a nation if “distinct republics connected under a federal head. In this case the respective state governments must be the principal guardians of the peoples’ rights…. In them must rest the balance of government.”
The US House debated and discussed the proposed amendments, and eventually edited, re-worked, and consolidated them down into 17 amendments. The Senate took up the amendments and made their own edits and alterations, and in September, the two houses got together and reached a compromise. Twelve amendments were approved on September 25 and then sent to the States for ratification. All in all, it has been said that only two major provisions among the proposed 19-20 original amendments were eliminated by the House and Senate.
The amendments were designed to protect the basic freedoms of US citizens from the reaches of government, namely the freedoms of speech, press, assembly, and exercise of religion, the right to bear arms for self protection, the right to be secure in one’s person, home, and privacy against government searches and seizures, the right not to be denied Life, Liberty, or Property without due process, the right of habeas corpus, the right to fair criminal and civil legal proceedings and proper procedural safeguards, and the right to be spared cruel and unusual punishment. Additionally, one amendment (the 9th Amendment) was included to memorialize the notion that sovereign power originates in the individual and another (the 10th Amendment) was included to memorialize the federal nation of our government system (“the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”).
Influenced by the English Bill of Rights of 1689, the Bill of Rights was also drawn, as mentioned above, from Virginia’s Declaration of Rights, drafted by George Mason in 1776. While Mason refused to sign the Constitution drafted in Philadelphia, in the ratification struggle that followed, Mason and other critics agreed to support the Constitution in exchange for the assurance that amendments would be passed immediately. While our Bill of Rights was indeed strongly influenced by the plight of the British to limit the “divine” power of the King in their lives and the many charters of freedom they extracted from their rulers, James Madison saw one very important difference between those documents and the Constitution: “In Europe, charters of liberty have been granted by power. America has set the example of charters of power granted by liberty.”
On December 15, 1791, Virginia became the 10th of 14 states to approve 10 of the 12 amendments, thus giving the Bill of Rights the two-thirds majority required by Article V of the Constitution to go into effect. Finally, the rights held most dearly by free men would not merely “rest on inference.”
In the end, the anti-Federalists won the day.
Of the two amendments not ratified, the first concerned the population system of representation, while the second prohibited laws varying the payment of congressional members from taking effect until an election intervened. The first of these two amendments was never ratified, while the second was finally ratified more than 200 years later, in 1992.
In 1789, the new Union of States was established under the US Constitution. Its enumeration of limited powers was intended to provide a basis for unity but the flexibility the states sought to remain the sovereigns they wanted to be. As Thomas Jefferson explained to Joseph Cabell in 1816: “The way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to everyone exactly the function he is competent to. Let the National Government be entrusted with the defense of the nation and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself; by placing under everyone what his own eye may superintend, that all will be done for the best.”
While many Americans are familiar with the Bill of Rights and especially the ones that we hear often in the news and on pop culture law enforcement shows, no one mentions the preamble to the set of ten amendments ratified on December 15, 1791. The Preamble to the Bill of Rights 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 ensure the beneficent ends of its institution.” We see that the first ten amendments are intended to be “declaratory and restrictive clauses.” This means they supersede all other parts of our Constitution and restrict the powers of our Constitution. The Bill of Rights is a declaration of restrictions to the powers delegated to the federal government. While amendments one through eight (1-8) have some historical context and many are direct and almost verbatim texts from British compacts/charters, the Ninth and Tenth Amendments are uniquely American.
Why is it that we never hear anyone refer to this phrase when looking for support of states’ rights? This is probably the clearest expression of intent by the States to have the government respect their bulk of reserved sovereign powers.
The Bill of Rights was meant to prevent a repeat of the abuses that compelled our forefathers to take up arms. It was meant as a shield to protect the people against tyranny, so that the sacrifices and bloodshed by our forefathers would not be in vain. History is repeating itself, and once again, a free people is engaged in the endless struggle between good and evil, between liberty and tyranny. Just like colonial times when a group of liberty-minded folks – the Sons of Liberty – emerged from the People to remind them of this struggle, the modern-day TEA party and other Liberty-minded groups have emerged to do the same thing. And like the Sons of Liberty, which started out as a small group of “agitators” in the several colonies, the Tea Party and other Liberty-minded groups are growing in number as well. The problem in confronting the steady consolidation of power by the federal government has been the reluctance of states to stand up to their one-time “agent” (now their “master”). Too many state leaders ignore their oaths of allegiance to the US Constitution and ignore the Ninth and Tenth Amendments – the very amendments they fought so hard in convention for. They question their right to second-guess the decisions of the federal government. That’s like a 12-year-old bossing his parents around and the parents capitulating because they don’t feel they have the right to second-guess his actions or constrain his conduct. When we have leaders who are supposed to be “on our side” – on the side of limited government and maximum liberty – but don’t fundamentally believe in our core conservative and government principles, then we have a problem. We have this problem in my home state of North Carolina.
North Carolina has a proud history of standing up against government oppression. It was the first state to push for a Declaration of Independence from Britain, it was the first state to authorize its delegates to vote such a Declaration, and it refused to sign the Constitution unless it was amended (to make sure power could not be concentrated in a federal government). And while Virginia (the home of Thomas Jefferson, James Madison, George Washington, and Patrick Henry) proposed twenty alterations to the Constitution and a separate Bill of Rights consisting of twenty items (modeled on George Mason’s 1776 Virginia Declaration of Rights), North Carolina said they still weren’t good enough and wanted an additional six amendments. North Carolina didn’t want to secede from the Union in 1861, but given the choice between being forced by President Lincoln to take up arms and use them on its southern neighbors (who had seceded peacefully and established a new nation), it chose to respect the freedoms laid out in the Declaration of Independence and Constitution and sever its political bonds with the federal government. With a history so rich and distinguished, it is a sad state of affairs when state leaders announce that they are powerless to question the actions of the federal government even when they know full well that the actions of our current administration are equally egregious to those committed by King George back in the 1770’s.
Other states have a similar history of freedom and have contributed greatly to our shared values and principles. What’s more, some of these states are beginning to re-assert their sovereignty under the 10th Amendment, as well as their “express desire” to “restrict the misconstruction” and “abuse” of federal powers, as they did when they adopted the Preamble and the Bill of Rights in 1791. For example, the Montana state house passed a State Sovereignty resolution (House Joint Resolution H.J. 26) to assert state rights and define the “line in the sand” which separates the “numerous and indefinite” sovereign powers of the state from the “limited and defined” sovereign powers of the federal government. [“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” James Madison, Federalist Papers No. 45] The Resolution declared that Montana would jealously guard certain rights and would not tolerate the government intruding in them.
