'To Secure These Rights'
“The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.” –Alexander Hamilton
The Bill of Rights, the first Ten Amendments to our Constitution, as ratified in 1791, was inspired by three remarkable documents: John Locke's 1689 thesis, Two Treatises of Government, regarding the protection of “property” (in the Latin context, proprius, or one's own “life, liberty and estate”); in part from the Virginia Declaration of Rights authored by George Mason in 1776 as part of that state's Constitution; and, of course, in part from our Declaration of Independence authored by Thomas Jefferson.
James Madison proposed the Bill of Rights as amendments to our Constitution in 1789, but many of our Founders objected to listing the Bill of Rights at all, much less as “amendments.” Their rationale was that such rights might then be construed as malleable rather than unalienable, as amendable rather than “endowed by our Creator” as noted in the Constitution's supreme guidance, the Declaration of Independence.
Alexander Hamilton argued this point in The Federalist Papers, the most comprehensive explication of our Constitution: “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. … For why declare that things shall not be done which there is no power to do?” (Federalist No. 84)
George Mason was one of 55 who authored the U.S. Constitution, but one of 16 who refused to sign it because it did not adequately address limitations on what the central government had “no power to do.” He worked with Patrick Henry and Samuel Adams against the Constitution's ratification for that reason.
As a result of Mason's insistence, ten limitations were put on the Federal Government by the first session of Congress, for the reasons outlined by the Bill of Rights Preamble: “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution…”
Read in context, the Bill of Rights is both an affirmation of innate individual rights (as noted by Thomas Jefferson: “The God who gave us life gave us liberty at the same time…”), and a clear delineation on constraints upon the central government.
However, as Jefferson warned repeatedly, the greatest threat to such limitations on the central government was an unbridled judiciary: “Over the Judiciary department, the Constitution [has] deprived [the people] of their control. … The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will. … It is a misnomer to call a government republican in which a branch of the supreme power [the judiciary] is independent of the nation. … The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
In Federalist No. 81 Alexander Hamilton wrote, “[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.”
That admonition notwithstanding, the federal judiciary has become “a despotic branch.”
Indeed, since the middle of the last century, judicial despots have grossly devitalized the Bill of Rights, asserting errantly that our Founders created a “Living Constitution” amendable by judicial diktat.
For example, the Leftjudiciary has “interpreted” the First Amendment as placing all manner of constraint upon the exercise of religion by way of the so-called “establishment clause” and based on the phony “Wall of Separation” argument. At the same time, the courts have asserted that all manner of expression constitutes “speech.”
The judiciary and legislatures have undermined the strength of the Second Amendment, a right of which James Madison's appointee, Justice Joseph Story, referred to as “…the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers…”
Equally derelict is the manner in which the Tenth Amendment has been eroded by judicial interpretation.
In Federalist No. 45, Madison outlines the clear limits on central government power established in the Constitution: “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.”
Alexander Hamilton added in Federalist No. 81 “…the plan of the [Constitutional] convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”
There was a very bloody War Between the States fought over offense to the Constitution's assurance of States' Rights.
All is not lost, however.
This week also heralds the anniversary of the Boston Tea Party (December 16th, 1773) when “radicals” from Boston, members of a secret organization of American Patriots called the Sons of Liberty, boarded three East India Company ships and threw 342 chests of tea into Boston Harbor in protest of tyrannical rule. They did so noting, “Death is more eligible than slavery. A free-born people are not required by the religion of Christ to submit to tyranny, but may make use of such power as God has given them to recover and support their … liberties.”
Three years later, this rebellion had grown to such extent that our Founders were willing to give up their fortunes and lives, attaching their signatures to a document that declared, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
Judicial and political despots, take note.