A Bill of Rights is What All Free People Are Entitled to Against Every Government

bill of rights - with james madison

by Diane Rufino, January 3, 2019

Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference……”    –  Thomas Jefferson, in a letter to James Madison, December 20, 1787

December 15 marks a very special day in our founding history – On that date in 1791, the first 14 states (Vermont had just been admitted to the Union as the 14th state), ratified the first 10 amendments to the US Constitution, known collectively as our Bill of Rights. We often take it for granted that these first ten amendments, our Bill of Rights, are included in our Constitution, but if we want to point to one reason the colonies went to war for their independence from Great Britain, it was to permanently secure the rights embodied in our Bill of Rights from all reaches of government. Without the Bill of Rights, the revolution would have been in vein.  Thomas Jefferson, probably the Founder who exerted the most pressure on James Madison for a Bill of Rights, advised: “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”  He wrote this to Madison on December 20, 1787, almost three months after the Constitution had been signed by its drafters in Philadelphia.

On Bill of Rights Day, we reflect upon those rights guaranteed in the first nine amendments (the tenth being a restatement of federalism – the strict separation of power between the federal government and the States) but more importantly, we should come to appreciate the efforts of certain particularly liberty-minded Founders who fought against great odds to make sure that our Constitution in fact included a Bill of Rights. After all, James Madison, considered the Constitution’s author, and most of the other Federalists did not see the need for a Bill of Rights and thought the Constitution wholly sufficient without it. That was the status of the Constitution when it went to the states for ratification.

What is a “Bill of Rights”?  A bill of rights, sometimes called a Declaration of Rights or a Charter of Rights, is a list of the most important rights belonging to the citizens of a country – rights that the King or other form of government must respect. The purpose is to protect those rights against infringement either by law or by conduct from public officials. The US Bill of Rights is the Declaration and enumeration is the individual rights memorialized in the Constitution intended to protect the individual against violations and abuses of power by the government. In that respect, our Bill of Rights is like most other bill of rights (including the English Bill of Rights is 1689 and the great Magna Carta of 1215).  This history of England, including the movement of groups of people (like the Puritans and Pilgrims), to the New World, is a history continually seeking for the recognition and security of fundamental human liberties. And early colonial history continued that tradition of setting out the rights and privileges of the individual in their government charters.

The Preamble to the Bill of Rights explains its clear purpose. It reads: “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.”

In other words, the Bill of Rights is a further limitation on the power of government, above and beyond those limitations already imposed by its very design and delegation of limited powers.

HISTORY:

Again, a Bill of Rights (or Declaration of Rights, or Charter of Rights), is a list of the most important rights belonging to the citizens of a country that the King or other form of government must respect. Bills of rights may be “entrenched” or “unentrenched.”  A bill of rights that is “entrenched” cannot be amended or repealed by the governing legislature through regular procedure, but rather, it would require a supermajority or referendum. Bills of rights that are “entrenched” are often those which are part of a country’s constitution, and therefore subject to special procedures applicable to constitutional amendments. A bill of rights that is not entrenched (“unentrenched”) is merely statutory in form and as such can be modified or repealed by the legislature at will.

The history of the world shows that there have been limited instances where the rights of the people have been enumerated and/or protected by a Bill of Rights. This history includes the following charters, documents, or bills of right:

  • Magna Carta (1215; England) rights for barons
  • Great Charter of Ireland (1216; Ireland) rights for barons – Ireland became independent of Great Britain in 1937
  • Golden Bull of 1222 (1222; Hungary) rights for nobles – which interestingly, included the right of Nullification
  • Charter of Kortenberg (1312; Belgium) rights for all citizens “rich and poor”
  • Twelve Articles (1525; Germany) – considered the first draft of human rights and civil liberties in continental Europe after the Roman Empire.
  • Petition of Right (1628; England)
  • English Bill of Rights 1689
  • Declaration of the Rights of Man and of the Citizen (1789; France) – inspired by Thomas Jefferson
  • The US Bill of Rights (1791)

The roots of our modern-day liberty originated in England, as far back as 1100, culminating there with the English Bill of Rights in 1689 and ultimately providing the blueprint for our very own US Bill of Rights in 1791. The roots of liberty, including the roots of our very own American liberty rights, can be found in the selection of charters and documents listed below:

  • The 1100 Charter of Liberties (also called the Coronation Charter) – The 1100 Charter of Liberties was a written proclamation offered by Henry I of England and issued upon his accession to the throne in 1100. It sought to bind the King to certain laws regarding the treatment of nobles, church officials, and individuals – most notably, certain marriage rights, rights of inheritance, amnesty rights, rights for the criminally-accused, and environmental protection (forests). It is considered to be the precursor to the Magna Carta.

 

  • The Magna Carta of 1215 (“the Great Charter”) – The barons at the time, frustrated by ten years of excessive taxation by King John in order to finance a campaign to regain lands in France only to watch the King return home in defeat, consolidated their power and threatened to renounce him. Over the next eight months, they made repeated demands to the King, requesting that he give them a guarantee that he would observe their rights. But these negotiations amounted to nothing. And so, on May 5, 1215, the barons gathered and agreed to declare war on him. On May 17, the barons captured London, the largest town in England, without a fight, and finally, King John took notice. With London lost and ever more supporters flocking to the side of the barons, he sent word that he would meet with them to discuss terms of peace.. Over the next few days, the barons assembled in great numbers on the fields of Runnymede, a relatively obscure meadow that lies between the town of Staines and Windsor castle, where King John was based. Negotiations took place over the next several days and finally, on June 15, King John affixed his seal to the document that would become known as the Magna Carta (or “The Great Charter”). The Magna Carta enumerated an expansive list (63 “chapters”) of rights for barons, and also provided the remedy of Nullification.  The principles extended beyond the often-recognized origin of the “No Taxation Without Representation” doctrine in chapter 12 (and hence the creation of a “people’s body” which addressed matters of taxation and spending) and the Due Process clause of chapter 39. The concepts of “Trial by Jury” and “No Cruel Punishments” are present in chapter 21; and the forerunner of the “Confrontation Clause” of our 6th Amendment addressed in chapters 38, 40, and 44. But the most important contribution of the Magna Carta is the claim that there is a fundamental set of principles which even the King must respect. Above all else, Magna Carta makes the case that the people have a “right” to expect boundaries from the King in their lives and with respect to their property. They have a right to expect “reasonable” conduct.  [King John would go on to ignore the promises he made in signing the Magna Carta]

 

  • The Petition of Right of 1628 – In 1628, under the leadership of Sir Edward Coke, a legal scholar-turned-practical politician, Parliament petitioned Charles I, son of the recently deceased King James I, to uphold the traditional rights of Englishmen, as set forth in the Magna Carta. It was an appeal to his sense of being a just King. Charles was already on his way to being a notorious tyrant. Parliament was not only fed up with is participation in the Thirty Years War (a highly destructive European war) against its consent, but when it refused to provide Charles the revenue to fight the war, he dissolved the body (several times, actually). That would lead Charles to raise revenue other ways – by gathering “forced loans” and “ship money” without Parliamentary approval (hence, taxation without representation in violation of the Magna Carta) and arbitrarily imprisoning those who refused to pay. Among the customary “diverse rights and liberties of the subjects” listed in the Petition of Right were no taxation without consent (as mentioned), “due process of law,” the right to habeas corpus, no quartering of troops, the respect for private property, and the imposition of no cruel punishment. King Charles did not consider himself bound by the Petition and so, he simply disregarded it. He would later be officially tried for high treason by a rump Parliament and beheaded in 1649. [The Petition of Right would have a profound effect on our US Bill of Rights: The Due Process clause of the 5th Amendment, the “Criminal Trials” clause of the 6th Amendment, and the “Civil Jury Trial” clause of the 7th Amendment all are influenced by the Petition of Right.  Furthermore, during the 1760s, the American colonists articulated their grievances against King George in terms similar to those used by Lord Coke in the Petition of Right to uphold the rights of Englishmen].

