The Bill of rights: An introduction.

The Bill of Rights: An Introduction.

By Hugh Akston

It is hard to find documentary evidence why some rights are named in the Bill of rights while others are left out I can only address the issue that the federalist and the Anti-federalist argued about in writing; I will not resort to supposition for this series of articles.

While it is clear that the two sides differed about the need for the bill of rights, it is also clear that the Constitution finally included them.

Federalist 84

I go further, and affirm, that bills of rights, in the sense and to the extent 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 colourable pretext to claim more than were granted. For why declare that things shall not be done, which there is no power to do?

Anti-Federalist #84

it is evident that the reason here assigned was not the true one, why the framers of this Constitution omitted a bill of rights; if it had been, they would not have made certain reservations, while they totally omitted others of more importance.

We find they have, in the ninth section of the first article declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion, that no bill of attainder, or ex post facto law, shall be passed, that no title of nobility shall be granted by the United States, etc. If everything which is not given is reserved, what propriety is there in these exceptions? Does this Constitution anywhere grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is that these are implied in the general powers granted. With equal truth it may be said, that all the powers which the bills of rights guard against the abuse of, are contained or implied in the general ones granted by this Constitution.

This is in the simple form the basis for the arguments about the bill of Rights.

From the Preamble to the Bill of rights.

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 insure the beneficent ends of its institution

Now we can take a look at the amendments in a clear manner, with the understanding that the purpose was to ensure LIMITS on the federal power, and grant the People protection in their God given rights. We will start with at the beginning with the First Amendment and go through all 10.

Just my thoughts for today.

For The History presented by Patricia Gillenwater click here

 

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Comment by Denis Byrne on January 16, 2014 at 4:52pm

One must just ask a simple question...??? Who were our FF?  My answer is that they were several of the greatest genious's ever to grace this goofy planet...with all of its monday morning quarterbacks.. THE CONSTITUTION STANDS!   Those who would change or denigrate it are totally out of place...  It must be INTERPRETED CORRECTLY.....THATS IT!

Comment by Denis Byrne on January 16, 2014 at 4:45pm

Hugh: You sure can make a short story long!

Comment by Susan Nielsen on December 29, 2013 at 1:41pm

 I have removed the Intense Debate Forum from this page. Below are the discussions I copied from the ID forum

Quisnoofthe Republic · 4 weeks ago

ok since you began with the Bill of rights you must first read Barron VS Baltimore for in that case brought to the Supreme Court one Cheif Justice John Marshal had a writ which stated that the Bil of rights did not belong in the federal Constitution but was originally dedicated to the Various State where the people resided.this writ came out in 1833. For even though the people for hundreds of years have ased for their Consttutional rights they should have asked from the rights of a state citizen not federal citizen. For in that writ Justice marshal said that the proper placement of the Bill of rights was for the people within their counties in the state whereby they resided. Again i must point to the Constitution and what it was for. It was an enumeration of power that the federal Government has not the people they are enumerated in their seats of power in their counties. Ok let’s go one  step further.

 

Suzie

I look forward to reading your discussion...I hope you will write some Opening Opinion Articles...

Bring links to the discussion so we can read up on these cases you talk about it...

I am sure you will enlighten us to States rights...

Thanks, Suz

QuisnooftheRepublic · 4 weeks ago

 

If the people have been trying to put the Bill of rights back into the Federal Document why didnt they get told of this decision? its there in black and white.

Back then it was understood there was no need to tell anyone. Civics was taught in school which taught the people the principals of State citizenship. that was lost after the 14th Amendment in 1868 and changed again in 1935 with the begining of Social Security.

My friends this must be understood before you can even go on to the next point. i hope im clear I have a PDF someplace and ill try to send it to Suzie. Dam i hate being the scrouge!

 

Suzie (admin) 124p · 4 weeks ago

I am glad you bring this to the discussion- this only broadens the discussion...

 

MICHAEL HANCOCK · 4 weeks ago

 

If the Bill of Rights was not to be in our Constitution, then the states who voted to approve it were seriously wrong;or Justice Marshall was incorrect. That kind of thinking is just another example of big brother knowing better than anyone else what is best.I have no doubt who is incorrect in this matter. Quoting such drivel is another way to muddy the waters as to what words mean.

