Posted on 07/30/2008 6:38:12 AM PDT by Congressman Billybob
(Ninth in a series of ten. For other articles in this series, click on View all articles by John Armor--and "Blogs by this author.")
The eleven amendments which constitute the Bill of Rights are more important than merely a recitation of rights beyond the reach of the federal government. Collectively, they are the third great document of American liberty, after the Declaration and the Constitution.
Yes, I said eleven, though you were taught in school there were only ten. There were only ten, back then....
But, seven states demanded amendments to protect individual and states’ rights as a price of ratifying the Constitution originally. The Anti-Federalists came close to defeating the ratification in the critical states of New York and Virginia. The Federalists agreed that there would be a Bill of Rights.
Over 200 proposals for amendments came in from the states. James Madison, by then a congressman, boiled them down to 17 amendments, which passed the House. The Senate passed 12 of them, and the states promptly ratified Amendments Three through Twelve.
Original Amendments One and Two were defeated at the time. But the states took up the cause of Amendment Two, and in 1992 it was accepted as ratified, the last work by Madison to appear in the Constitution, Amendment 27. No court has yet seen fit to apply and enforce it, but that should eventually happen.
Quick recap: the First protects the rights of free speech, free religion., free press, political freedom, and bars any official church. (That last part has been, wrongly, interpreted to mean no mention of God in public places.) The Second protects the right of individuals to keep and bear arms. (It only took 219 years for the Supreme Court to get that right.) The Third limits the government from forcing private homes to take in soldiers, not a serious problem any more.
The Fourth bars unreasonable searches and seizures. (It should be noted here that this, and all other rights, are guaranteed to AMERICANS, not to foreigners in foreign lands.) The Fifth bars double jeopardy, self incrimination, and loss of life, liberty or property without due process of law. It also requires just compensation when private property is taken for public use. (In the Kelo case, the Supreme Court decided 5-4 that a private developer taking your house was a “public” use.)
The Sixth provides for a speedy trial, an impartial jury, the right to know the charges, confront the witnesses, and have assistance of counsel. The Seventh guarantees the right to civil trial by jury if the case involves more than a quaint $20 (that was an average year’s income when the Constitution was written), and says that facts tried to a jury shall not be reexamined by any court except by common law.
The Eighth forbids excessive bail, excessive fines, and cruel and unusual punishment. (What the Supreme Court now calls cruel and unusual punishment would have been kid glove treatment when this was written.) The Ninth was put in for a purpose that the modern court has largely ignored. It says, “The enumeration in the Constitution of certain rights shall not be construed to deny ... other rights retained by the people.”
The Tenth was, when written, a powerful and essential Amendment. It says, “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 Supreme Court gut-shot this amendment in 1981 in Hodel v. Virginia Surface Mining. The court said it would no longer seek to enforce this amendment, but leave it to the state and federal governments to fight out their differences politically.)
The 27th Amendment, also from Madison, requires a House election to intervene before a congressional pay raise can take effect. Congress violates this amendment every two years, on average, taking pay raises they are afraid even to vote on, specifically. So far, no court has called them to account and stripped their latest raise.
What modern courts have done, with and to the Bill of Rights, are a microcosm of what courts, congresses and presidents have done with the whole Constitution. Like the Star-Spangled Banner after the Battle of Fort McHenry, the Constitution and the Bill of Rights are singed and torn from the assault on them.
The Constitution and Bill of Rights now need serious repair. It is a close call who will prevail, those who benefit from the damaged parts and want to keep them damaged, or those who understand what a written Constitution means, and want to restore it to its former strength and meaning.
[Next week: The Remaining Amendments.]
John / Billybob
How can this be accomplished?
Excellent work.
Thanks.
Will there be an “all-in-one” publishing of this series?
Thank you,
jw
Hard work bump! ;-)
Needless to say, they have been copied, and saved to my hard drive / recording media for future reference.
Regards
Scroll 1/3 of the way down. You will find all of the chapters.
Actually it’s 2/3rds of the way down.
John / Billybob
John / Billybob
Thanks... I new that, but what I meant was all ten together in one document. Thanks. jw
Thank you.
I think you should definitely expand it a little bit and publish it as a booklet. And an e-book as well.
Much appreciated.
jw
If they were really that blatant about not enforcing a provision of the Constitution, especially of the Bill of Rights, we should have pushed the Reset button way back then.
Actually, it is a serious problem. To be sure, things like the mandated watermarking on color printers, nanny-state thermostats, etc. are mechanical devices rather than living soldiers, but the function is the same. The government has no authority to demand that people allow government agents of any form to monitor them in their home, whether those agents be flesh and blood or charge domains in computer chips.
It's like the Second Amendment. People, and scholars, and judges, had tortured the Second in later centuries to mean something other than its original intent. The Supreme Court, rightly so, straightened them all out in the Heller case. Exactly the same logic of interpretation applies to the Third Amendment.
John / Billybob
From what I understand, the Crown's habit of putting soldiers in people's homes was done not just because such houses were a convenient barracks, but also in many cases with the intention of being able to spy on the occupants. Even if a government agent were squished into an area of a few cubic inches and required no sustenance other than a small amount of electricity, I don't think the Founding Fathers would have regarded such an agent (whose purpose was to spy for the government) much differently from a flesh-and-blood one.
If you disagree, what would you regard as the limits of what government could require? Would it be unlawful for the government to demand that every room of every house be equipped with a two-way telescreen? To call government's use of the device a "search" or "seizure" would seem more of a linguistic stretch than calling an electronic government agent a "soldier".
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