 

  • The English Bill of Rights of 1689 – After the Bloodless Revolution or “Glorious Revolution” (in which the English Parliament instigated a bloodless coup, replacing King James II with his daughter, Mary II and her husband, William III), Parliament set to right the abuses of its previous kings – Charles I, Charles II, and James II. It drafted and adopted a bill of rights, known as the English Bill of Rights, as which set out certain basic civil rights and clarified the right of secession for the British Crown. It was presented to William and Mary in February 1689 as a condition to the offer to become joint ruling sovereigns of England.  It was contractual in nature so that the acceptance of the throne was tied to their express promise to recognize the rights set forth in the Bill of Rights. A violation of that agreement would terminate the right of William and Mary to rule. The Bill of Rights lays down limits on the powers of the monarch and sets out the rights of Parliament. It further, and most importantly for this discussion, sets out certain rights of the individual, including:  the right to bear arms for self-defense, the right of Due Process, the right to petition government, such criminal defense rights as the right to be free from excessive bail, the right to a jury trial for the crime of high treason, and the right against any cruel and/or unusual punishment, the guarantee that there would be no taxation without representation, the right to be free of a standing army in times of peace, and the right to be free of any quartering of troops.  [Great Britain is unlike the United States in that it has no formal Constitution; rather, the English Bill of Rights, taken together with the Magna Carta, the Petition of Right, the Habeas Corpus Act 1679 and the Parliament Acts of 1911 and 1949 are considered, in total, as the uncodified British constitution].

 

  • The colonies being organized under grants and agreements from England, it was assumed that English traditions applied. The colonists considered themselves British subjects and as such, they believed they were entitled to all the rights and privileges of Englishmen. That is why they reacted as they did to the taxes imposed by Parliament, why one protest theme was “No Taxation Without Representation,” why the Sons of Liberty formed, why they harassed the colonial stamp collectors and stamp masters until they resigned, why they engaged in acts of civil disobedience (such as preventing the British from unloading their ships at colonial ports) or hanging colonial governors in effigy, why they tossed crates of tea into the Boston Harbor, why men like Patrick Henry called for the raising and training of colonial militias, and why they were willing to confront the Redcoats with their muskets when they sought to destroy the stockpiles of colonial ammunition. It seemed that once again, as English history has shown true, Englishmen would have to exert their rights and demand that the King to respect them. Proper boundaries would once again have to be established.

 

  • King John’s rejection of the Magna Carta (1215) and King Charles’s rejection of the Petition of Right (1628) proved to our Founding Fathers that the system established in Great Britain provided only arbitrary security for individual rights. They would need to come up with a different system of government, grounded on more “enlightened” principles and “enlightened” government philosophy. And that is exactly what they did in the Declaration of Independence – announcing that the American states were united on the concept of Individual Sovereignty, that government power originated from the People, to serve the People, and not from kings (“the Divine Right of Kings”) to serve kings.

With what many believe to be divine guidance and protection, the thirteen original colonies fought and won their independence from Great Britain in 1781. Lord Cornwallis surrendered his British troops to General George Washington, Commander of the Continental Army, on October 19, 1781 and the Treaty of Paris, signed in September 1783, marked the official end of the struggle. Since the colonies worked together in a collaborative effort to communicate grievances and concerns to King George and Parliament and to engage in a concerted effort to prevent war, but then once war came, to fight and manage the war effort, it seemed only natural to continue to collaborate in their independence. The first attempt at a loose union of states, under the Articles of Confederation, was not very successful. The government lacked the enforcement power needed to effectively act on behalf of the states, such as the power to collect revenue to pay the war debt.

Taking note of the limitations of the common government (the Confederation Congress, aka, Congress of the Confederation, or sometimes even referred to still as the Continental Congress), certain members of our founding generation instigated for a Convention to amend that government. Eventually, in February 1787, Congress called for such a Convention to meet in May in Philadelphia “to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government [the Articles of Confederation] adequate to the exigencies of the Union.” And so, the Convention did convene on May 25, 1787 in Philadelphia with delegates from all the states except Rhode Island. The Constitutional Convention, as it came to be known, quickly changed direction – from amending the Articles of Confederation to designing an altogether different form of government. James Madison would be the architect of that plan (the Virginia Plan).  The collective wisdom of the delegates at the Convention identified the weakness of the Virginia Plan, which for the colonies was the creation of a “national” government, with concentrated power in that government, rather than a “federal” government which left most of the sovereign power with the states. A federal government, with the sovereignty of the States keeping the sovereign power of the federal government in check, was the form of government that the delegates preferred. A government that could remain checked against abuses was one that honored the fiercely independent and freedom-loving nature of the colonies and one which would address the reasons for the revolution against Great Britain.

In the summer of 1787, delegates from the 13 states convened in Philadelphia and drafted a remarkable blueprint for self-government — the Constitution of the United States. The first draft set up a system of checks and balances that included a strong executive branch, a representative legislature and a federal judiciary.

The Constitution was remarkable, but deeply flawed. For one thing, it did not include a specific declaration – or bill – of individual rights. As it turned out, and luckily for us as depositories of certain “inalienable rights” as well as civil rights (those belonging to individuals living in a society, subject to the rule of law), the lack of a Bill of Rights turned out to be an obstacle to the Constitution’s ratification by the states that could not be overcome. The Federalists opposed including a bill of rights on the ground that it was unnecessary. According to James Madison, a leading Federalist, a Bill of Rights was not necessary, arguing that because the general government was one of limited powers, having only those powers specifically delegated to it and none touching on individual rights. Besides, he said, a Bill of Rights would only create confusion (inferring that any other right or privilege not listed in the Bill of Rights would be fair game for federal regulation) and also, state governments could ensure these freedoms without the need for a federal mandate. The Anti-Federalists, who were afraid of a strong centralized government and knowing that history has clearly shown that governments tend to concentrate power and tend towards centralization and then tyranny/abuse, refused to support the Constitution without one.

At the close of the Philadelphia Convention, on September 20, 1787, the delegates left with mixed feelings about the document they drafted. Of the 55 delegates to the Convention, only 39 signed it.  Of the 16 that did not sign, some left early (for business, health reasons, family concerns, or out of protest) and some refused to sign out of protest. Some of the more important delegates (ie, position and/or influence in their states) who refused to sign were the following:  George Mason of Virginia (because it did not contain a Bill of Rights), Luther Martin of Maryland (because it violated states’ rights), John Mercer of Maryland (because it did not contain a Bill of Rights), Elbridge Gerry of Massachusetts (because it did not contain a Bill of Rights), John Lansing and Robert Yates, both of New York (because it created too strong of a government, which he characterized as much more “national” than “federal”), and Edmund Randolph of Virginia (because it contained insufficient checks and balances to prevent government abuse). Had some of our most active and influential founding fathers attended the Convention, there would have been far greater opposition to the final product. Those who refused to attend or who were unable to included: Patrick Henry (refused to attend, he “smelled a rat” who he believed would try to vest the common government with too much power), Richard Henry Lee (refused to attend because he too didn’t trust the motives of those who called it), Thomas Jefferson (was acting as Ambassador to France at the time, but offered to advise the delegates by correspondence), John Adams (was acting as Ambassador to Great Britain at the time), Samuel Adams (refused to attend because he rejected the purpose of the Convention) and John Hancock (refused to attend for the same reason as Sam Adams).

Many of those who refused to sign the Constitution vowed to fight its ratification at the state conventions – George Mason, Elbridge Gerry, the delegates from Maryland, Luther Martin and John Mercer, and the delegates from New York, John Lansing and Robert Yates. And some strong anti-Federalists who were not delegates at Philadelphia would oppose it as well –Richard Henry Lee, Sam Adams, John Hancock, James Monroe (Virginia), and New York’s Governor George Clinton (who wrote several anti-Federalist essays under the pen name “Cato”). Add to these “big guns” the biggest ones of all – Thomas Jefferson, who was as strong a proponent of a Bill of Rights as one could be, and Patrick Henry, perhaps our most vocal and passionate orator for liberty. Jefferson would have advised Madison to include one, and certainly would have taken issue with Madison’s position on the matter, even though he would have had to do so by correspondence. Perhaps that is the reason why Madison lapsed during the final days of the Convention in updating Jefferson as to the discussions and decisions made in the Convention. It wasn’t until a month after the Convention wrapped up, on October 24, that he finally wrote to him again and sent him a copy of the draft Constitution. We do know that as the debate intensified over a Bill of Rights, Jefferson wrote Madison with his strong opinion, including his letter of December 20, 1787, in which he wrote: “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”   [The Appendix at the end of this article contains the full commentary in Jefferson’s letter relating to the lack of Bill of Rights in the new Constitution].

On September 28, 1787, the Confederation Congress (aka, Congress of the Confederation) advised the states to begin calling their ratifying conventions, and several did so immediately. Madison left the Philadelphia Convention uncertain what the outcome of the ratification process would be. The dissent by Edmund Randolph and George Mason, both from his home state, and then their refusal to attach their names to the Constitution weighed very heavily on his mind. As Kevin Gutzman pointed out in his book James Madison and the Making of America, the influence that those two men alone had in the overall ratification process potentially could more than counter the entire “unanimity” of the Convention.

