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

Last of the original set of amendments to the Constitution which have come to be known as the “Bill of Rights” is the Tenth Amendment, which reads: “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.” Significantly, at page 123 of the Federalist Papers: "The State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.” Clearly, the Tenth Amendment was added to prevent the very threat to our liberty that is now occurring: a national authority dictating every aspect of our life . . .

Although there are many aspects to the usurping by the federal government of power denied to it by the Tenth Amendment, the most grotesque example can be found in the exercise of “police” power which was granted to the federal government in only the most limited matters by the Constitution. As observed in Hamilton v. Kentucky Distilleries & Warehouse Company, 251 U.S. 146 (1919): “That the United States lacks the police power, and that this was reserved to the states by the Tenth Amendment, is true.”

The federal government is given the express power to “punish” only three times in the United States Constitution. First and Second, at Article I, §8, “The Congress shall have power . . .To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations” and “To provide for the punishment of counterfeiting the securities and current coin of the United States”. Likewise, at Article III, §3, “The Congress shall have power to declare the punishment of treason . . .”.

Notably, in Keller v. United States, 213 U.S. 138 (1909) the Court found unconstitutional a Congressional attempt to control prostitution: “While the keeping of a house of ill fame is offensive to the moral sense, yet that fact must not close the eye to the question whether the power to punish therefor is delegated to Congress or is reserved to the state. Jurisdiction over such an offense comes within the accepted definition of the police power. Speaking generally, that power is reserved to the states, for there is in the Constitution no grant thereof to Congress.”

Yet, the following year the Mann Act – now found at 18 U.S.C. § 2421–2424 – was enacted and prohibited the interstate transport of females for “immoral purposes.”. Nonetheless, the Mann Act has become a favorite tool of the federal government to prosecute those it wishes – i.e. the D.C. Madam – and to not prosecute those just as guilty – i.e., Eliot Spitzer.

In the final analysis, the federal government was never granted the power to regulate the “morals” of its citizens. But try to find a judge to rein in the legislative or executive branches in this regard. Good luck.

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

The Ninth Amendment to the Constitution reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Juxtaposed against the previous eight amendments, the Ninth Amendment is a basic statement of the inherent natural rights of the individual and a recognition of individualism which is no where else stated in the Constitution and is the cardinal virtue of democracy . . .

Not surprisingly, the federal government – though its Article III judicial branch – has been loath to recognize and construe these inherent rights for to do so would necessarily prohibit the federal government from infringing upon them. Indeed, when cited, the Ninth Amendment has been construed to be a limitation on the federal government’s power – like the first eight amendment – rather than an articulation of the residual inherent rights of the individual not collectively ceded to the federal government for the stated purposes of the Constitution – “We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Simply put, the Ninth Amendment is a covenant between the People and the federal government that these unenumerated personal rights were to be recognized and protected by the federal government. Regrettably, as the history of litigation under the Ninth Amendment makes clear, this has not been the case.

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

As Chief Justice Marshall wrote in Marbury v. Madison, in regards to the grant of limited power from the people to the federal government in the federal Constitution: “ 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?” Thus it was that three short years after the adoption of that Constitution, concerns about the abuse of those limited powers led to the adoption of the first ten amendments to the Constitution . . .

As noted in Wikipedia, the first eight amendments are acts of limitation on federal government power by prohibiting the federal government:

. . .from making any law respecting an establishment of religion or prohibiting the free exercise therof, forbids infringement of "...the right of the people to keep and bear Arms...", and prohibits the federal government from depriving any person of life, liberty, or property, without due process of law. In federal criminal cases, it requires indictment by grand jury for any capital or "infamous crime", guarantees a speedy public trial with an impartial jury composed of members of the state or judicial district in which the crime occurred, and prohibits double jeopardy.

As Justice Marshall would later write in Barron v. Baltimore, 8 L.Ed. 672 (1833): “These [eight] 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.”

Against these eight clear limitations on federal government power which have now been mis-named the “Bill of Rights” thus implying that these were all the rights we, as U.S. citizens had, the Ninth and Tenth Amendments to the Constitution were also added. These two very significant and largely ignored amendments for the promise which petrifies the federal government are the subject of my next two posts.

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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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