Sunday, December 26, 2010

The United States Constitution Post 2: The Bill of Rights

   When the Constitutional Convention closed, the signers of the new Constitution returned to their states and began campaigning for the acceptance of a new, stronger, more centralized government.  The active supporters for the new constitution came to be called Federalists.  Three of them, John Jay, Alexander Hamilton and James Madison, published articles in local newspapers across the thirteen states; the essays carefully arguing for a new federal government were later called the Federalist papers.
   Opposition was very strong.  The Americans had fought through the long revolution, lived through the painful recovering from a destructive war and were building a new economy; they did not want a strong, centralized government because they embraced self-government and hated dictatorial kings and tyrannical parliaments.
   The Federalists had to persuade the Americans that the new government would not diminish the sovereignty of the states and civil liberty would be fully protected.  In each of the state conventions called to ratify or not to ratify the new Constitution, supporters promised a bill of rights added to the new constitution.
   New York was the required 11th state to ratify the Constitution in July of 1788 and national elections were held in January of 1789.  The new congress wrote the ten promised amendments to the Constitution in the same year.
   The original delegates had thought deeply about protecting civil liberties and had written fundamentals into the original body of the Constitution.  They believed in natural rights, those called “unalienable Rights” granted to mankind by the Creator as stated in the Declaration of Independence (as elaborated by John Locke at an earlier time).  The “the rights of Englishmen” are to be found in English law since the Magna Carta had been promulgated in 1215.  This blocking of absolute rule was part of the very fabric of the delegates’ beings.
   The unwritten English constitution, the common law and the forbidding of absolutism in central government had come to these shores with the colonists from the beginning.  The formal establishment of “the rights of Englishmen” in the colonies had occurred with the creation of the Virginia House of Burgesses in 1619, continuing their protection against tyranny.  More than anything else, their self-governance had set them apart from their Spanish and French neighboring colonists.  By the time of the Revolution, the English colonists had outstripped all of their neighbors in population and wealth. Even so, some of the revolutionist generation were not confident that there were sufficient protections against tyranny in the Constitution, and the Bill of Rights was the consequence.
   Echoes of the Magna Carta and the “rights of Englishmen” over time are in the First Amendment, guaranteeing the freedom of religion, speech, the press and peaceable assembly and the right to petition.  Reflections of relatively recent events to the founding generation can be seen in the Second Amendment.  It guarantees the right to self-defense, the population keenly aware of the English government’s establishment of a permanent army and the occupying army’s mission to take arms, the freed Americans would never allow any government to disarm them.  The Fifth Amendment protects the individual’s right to property.  The next three amendments are concerned with due process of law, as is the Fifth---the right to know what you are charged with, jury trials where you can answer charges, reasonable bail and protection from cruel and unusual punishments.
   The Ninth Amendment repeats and underlines the consensus that our rights are NOT limited to those protected by the Constitution; rights that are not written about or unnamed in the Constitution remain as real and as important as any of them mentioned or named in the Constitution.
   The Tenth Amendment, then, repeats, underlines and clearly restates the fact that powers not delegated to the United States nor prohibited to the states are reserved to the states or to the people.   “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 Tenth Amendment is Federalism; it is our final hope to save the American Republic.
   Federalism means that an individual lives under two systems of laws and two governmental structures.  Each of us is a citizen of a state and of the United States.  In federal, that is, in matters that are beyond intrastate matters, like interstate commerce and national defense and foreign trade and foreign treaties, federal law will prevail.  Otherwise, intrastate laws govern our daily lives, as in the original Constitution.  The founders of the Republic, including the majority of colonists who accepted this Constitution, took it granted that the Constitution limits government power and the local, that is, the states, would retain more governmental power than the created federal government had or would have.  The Bill of Rights was intended to reassure the people that they and their states will not lose their freedom to the stronger, nationalized government created by this Constitution.

   In Federalist #45, James Madison, the “father of the Constitution”, writes this:

“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.”

His purpose in #45 is to explain that “(t)he State government will have the advantage (over) the Federal government.”  Unfortunately, the states’ advantage over the Feds has been eroded through ceaseless overreaching by the central government for the last hundred years, and we are at the crisis point.
   I want to look at the encroaching on our self-governance and civil liberties over the past hundred years in Constitution Post 3 that I will try to post tomorrow.  I will draw on a resource available at the website for The Texas Public Policy Foundation,, a think tank that I strongly urge you to support.

Pam Fowler

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