As we will see, Madison not only played a leading role in bringing about the Philadelphia Convention (he and Alexander Hamilton orchestrated the report to the Confederation Congress – the Annapolis Report – which made the recommendation that a convention be called in May 1787 in Philadelphia to address the defects of the Articles of Confederation), but he also played a critical supporting role (through his writings) in the debates in the state ratifying conventions, and then a more formal role when ratification seemed to be doomed. The Constitution was “his baby” and he was going to do all he could to see it adopted and a stronger union created. [In September 1786, a conference was called in Annapolis, Maryland to discuss the state of commerce in the fledgling nation. The national government had no authority to regulate trade between and among the states. The conference was called by Virginia, at the urging of Madison, to discuss ways to facilitate commerce and establish standard rules and regulations. Only five of the 13 states sent any delegates at all].

Between November 20, 1787 and January 9, 1788, five states – Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut – ratified the Constitution with relative ease, although the bitter minority report of the Pennsylvania opposition was widely circulated. Despite overwhelming success with these early conventions, the Federalists were well aware of the difficulties that lay ahead. Massachusetts, New Hampshire, Virginia, and New York were still to come and they knew that North Carolina and Rhode Island weren’t going to sign. In other words, the difficult journey still lied ahead because the anti-Federalist (opponents of the proposed Constitution) were aggressively campaigning against ratification, six states were in doubt, and the magic number of 9 states (Article VII – when 9 states ratified the Constitution, it would take effect) might never be achieved.

In the month after the close of the Convention, Madison found himself in New York and with some time to spare. It didn’t look good; too many political heavyweights were lining up against ratification. New York was unlikely to approve the Constitution. When John Lansing and Robert Yates abandoned the Philadelphia Convention, as Gutzman wrote, “they said that they had not been sent to Philadelphia to replace the Confederation with a national government.” New York’s strongest political figure, its Governor, George Clinton, sided with Lansing and Yates. Alexander Hamilton, a delegate to the Convention from NY, advised Madison that the best way to improve the chances of ratification in his state was to appeal directly to the electorate through the newspapers. After all, several anti-Federalists were already writing articles and other publications criticizing the Constitution and condemning the ambitious government it believed it created.

In addition to the anti-Federalist essays written by Governor Clinton (“Cato”), there were other, also powerful, essays published to criticize the Constitution and to highlight its many flaws. There was “Brutus” from New York (likely Robert Yates or Melancton Smith, or maybe even John Williams), “Centinel” from Pennsylvania (Samuel Bryan), “Agrippa” from Massachusetts (James Winthrop), and the “Federal Farmer” from Virginia (most likely Richard Henry Lee, or maybe Mercy Otis Warren). The is no list to identify with certainty which individuals authored the essays. Agrippa published 11 Letters “To the people,” and 5 essays “To the Massachusetts Convention” by February 5. Brutus published 11 of his 16 essays, Cato published all of his 7 essays, Centinel published 14 of his 18 letters, and Federal Farmer published all of his 18 letters between October 1787 and the start of the Massachusetts ratifying convention, which was January 9, 1788. Much to the dismay of the Federalists, the flood of Anti-federalist essays were starting to have their impact on the electorate and on more importantly, on the election of delegates, and key conventions were yet to meet (namely, New York and Virginia).  In fact, in both those states, the majority of delegates selected would be anti-Federalists.

[New York would call for its convention on February 1, select its delegates from April 29 to May 3, and set its date for June 17. Virginia would select its delegates in March, and set a date of June 2 for its convention].

Alexander Hamilton, James Madison, and prominent NY figure, lawyer John Jay agreed to address the anti-Federalist campaign, convinced that rejection of the Constitution would condemn the states to an unworkable union. It is likely that Madison took charge from the beginning, laying out a theme or roadmap for the essays, making sure that the criticisms of the anti-federalists were addressed, making sure the provisions of the Constitution that were most contentious were addressed and effectively explained, and that the arguments in favor of the Constitution were made that he wanted. When Jay became very ill, the bulk of the essays would have to be split between Hamilton and Madison; Jay would only be able to write 3 essays. The three men responded to each and every one of the criticisms of the anti-Federalist, in essay form, under the pen name “Publius.” Beginning in October 1787, these men penned 85 essays for New York newspapers and later collected them into 2 volumes entitled The Federalist (later to be referred to as The Federalist Papers), which addressed each concern of the anti-Federalists, analyzed the Constitution, detailed the thinking of the framers, anticipated scenarios posed by the critics, and explained what each provision meant. The Federalist Papers gave assurances that the fears of the anti-Federalists were unfounded and mere speculation and conjecture. One reading the Federalist Papers would believe the federal government to be one of strict and limited powers and without any threat of overstepping or abusing its powers. Comparing the government explained in the Federalist Papers to the one today would be to compare a pea to a grapefruit.

In contrast to its predecessor states (Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut), the Massachusetts convention was angry and contentious, and at one point, it erupted into a fistfight between Federalist delegate Francis Dana and anti-Federalist Elbridge Gerry when the latter was not allowed to speak. The impasse was resolved only when revolutionary heroes and leading anti-Federalists Samuel Adams and John Hancock agreed to ratification on the condition that the convention also propose amendments. In other words, Massachusetts’ ratification was a “conditional” one. [The convention’s proposed amendments included a requirement for grand jury indictment in capital cases, which would form part of the Fifth Amendment, and an amendment reserving powers to the states not expressly given to the federal government, which would later form the basis for the Tenth Amendment. Massachusetts’ Ratification is provided in the Appendix at the end of this article].

The next contentious convention would be in Virginia – in June.

At this point, I wanted to provide a timeline of the State Ratifying Conventions:

Timeline of State Ratifying Conventions:

Delaware – December 7, 1787 –  Delaware ratified the Constitution, 30-0.  [http://teachingamericanhistory.org/library/document/delaware-ratifies-30-0/ ]

Pennsylvania – December 12, 1787 – Pennsylvania ratified, 46-23.  [http://teachingamericanhistory.org/library/document/pennsylvania-ratifies-46-23/ ]

New Jersey – December 18, 1787 –  New Jersey ratified, 38-0.  [http://teachingamericanhistory.org/library/document/new-jersey-ratifies-38-0/ ]

Georgia – December 31, 1787 – Georgia ratified, 20-0.  [http://teachingamericanhistory.org/library/document/georgia-deed-of-ratification/ ]

Connecticut – January 9, 1787 –  Connecticut ratified 128-40.  [http://teachingamericanhistory.org/library/document/connecticut-ratifies-128-40/]  

Massachusetts – February 6, 1788 – The delegates to the Massachusetts Ratifying Convention were split on whether to ratify the Constitution or reject it, and so they came up with a compromise.  The high road explanation is that responsible leaders from both parties, including Adams and Hancock, convened and said, “Look, we’ve been at this now for nearly a month. We’re not making any progress whatsoever. The country is in crisis and if Massachusetts doesn’t sign, then we’re down the tubes. Is there some way we can come to some common ground on this?” And the common ground was that Massachusetts would ratify now with an expectation that in the First Congress amendments would be proposed to alter the Constitution. This is known as the Massachusetts Compromise. And enough people bought into it because Hancock bought into it, that it swayed enough delegates to ensure ratification. So the high ground is the sense of crisis, the sense of duty, the sense of Hamilton‘s remark in Federalist 85 that states would be better off signing quickly and working within the system, and that sense that Massachusetts had a responsibility to step up and take the lead. Ultimately, the Massachusetts Ratifying Convention ratified 187-168 with 9 proposed amendments – again with the understanding and expectation that a Bill of Rights would be added.  [http://teachingamericanhistory.org/ratification/stagethree/ ]

New Hampshire – February 14, 1788  – A majority of the delegates to the New Hampshire Ratifying Convention were opposed to ratification, and so the delegates to the convention voted to postpone until June 18, at which time they would take up the issue of ratification again.  [http://teachingamericanhistory.org/ratification/stagethree/ ]

Rhode Island – March 24, 1788 – Rhode Island rejected the call for a state ratifying convention; the state had no intention of even considering a new constitution.

Maryland – April 26, 1788 – Maryland ratified 63-11.   [http://teachingamericanhistory.org/ratification/stagefour/#maryland ]

South Carolina – May 23, 1788 – South Carolina ratified, 149-73, with 5 Declarations and Resolves.  [http://teachingamericanhistory.org/ratification/tansill/ratification-southcarolina/ ]

New Hampshire – June 21, 1788 – New Hampshire ratified 57-47, with 12 proposed amendments.  [http://teachingamericanhistory.org/library/document/new-hampshire-ratifies-57-47-with-12-proposed-amendments/ ]

Virginia – June 25, 1788 –  Virginia ratified 89-79, with 20 Bill of Rights and 20 proposed amendments.  [http://teachingamericanhistory.org/library/document/virginia-ratifies-89-79-with-20-proposed-amendments/ ]

On July 2, 1788, the Confederation Congress (still under the Articles of Confederation at the time), adopted the ratification of the US Constitution. The old union (13 colonies-turned-states) was dissolved at that point and a new union, comprising the states that had ratified up until this point (DE, PA, NJ, GA, CT, MA, NH, MD, SC, and VA) was formed.

