Tag: Bill of Rights

Constitutional Amendment III

Post author By David
Post date May 14, 2009
3 Comments on Constitutional Amendment III

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Amendment III is very straightforward and needs no explanation:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

It does remind me however that we are very fortunate as a nation to have never had a war upon our own soil in living memory. As I think about that I am reminded that we should not allow our cold wars and our wars on terror to be used as excuses to infringe upon this right or any other right that has been guaranteed under our Constitution. It also reminds me that we need to be much more selective in the foreign wars we choose to engage in.

Tags Bill of Rights, documents, history, liberty, war

National

Constitutional Amendment II

Post author By David
Post date May 12, 2009
2 Comments on Constitutional Amendment II

Amendment 2 is worded as an absolute:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The prohibition on infringing upon the right of the people to keep and bear arms is not limited to the Congress. Although I think that some regulations are acceptable (such as requiring registration of ownership for firearms) this simple wording does not seem to allow any room for the banning of handguns or automatic weapons. (Personally I don’t see any reason that people would have cause to own automatic weapons but that’s beside the point.) The only possible wiggle room I can see in the wording is the purpose of having a well regulated militia as the reason for the right. If the goal is for a well regulated militia it could be argued that the government (state or federal) could prohibit gun ownership for convicted felons or those diagnosed with some significant type of mental disability because gun ownership among such people would detract rather than advance the cause of a well regulated militia.

Tags amendments, Bill of Rights, Constitution, documents, history, liberty

National

Constitutional Amendment I

Post author By David
Post date May 11, 2009
2 Comments on Constitutional Amendment I

The beauty of the amendments in the Bill of Rights is that they are all short enough that I will be comfortable quoting each amendment in its entirety as I write about it. That may not hold as I get to the later amendments. Here is Amendment I:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I have heard people who are keen to remind their fellow citizens that the phrase “separation of church and state” does not exist anywhere in our legal foundation. That’s very true, but I would take that a step further and point out the implications of what is said.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

State governments are perfectly free to make laws respecting an establishment of religion – whether that be favoring one specific sect, or prohibiting a sect or a specific religious practice. The key is that the federal legislative branch cannot enshrine a position related to religion. Please keep this in mind (the distinction between the state and federal governments) as it will be a theme of many of my posts on the amendments.

For those who might fear that Utah might use that as an excuse to establish Mormonism as the religion of the state (officially) if they thought they could get away with it I would simply point out that doing so would run counter to the expressed tenets of the LDS church. (I should also point out that this prevents the use of the first amendment as an argument against the legality of the extermination order against Mormons given by Governor Boggs of Missouri in 1838.) The point here is that each state was meant to be free to determine the course that they felt would be the most conducive to the welfare of their residents.

Like the protection of religion, it is Congress, and not the states, which is prohibited from abridging the freedom of the press or of speech and Congress which cannot interfere with the right of the people to peaceably assemble or petition the government. The assumption was that although the states retain the rights to regulate any of those things they would be wise enough not to abuse that ability and that if they did begin to abuse those powers they would feel the negative consequences as other states would reap the benefits of the dissatisfaction generated by abusive states.

Sadly, it is now the states and municipalities which feel the burden of the restrictions in the first amendment (and others) much more than Congress. Congress does not abridge our freedom of religion, but it does abridge the freedom of our once-sovereign states (and communities).

Tags Bill of Rights, change congress, documents, history, liberty, religion

General

Federalist No. 84

In his penultimate federalist paper, Federalist No. 84, Hamilton ties up a few loose ends and once again shows his prescience. As I was reading this thought on the need (or lack thereof) for a Bill of Rights:

a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns.

I thought about how our present government had become the kind to "regulation of every species of personal and private concerns"and began to wonder if the Bill of Rights opened the door to a larger, more intrusive government than was intended. Then I got to this:

I go further, and 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. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For 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? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. (emphasis added)

The argument that I had in my head before reading that was probably substantially the same but I would have said that without the explicit Bill of Rights which was later added the voters might feel more urgency to check their representatives and replace them when they began to make incursions upon the rights that the voters felt were important.

Later in the paper I found yet another argument against the now static size of our House of Representatives:

It is evident that . . . a continuance of the present number {in Congress} would, in a more advanced stage of population, be a very inadequate representation of the people.

Tags Bill of Rights, change congress, civic participation, documents, federalist, history

General

Federalist No. 38

It was very interesting to read in Federalist No. 38 that one primary difference between this Constitution and the constitutions of Greece and Athens (among other examples) is that this one was developed by a group instead of being drawn up by a single respected individual.

The bulk of this Federalist paper goes to show how lively and varied the debate was which surrounded the ratification of the Constitution. Warning – this is undoubtedly the longest paragraph in the federalist papers so far with a total length of 1100 words. It is worth the time to read it, but without paragraph breaks it is easy to lose you place in such a long passage. With the advantage of being able to look back it is interesting to see which changes that were being considered were added to the Constitution (e.g. the Bill of Rights) and which were left unchanged (e.g. the 20 year moratorium on discussion the issue of slave importation) by the end of the debate.

Tags Bill of Rights, Constitution, documents, federalist, government, history

culture National

Bill of Rights Day

Today is Bill of Rights Day, the day when the Bill of Rights was ratified 217 years ago. This holiday, along with Independence Day and Constitution Day, represents the real celebration of the great country we should be striving to maintain. Interestingly, while Independence Day is the most celebrated of the three our independence did nothing to guarantee any future liberties in this country. Our Constitution was supposed to help preserve our liberties by setting up a government structure that would be capable of securing our liberties from both internal and external forces which would seek to infringe upon them. The structure that was devised could not, in itself, guarantee that the government itself would not be an abuser of liberty – that is where the Bill of Rights comes in. The Bill of Rights spelled out the rights of citizens where the federal government would not be allowed to infringe (in theory). This is where the rubber meets the road. A monarchy with such a bill of rights – where those rights are truly upheld – would be as good a government as the three pronged government that the founders defined in the constitution. The real difference being that a monarchy would more easily overrun the individual rights without the checks in place of an independent judiciary etc.

The original Bill of Rights had 12 amendments adopted by Congress. Numbers 3 – 12 were ratified in 1791. Number 2 was ratified as the 27th amendment in 1992. The first amendment proposed has not yet been ratified.

On this Bill of Rights Day I look with trepidation at a government and society where the first question of government is "What responsibilities can be assigned to the government?" The question should be "How can the government more fully ensure liberty among her people?" The first question brings an intrusive government which attempts to do the impossible. The last question would bring a government which is content to enforce liberty, thus setting the conditions where the society could accomplish greater things than ever before.

Tim Lynch of the CATO Institute has a great rundown of how our Bill of Rights is faring in modern government. Jim Babka has some ideas about how we can get our government to protect those rights that they are so prone to trample.

Tags amendments, Bill of Rights, Constitution, documents, government, history, holidays