Who Owns the Bill of Rights?
Posted on: January 24, 2011
By Don Fotheringham
Since the terrorist attacks of 9-11, the American Civil Liberties Union (ACLU) has challenged the federal government’s warrantless surveillance of telephone calls and emails. In this context, the ACLU properly employs the Bill of Rights as a force against federal usurpation. Is this the same ACLU that applies the Bill of Rights against the states in matters of religion, firearms, voting, and due process? It’s nice to pick your situation and apply your ethics at random, but when the ACLU goes to court, do they protect your rights or do they help centralize federal power?
Amidst the outcry over federal assaults on our freedom of speech and privacy, there exists a more fundamental reason we should be alarmed. Those in Washington who wish to alienate the people from their “unalienable” rights, don’t even own the instrument they are using. The president of the United States is a captive of the Bill of Rights, not its guardian. The Bill of Rights is enforceable against Mr. Bush, Mr. Cheney, and their entire covert snoop department. It is not theirs to use as a weapon.
Here they are, stealing our rights with a stolen weapon and all the ACLU can complain about is their marksmanship! How come the ACLU lawyers are merely upset over hits on the Fourth Amendment, and not challenging the federal government’s right to own the gun?
A look into the origin of the Bill of Rights reveals how this fundamental protection has been turned upside-down and levied against the very people it was designed to defend.
There was no Bill of Rights in the Constitution when George Washington declared it “DONE in convention by the unanimous consent of the States present…” Why was no bill of rights included? Because it would have been out of step with the whole theory on which the Constitution was written. The Convention carried out its work with the understanding that all powers intended for the federal government were identified, enumerated, and embodied in the text of the Constitution. In other words, the founder’s work was based primarily on powers granted; anything not granted was deemed prohibited. Thus, it hardly made sense for the convention to deny the federal government powers it never had.
Alexander Hamilton explained it this way: “Why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed? (The Federalist No. 84) The same logic was applied to all rights and privileges not expressly denied in the Constitution, such as religious liberty, freedom of speech, assembly, ownership of firearms, and freedom to exercise an infinite number of other rights and immunities retained by the people.
The Convention delegates worried that a listing of certain rights would leave a loophole in their work. They feared that anything not listed in the Constitution might sooner or later be used as a gap for infringement. Moreover, in consideration of the vast number of rights held by citizens of a free country, it would have been impossible to enumerate or anticipate all of them.
But when the Convention finished its work and sent the Constitution to the states for approval, the absence of a bill of rights loomed up as a major roadblock. As far back as colonial times, the rights of the people had been protected by bills of rights in their local governments, and by the1780s, rights of the people were protected in the constitutions of nearly all thirteen states. In view of the strong centralized powers granted the new national government – and under plenty of agitation by the anti-federalists – the people refused to ratify the charter without some means of preventing federal abuse of certain treasured rights. They therefore urged the deputies to take the Constitution back into convention where it could be re-written to include, among other things, a bill of rights.
The men who had worked all summer in Philadelphia to create this more perfect union were mortified over the thought of re-opening the convention. In reply, James Madison wrote, with some degree of emotion: “Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a second…” (Letter to George Lee Turberville, November 2, 1788)
It was George Washington who came to the rescue when he allayed all fears by suggesting that specific guarantees of freedom could be added by proper amendment after the Constitution itself was adopted. On Washington’s assurance, the states ratified the Constitution, and in the first session of the First Congress the Bill of Rights was proposed and ratified by the states in the form of ten amendments.
It must be remembered that the Bill of Rights was demanded by the people and ratified by the legislatures of the states. The first eight amendments identify certain specific rights, while the ninth and tenth satisfied Hamilton’s concern by declaring that the enumeration of rights does not deny others retained by the people; and that any rights and powers not mentioned are reserved to the people or the states.
Clearly, the Bill of Rights belongs to the people. It is a creation of the states and has force against the federal government. The language of the first line of the First Amendment is consistent with the purpose and force of the Bill of Rights: “Congress shall make no law….”*
All of which brings us to the point of this essay. The whole concept, theory, and reason for the Bill of Rights has been completely turned upside down. The Bill of Rights is not federal property. Not one word of it has force against the people or their state governments. In 1791 when the Bill of Rights was adopted, and for many years thereafter, the federal government respected its proper place in the federal system. Federal officers clearly understood that the Bill of Rights was a power to restrain them, not a device to empower them.
In those early days the federal government made no attempt to oppose the many state customs or traditions that were in conflict with rights identified in the federal Bill of Rights. Significantly, several states – including Connecticut, Virginia, and Massachusetts – upheld official state religions, and some states enforced laws taken literally from the tenets of their churches. The federal government (properly) took no action against those states because it was common knowledge that the people were answerable for their religious lives, and other private affairs, only to state authority, except with regard to powers which the Constitution specifically delegated to the federal government.
The clearly designated purpose of the Bill of Rights was never questioned until 1868 when the Fourteenth Amendment was adopted. Section 1 of that amendment declares: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The language of Section 1 was unnecessary because due process is already guaranteed by the Fifth Amendment, and the other basic rights are guaranteed by every state constitution. Notwithstanding its redundant language, the damage inflicted on our country by the Fourteenth Amendment is astronomical, having brought the federal government into state cases far beyond its jurisdiction. Moreover, those groups and individuals who seek to expand federal power now insist the Fourteenth Amendment applies retroactively to the entire Bill of Rights, and on that spurious notion they claim the first eight amendments empower the federal government against the states.
The Supreme Court has repeatedly denied that the Fourteenth Amendment constituted a grant of federal power over the Bill of Rights, as in the 1959 Bartcus case, page 124 of opinion:
We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the states any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that the Congress and the members of the legislatures of the ratifying states did not contemplate that the fourteenth amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the states.
As usual, in sifting through our nation’s greatest problems, we find ourselves enslaved by false notions that a little correct information could remedy. This does not mean knowledge alone would return the Bill of Rights to the people, for in addition to ignorance, the White House relies on a steady flow of crises for an excuse to clamp down on the freedom of the American people. Thus the return of sanity in the United States rests on a twofold premise: (1) a basic understanding of the United States Constitution, and (2) an understanding of the enemy within, a deadly and determined force that conspires to lead “we the people” quietly into captivity.
*”Congress” means the whole federal government “shall make no law…”