New York – July 25-26, 1788 – New York ratified on July 26, after debating the day before whether to ratify with amendments or not. It ratified by a slim margin, 30-27, with 25 Bill of Rights and 31 proposed amendments.  [http://teachingamericanhistory.org/library/document/new-york-ratifies-30-27-with-31-proposed-amendments/ ].  The first three Bill of Rights read:

(1)  That all Power is originally vested in and consequently derived from the People, and that Government is instituted by them for their common Interest Protection and Security.

(2)  That the enjoyment of Life, Liberty and the pursuit of Happiness are essential rights which every Government ought to respect and preserve.

(3)  That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.  [= “RESUMPTION CLAUSE.”  This condition to ratification, as the states of Virginia and Rhode Island also exercised this condition, is critical to understanding the reserved right of a state to secede from the Union].

(4)  That the People have an equal, natural and unalienable right, freely and peaceably to Exercise their Religion according to the dictates of Conscience, and that no Religious Sect or Society ought to be favored or established by Law in preference of others.

(5)  That the People have a right to keep and bear Arms; that a well-regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defense of a free State;

North Carolina – August 2, 1788 – North Carolina voted 184-84 against ratification.  [http://teachingamericanhistory.org/ratification/elliot/vol4/northcarolina0802/ ]

On September 13, 1788, the Confederation Congress prepared for the new government to take its place. On January 7, 1789, presidential electors were selected, and on February 4, the first election was held to select representatives to the new government under the US Constitution. The candidates receiving the top votes for president were George Washington and John Adams, and so they became the country’s first president and vice-president, respectively. James Madison was elected to the first US Congress from the state of Virginia. The first US Congress was inaugurated on March 4, and finally, on March 30, Washington was inaugurated. He delivered what would become one of the most memorable and often-cited Inaugural addresses.

The first government created by the US Constitution was installed.

North Carolina – November 21, 1789 –  North Carolina ratified 194-77, with 20 Bill of Rights and 21 proposed amendments

Rhode Island – May 29, 1790 –  Rhode Island ratified 34-32, with 18 Bill of Rights and 21 proposed amendments.  [Reference:  http://teachingamericanhistory.org/ratification/tansill/ratification-rhodeisland/ ]

***  Timeline of Ratification of the US Constitution, Reference:  http://teachingamericanhistory.org/bor/timeline/.  By clicking on the State Ratifying Convention, you can pull up the debates, the votes, and the proposed amendments associated with each state’s vote.  Also, I have included, in the Appendix at the end of this article, the proposed Bill of Rights and/or proposed amendments proposed by the certain states in their ratifications].

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Having co-written The Federalist Papers to help secure ratification in New York, James Madison left the state for Virginia, to take up the battle there. [The Virginia Convention would be held before the New York Convention, two weeks before, but as it turned out, they would continue simultaneously].  Back in Virginia, Madison would have to face Patrick Henry, George Mason, Edmund Randolph, James Monroe, Richard Henry Lee (one-time president of the Continental Congress) and William Grayson (VA representative in the Continental Congress). George Mason had authored the 1776 Virginia Declaration of Rights and the state constitution (chief author, at least) so he would clearly be a forceful authority on the necessity of a Bill of Rights. Mason and Lee would mount the most strenuous opposition to the proposed Constitution, in favor of amending it to include a Bill of Rights. Patrick Henry would oppose it on states’ rights grounds as well. He urged that Virginia hold out for amendments.

Virginia elected its delegates to the Convention in March 1788, and many men – many prominent men – ran for a seat. Interestingly, some of the more prominent men who chose not to run, or who did not win, included George Washington, Thomas Jefferson, Beverley Randolph, Richard Henry Lee, and a few others. The most prominent men who were elected included James Madison, Patrick Henry, George Mason, Governor Edmund Randolph, James Monroe, William Grayson, Edmund Pendleton, George Wythe, George Nicholas, former VA Governor Benjamin Harrison V, and John Marshall (who would go on to become our most influential Supreme Court Chief Justice). Of the 168 delegates, the majority were anti-Federalists.

In his book James Madison and the Making of America, Gutzman goes into detail with respect to Mason’s objections to the proposed Constitution. He wrote:

On October 7, Mason sent a letter to [George] Washington including his objections to the Constitution. An amended version of notes he had made during the Philadelphia Convention, this document essentially repeated complaints Mason had raised then: There was no Declaration of Rights, and the Supremacy Clause meant state declarations would be unavailing; the House was too small; the Senate had money powers, although it did not represent the people; the combination of legislative and executive powers in the Senate endangered liberty’ the federal judiciary would swallow up the state judiciaries and thus allow the rich to oppress the poor; the president lacked an executive council, which meant he would be led by the Senate; and the vice-president, in limbo between the Senate and the executive branch, was a dangerous personage – besides which he would give one state three Senate votes, which was unfair.

In addition to these objections, Mason also went public with his Philadelphia Convention prediction that the Commerce Clause would empower the eight northern states to abuse the five southern ones. There would be a tendency for Congress to read almost anything into the Necessary & Proper Clause, which threatened both states’ rights and individuals’ rights.  [James Madison and the Making of America, pg. 189]

Virginia’s Convention met from June 2 – June 27. The Convention would end up pitting Patrick Henry against James Madison, with the former spending much more time on the floor speaking.  Henry was Madison’s most formidable antagonist in the ratification fight.  Henry was perhaps our most passionate founding father, being known for his fiery speeches and his imagery. He was the voice of the revolution. As Gutzman wrote: “He was the great guardian of Virginians’ self-government and inherited rights. He was also an orator without parallel, one who could cause hair to stand up on the necks even of his most devout opponents.”  He did not disappoint at the Convention.

On June 8, he took to the floor to accuse the proposed government created by the Constitution of being a consolidated one. His position was that a confederated government (under the Articles) was being replaced by a consolidated government. He objected to the introductory phrase “We the People…,” claiming that it conjured up the notion that the government would be a consolidated national one. He wanted the language changed to “We the States…”  In his speech that day, he said:

“It is said eight States have adopted this plan. I declare that if twelve States and a half had adopted it, I would, with manly firmness, and in spite of an erring world, reject it. You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your Government. Having premised these things, I shall, with the aid of my judgment and information, which, I confess, are not extensive, go into the discussion of this system more minutely. Is it necessary for your liberty that you should abandon those great rights by the adoption of this system? Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings-give us that precious jewel, and you may take every thing else: But I am fearful I have lived long enough to become an fellow: Perhaps an invincible attachment to the dearest rights of man, may, in these refined, enlightened days, be deemed old fashioned: If so, I am contented to be so: I say, the time has been when every pore of my heart beat for American liberty, and which, I believe, had a counterpart in the breast of every true American: But suspicions have gone forth-suspicions of my integrity-publicly reported that my professions are not real. 23 years ago was I supposed a traitor to my country; I was then said to be the bane of sedition, because I supported the rights of my country: I may be thought suspicious when I say our privileges and rights are in danger.”

One of the more contentious days came on June 24; the Convention was winding down. George Wythe opened the day’s proceedings with a speech in favor of ratifying the Constitution before amending it. Madison followed, emphasizing many of the same themes he and Hamilton and Jay had addressed in The Federalist essays. Just as the elderly Benjamin Franklin had urged his fellow delegates in Philadelphia to quit their bickering and work together for the greater good at, Madison essentially tried to make the same point in Richmond. As to the position that amendments should be added before Virginia ratified, Madison argued that it was unreasonable. He didn’t think it was reasonable to expect the other states (eight of them) to retract their unconditional ratifications in order to accommodate Virginia’s demand that the Constitution be first amended, and particularly to include a Bill of Rights. Up until that point, Madison had remained relatively quiet at the Convention. And even when he spoke, he came across as meek. But he was never one to project very well. When he spoke on the 24th, it was in a strained, quiet tone. But he spoke articulately and rationally, and he addressed the many concerns of the anti-Federalists.