In a time when the government is more concerned with its own existence and power than with protecting the rights and interests of a free and sovereign people, I would suggest that more states need to adopt resolutions like the one Montana endorsed (although the state senate did not pass) and draw that “line in the sand” and reverse the injustice that has been done to the American people over the last 145 years or so. That line in the sand is necessary to re-establish the proper balance of power between the government and the states that the Constitution, and the Bill of Rights, established in order that individual freedom is most firmly secured. It is necessary, as James Madison himself came to understand and appreciate, to maintain the strength of the individual states to “obtain the confidence of our fellow citizens, in proportion as we fortify the rights of the people against the encroachments of the government.”
Thomas Jefferson probably said it the best: “When injustice becomes law, rebellion becomes a duty.”
A State Sovereignty Bill that my state of North Carolina should consider is as follows:
MODEL LEGISLATION AFFIRMING STATES’ RIGHTS AND CONDEMNING ENCROACHMENT OF THOSE RIGHTS BY THE FEDERAL GOVERNMENT AND EXECUTIVE ORDERS
The government of the great State of North Carolina re-acknowledges and re-asserts the following:
(1). The Constitution of the State of North Carolina declares that all political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole, and that the people of North Carolina have the inherent, sole, and exclusive right of regulating the internal government and police thereof, and of altering or abolishing their Constitution and form of government whenever it may be necessary to their safety and happiness; but every such right shall be exercised in pursuance of law and consistently with the Constitution of the United States.
(2). The aforementioned “inherent and exclusive right” may never be expressly delegated to the United States Congress.
(3). The Constitution that is legitimately recognized by the State of North Carolina is the one interpreted according to the intent of its creation, defined by Federalist Papers, limited by the understanding of the states and assurances given them when they signed the document in their Ratification Conventions, limited by the express language included in the Preamble of the Bill of Rights, limited by the full scope of each amendment comprising the Bill of Rights (including the Ninth and Tenth Amendments), limited by the essence of the Supremacy Clause (only those laws pursuant to a valid constitutional exercise of authority are supreme; all others are not), amended strictly and legitimately according to Article V, and spirited by the federal design of our government system (which is our most critical of checks and balances).
(4). The People of North Carolina together form a free, sovereign, and independent body politic (ie, a state) by the name of “The State of North Carolina.”
(5). The People of North Carolina agree that all powers not expressly delegated to the federal government in the United States Constitution and Bill of Rights must be reserved and exercised by individual states or by themselves.
(6). Although North Carolina became an independent and completely sovereign state on December 18, 1776, it freely entered into the federal Union on July 21, 1778 when it adopted the Articles of Confederation for mutual benefit and security (“Join or Die”) and re-committed itself to the Union on November 21, 1789 when it became the twelfth state to ratify the US Constitution.
(7). When North Carolina agreed to join the Union, it did so by social compact. In signing the Constitution, it established a social compact (or contract) with its fellow states, to delegate certain common functions to a common, federal government in order to act like a Union of states instead of 13 independent states.
(8). A social compact must be implemented consistent with the terms and understandings in place at the time it is entered into.
(9). Legally, a compact, like a contract, is valid only when the terms defining the responsibilities, burdens, and benefits of that agreement are still in place. Once the terms are materially altered, the contract no longer legally binds the parties.
(10). One important term of the contact is the protection of states’ rights, as reflected in the 10th Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”).
The government of the great State of North Carolina, on behalf of its People and for their protection and liberty interests, declares the following political posturing with respect to the federal government:
(1). That the federal government was created and vested with specified powers that are “limited and defined” for the general management of the independent states but not for the internal regulation of their people and their affairs; the latter are matters rightfully left to the states themselves. To assume otherwise would be to define the government as a national one; yet that scheme was roundly rejected by the states.
(2). That the several states of the United States, and particularly the State of North Carolina, are not united on the principle of unlimited submission to general government; rather, by ratifying the federal Constitution and Bill of Rights, they designed, created, and constituted a general government for special purposes and delegated to that government certain definite powers, while reserving to themselves all other rights.
(3). That when the general government assumes undelegated powers, its acts are void and of no force; they are unenforceable by the states
(4). That the government created by the federal Constitution and the Bill of Rights was not granted the right to determine the extent of the powers delegated to itself, since that would have made its discretion, and not the federal Constitution and Bill of Rights, the measure of its powers.
(5). There are various examples of constitutional over-reach and abuse by the federal government which have already burdened the sovereign rights and interests of the State of North Carolina, as well as its People, including:
(a) the federal power to punish crimes, under the Constitution, is limited to treason, counterfeiting of the securities and current coin of the United States, piracies, felonies committed on the high seas, offenses against the law of nations, and slavery. The government is not authorized to punish any other crimes, and the Constitution been amended to include others. Therefore, all acts of Congress that assume to create, define, or punish crimes, other than those enumerated in the federal Constitution, exceed the scope of the federal compact and are void and of no force. The power to create, define, and punish other crimes is reserved by the states.
(b) the individual rights of freedom of religion and conscience, freedom of speech, and freedom of the press are beyond the reach of the federal government and therefore reserved to the states or the people, allowing states the power to judge the appropriate scope of each right. All acts of Congress and decisions of the federal courts that abridge freedom of religion, freedom of speech, or freedom of the press violate the federal compact and are not law and are void. [Furthermore, the Supreme Court introduced a legal fiction – the “Wall of Separation” doctrine – into First Amendment jurisprudence to abridge the right of religion and thereby frustrate the states in their ability to legislate morality, which is a legitimate state police power].
(c) the power over the freedom of the right to keep and bear arms was reserved to the states and to the people, allowing states the right to judge how far infringements on the right to bear arms should be tolerated, rather than allowing that exercise to be defined by Congress. All acts of Congress and decisions of the federal government that attempt to abridge this freedom will violate the federal compact and will be deemed null and void and unenforceable.
(d) that Congress has usurped the meaning of certain phrases of the federal Constitution, such as those phrases that delegate to Congress a power “to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States” and “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof,” in order to unilaterally concentrate its powers and destroy the limits placed on its authority.
(e) that Congress and the President have usurped the Constitution’s war powers. The Constitution divides war powers between the Congress and the President. This division was intended by the framers to ensure that wars would not be entered into easily or unnecessarily send our citizens into battle. The Constitution’s division of powers leaves the President with some exclusive powers as Commander-in-Chief (such as decisions on the field of battle) and Congress with certain other exclusive powers (such as the ability to declare war and appropriate dollars to support the war effort). The federal government has committed US forces without formal declarations of war. With such laws as the Military Authorization Act and National Defense Authorization Acts, the government has done an end run on the Constitution by declaring an undefined “war on terrorism” (where “terrorism” is not a defined enemy or country, but a “tactic”) and extending the battlefield to our very United States. By defining the US as a battlefield, the government is claiming it has the power to apply the laws of war over the protections of the Bill of Rights.
