Aug 01 2008
The Bill of Rights. Why and Whence?
Post 2 in the series. Post 1 here.
Here’s the preamble again:
Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine. 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: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution. RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz. ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
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The Bill of Rights limits Congress, at least ostensibly. It limits the ability of Congress to legally attack what the founders believed were rights given by God. Only Congress was empowered by the Constitution to make laws, and so by extension the Bill of Rights limits the entire Federal Government. I believe the intention was to limit all levels of the sphere of the state, but that isn’t something I’m going to try to prove here.
The main point is this: The Bill of Rights does not grant rights. It does NOT. It is a legal guarantee of the government’s lack of authority to trump the rights that are enumerated here. The rights do not come from the government. They come from God. (See my review of and read Bastiat’s The Law
here.) They exist whether or not the government believe they exist, and they exist whether or not the government recognizes they exist. That, at least, is what the founding fathers believed. And this document was adopted, “in order to prevent misconstruction or abuse of its powers.” The Bill of Rights was a protection against the United States government growing into a tyrannical monstrosity. And the following posts will discuss in what ways it has been misinterpreted in order to allow just that tyranny it was designed to protect against.
Interesting concept, I’m not sure I agree 100% with your thesis, but keep ‘em coming. I’ll reserve judgement til the end.
Which part of the thesis are you currently quibbling with? Maybe I need to flesh it out a bit, and maybe I’ve miscommunicated something.
Or maybe I’m wrong and need someone to tell me.
My recollection is that the only rights guaranteed by God were the right to life, liberty and the pursuit of happiness. The Bill of Rights, which includes the first ten amendments, are guaranteed by our government. Take for example the Second Amendment. It can be, and frequently is, taken away from an individual by the government. Convicted felons, illegal immingrants, fugitives, people adjudicated as mental defictives, all lose their Second Amendment rights. If they truly came from God, the government couldn’t take them away. Then again, I could be wrong. The government also takes away life in it’s application of the death penalty. I need to research this further.
You’re right. The Founding Fathers viewed human rights as gifts from God, not gifts from the government. Government is created to protect those rights. As Thomas Jefferson put it in the Declaration – “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men…” Notice it says “among these are Life, Liberty and the pursuit of Happiness.” Clearly there are others as well.
This is also the purpose of the 9th Amendment which says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This means that all rights are not listed in the Constitution, but there are others as well, clearly too many to be listed.
If you check out the Revolutionary War and Beyond website pages “History of the Bill of Rights,” “Bill of Rights Purpose,” and “9th Amendment,” you will find more info about this. You can get to these at this address: http://www.revolutionary-war-and-beyond.com/bill-of-rights.html