When he concluded, he yielded the floor to Henry. From Gutzman’s book:

An account given by Federalist Archibald Stuart proves the point. Henry concluded his speech by calling attention to ‘the awful dangers” attendant upon their vote. “I see beings of a higher order, Henry thundered, “anxious concerning our decision.”  “Our own happiness alone is not affected by the event – All nations are interested in the determination. We have it in our power to secure the happiness of one half of the human race….”    [James Madison and the Making of America, pg. 233]

The Convention was getting ready to take a vote when an obscure delegate endorsed Patrick Henry’s call for a list of amendments. “The delegate said that he could not vote for ratification until he was assured that amendments protecting Virginians’ historic rights would be recommended. Madison answered that he would not oppose any ‘safe’ amendments (but continued to assert that he believed it unnecessary, and perhaps even dangerous.’” [Ibid, pg. 235]

Ultimately, on June 25, the delegates voted against first proposing amendments to the other states prior to Virginia’s ratification (ie, having the other states recall their unconditional ratification and re-consider ratification after amendments were added) and voted 89-79 in favor of ratification, with proposed amendments.  On June 27, the Convention adopted a set of 40 proposed amendments. A committee, headed by law professor George Wythe, drafted the amendments – 20 enumerated individual rights (Bill of Rights) and the other 20 enumerated states’ rights. The amendments were forwarded to the Confederation Congress. [Virginia’s Ratification is provided in the Appendix at the end of this article. Take note of its Bill of Rights – it includes a “Resumption Clause”].

While there were delegates at several conventions who supported an “amendments before” approach to ratification, it soon shifted to an “amendments after” for the sake of trying to hold the Union together. Ultimately, only North Carolina and Rhode Island waited for amendments from Congress before ratifying.

Four days prior to the conclusion of the Virginia Convention, on June 21, 1788, New Hampshire ratified the Constitution. What makes that date special is that when New Hampshire ratified, with its 12 proposed amendments, the required number of state ratifications, according to Article VII of the Constitution, had been met to establish the Constitution. [Article VII – “The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.”} The Constitution would become operational. A new union (comprised of those states that had ratified) was created and the new frame of government would be established.

The New York ratification convention met on June 17, 1788, while the Virginia Convention was still debating ratification. As with Virginia, a majority of its 67 delegates were anti-Federalists. (The New York Convention would last over month – from June 17 until July 26). On the opening day, the anti-Federalists, led by Governor Clinton, clamored for a Bill of Rights and fought to preserve the autonomy of the state against what it believed were actual and potential federal encroachments. Hamilton (the only NY delegate to the Philadelphia Convention to sign the Constitution) and the Federalists, on the other hand, contended that a stronger central government would provide a solid base from which New York could grow and prosper. While the debates were contentious, the Federalists were ultimately successful and on July 26, the Constitution was ratified by a very slim margin, 30-27, but with 25 Bill of Rights and 31 proposed amendments. The Convention also voted to call for a second federal convention.  [New York’s Ratification is provided in the Appendix at the end of this article. Take note of its Bill of Rights – it includes a “Resumption Clause”].

On September 13, 1788, the Articles of Confederation Congress certified that the new Constitution had been ratified by more than enough states for the new system to be implemented and directed the new government to meet in New York City on the first Wednesday in March the following year. On March 4, 1789, the new frame of government came into force with eleven of the thirteen states participating – and without a Bill of Rights.

Opposition to the new Constitution among leading Virginians lingered. It would continue to be a thorn in James Madison’s ass…  the man who deceived the states into sending delegates to Philadelphia believing they were tasked with proposing amendments to the Articles of Confederation (when all along, he wanted them to take up the issue of an all-new scheme of government – his scheme, the “Virginia Plan”), the man who thought his scheme had finally been realized, and the man who supposedly held that “not a letter of the Constitution” should be altered.

After Virginia’s ratification and New York’s ratification, the future of the Constitution, as ratified, was not certain.  New York wanted to call another federal convention (to amend the new Constitution?  To get rid of the new Constitution?) and several powerful Virginians, with Patrick Henry taking the lead, seemed likely to move for the same.

As fate would have it, Madison set his sights on the US Senate. But there was one problem for him – the Constitution (pre-17th Amendment) empowered the state legislatures to elect senators, but the VA state legislature (VA General Assembly) was comprised of many enemies he had made in his efforts to deceive the states at the Philadelphia Convention, to write the Constitution, and to secure its ratification, including the great Patrick Henry. And Henry and his fellow anti-Federalists got the chance to get even: in its selection of Senators,  the legislature chose Richard Henry Lee and William Grayson.

Both Richard Henry Lee and William Grayson agreed with Patrick Henry that the Constitution should have been amended to include a Bill of Rights (at the least) before it was ratified. Both, it seems, would favor a second convention.

Madison, at this point, was warming somewhat to the notion of amendments, but it’s not sure if he was warming because he agreed that a Bill of Rights is essential to limit powers of government or if he was just nervous that the issue might be the one to sink his Constitution. One thing is for certain though, he would have rather the Constitution be amended by the first option in Article V (amendments proposed by Congress and then sent to the states for adoption) than by a second convention (the second option in Article V; a convention of states). Kevin Gutzman addressed this in his book:

For one thing, some states would oppose a convention so strongly that they would reflexively oppose any amendment it might propose. For another, it would be easier to have Congress propose amendments than to follow the process in Article V of the Constitution for convening another meeting like the one at Philadelphia. Finally, another convention would include members with extreme views on both ends of the political spectrum, enflame the public mind, and produce nothing conductive to the general good. He had seen how the first convention had worked, and he did not want to hazard a second – which, too, would undermine the impression of the American republic’s stability left in European capitals by the success of the recent ratification campaign.  [James Madison and the Making of America, pg. 241]

Defeated in his bid for the US Senate, Madison decided to stand for the House of Representatives. But again, he would be at the mercy of his nemesis, Patrick Henry. Henry wielded power in the General Assembly, and that power included the ability to draw congressional districts. To spite Madison, he helped draw a map that put Montpelier (Madison’s home) in the same district as James Monroe’s house. In the Richmond Convention, Monroe had aligned himself with Henry, Mason, and Grayson and had voted “nay” on the vote for ratification. “Because Monroe had been an authentic hero in the revolution – suffering a significant wound in Washington’s great victory at Trenton – and had established a respectable legislative record in both Virginia and in the Congress of the Confederation, his opposition would be formidable.” [Ibid, pg. 241]

Madison campaigned against Monroe, and due to the contentious issue of the Constitution lacking a Bill of Rights, Madison softened on the issue of adding amendments. Perhaps all the letters that Jefferson sent him at this time emphasizing the need for a Bill of Rights had something to do with it.  “If pursued with a proper moderation and in a proper mode [meaning that the First Congress would propose amendments for the states’ approval, per Article V], they would serve the double purpose of satisfying the minds of well-meaning opponents and of providing additional guards in favor of liberty.”  [Ibid, pg. 242].  Taking Madison at his word and believing him to be a man of his word, voters selected him over Monroe for the US House of Representatives.

On March 4, 1789, the first US Congress was seated, in New York City’s Federal Hall. The first thing to do was to organize itself. On April 1, the House of Representatives elected its officers, and the Senate did the same on April 6. Also on the 6th, the House and Senate met in joint session and counted the Electoral College ballots for the selection of president. George Washington was certified as president (having been unanimously selected) and John Adams as vice president.

On April 30, 1789, George Washington was inaugurated as the nation’s first president, also at Federal Hall, delivering the Inaugural Address that James Madison had written for him. In that message, Washington addressed the subject of amending the Constitution. He urged the legislators:

“Whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, or which ought to await the future lessons of experience; a reverence for the characteristic rights of freemen, and a regard for public harmony, will sufficiently influence your deliberations on the question, how far the former can be impregnably fortified or the latter be safely and advantageously promoted…..”

Madison knew that as long as the concerns of the anti-Federalists regarding the Constitution remained unaddressed, the threat of a new convention would remain, and so he would take the initiative to propose amendments (comprising a Bill of Rights) himself.  By taking the initiative to propose amendments himself through the Congress, he hoped to preempt a second constitutional convention that might, it was feared, undo  the difficult compromises of 1787, and open the entire Constitution to reconsideration, thus risking the dissolution of the new federal government. Writing to Jefferson, he stated, “The friends of the Constitution, some from an approbation of particular amendments, others from a spirit of conciliation, are generally agreed that the System should be revised. But they wish the revisal to be carried no farther than to supply additional guards for liberty.” He also felt that amendments guaranteeing personal liberties would “give to the Government its due popularity and stability.” Finally, he hoped that the amendments “would acquire by degrees the character of fundamental maxims of free government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.” [Historians continue to debate the degree to which Madison considered the amendments of the Bill of Rights necessary, and to what degree he considered them politically expedient; in the outline of his address, he wrote, “Bill of Rights—useful—not essential—”].  (see Wikipedia)

On June 8, Madison introduced a series of Constitutional amendments in the House of Representatives for consideration. Among his proposals was one that would have added introductory language stressing natural rights to the Preamble. Another would apply parts of the Bill of Rights to the states as well as the federal government. Several sought to protect individual personal rights by limiting various Constitutional powers of Congress. He urged Congress to keep the revision to the Constitution “a moderate one,” limited to protecting individual rights.