(f) that the federal government has created a new power for itself – the power to declare American citizens as “enemy combatants” in order to detain them indefinitely and suspend the protections protected for them in the Bill of Rights. “Enemy combatants” are defined by the government as those who fight or engage in hostilities against the United States. What constitutes conduct that justifies “enemy combatant” status is not clear. It appears that the US Constitution already addresses the situation where an American engages in hostilities against the United States or gives aid and support to an enemy. It is called “treason” and is addressed in Article III, Section 3. The government is already given the power to deal with treason and is given precise guidelines to prosecute traitors. The National Defense Authorization Act (NDAA) relies on this “new” (and unconstitutional) power in order to expand the government’s defense power.
(g) that the federal government was created to perform common functions for all states and not to use its powers to spy on American citizens, such as patrolling the skies with drones, monitoring speech, evaluating the extent of property, and establishing political profiles.
(h) that the US Supreme Court exceeded its power under Article III of the Constitution in the healthcare decision of June 28, 2012 (National Federation of Independent Business v. Sibelius) by expanding Congress’ taxing power rather than confining it within the scope of Article I, according to the intent of the provision (James Madison believed that the true meaning of the Constitution was to be found in the state ratifying conventions, for it was there that the people, assembled in convention, were instructed with regard to what the new document meant. Thomas Jefferson agreed as well. He said: “Should you wish to know the meaning of the Constitution, consult the words of its friends.”). With the decision, the Supreme Court re-characterized the Individual Mandate as a tax and not a “penalty” (as Congress itself defined) and said Congress is within its power “to impose a tax on those who have a certain amount of income but choose to go without health insurance.” The decision seems to disregard the fairness notion of “equal application of the laws.” While the government does not have the power to order people to buy health insurance, the Court says it has the power to impose a tax to force people to do so. In other words, the decision says that the government has unlimited power to use its taxing power to coerce Americans into conduct it desires; it has unlimited power to control every economic decision that every individual makes. This is a grave violation of the Liberty guarantee outlined in the Declaration of Independence. [There is another constitutional violation. Article I, Section 7, clause 1 of the Constitution say that all bills that raise revenue must originate in the House. The healthcare bill, which includes at least 21 embedded taxes to raise revenue to fund the healthcare scheme, originated in the Senate, as H.R. 3590. Reminded of the offensiveness of the Stamp Act of 1765, imposed by King George, the Founders drafted the Constitution to require that taxes and tax increases originate in the House of Representatives. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. In Federalist No. 58, James Madison defended the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue. The Supreme Court, as part of the system of checks and balances, was supposed to “check” the legislative branch on this violation of the Constitution]
(i) that the federal government has used its taxing power to control and coerce states, and in general, to undermine the powers of the States to regulate under the Tenth Amendment. If the federal government has the ability to provide funding to the States for projects and policies that it wants to promote (federal grants which are “conditioned”), then it is taxing Americans too heavily. Under concepts of federalism, the government should reduce its federal income tax rate and allow the states the ability to increase its state taxation rate in order to raise the funding for its own projects. This way, states can spend money the way it sees fit for its own people and circumstances and not as the federal government demands.
(j) That the Executive is using Executive Orders to usurp the legislative powers of Congress when its constitutional powers are limited to those of executing the laws. As such, many Executive Orders violate the Separation of Powers and blatantly violate the Constitution.
(k) that the federal government used the events of the secession of the southern states and the Civil War to illegally and unconstitutionally erode the sovereign powers of the individual States. The events leading up to the Civil War and then Reconstruction were so marred with unconstitutional violations that it can be argued that the government and its actions during that time were illegitimate in many respects and therefore not binding on the respective parties (ie, the States). [For example, President Lincoln took extraordinary liberties with the office of the Presidency in initiating the Civil War and suppressing opposition, in violation of the Constitution – such as ordering actions to initiate hostilities and suspending habeas corpus and having Americans put to death for exercising freedom of speech. Congress, after the fact, sought to affirm those violations on July 11, 1861 with a Joint Resolution in which it declared Lincoln’s “extraordinary acts, proclamations, and orders” to be “legal and valid” and “necessary for the preservation of the government.” The preservation of government was what was at stake with the signing of the Constitution. Restraining government on the States and the People was. The government cannot violate the Constitution in order to claim to uphold it. The government itself cannot use the Constitution to seek its own immortality.
(l) that there are numerous other examples of government constitutional over-reach.
(6). That if North Carolina accepts or continues to accept these violations and inappropriate interpretations, and continues to allow all three branches of the federal government to exercise unbridled authority, it would be surrendering its own form of government.
(7). That the people of this state will not submit to undelegated and consequently unlimited powers.
(8). That every state has a right to nullify all assumptions of power by others within their limits, and that without this right, states would be under the dominion and power of anyone who might try to exercise that power.
(9). That the rights and liberties of North Carolina, and its fellow states, must be protected from any dangers by declaring that Congress is limited by the federal Constitution and Bill of Rights.
(10). That any act by the Congress of the United States, Executive Order of the President of the United States, or decision/judicial order by a federal court that assumes a power not delegated by the federal Constitution diminishes the liberty of this State and its citizens and violates the federal contract established by the signing of the Constitution. The State of North Carolina, on behalf of its own sovereignty and the sovereignty of it People, declares that certain reserved state powers will be guarded jealously and aggressively. Acts by the federal government that would be seen as violations of the limited nature of the US Constitution, would be subject to nullification and interposition by the State, and would result in a legitimate breach of the federal compact which ties North Carolina politically to the federal government include, but are not limited to:
(a) establishing martial law or a state of emergency within a state without the consent of the legislature of that state;
(b) requiring involuntary servitude or governmental service other than a draft during a declared war or pursuant to or as an alternative to incarceration after due process of law;
(c) requiring involuntary servitude or governmental service of persons under the age of 18 other than pursuant to or as an alternative to incarceration after due process of law;
(d) surrendering any power delegated or not delegated to any corporation or foreign government;
(e) any act regarding religion, further limitations on freedom of political speech, or further limitations on freedom of the press; or
(f) any act regarding the right to keep and bear arms or further limitations on the right to bear arms, including any restrictions on the type or number of firearms or the amount or type of ammunition any law-abiding citizen may purchase, own, or possess.
(11). That if any act of Congress becomes law or if an Executive Order or judicial decision/judicial order is put into force related to the reservations expressed in this resolution, North Carolina’s political bond to the federal government under the federal compact (the signing of the Constitution) would be considered breached and all powers previously delegated to the United States by the federal Constitution would revert to the State and the people, respectively.
(12). That any future government of the United States shall require ratification of three-fourths of the States seeking to form a government and shall not be binding upon any state not seeking to form a government.
(13). That the Secretary of State send a copy of this law to the President of the United States and to each member of the United States Congress in order that they be put on notice of North Carolina’s position with respect to the Constitution, the government, and the respective rights and responsibilities of each sovereign.
[This proposed State Sovereignty Bill is of course, a bit long-winded…..]
