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To: El Gato
The Bill of Rights were intended as a restriction on the misuse of the powers of the new government.

I'm not so sure of this. The Constitution itself is supposed the limit the powers of the federal government, delegated to it by the Several States, and the People. The Bill Of Rights was supposed to be a declaration of the powers that remained with the People and the Several States, rather than a limit on the Federal Government.

In other words, instead of saying that the Federal Government had all powers except for what's in the Bill of Rights, the Bill Of Rights was trying to say that the People and the States kept all powers except for what's in the Constitution.

Also, why all the talk of militias in the Federalis papers if the only mention of militias is in the Bill Of Rights?

-PJ

68 posted on 09/23/2006 4:16:19 PM PDT by Political Junkie Too (It's still not safe to vote Democrat.)
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To: Political Junkie Too
In other words, instead of saying that the Federal Government had all powers except for what's in the Bill of Rights, the Bill Of Rights was trying to say that the People and the States kept all powers except for what's in the Constitution.

The 10th amendment, part of the Bill of Rights, says exactly that, just to make that clear. However, what the first 9 amendments of the BoR do is restrict the manner of or purposes for execution of those powers delegated to the federal government. Thus, in regulating interstate commerce, which is an explictly called out federal power, the federal government is not supposed to restrict freedom of speech or of the press, or infringe on the right of the people to keep and bear arms. The introduction to the Bill of Rights, not so often seen anymore explains this clearly.

That introduction was and remains:

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.

70 posted on 09/23/2006 5:33:36 PM PDT by El Gato
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To: Political Junkie Too
Also, why all the talk of militias in the Federalis papers if the only mention of militias is in the Bill Of Rights?

It's not, as I posted above, the body of the Constitution defines the powers of Congress and of the President with respect to the militia, without defining it (they thought it obvious I guess, modern courts are more obtuse :) )

In the second amendment, they made it clear that those powers did not extend to infringement of the people's right to keep and bear arms, and could be exercised in such a manner as to do so. From a legal standpoint, if those powers could have been read to allow such, the second amendment removed that portion of governmental militia powers.

The Federalist papers discussed the militia powers of the federal government precisely because some people opposed giving the federal government even that much power over the militia. These were the anti-federalists, which included Thomas Jefferson although being ambassador to France at the time, he was not in much of a position to make his influence felt, in the debates surrounding the establishment of the Constitution as a replacement for the Articles of Confederation.

72 posted on 09/23/2006 5:41:17 PM PDT by El Gato
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