Madison was deeply read in the history of government and used a range of sources in composing the amendments. The English Magna Carta inspired the right to petition and to trial by jury, for example, while the English Bill of Rights of 1689 provided an early draft for the right to keep and bear arms and also for the right against cruel and unusual punishment.

The greatest influence on Madison’s text, however, was existing state constitutions, and especially Virginia’s. Many of his amendments, including his proposed new preamble, were based on the Virginia Declaration of Rights, which were drafted in 1776 by another great nemesis, anti-Federalist George Mason. To reduce future opposition to ratification, Madison also looked for recommendations shared by many states. He did provide one, however, that no state had specifically requested: “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” He did not include an amendment that every state had asked for, one that would have made tax assessments voluntary instead of contributions. Madison’s proposed the following constitutional amendments:

First. That there be prefixed to the Constitution a declaration, that all power is originally vested in, and consequently derived from, the people.

That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.

Secondly. That in article 1st, section 2, clause 3, these words be struck out, to wit: “The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative, and until such enumeration shall be made;” and in place thereof be inserted these words, to wit: “After the first actual enumeration, there shall be one Representative for every thirty thousand, until the number amounts to—, after which the proportion shall be so regulated by Congress, that the number shall never be less than—, nor more than—, but each State shall, after the first enumeration, have at least two Representatives; and prior thereto.”

Thirdly. That in article 1st, section 6, clause 1, there be added to the end of the first sentence, these words, to wit: “But no law varying the compensation last ascertained shall operate before the next ensuing election of Representatives.”

Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.

No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Fifthly. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit: No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

Sixthly. That, in article 3d, section 2, be annexed to the end of clause 2d, these words, to wit: But no appeal to such court shall be allowed where the value in controversy shall not amount to — dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.

Seventhly. That in article 3d, section 2, the third clause be struck out, and in its place be inserted the clauses following, to wit: The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service, in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same State, as near as may be to the seat of the offence.

In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.

Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit: The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments.

The powers not delegated by this Constitution, nor prohibited by it to the states, are reserved to the States respectively.

Ninthly. That article 7th, be numbered as article 8th.

[References:  See the Appendix, at the end of this article, for James Madison’s Speech in the House of Representatives, June 8, 1789, proposing a Bill of Rights, and also see Wikipedia: “United States Bill of Rights”].

The House passed a joint resolution containing 17 amendments based on Madison’s proposal. The Senate changed the joint resolution to consist of 12 amendments and rejected Madison’s suggestions for the Preamble. A joint House and Senate Conference Committee settled remaining disagreements in September. On October 2, 1789, President Washington sent copies of the 12 amendments adopted by Congress to the states. Again, the states would have to call up conventions – this time to debate and ratify the proposed amendments.

In the meantime, North Carolina finally ratified the Constitution, 194-77, with 20 Bill of Rights and 21 proposed amendments. She remained true to her principles – that she would not ratify a constitution without a Bill of Rights included.  Note that while North Carolina was second to last to ratify the Constitution, she was third to ratify the Bill of Rights, on December 22, 1789).

On December 15, Virginia was the eleventh state to adopt the amendments. Having been adopted by the requisite three-fourths of the several states (there being 14 States in the Union at the time, as Vermont had been admitted into the Union on March 4, 1791), the ratification of Articles Three through Twelve was completed and they became Amendments 1 through 10 of the Constitution – also known as our US Bill of Rights. President Washington informed Congress of this on January 18, 1792.

The original First and Second amendments fell short of the required 3/4 majority to make it into the Constitution, but interestingly, the original proposed second amendment (which addressed when Congress can change its pay) finally was adopted in 1992 to become our last amendment, the 27th amendment.

Note that the US Bill of Rights applies only to action by the federal government. It places limits only on its power. As most of you may know from your state constitutions, states have included similar guarantees of liberty of their own. Article I of the North Carolina State Constitution, for example, lists the NC Bill of Rights. The 14th Amendment has been mis-applied to incorporate all guarantees of rights and privileges on the states, and in fact, the 14th amendment, even though it was never constitutionally ratified, is the number one basis for all constitutional challenges.

It is a shame that the cartoon depiction of the Bill of Rights attached leaves off the 9th and 10th Amendments. The 9th Amendment states that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. And the 10th Amendment states that all powers not expressly delegated to the federal government by the Constitution nor prohibited by it to the states are reserved to the states or to the people. These amendments underscore the unique foundation of American liberty – that government is not the ultimate sovereign and individuals enjoy only those rights and privileges the government is generous enough to grant them. In America, rights are endowed on each individual by the Creator, inseparable from our very humanity, and government power derives from the natural and inherent right of each person to govern himself and to protect himself, his family, and his property. This is the concept of Individual Sovereignty referred to in the Declaration of Independence, the document that provides the foundational principles, the rights, and expectations for each State in this Union (despite what the federal government might say). It is the document that recognized each state as an independent sovereign for the world to take note; it is the document for which the Treaty of Paris of 1783 addressed to end the war for American Independence. The treaty included this provision: “Britain acknowledges the United States (New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia[15]) to be free, sovereign, and independent states…..

James Madison wrote: “In Europe, charters of liberty have been granted by power. America has set the example … of charters of power granted by liberty. This revolution in the practice of the world, may, with an honest praise, be pronounced the most triumphant epoch of its history, and the most consoling presage of its happiness.”

I urge everyone to take time today and read the Bill of Rights and understand what each guarantees and why. After all, they protect your most essential liberty rights.

 

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References:

Kevin R.C. Gutzman, James Madison and the Making of America; St. Martin’s Press (NY), 2012.

Gordon Lloyd, “The Bill of Rights,” Teaching American History. Referenced at:  http://teachingamericanhistory.org/bor/roots-chart/

The Six Stages of Ratification – Stage III: Winter in New England: Postpone and Compromise (Massachusetts – February 6, 1788 and New Hampshire (postpones) – February 24, 1788) –http://teachingamericanhistory.org/ratification/stagethree/

Report of the House Select Committee, July 28, 1789 –  http://teachingamericanhistory.org/library/document/report-of-the-house-select-committee/

House Debates Select Committee Report, August 13-24, 1789 –  http://teachingamericanhistory.org/library/document/house-debates-select-committee-report/

Ratification of the Constitution, State-by-State –  http://teachingamericanhistory.org/ratification/overview/

US Constitution, Virginia’s Ratification, from the Library of Congress (from its copy of Elliot’s Debates) –   https://www.usconstitution.net/rat_va.html

Day-to-Day Summary of the Virginia Ratifying Convention  –   http://teachingamericanhistory.org/ratification/virginiatimeline/   OR  http://teachingamericanhistory.org/ratification/virginia/

US Constitution, New York’s Ratification, from the Library of Congress (from its copy of Elliot’s Debates) – https://www.usconstitution.net/rat_ny.html

Day-to-Day Summary of the New York Ratifying Convention  –  http://teachingamericanhistory.org/ratification/newyorktimeline/     OR:  http://teachingamericanhistory.org/ratification/newyork/

The Debates in the Several State Ratifying Conventions (Elliott’s Debates) – http://teachingamericanhistory.org/ratification/elliot/   [On this site, you can click on links for the following state conventions and it will bring you to calendars so you can see what they did on a day-by-day basis: Massachusetts, Connecticut, New Hampshire, New York, Pennsylvania, Maryland, Virginia, North Carolina, and South Carolina]

James Madison Proposes a Bill of Rights to Congress, June 8, 1789) – http://www.let.rug.nl/usa/documents/1786-1800/madison-speech-proposing-the-bill-of-rights-june-8-1789.php

United States Bill of Rights,” Wikipedia.  https://en.wikipedia.org/wiki/United_States_Bill_of_Rights

Patrick Henry’s Speech at the Virginia Ratifying Convention, June 8, 1788 – http://www.let.rug.nl/usa/documents/1786-1800/the-anti-federalist-papers/speech-of-patrick-henry-(june-5-1788).php

Letter from Thomas Jefferson to James Madison, dated December 20, 1787, Founders Online –  https://founders.archives.gov/documents/Jefferson/01-12-02-0454

Chart: Approval of the Bill of Rights in Congress and the States — https://en.wikipedia.org/wiki/United_States_Bill_of_Rights

 