As we celebrate 221 years with the Bill of Rights to protect our fundamental rights from government oppression, we have reason to 221st anniversary of the Bill of Rights, for there can be no better proof of the wisdom of the Framers than the endurance of the Constitution. We appreciate their brilliance as we witness the oppressive and tyrannical consequences of a government that continually and increasingly abuses the constitutional limits and guarantees that they provided for us.
As we enter into 2013 (our 222nd year with the Bill of Rights), let us realize what the government will force us to do by the end of the year – enroll in a healthcare insurance program or be punished for it. The government is already forcing millions of Americans to submit to repeated, egregious, and humiliating violations of their fourth amendment rights every time they fly on an airplane or visit a federal facility, forcing religious institutions to violate its own religious tenets, detaining Americans for promoting opposition to government policies, shoring up the indefinite detention provisions for American citizens in the National Defense Authorization Act (NDAA), and looking for ways to limit our second amendment rights. These policies of the federal government are no less serious than the policies of King George against the colonies.
In August 2012, a 26-year-old former marine and citizen of the state of Virginia, Brandon Raub, wrote the following posts on facebook: “The idea that men can govern themselves is the basis for every just form of government.” “The bill of rights is being systematically dismantled.” “You elected an aristocracy. They are beholden to special interests. They were brainwashed through the Council on Foreign Relations. Your leaders are planning to merge the United States into a one world banking system. They want to put computer chips in you. These men have evil hearts. They have tricked you into supporting corporate fascism. We gave them the keys to our country. We were not vigilant with our republic…. But there is hope. BUT WE MUST TAKE OUR REPUBLIC BACK.” For those words, the government showed up at his home, arrested him, committed him involuntarily to a mental hospital, and planned to detain him indefinitely. The government made the decision to take his rights away. (Luckily, his mother and a sharp lawyer were able to fight the unlawful arrest). This happened in Virginia, the state that gave us Thomas Jefferson, James Madison, George Washington, Patrick Henry, the Virginia Declaration of Rights, and the Virginia Resolutions of 1798. This is the state that gave us such fiery speeches as “Give Me Liberty or Give Me Death!” This famous speech in 1775 motivated the Virginia Provincial Convention to bear arms against England and then to vote for independence from England. This was a state that would not ratify the Constitution until Madison gave the delegates assurances that he would draft a Bill of Rights and the First US Congress would propose them and then send them to the states.
Fortunately, the world didn’t end on December 21st. And so, on this 221st anniversary, let us reflect on what we, as citizens, can do to keep the spirit of the Bill of Rights alive. As I discussed earlier, one option is to demand that our state legislatures re-assert the sovereignty that our Founders acknowledged in the Ninth and Tenth Amendments. If power is not carefully shared among the states and the federal government and if the states are not willing to stand up to the federal government, then this most powerful of checks and balances is useless and individual liberty is destined to suffer. We already see it happening before our eyes.
When the federal government takes on functions not permitted to it by the Constitution, in violation of the Tenth Amendment, it is only a matter of time before it will usurp the unenumerated rights of the people, in violation of the Ninth Amendment. When the government can misappropriate the unenumerated rights of the people, it is only a matter of time before it will trample upon their enumerated rights – those most fundamental rights which are explicitly spelled out in the rest of the Bill of Rights.
The Bill of Rights still stands for liberty, even though our government won’t.
A few weeks ago, on December 15, Karen Kwiatkowski gave a speech and said: “I believe the Bill of Rights is the natural companion to the Declaration of Independence. May both of these documents inspire us all to seize the day, and live free. May the Bill of Rights guide us in our lives and work, focus our prayers, broaden our dreams, and lead us to end the tyranny, and restore our badly damaged Republic.”
Let’s hope the government doesn’t arrest and detain her for speaking those words. And let’s hope that the Bill of Rights, the companion to the Declaration of Independence, continues to inspire us to want to live free.
1791: US Bill of Rights. [With information from James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.); Indianapolis: Liberty Fund, 2000. http://oll.libertyfund.org/index.php?Itemid=264&id=574&option=com_content&task=view
Edward Drake, “The Men Who Didn’t Sign the Constitution.” http://books.google.com/books?id=k9BPrepFvZ4C&pg=PA1101&lpg=PA1101&dq=Who+didn’t+sign+the+Constitution+in+1787?&source=bl&ots=vcQKEJZ_DU&sig=HW_gI_YRM5PRvasqb9ZFKWuXEGc&hl=en&sa=X&ei=liHQUNCILY-08ASk0YG4Cw&ved=0CG0Q6AEwCQ#v=onepage&q=Who%20didn’t%20sign%20the%20Constitution%20in%201787%3F&f=false
Stewart Rhodes, “Oath Keepers Bill of Rights Day Message: Prepare to Fight for Bill of Rights,” December 15, 2012. Referenced at: http://oathkeepers.org/oath/2012/12/15/11145/
Montana House Joint Resolution No. 26 Affirming States Rights –http://data.opi.mt.gov/bills/2009/billhtml/HJ0026.htm
The Bill of Rights and annotations – http://www.law.cornell.edu/constitution/billofrights
Patrick Henry’s Opening Remarks at the Virginia Ratification Convention, June 4, 1788 – http://www.academicamerican.com/revolution/documents/HenryConst.htm
James Madison’s Speech to Congress, June 8, 1789, in which he proposed 20 amendments to the new Constitution – http://www.revolutionary-war-and-beyond.com/james-madison-speech-june-8-1789.html
The revision history of Madison’s proposed Bill of Rights (amendments):
(a) The amendments as James Madison proposed them on June 8, 1789: http://www.constitution.org/bor/amd_jmad.txt
(b) The proposed amendments consolidated by the House down to 17 in number and then passed on August 24, 1798: http://memory.loc.gov/cgi-bin/query/r?ammem/rbpe:@field(DOCID+@lit(rbpe21200200))
(c) The Senate product: On September 21, 1789, a House/Senate conference was called, and the differences between the versions of the two houses were worked out. Madison was one of the House managers in the committee. Several points were agreed upon, and the House was informed of the Senate’s acceptance of the compromise bill on September 25, 1789, the official date of submission of the Bill of Rights to the states. http://www.usconstitution.net/first12.html
Ratification of the Constitution by North Carolina, November 21, 1788 – http://www.constitution.org/rc/rat_decl-nc.htm
Federalist Papers No. 45 – http://www.constitution.org/fed/federa45.htm
Federalist Papers No. 58 – http://www.constitution.org/fed/federa58.htm
Ratification of the Constitution by North Carolina, November 21, 1788 – http://www.constitution.org/rc/rat_decl-nc.htm
Jack Balkin, “The Right Strikes Back: A New Legal Challenge for Obamacare,” The Atlantic, September 17, 2012. Referenced at: http://www.theatlantic.com/national/archive/2012/09/the-right-strikes-back-a-new-legal-challenge-for-obamacare/262443/
Allah Pundit, “Say, Doesn’t the Constitution Require Tax Bills to Originate in the House?”, Hot Air, June 28, 2012. Referenced at: http://hotair.com/archives/2012/06/28/say-doesnt-the-constitution-require-tax-bills-to-originate-in-the-house/
Joint Resolution – “To Approve and Affirm Certain Acts of the President of the United States for Suppressing Rebellion and Insurrection” – http://www.archive.org/stream/speechofhonlwpow00powe#page/n5/mode/2up%5D
Jane Kwiatkowski, “Bill of Rights, RIP?” Lew Rockwell, December 15, 2012. Referenced at: http://www.lewrockwell.com/kwiatkowski/kwiatkowski291.html
June 16, 1788 (Virginia Ratification Convention): Patrick Henry Demands and Gets a Bill of Rights,” Free Republic, October 17, 2003. Referenced at: http://www.freerepublic.com/focus/f-news/1003306/posts
“The 14th Amendment: Equal Protection of the Laws or Tool of Usurpation?,” US Congressional Record – House, June 13, 1967; page 15641.
