Posted on 12/15/2004 10:34:15 AM PST by RayStacy
It may be that every American "knows" the Founding Fathers bequeathed to us a Bill of Rights as a guarantor of various liberties, and this belief may be so deeply ingrained in the national psyche that virtually every famous political actor in the country has attested to the framers' wisdom in their crafting of the great bill, but the plain, historical and undeniable fact of the matter is the framers overwhelmingly rejected any notion of a bill of rights. When the proposal was put forth during the Constitutional Convention, only two men of 55 spoke in favor of the measure, and the state delegations rejected the idea unanimously.
And the bill didn't fare much better with the men of the First Congress, who approved the amendments only because of crushing pressure from Anti-Federalist factions. Respected constitutional scholar Robert Goldwin notes the House was almost "unanimously opposed" to the amendments; and that the bill's sponsor was told of these feelings "in terms that were caustic, scornful, and even derisive." The framers were convinced that such a bill would actually rob Americans of their rights, not protect them. And they were correct, for as Alexander Hamilton said: "I 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." Unnecessary? Dangerous? How, exactly? When the framers wrote our Constitution, their strategy for safeguarding liberty against government encroachment was really quite simple — they would list, specify and detail the few and defined rights of the federal government. All the uncountable, innumerable scores of rights and powers not found on this small list were off limits to the federal government and were retained by the people. As every good conservative knows, this list the framers referred to is the "enumeration," and it is contained in Article I, Section 8 of the Constitution. At this point the framers directed their critics who bemoaned the absence of a bill of rights to the enumeration and noted, quite logically, that since the enumeration contained no provision for the federal government to assail cherished liberties, those rights were already protected. A bill of rights was unnecessary because the rights so loved in our Bill of Rights were already protected, were already completely off limits to federal authority. Nowhere in the enumeration do the people cede to the government the power to regulate the press, thus the federal government has no authority whatsoever to do so, or to suppress free speech, or establish a church, or seize firearms. The logic and simplicity of their reasoning are undeniable. We now see why the bill was unnecessary. But why, exactly, was it "dangerous?" Though Madison and Hamilton penned virtually the same words, James Wilson, Pennsylvania delegate to the convention, said it best: "In a government consisting of enumerated powers, such as is proposed for the United States, a bill of rights would not only be unnecessary, but, in my humble judgment, highly imprudent. In all societies, there are many powers and rights, which cannot be particularly enumerated. A bill of rights annexed to a constitution, is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated, is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government; and the rights of the people would be rendered incomplete." This, of course, is the sad situation in which we now live. A huge majority of Americans and our legislators believe that the federal government may legislate on any topic, at any time, for any reason, period — so long as the legislation does not offend the Bill of Rights. We used to have all the rights contained in the Bill of Rights, plus untold scores of others. Now, as the framers predicted, we have only those rights contained in the Bill of Rights. This is a disaster, not a blessing. The world the framers gave us (government's powers limited to a small list) is entirely different from the world given by the Bill of Rights (people's powers limited to a small list). These two worlds are mutually exclusive. They represent, with mathematical precision, exact and precise diametric opposites. One is the antithesis of the other. The world the framers gave us is not diminished by the Bill of Rights, it is not marginalized; it is utterly and absolutely destroyed. These two visions simply cannot exist side by side. One must die, and indeed, one did. Others will blame any of a dozen different reasons for our lost rights, but can it really be a coincidence that the only rights we have left are found in the Bill of Rights? Can it?
Rick Lynch, a writer living in Virginia, discusses constitutional issues in his forthcoming book, "They Are Vicious... :How Democracy and the Bill of Rights destroyed the U.S. Constitution."
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.
-- James Madison, Proposing Bill of Rights to House, June 8, 1789
"The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals .... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of."
-- Albert Gallatin, New York Historical Society, October 7, 1789
I submit that the same judicial abuse that has recognized new rights in terms of penumbrae and other exotica would have existed with or without the Bill of Rights to tack it onto. A justice looking for a place to "discover" a right to abortion, for example, could have found it just as easily in the body of the Constitution as in the First Amendment. It isn't really there in either place, but so what? It's now the law of the land.
I can see why some didn't like it, but the BoR turned out to be a great idea. It is easy to imagine that without the BoR lawmakers would respect these rights the same way they respect the ones implied, but not specifically spelled out, by the 9th and 10th amendments.
In other words, they wouldn't.
The latter would have happened.
Without a BOR we would still have had 10,000 court cases dealing with "Where are our rites? How are they protected?
No, we would have had three court cases. One concerning the extent of the interstate commerce clause, one for the extent of the general welfare clause, and one concerning the necessary and proper clause.
After those were lost (as they were in real life) the federal government's jurisdiction would have been unlimited, just as it is today.
Those who wilfully reject the plain meaning of words will not be persuaded by more words.
The Constitution laid out exactly what the gov't could do, in plain language. Just to make sure certain rights were not squashed by abuse or ignoring of the Constitution, a few key rights were plainly spelled out. Unfortunately, those who oppose those rights have ignored and legislated against both documents.