APPENDIX #1  (Letter from Thomas Jefferson to James Madison, dated December 20, 1787, on the topic of the new Constitution and the lack of a Bill of Rights)

“…….I have little to fill a letter. I will therefore make up the deficiency by adding a few words on the Constitution proposed by our Convention. I like much the general idea of framing a government which should go on of itself peaceably, without needing continual recurrence to the state legislatures. I like the organization of the government into Legislative, Judiciary and Executive. I like the power given the Legislature to levy taxes; and for that reason solely approve of the greater house being chosen by the people directly. For though I think a house chosen by them will be very ill-qualified to legislate for the Union, for foreign nations etc. yet this evil does not weigh against the good of preserving inviolate the fundamental principle that the people are not to be taxed but by representatives chosen immediately by themselves. I am captivated by the compromise of the opposite claims of the great and little states, of the latter to equal, and the former to proportional influence. I am much pleased too with the substitution of the method of voting by persons, instead of that of voting by states….  There are other good things of less moment. I will now add what I do not like. First the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land and not by the law of Nations. To say, as Mr. Wilson does that a bill of rights was not necessary because all is reserved in the case of the general government which is not given, while in the particular ones all is given which is not reserved might do for the Audience to whom it was addressed, but is surely gratis dictum, opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present confederation which had declared that in express terms. It was a hard conclusion to say because there has been no uniformity among the states as to the cases triable by jury, because some have been so incautious as to abandon this mode of trial, therefore the more prudent states shall be reduced to the same level of calamity. It would have been much more just and wise to have concluded the other way that as most of the states had judiciously preserved this palladium, those who had wandered should be brought back to it, and to have established general right instead of general wrong. Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference……”

[Reference:  https://founders.archives.gov/documents/Jefferson/01-12-02-0454 ]

 

APPENDIX #2  (James Madison’s Speech in Congress, June 8, 1789, proposing a Bill of Rights)

I am sorry to be accessary to the loss of a single moment of time by the house. If I had been indulged in my motion, and we had gone into a committee of the whole, I think we might have rose, and resumed the consideration of other business before this time; that is, so far as it depended on what I proposed to bring forward. As that mode seems not to give satisfaction, I will withdraw the motion, and move you, sir, that a select committee be appointed to consider and report such amendments as are proper for Congress to propose to the legislatures of the several States, conformably to the 5th article of the constitution.

I will state my reasons why I think it proper to propose amendments; and state the amendments themselves, so far as I think they ought to be proposed. If I thought I could fulfil the duty which I owe to myself and my constituents, to let the subject pass over in silence, I most certainly should not trespass upon the indulgence of this house. But I cannot do this; and am therefore compelled to beg a patient hearing to what I have to lay before you. And I do most sincerely believe that if congress will devote but one day to this subjects, so far as to satisfy the public that we do not disregard their wishes, it will have a salutary influence on the public councils, and prepare the way for a favorable reception of our future measures.

It appears to me that this house is bound by every motive of prudence, not to let the first session pass over without proposing to the state legislatures some things to be incorporated into the constitution, as will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who have been friendly to the adoption of this constitution, may have the opportunity of proving to those who were opposed to it, that they were as sincerely devoted to liberty and a republican government, as those who charged them with wishing the adoption of this constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions, that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired, of such a nature as will not injure the constitution, and they can be ingrafted so as to give satisfaction to the doubting part of our fellow citizens; the friends of the federal government will evince that spirit of deference and concession for which they have hitherto been distinguished.

It cannot be a secret to the gentlemen in this house, that, notwithstanding the ratification of this system of government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents, their patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who as present feel much inclined to join their support to the cause of federalism, if they were satisfied in this one point: We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution. The acquiescence which our fellow citizens shew under the government, calls upon us for a like return of moderation. But perhaps there is a stronger motive than this for our going into a consideration of the subject; it is to provide those securities for liberty which are required by a part of the community. I allude in a particular manner to those two states who have not thought fit to throw themselves into the bosom of the confederacy: it is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible. I have no doubt, if we proceed to take those steps which would be prudent and requisite at this juncture, that in a short time we should see that disposition prevailing in those states that are not come in, that we have seen prevailing [in] those states which are.

But I will candidly acknowledge, that, over and above all these considerations, I do conceive that the constitution may be amended; that is to say, if all power is subject to abuse, that then it is possible the abuse of the powers of the general government may be guarded against in a more secure manner than is now done, while no one advantage, arising from the exercise of that power, shall be damaged or endangered by it. We have in this way something to gain, and, if we proceed with caution, nothing to lose; and in this case it is necessary to proceed with caution; for while we feel all these inducements to go into a revisal of the constitution, we must feel for the constitution itself, and make that revisal a moderate one. I should be unwilling to see a door opened for a re-consideration of the whole structure of the government, for a re-consideration of the principles and the substance of the powers given; because I doubt, if such a door was opened, if we should be very likely to stop at that point which would be safe to the government itself: But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents, such as would be likely to meet with the concurrence of two-thirds of both houses, and the approbation of three-fourths of the state legislatures. I will not propose a single alteration which I do not wish to see take place, as intrinsically proper in itself, or proper because it is wished for by a respectable number of my fellow citizens; and therefore I shall not propose a single alteration but is likely to meet the concurrence required by the constitution.

There have been objections of various kinds made against the constitution: Some were levelled against its structure, because the president was without a council; because the senate, which is a legislative body, had judicial powers in trials on impeachments; and because the powers of that body were compounded in other respects, in a manner that did not correspond with a particular theory; because it grants more power than is supposed to be necessary for every good purpose; and controls the ordinary powers of the state governments. I know some respectable characters who opposed this government on these grounds; but I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought we to consider them safe, while a great number of our fellow citizens think these securities necessary.

It has been a fortunate thing that the objection to the government has been made on the ground I stated; because it will be practicable on that ground to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the constitution, which is considered as essential to the existence of the government by those who promoted its adoption.

The amendments which have occurred to me, proper to be recommended by congress to the state legislatures are these:

First. That there be prefixed to the constitution a declaration–That all power is originally vested in, and consequently derived from the people. That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety. That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.

Secondly. That in article 2st. section 2, clause 3, these words be struck out, to wit, “The number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative, and until such enumeration shall be made.” And that in place thereof be inserted these words, to wit, “After the first actual enumeration, there shall be one representative for every thirty thousand, until the number amount to after which the proportion shall be so regulated by congress, that the number shall never be less than nor more than but each state shall after the first enumeration, have at least two representatives; and prior thereto.”

Thirdly. That in article 2st, section 6, clause 1, there be added to the end of the first sentence, these words, to wit, “But no law varying the compensation last ascertained shall operate before the next ensuing election of representatives.”

Fourthly. That in article 2st, section 9, between clauses 3 and 4, be inserted these clauses, to wit, The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good, nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

The right of the people to keep and bear arms shall not be infringed; a well-armed, and well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.

No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same office; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Fifthly. That in article 2st, section 10, between clauses 1 and 2, be inserted this clause, to wit:

No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

Sixthly. That article 3d, section 2, be annexed to the end of clause 2d, these words to wit: but no appeal to such court shall be allowed where the value in controversy shall not amount to___dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.

Seventhly. That in article 3d, section 2, the third clause be struck out, and in its place be inserted the classes following, to wit:

The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury, shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same state, as near as may be to the seat of the offence.

In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.

Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit:

The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial; nor the executive exercise the powers vested in the legislative or judicial; nor the judicial exercise the powers vested in the legislative or executive departments.

The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively.

Ninthly. That article 7th, be numbered as article 8th.  The first of these amendments, relates to what may be called a Bill of Rights; I will own that I never considered this provision so essential to the federal constitution, as to make it improper to ratify it, until such an amendment was added; at the same time, I always conceived, that in a certain form and to a certain extent, such a provision was neither improper nor altogether useless. I am aware, that a great number of the most respectable friends to the government and champions for republican liberty, have thought such a provision, not only unnecessary, but even improper, nay, I believe some have gone so far as to think it even dangerous. Some policy has been made use of perhaps by gentlemen on both sides of the question: I acknowledge the ingenuity of those arguments which were drawn against the constitution, by a comparison with the policy of Great Britain, in establishing a declaration of rights; but there is too great a difference in the case to warrant the comparison: therefore the arguments drawn from that source, were in a great measure inapplicable. In the declaration of rights which that country has established, the truth is, they have gone no farther, than to raise a barrier against the power of the crown; the power of the legislature is left altogether indefinite. Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, came in question in that body, the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which, the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British constitution.

But although the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many states, have thought it necessary to raise barriers against power in all forms and departments of government, and I am inclined to believe, if once bills of rights are established in all the states as well as the federal constitution, we shall find the although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.