W. Kirk Wood, A Constitutional History: 1776-1833, University Press of America, Maryland (2009).
(A) THE BILL OF RIGHTS (with explanation)
The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
We hear a good deal nowadays about “a wall of separation” between church and state in America. To some people’s surprise, this phrase cannot be found in either the Constitution or the Declaration of Independence. Actually, the phrase occurs in a letter from Thomas Jefferson, as a candidate for office, to an assembly of Baptists in Connecticut.
The first clause of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This clause is followed by guarantees of freedom of speech, of publication, of assembly, and of petitioning. These various aspects of liberty were lumped together in the First Amendment for the sake of convenience; Congress had originally intended to assign “establishment of religion” to a separate amendment because the relationships between state and church are considerably different from the civil liberties of speech, publication, assembly, and petitioning.
The purpose of the “Establishment Clause” was two-fold: (1) to prohibit Congress from imposing a national religion upon the people; and (2) to prohibit Congress (and the Federal government generally) from interfering with existing church-state relations in the several States. Thus the “Establishment Clause” is linked directly to the “Free Exercise Clause.” It was designed to promote religious freedom by forbidding Congress to prefer one religious sect over other religious sects. It was also intended, however, to assure each State that its reserved powers included the power to decide for itself, under its own constitution or bill of rights, what kind of relationship it wanted with religious denominations in the State. Hence the importance of the word “respecting”: Congress shall make no law “respecting,” that is, touching or dealing with, the subject of religious establishment.
In effect, this “Establishment Clause” was a compromise between two eminent members of the first Congress—James Madison and Fisher Ames. Representative Ames, from Massachusetts, was a Federalist. In his own State, and also in Connecticut, there still was an established church—the Congregational Church. By 1787–1791, an “established church” was one which was formally recognized by a State government as the publicly preferred form of religion. Such a church was entitled to certain taxes, called tithes, that were collected from the public by the State. Earlier, several other of Britain’s colonies had recognized established churches, but those other establishments had vanished during the Revolution.
Now, if Congress had established a national church—and many countries, in the eighteenth century, had official national churches—probably it would have chosen to establish the Episcopal Church, related to the Church of England. For Episcopalians constituted the most numerous and influential Christian denomination in the United States. Had the Episcopal Church been so established nationally, the Congregational Church would have been disestablished in Massachusetts and Connecticut. Therefore, Fisher Ames and his Massachusetts constituents in 1789 were eager for a constitutional amendment that would not permit Congress to establish any national church or disestablish any State church.
The motive of James Madison for advocating the Establishment Clause of the First Amendment was somewhat different. Madison believed that for the Federal government to establish one church—the Episcopal Church, say—would vex the numerous Congregationalist, Presbyterian, Baptist, Methodist, Quaker, and other religious denominations. After all, it seemed hard enough to hold the United States together in those first months of the Constitution without stirring up religious controversies. So Madison, who was generally in favor of religious toleration, strongly advocated an Establishment Clause on the ground that it would avert disunity in the Republic.
In short, the Establishment Clause of the First Amendment was not intended as a declaration of governmental hostility toward religion, or even of governmental neutrality in the debate between believers and non-believers. It was simply a device for keeping religious passions out of American politics. The phrase “or prohibiting the free exercise thereof” was meant to keep the Congress from ever meddling in the disputes among religious bodies or interfering with the mode of worship.
During the nineteenth century, at least, State governments would have been free to establish State churches, had they desired to do so. The Establishment Clause restrained only Congress—not State legislatures. But the States were no more interested in establishing a particular church than was Congress, and the two New England States where Congregationalism was established eventually gave up their establishments—Connecticut in 1818, Massachusetts in 1833.
The remainder of the First Amendment is a guarantee of reasonable freedom of speech, publication, assembly, and petition. A key word in this declaration that the Congress must not abridge these freedoms is the article “the”—abridging the freedom of speech and press. For what the Congress had in mind, in 1789, was the civil freedom to which Americans already were accustomed, and which they had inherited from Britain. In effect, the clause means “that freedom of speech and press which prevails today.” In 1789, this meant that Congress was prohibited from engaging in the practice of “prior censorship”—prohibiting a speech or publication without advance approval of an executive official. The courts today give a much broader interpretation to the clause. This does not mean, however, that the First Amendment guarantees any absolute or perfect freedom to shout whatever one wishes, print whatever one likes, assemble in a crowd wherever or whenever it suits a crowd’s fancy, or present a petition to Congress or some other public body in a context of violence. Civil liberty as understood in the Constitution is ordered liberty, not license to indulge every impulse and certainly not license to overthrow the Constitution itself.
As one of the more famous of Supreme Court Justices, Oliver Wendell Holmes, put this matter, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Similarly, statutes that prohibit the publication of obscenities, libels, and calls to violence are generally held by the courts to conform to the First Amendment. For example, public assemblies can be forbidden or dispersed by local authorities when crowds threaten to turn into violent mobs. And even public petitions to the legislative or the executive branch of government must be presented in accordance with certain rules, or else they may be lawfully rejected.
The Constitution recognizes no “absolute” rights. A Justice of the Supreme Court observed years ago that “The Bill of Rights is not a suicide pact.” Instead, the First Amendment is a reaffirmation of certain long-observed civil freedoms, and it is not a guarantee that citizens will go unpunished however outrageous their words, publications, street conduct, or mode of addressing public officials. The original, and in many ways the most important, purpose of freedom of speech and press is that it affords citizens an opportunity to criticize government—favorably and unfavorably—and to hold public officials accountable for their actions. It thus serves to keep the public informed and encourages the free exchange of ideas.
The Second Amendment: The Right to Bear Arms —
This amendment consists of a single sentence: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”
Although today we tend to think of the “militia” as the armed forces or national guard, the original meaning of the word was “the armed citizenry.” One of the purposes of the Second Amendment was to prevent Congress from disarming the State militias. The phrasing of the Amendment was directly influenced by the American Revolutionary experience. During the initial phases of that conflict, Americans relied on the militia to confront the British regular army. The right of each State to maintain its own militia was thought by the founding generation to be a critical safeguard against “standing armies” and tyrants, both foreign and domestic.
