Tuesday, June 16, 2009

It is not a "Bill of Rights", but a "Bill of Wrongs"

Historically jejune and fed a constant message that the first ten amendments to the United States Constitution are our “Bill of Rights”, the public has lost sight of the fact that the federal government is a limited government and the first ten enacted amendments to the Constitution were not set forth to enshrine our “inalienable rights” but to limit the power of the federal government to usurp those same rights by exercise of power not delegated to it. . . .

It is axiomatic that:
[T]he people . . . organized the [United States] government, and assigned to different departments their respective powers. . . . The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Marbury v. Madison, 5 U.S. 137, 176 (1803). However, at the final signing of the Constitution in 1787, George Mason (from whom I am descended -- and that largely explains me), among others refused to sign his name expressing concern that the document did not guarantee human freedoms which the new federal government was bound to respect by limitation on that new federal government’s powers. In due course, ratification was only achieved upon the promise that the first session of Congress would propose amendments to address Mason’s concerns.

In July 1789, James Madison (pictured above) pushed Congress to honor its pledge and twelve amendments to the Constitution were proposed and known and discussed as the “Articles of Amendment”, not the “Bill of Rights”. The first two amendments -- which related to proportional representation and Congressional compensation -- were never ramified and only proposed amendments three through twelve were ratified and became the first ten amendments to the Constitution. Early on, it was understood that at least the first eight amendments were specific limitations on federal government powers. As Chief Justice Marshall wrote in Barron v. Baltimore, 8 L.Ed. 672 (1833):

But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those unvaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government--not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states.
Notably, Chief Justice Marshall then continues: “The ninth section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the general government, the tenth proceeds to enumerate those which were to operate on the state legislatures.” Significantly, this was the first case in which the term “Bill of Rights” was utilized to describe the first ten amendments to the Constitution by the Supreme Court. Since then, that term has appeared in over 900 reported decisions of the Supreme Court.

Anon, I will further detail the limitations on the power of the federal government contained in the first eight amendments and then return with vigor to the “forgotten” Ninth and Tenth Amendments.


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