The real issue isn't whether the BoR was a wise addition to the Constitution.
The real issue is that a great many gov't officials simply ignore both.
You nailed it.
Maybe, but Hamilton, Madison, and Wilson thought otherwise. And again, how is it that we coincidentally have ONLY those rites mentioned in the BOR? Can that be coincidence? I definitely have sympathy with your argument -- with the BOR we at least get a few rites, or parts of a few rites, and without it, the enumeration would have still been lost -- but I don't think you can be that sure of it. I certainly am not sure either way, but it is interesting to wonder about.
It will be if the libs turn it into a "Living Document".
This simple article gets right to the core of conservative vs. liberal views of government. I'm convinced that if people in this country were not so ignorant of the colossal effects on our liberties of such subtle shifts in approach/language/interpretation, they'd be much more likey to vote Republican...
Again, without a BOR, would the people have been forced to know of the enumeration? Madison, Hamilton, and Wilson thought so. Are they wrong? I don't know, but it is an interesting thought.
The Constitution was dead the second they decided that 9 lifetime political appointees would be the arbiters of its meaning.
Given the assault upon the 10th by the current administration, I have no idea why you'd think that.
While I don't necessarily follow Hamilton's logic for rejecting a bill of rights (since he was a loose constructionist who believed in implied powers), the fact is that the "Bill of Rights" changed our Constitution from a set of rules for the government into a work of political philosophy about man and his rights. Prior to the "Bill of Rights" the only way something could have been "unconstitutional" was if it added a fourth branch to the government or if one branch attempted to perform the work of another.
Now questions of constitutionality are invoked for every high school football game prayer, creche on city hall property, or censored f-word in a high school students' newspaper.
The problem is not so much that an enumeration of rights implies non-enumerated rights don't exist (since, as I said, most Bill of Rights opponents were loose constructionists and thus their invocation of "enumeration of powers" was somewhat specious) but that however negative the original language was ("Congress shall make no law . . . "), it was inevitable that the enumerated rights would be looked on as positive grants from the government, with the government authorized to do anything required to enforce them. In other words, it was inevitable that "Congress shall make no law respecting an establishment of religion" would eventually empower the Federal Government to proscribe religious exercises at the state and local levels, or that "Congress shall make no law" against freedom of the press would eventually empower the Federal courts and Congress to forbid the censoring of the f-word in local high school newspapers. Many people like to blame this situation solely on the Fourteenth Amendment, which explicitly places the states under Federal scrutiny, but the fact is that this only speeded up the process. The very enumeration of rights in the Constitution implied a grant of federal power to enforce each one.
I don't claim that in an unamended Constitution loose constructionists would not have perpetrated occasional mischief. But the conversion of questions of Constitutionality from what the Federal Government is doing to the acts of individuals or lower levels of government is an absolute tragedy that results directly from the conversion of the Constitution from a governmental rulebook into a work of political philosophy, all thanks to the Bill of Rights.
Bump for later reading.
The additional amendments added a measure of difficutly in revoking those rights once the concept of enumeration was lost. The concept of enumeration was going to be ingored, BoR or no BoR.
Please note they didn't prevent those rights from being lost, they merely slowed down the process. Once the concept of enumeration was abandoned, it was only a matter of time.
As an analogy, think of a sea wall surrounding a city. The sea wall is the concept of enumeration. The city is the Constitution. Within the city, the most valuable buildings (rights found in the BoR) are placed behind additional walls (the amendments found in the BoR). Once the sea wall is breached, water (excessive government) is going to flood everything within the city. The additional smaller sea walls hold the water back for a short time, but they will ulitmately fail once water gets to them.
I suppose the author's argument is that the people spent all their time tending to the smaller sea walls than tending to the large one that surrounds the city.
I contend that the larger sea wall was doomed from the start, due to the rising tides of socialism and the forces of domination that are inherent to human nature.
Which is why we have both ballot boxes and bullet boxes.
But, again, and I am NOT endorsing this argument, just wondering about it -- with no bor, I can see a free speech case or a newspaper case coming up back in the day when the lib sub-human filth buckets cared. So there'd be a Supreme Court case where the libs and the good people were on the same side. The ENUMERATION would be the solution to the case. The ENUMERATION would be the solution for THOUSANDS of cases. Don't you think? Surely this would have some effect?
Any concept of enumerated rights would have been squashed by ultra-broad interpretations of the interstate commerce clause, the general welfare clause, and the necessary and proper clause. We battle those now, and the only thing holding them back is the explicit enumeration of rights.
By declaring a few core rights in plain language, the gov't must recognize that any interpretation of the Constitution must be consistent with the BoR - any interpretation of the Constitution which contradicts the BoR must be faulty and discarded. Example: "promote the general welfare" could be interpreted as requiring one to testify against himself, for what could be better for the general welfare than to know who committed a crime? - but since the 5th Amendment prohibits self-incrimination, such an over-broad interpretation of the "general welfare" clause is squelched.
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