The Second Amendment also affirms an individual’s right to keep and bear arms. Since the Amendment limits only Congress, the States are free to regulate the possession and carrying of weapons in accordance with their own constitutions and bills of rights. “The right of the citizens to keep and bear arms,” observed Justice Joseph Story of the Supreme Court in his Commentaries on the Constitution (1833), “has justly been considered as the palladium of the liberties of the republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” Thus a disarmed population cannot easily resist or overthrow tyrannical government. The right is not absolute, of course, and the Federal courts have upheld Federal laws that limit the sale, possession, and transportation of certain kinds of weapons, such as machine guns and sawed-off shotguns. To what extent Congress can restrict the right is a matter of considerable uncertainty because the Federal courts have not attempted to define its limits.
The Third Amendment: Quartering Troops —
Forbidding Congress to station soldiers in private houses without the householders’ permission in time of peace, or without proper authorization in time of war, was bound up with memories of British soldiers who were quartered in American houses during the War of Independence. It is an indication of a desire, in 1789, to protect civilians from military bullying. This is the least-invoked provision of the Bill of Rights, and the Supreme Court has never had occasion to interpret or apply it.
The Fourth Amendment: Search and Seizure —
This is a requirement for search warrants when the public authority decides to search individuals or their houses, or to seize their property in connection with some legal action or investigation. In general, any search without a warrant is unreasonable. Under certain conditions, however, no warrant is necessary—as when the search is incidental to a lawful arrest.
Before engaging in a search, the police must appear before a magistrate and, under oath, prove that they have good cause to believe that a search should be made. The warrant must specify the place to be searched and the property to be seized. This requirement is an American version of the old English principle that “Every man’s house is his castle.” In recent decades, courts have extended the protections of this amendment to require warrants for the search and seizure of intangible property, such as conversations recorded through electronic eavesdropping.
The Fifth Amendment: Rights of Persons —
Here we have a complex of old rights at law that were intended to protect people from arbitrary treatment by the possessors of power, especially in actions at law. The common law assumes that a person is innocent until he is proven guilty. This amendment reasserts the ancient requirement that if a person is to be tried for a major crime, he must first be indicted by a grand jury. In addition, no person may be tried twice for the same offense. Also, an individual cannot be compelled in criminal cases to testify against himself, “nor be deprived of life, liberty, or property, without due process of law”; and the public authorities may not take private property without just compensation to the owner.
The immunity against being compelled to be a witness against one’s self is often invoked in ordinary criminal trials and in trials for subversion or espionage. This right, like others in the Bill of Rights, is not absolute. A person who “takes the Fifth”—that is, refuses to answer questions in a court because his answers might incriminate him—thereby raises “a legitimate presumption” in the court that he has done something for which he might be punished by the law. If offered immunity from prosecution in return for giving testimony, either he must comply or else expect to be jailed, and kept in jail, for contempt of court. And, under certain circumstances, a judge or investigatory body such as a committee of Congress may refuse to accept a witness’s contention that he would place himself in danger of criminal prosecution were he to answer any questions.
The Fifth Amendment’s due process requirement was originally a procedural right that referred to methods of law enforcement. If a person was to be deprived of his life, liberty or property, such a deprivation had to conform to the common law standards of “due process.” The Amendment required a procedure, as Daniel Webster once put it, that “hears before it condemns, proceeds upon inquiries, and renders judgment only after a trial” in which the basic principles of justice have been observed.
The prohibition against taking private property for public use without just compensation is a restriction on the Federal government’s power of eminent domain. Federal courts have adopted a rule of interpretation that the “taking” must be “direct” and that private property owners are not entitled to compensation for indirect loss incidental to the exercise of governmental powers. Thus the courts have frequently held that rent-control measures, limiting the amount of rent which may be charged, are not a “taking,” even though such measures may decrease the value of the property or deprive the owners of rental income. As a general rule, Federal courts have not since 1937 extended the same degree of protection to property rights as they have to other civil rights.
The Sixth Amendment: Rights of the Accused —
Here again the Bill of Rights reaffirms venerable protections for persons accused of crimes. The Amendment guarantees jury trial in criminal cases; the right of the accused “to be informed of the nature and cause of the accusation”; also the rights to confront witnesses, to obtain witnesses through the arm of the law, and to have lawyers’ help.
These are customs and privileges at law derived from long usage in Britain and America. The recent enlargement of these rights by Federal courts has caused much controversy. The right of assistance of counsel, for example, has been extended backward from the time of trial to the time the defendant is first questioned as a suspect, and forward to the appeals stage of the process. Under the so-called “Miranda” rule, police must read to a suspect his “Miranda” rights before interrogation. Only if a suspect waives his rights may any statement or confession obtained be used against him in a trial. Otherwise the suspect is said to have been denied “assistance of counsel.”
The Sixth Amendment also specifies that criminal trials must be “speedy.” Because of the great backload of cases in our courts, this requirement is sometimes loosely applied today. Yet, as one jurist has put the matter, “Justice delayed is justice denied.”
The Seventh Amendment: Trial by Jury in Civil Cases —
This guarantee of jury trial in civil suits at common law “where the value in controversy shall exceed twenty dollars” (a much bigger sum of money in 1789 than now) was included in the Bill of Rights chiefly because several of the States’ ratifying conventions had recommended it. It applies only to Federal cases, of course, and it may be waived. The primary purpose of the Amendment was to preserve the historic line separating the jury, which decides the facts, from the judge, who applies the law. It applies only to suits at common law, meaning “rights and remedies peculiarly legal in their nature.” It does not apply to cases in equity or admiralty law, where juries are not used. In recent years, increasingly large monetary awards to plaintiffs by juries in civil cases have brought the jury system somewhat into disrepute.
The Eighth Amendment: Bail and Cruel and Unusual Punishments —
How much bail, fixed by a court as a requirement to assure that a defendant will appear in court at the assigned time, is “excessive”? What punishments are “cruel and unusual”? The monetary sums for bail have changed greatly over two centuries, and criminal punishments have grown less severe. Courts have applied the terms of this amendment differently over the years.
Courts are not required to release an accused person merely because he can supply bail bonds. The court may keep him imprisoned, for example, if the court fears that the accused person would become a danger to the community if released, or would flee the jurisdiction of the court. In such matters, much depends on the nature of the offense, the reputation of the alleged offender, and his ability to pay. Bail of a larger amount than is usually set for a particular crime must be justified by evidence.
As for cruel and unusual punishments, public whipping was not regarded as cruel and unusual in 1789, but it is probably so regarded today. In recent years, the Supreme Court has found that capital punishment is not forbidden by the Eighth Amendment, although the enforcement of capital punishment must be carried out so as not to permit jury discretion or to discriminate against any class of persons. Punishment may be declared cruel and unusual if it is out of all proportion to the offense.