 

Darrell · 1 week ago

 

As things get more involved in the Phil Robertson issue of his exercising his First Amendment right of freedom of religion and freedom of speech. What we are finding is that you may have freedom of religion and freedom of speech as long as you do not bring it to the public square. The dissenting folks attacking Phil are the one able to express their dissent on every street corner and shout it from the roof tops. This my friends is a freedom of speech and religion as long as you do not disagree with the immorality of what those of us that believe in a higher deity are taught.

 

Comment by Hugh Akston on December 2, 2013 at 6:57am

Well said Quisnoofthe Republic: and a very important point. However I did not intend to make a full legal argument of the bill of rights and almost every Supreme Court decision has an impact on it’s interpretation. As you have brought up the question of Barron and indirectly Cruikshank, I will answer them.

While the question before the Court was “Did the 5th Amendment pertain to the States?” the Supreme court held that all of the Bill of rights pertained only to the Federal government, not state or local governments. The Supreme Court decided that the Bill of Rights, specifically the Fifth Amendment's guarantee that government takings of private property for public use require just compensation, are restrictions on the federal government alone. Writing for a unanimous court, Chief Justice John Marshall held that the first ten "amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them." Barron v. Baltimore, 32 U.S. 243, 250.

To demonstrate that Constitutional limits did not apply to states unless expressly stated, Marshall used the example of Article I, Sections 9 and 10:

The third clause (of Section 9), for example, declares that “no bill of attainder or ex post facto law shall be passed.” No language can be more general; yet the demonstration is complete that it applies solely to the government of the United States... the succeeding section, the avowed purpose of which is to restrain state legislation... declares that “no state shall pass any bill of attainder or ex post facto law.” This provision, then, of the ninth section, however comprehensive its language, contains no restriction on state legislation.

The case was particularly important in terms of American government because it stated that the freedoms guaranteed by the Bill of Rights did not restrict the state governments. Later Supreme Court rulings would reaffirm this ruling of Barron, most notably United States v. Cruikshank, 92 U.S. 542 (1876). However, beginning in the early 20th century, the Supreme Court has used the Due Process Clause of the Fourteenth Amendment(interpreted, however, to have the same meaning as the 5th amendment) to apply most of the Bill of Rights to the states through the process and doctrine of selective incorporation (http://legal-dictionary.thefreedictionary.com/Incorporation+Doctrine) . Therefore, as to most, but not all, provisions of the Bill of Rights, Barron and its progeny have been circumvented, if not actually overruled.

I look forward to your participation in future debates and I hope to see you participate more fully by posting your own articles on the constitution that will add to the educational value of this project.

God Bless.

Comment by Hugh Akston on December 2, 2013 at 6:57am

http://www.conservapedia.com/United_States_v._Cruikshank

In United States v. Cruikshank, 92 U.S. 542 (1876), the U.S. Supreme Court held that the Second Amendment protects a natural right to bear arms.

After the Civil War, federal prosecutors indicted white defendants who had been violating the civil rights of freed African Americans. Often federal prosecutors charged white defendants with violating the Second Amendment rights of freed slaves by seizing their firearms.

In United States v. Cruikshank, Klansman William Cruikshank was charged with surrounding a courthouse occupied by armed blacks, attacking the courthouse, burning it down, and murdering blacks to tried to flee. Cruikshank was found guilty of violating the Enforcement Acts, which included a finding of guilt of conspiring to deprive the blacks of their constitutional rights to bear arms.

The U.S. Supreme Court overturned the convictions and held the Enforcement Acts to be unconstitutional. The Court held that the right to bear arms were natural rights, and not rights granted or created by the Constitution. The Court held:

The right ... of "bearing arms for a lawful purpose" ... is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this ... means no more than that it shall not be infringed by Congress ... leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called ... the "powers which relate to merely municipal legislation ...."

The Court declared that citizens must rely on local governments "for their protection against any violation by their fellow-citizens of the rights" under the Second Amendment. This has been construed as establishing an "individual" rather merely a "collective" right to bear arms.

As in The Slaughter-House Cases, the Court rejected use of the Fourteenth Amendment as a limitation on state infringement of the Bill of Rights, which remained constitutional law until the 1920s, when the Court began to apply the Bill of Rights against the states.

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