The Ninth Amendment: Rights Retained by the People —
Are all the rights to be enjoyed by citizens of the United States enumerated in the first eight amendments and in the Articles of the original Constitution? If so, might not the Federal government, at some future time, ignore a multitude of customs, privileges, and old usages cherished by American men and women, on the ground that these venerable ways were not rights at all? Does a civil right have to be written expressly into the Constitution in order to exist? The Seven Articles and the first eight amendments say nothing, for example, about a right to inherit property, or a right of marriage. Are, then, rights to inheritance and marriage wholly dependent on the will of Congress or the President at any one time?
The Federalists had made such objections to the very idea of a Bill of Rights being added to the Constitution. Indeed, it seemed quite possible to the first Congress under the Constitution that, by singling out and enumerating certain civil liberties, the Seven Articles and the Bill of Rights might seem to disparage or deny certain other prescriptive rights that are important but had not been written into the document.
The Ninth Amendment was designed to quiet the fears of the Anti-Federalists who contended that, under the new Constitution, the Federal government would have the power to trample on the liberties of the people because it would have jurisdiction over any right that was not explicitly protected against Federal abridgment and reserved to the States. They argued in particular that there was an implied exclusion of trial by jury in civil cases because the Constitution made reference to it only in criminal cases.
Written to serve as a general principle of construction, the Ninth Amendment declares that “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” The reasoning behind the amendment springs from Hamilton’s 83rd and 84th essays in The Federalist. Madison introduced it simply to prevent a perverse application of the ancient legal maxim that a denial of power over a specified right does not imply an affirmative grant of power over an unnamed right.
This amendment is much misunderstood today, and it is sometimes thought to be a source of new rights, such as the “right of privacy,” over which Federal courts may establish jurisdiction. It should be kept in mind, however, that the original purpose of this amendment was to limit the powers of the Federal government, not to expand them.
The Tenth Amendment: Rights Retained by the States —
This last amendment in the Bill of Rights was probably the one most eagerly desired by the various State conventions and State legislatures that had demanded the addition of a bill of rights to the Constitution. Throughout the country, the basic uneasiness with the new Constitution was the dread that the Federal government would gradually enlarge its powers and suppress the States’ governments. The Tenth Amendment was designed to lay such fears to rest.
This amendment was simply a declaration that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Federalists maintained that the Framers at Philadelphia had meant from the first that all powers not specifically assigned to the Federal government were reserved to the States or the people of the States.
The amendment declares that powers are reserved “to the States respectively, or to the people,” meaning they are to be left in their original state.
It should be noted that the Tenth Amendment does not say that powers not expressly delegated to the United States are reserved to the States. The authors of the Bill of Rights considered and specifically rejected such a statement. They believed that an amendment limiting the national government to its expressed powers would have seriously weakened it.
During much of our history, the Tenth Amendment was interpreted as a limitation of the delegated powers of Congress. Since 1937, however, the Supreme Court has largely rejected this view, and the Amendment no longer has the same operative meaning or effect that it once had. [My Note: But the question is this: What right does the Supreme Court, a branch of the federal government, to decide the scope of that government’s powers? The explanation given in the Federalist Papers of Article III’s judicial branch powers is that the Supreme Court had the power to advise and to offer an opinion as to constitutionality.
Rights Versus Duties —
Some Americans seem to fancy that the whole Constitution is a catalog of people’s rights. But actually the major part of the Constitution—the Seven Articles—establishes a framework of national government and only incidentally deals with individuals’ rights.
In any society, duties are often even more important than rights. For example, the duty of obeying good laws is more essential than the right to be exempted from the ordinary operation of the laws. As has been said, every right is married to some duty. Freedom involves individual responsibility.
With that statement in mind, let us look at some of the provisions of the Bill of Rights to see how those rights are joined to certain duties.
If one has a right to freedom of speech, one has a duty to speak decently and honestly, not inciting people to riot or to commit crimes.
If one has a right to freedom of the press (or, in our time, freedom of the “media”), one has the duty to publish the truth, temperately—not abusing this freedom for personal advantage or vengeance.
If one has a right to join other people in a public assembly, one has the duty to tolerate other people’s similar gatherings and not to take the opportunity of converting a crowd into a mob.
If one enjoys an immunity from arbitrary search and seizure, one has the duty of not abusing these rights by unlawfully concealing things forbidden by law.
If one has a right not to be a witness against oneself in a criminal case, one has the duty not to pretend that he would be incriminated if he should testify: that is, to be an honest and candid witness, not taking advantage of the self-incrimination exemption unless otherwise one would really be in danger of successful prosecution.
If one has a right to trial by jury, one ought to be willing to serve on juries when so summoned by a court.
If one is entitled to rights, one has the duty to support the public authority that protects those rights.
For, unless a strong and just government exists, it is vain to talk about one’s rights. Without liberty, order, and justice, sustained by good government, there is no place to which anyone can turn for enforcement of his claims to rights. This is because a “right,” in law, is a claim upon somebody for something. If a man has a right to be paid for a day’s work, for example, he asserts a claim upon his employer; but, if that employer refuses to pay him, the man must turn to a court of law for enforcement of his right. If no court of law exists, the “right” to payment becomes little better than an empty word. The unpaid man might try to take his pay by force, true; but when force rules instead of law, a society falls into anarchy and the world is dominated by the violent and the criminal.
Knowing these hard truths about duties, rights, and social order, the Framers endeavored to give us a Constitution that is more than mere words and slogans.
(B) RATIFICATION OF THE CONSTITUION by the STATE of NORTH CAROLINA
November 21, 1789.
In Convention, August 1, 1788.
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 defence 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 favoured or established by law in preference to others.
AMENDMENTS TO THE CONSTITUTION
I. 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.
II. That there shall be one representative for every 30.000, according to the enumeration or census, mentioned in the constitution, until the whole number of representatives amounts to two hundred; after which, that number shall be continued or increased, as Congress shall direct, upon the principles fixed in the constitution, by apportioning the representatives of each state to some greater number of people from time to time, as population encreases.
III. When Congress shall lay direct taxes or excises, they shall immediately inform the executive power of each state, of the quota of such State, according to the census herein directed, which is proposed to be thereby raised: And if the legislature of any state shall pass a law, which shall be effectual for raising such quota at the time required by Congress, the taxes and excises laid by Congress shall not be collected in such state.
IV. That the members of the senate and house of representatives shall be ineligible to, and incapable of holding any civil office under the authority of the United States, during the time for which they shall, respectively, be elected.
V. That the journals of the proceedings of the senate and house of representatives shall be published at least once in every year, except such parts thereof relating to treaties, alliances, or military operations, as in their judgment require secrecy.
VI. That a regular statement and account of the receipts and expenditures of the public money shall be published at least once in every year.
VII. That no commercial treaty shall be ratified without the concurrence of two-thirds of the whole number of the members of the Senate: And no treaty, ceding, contracting, or restraining or suspending the territorial rights or claims of the United States, or any of them or their, or any of their rights or claims to fishing in the American seas, or navigating the American rivers shall be made, but in cases of the most urgent and extreme necessity; nor shall any such treaty be ratified without the concurrence of three-fourths of the whole number of the members of both houses respectively.
VIII. That no navigation law, or law regulating commerce shall be passed without the consent of two-thirds of the members present in both houses.
IX. That no standing army or regular troops shall be raised or kept up in time of peace, without the consent of two thirds of the members present in both houses.
X. That no soldier shall be enlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war.
XI. That each state, respectively, shall have the power to provide for organizing, arming and disciplining its own militia whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service in time of war, invasion or rebellion: And when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments as shall be directed or inflicted by the laws of its own state.
XII. That Congress shall not declare any state to be in rebellion without the consent of at least two-thirds of all the members present of both houses.
XIII. That the exclusive power of Legislation given to Congress over the federal town and its adjacent district, and other places, purchased or to be purchased by Congress, of any of the states, shall extend only to such regulations as respect the police and good government thereof.
XIV. That no person shall be capable of being president of the United States for more than eight years in any term of sixteen years.
XV. That the judicial power of the United States shall be vested in one supreme court, and in such courts of admiralty as Congress may from time to time ordain and establish in any of the different states. The judicial power shall extend to all cases in law and equity, arising under treaties made, or which shall be made under the authority of the United States; to all cases affecting ambassadors, other foreign ministers and consuls; to all cases of admiralty, and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more stares, and between parties claiming lands under the grants of different states. In all cases affecting ambassadors, other foreign ministers and consuls, and those in which a state shall be a party; the supreme court shall have original jurisdiction, in all other cases before mentioned; the supreme court shall have appellate jurisdiction as to matters of law only, except in cases of equity, and of admiralty and maritime jurisdiction, in which the supreme court shall have appellate jurisdiction both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. But the judicial power of the United States shall extend to no case where the cause of action shall have originated before the ratification of this constitution, except in disputes between states about their territory; disputes between persons claiming lands under the grants of different states, and suits for debts due to the united states.
XVI. That in criminal prosecutions, no man shall be restrained in the exercise of the usual and accustomed right of challenging or excepting to the jury.
XVII. That Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections for senators and representatives, or either of them, except when the legislature of any state shall neglect, refuse or be disabled by invasion or rebellion, to prescribe the same.
XVIII. That those clauses which declare that Congress shall not exercise certain powers, be not interpreted in any manner whatsoever to extend the powers of Congress; but that they be construed either as making exceptions to the specified powers where this shall be the case, or otherwise, as inserted merely for greater caution.
XIX. That the laws ascertaining the compensation of senators and representatives for their services be posponed in their operation, until after the election of representatives immediately succeeding the passing thereof, that excepted, which shall first be passed on the subject.
XX. That some tribunal, other than the senate, be provided for trying impeachments of senators.
XXI. That the salary of a judge shall not be increased or diminished during his continuance in once, otherwise than by general regulations of salary which may take place, on a revision of the subject at stated periods of not less than seven years, to commence from the time such salaries shall be first ascertained by Congress.
XXII. That Congress erect no company of merchants with exclusive advantages of commerce.
XXIII. That no treaties which shall be directly opposed to the existing laws of the United States in Congress assembled, shall be valid until such laws shall be repealed, or made conformable to such Meaty; nor shall any Meaty be valid which is contradictory to the constitution of the United States.
XXIV. That the latter part of the fifth paragraph of the 9th section of the first article be altered to read thus,-Nor shall vessels bound to a particular state be obliged to enter or pay duties in any other; nor when bound from any one of the States be obliged to clear in another.
XXV. That Congress shall not directly or indirectly, either by themselves or thro’ the judiciary, interfere with any one of the states in the redemption of paper money already emitted and now in circulation, or in liquidating and discharging the public securities of any one of the states: But each and every state shall have the exclusive right of making such laws and regulations for the above purposes as they shall think proper.
XXVI. That Congress shall not introduce foreign troops into the United States without the consent of two-thirds of the members present of both houses.
SAM JOHNSTON, President
Reference: Ratification of the Constitution by North Carolina, November 21, 1788 – http://www.constitution.org/rc/rat_decl-nc.htm
I love your description of the Federalist and Anti-Federalist arguments in the “Bill of Rights”! What it shows us is that: 1) North Carolina should secede from the Union as model for the other 49 states, and 2) do not use the current, 1788, US Constitution as a model for North Carolina. Our current Constitution is a failure, the major reason we rank dead last in “societal satisfaction” among our eight European peers.
Perhaps we ought to reconsider the consequences of what happened during the American Revolutionary War and soon after. At the end of the War, the New Hampshire Assembly declared an “official” inflation rate of 7,500%. Trades people in Pennsylvania insisted on a 8,000% inflation rate. It was the War, not the Articles of Confederation, that made a mess of the US Economy.
John Adams suggest that one-third of the colonist were loyalist. The colonial governments confiscated their property and then sold this property to pay colonial operating expenses. To secure a treaty of peace with Great Briton, John Jay agreed to pay pay back the loyalist (Article 5, Treaty of Paris, 1783). Then, in 1796, John Jay, as Chief Justice of the Supreme Court, said that we did not have to repay the loyalist (Ware v. Hylton (3 Dallas 199). In 1814 the British burned Washington, DC.
Alexander Hamilton would have made a good lecturer at Harvard University. But he left a little to be desired as a political thinker. In Federalist Papers Numbers 16, 49 and 70 he cited political concepts from 2,000 years before his time to support his modern philosophy. But Hamilton ignored Bodin, The Six Bookes of a Commonweale, 1606; Hobbes, Leviathan, 1651; Locke, Second Treatise of Government, 1690; and Hume, A Treatise of Human Nature: Being an Attempt to introduce the experimental Method of Reasoning into Moral Subjects, 1739. These ideas were available to Hamilton but he ignored them because they did not support his quest for power.
Thomas Jefferson said, “Every constitution, …naturally expires at the end of thirty-four years.” (Thomas Jefferson in a letter to James Madison. Paris, September 6, 1789. From the Papers of Thomas Jefferson. Volume 3. Page 106.) So we are behind six new constitutions. Switzerland, which figured in both the Federalist and Anti-Federalist arguments, believed in Jefferson – they write a new constitution every thirty-five years or so.
As a last point, lets consider the question of small versus large when it comes to nation building. The 20th Century Czech political philosopher, Ernest Gellner expounded on the benefits of a “small” nation. For a quick overview, I suggest, Campbell & Hall, “Defending the Gellnerian premise: Denmark in historical and comparative context.” Nations and Nationalism 16 (1), 2010, 89–107. (Available at: http://www.dartmouth.edu/~socy/pdfs/DefGelnerianPremise.pdf.)
Thanks again for your fine work!