It may be said, in some instances they do no more than state the perfect equality of mankind; this to be sure is an absolute truth, yet it is not absolutely necessary to be inserted at the head of a constitution.

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances they lay down dogmatic maxims with respect to the construction of the government; declaring, that the legislative, executive, and judicial branches shall be kept separate and distinct: Perhaps the best way of securing this in practice is to provide such checks, as will prevent the encroachment of the one upon the other.

But whatever may be [the] form which the several states have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

In our government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be levelled against the legislative, for it is the most powerful, and most likely to be abused, because it is under the least control; hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. The prescriptions in favor of liberty, ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power: But this [is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.

It may be thought all paper barriers against the power of the community are too weak to be worthy of attention. I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defense; yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one mean to control the majority from those acts to which they might be otherwise inclined.

It has been said by way of objection to a bill of rights, by many respectable gentlemen out of doors, and I find opposition on the same principles likely to be made by gentlemen on this floor, that they are unnecessary articles of a republican government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. It would be a sufficient answer to say that this objection lies against such provisions under the state governments as well as under the general government; and there are, I believe, but few gentlemen who are inclined to push their theory so far as to say that a declaration of rights in those cases is either ineffectual or improper.

It has been said that in the federal government they are unnecessary, because the powers are enumerated, and it follows that all that are not granted by the constitution are retained: that the constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the state governments under their constitutions may to an indefinite extent; because in the constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the government was established. Now, may not laws be considered necessary and proper by Congress, for it is them who are to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary or proper; as well as improper laws could be enacted by the state legislatures, for fulfilling the more extended objects of those governments. I will state an instance which I think in point, and proves that this might be the case. The general government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the state governments had in view. If there was reason for restraining the state governments from exercising this power, there is like reason for restraining the federal government.

It may be said, because it has been said, that a Bill of Rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions: that those rights of the people, which had been established by the most solemn act, could not be annihilated by a subsequent act of the people, who meant, and declared at the head of the instrument, that they ordained and established a new system, for the express purpose of securing to themselves and posterity the liberties they had gained by an arduous conflict.

I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this constitution. Beside some states have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

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.

It has been said, that it is necessary to load the constitution with this provision, because it was not found effectual in the constitution of the particular states. It is true, there are a few particular states in which some of the most valuable articles have not, at one time or other, been violated; but does it not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Beside this security, there is a great probability that such a declaration in the federal system would be enforced; because the state legislatures will jealously and closely watch the operation of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people’s liberty. I conclude from this view of the subject, that it will be proper in itself, and highly politic, for the tranquility of the public mind, and the stability of the government, that we should offer something, in the form I have proposed, to be incorporated in the system of government, as a Declaration of the Rights of the people.

In the next place I wish to see that part of the constitution revised which declares, that the number of representatives shall not exceed the proportion of one for every thirty thousand persons, and allows one representative to every state which rates below that proportion. If we attend to the discussion of this subject, which has taken place in the state conventions, and even in the opinion of the friends to the constitution, an alteration here is proper. It is the sense of the people of America, that the number of representatives ought to be increased, but particularly that it should not be left in the discretion of the government to diminish them, below that proportion which certainly is in the power of the legislature as the constitution now stands; and they may, as the population of the country increases, increase the house of representatives to a very unwieldy degree. I confess I always thought this part of the constitution defective, though not dangerous; and that it ought to be particularly attended to whenever congress should go into the consideration of amendments.

There are several lesser cases enumerated in my proposition, in which I wish also to see some alteration take place. That article which leaves it in the power of the legislature to ascertain its own emolument is one to which I allude. I do not believe this is a power which, in the ordinary course of government, is likely to be abused, perhaps of all the powers granted, it is least likely to abuse; but there is a seeming impropriety in leaving any set of men without control to put their hand into the public coffers, to take out money to put in their pockets; there is a seeming indecorum in such power, which leads me to propose a change. We have a guide to this alteration in several of the amendments which the different conventions have proposed. I have gone therefore so far as to fix it, that no law, varying the compensation, shall operate until there is a change in the legislature; in which case it cannot be for the particular benefit of those who are concerned in determining the value of the service.

I wish also, in revising the constitution, we may throw into that section, which interdicts the abuse of certain powers in the state legislatures, some other provisions of equal if not greater importance than those already made. The words, “No state shall pass any bill of attainder, ex post facto law, etc.” were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the state governments than by the government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. I know in some of the state constitutions the power of the government is controlled by such a declaration, but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the state governments are as liable to attack these invaluable privileges as the general government is, and therefore ought to be as cautiously guarded against.

I think it will be proper, with respect to the judiciary powers, to satisfy the public mind on those points which I have mentioned. Great inconvenience has been apprehended to suitors from the distance they would be dragged to obtain justice in the supreme court of the United States, upon an appeal on an action for a small debt. To remedy this, declare, that no appeal shall be made unless the matter in controvers amounts to a particular sum:

This, with the regulations respecting jury trials in criminal cases, and suits at common law, it is to be hoped will quiet and reconcile the minds of the people to that part of the constitution.

I find, from looking into the amendments proposed by the state conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated, should be reserved to the several states. Perhaps words which may define this more precisely, than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary; but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.

These are the points on which I wish to see a revision of the Constitution take place. How far they will accord with the sense of this body, I cannot take upon me absolutely to determine; but I believe every gentlemen will readily admit that nothing is in contemplation, so far as I have mentioned, that can endanger the beauty of the government in any one important feature, even in the eyes of its most sanguine admirers. I have proposed nothing that does not appear to me as proper in itself, or eligible as patronized by a respectable number of our fellow citizens; and if we can make the constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness, in the judgment of those who are attached to it, we act the part of wise and liberal men to make such alterations as shall produce that effect.

Having done what I conceived was my duty, in bringing before this house the subject of amendments, and also stated such as wish for and approve, and offered the reasons which occurred to me in their support; I shall content myself for the present with moving, that a committee be appointed to consider of and report such amendments as ought to be proposed by congress to the legislatures of the states, to become, if ratified by three-fourths thereof, part of the Constitution of the United States. By agreeing to this motion, the subject may be going on in the committee, while other important business is proceeding to a conclusion in the house. I should advocate greater dispatch in the business of amendments, if I was not convinced of the absolute necessity there is of pursuing the organization of the government; because I think we should obtain the confidence of our fellow citizens, in proportion as we fortify the rights of the people against the encroachments of the government.

[Reference:  http://www.let.rug.nl/usa/documents/1786-1800/madison-speech-proposing-the-bill-of-rights-june-8-1789.php ]

 

APPENDIX #3  (STATE RATIFICATIONS):

I.  NEW YORK RATIFICATION (on July 26, 1788), with 25 Bill of Rights:

WE the Delegates of the People of the State of New York, duly elected and Met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year One thousand Seven hundred and Eighty seven, by the Convention then assembled at Philadelphia in the Common—wealth of Pennsylvania (a Copy whereof precedes these presents) and having also seriously and deliberately considered the present situation of the United States, Do declare and make known.

— That all Power is originally vested in and consequently derived from the People, and that Government is instituted by them for their common Interest Protection and Security.

—  That the enjoyment of Life, Liberty and the pursuit of Happiness are essential rights which every Government ought to respect and preserve.

—  That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.  [Note:  This provision, or condition is known as a “RESUMPTION CLAUSE.”  This condition to ratification, as the states of Virginia and Rhode Island also exercised this condition, is critical to understanding the reserved right of a state to secede from the Union].

—  That the People have an equal, natural and unalienable right, freely and peaceably to Exercise their Religion according to the dictates of Conscience, and that no Religious Sect or Society ought to be favored or established by Law in preference of others.

—  That the People have a right to keep and bear Arms; that a well-regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defense of a free State;

—  That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection.

—  That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.

—  That in time of Peace no Soldier ought to be quartered in any House without the consent of the Owner, and in time of War only by the Civil Magistrate in such manner as the Laws may direct.

—  That no Person ought to be taken imprisoned, or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law.

—  That no Person ought to be put twice in Jeopardy of Life or Limb for one and the same Offence, nor, unless in case of impeachment, be punished more than once for the same Offence.

—  That every Person restrained of his Liberty is entitled to an enquiry into the lawfulness of such restraint, and to a removal thereof if unlawful, and that such enquiry and removal ought not to be denied or delayed, except when on account of Public Danger the Congress shall suspend the privilege of the Writ of Habeas Corpus.

—  That excessive Bail ought not to be required; nor excessive Fines imposed; nor Cruel or unusual Punishments inflicted.

—  That (except in the Government of the Land and Naval Forces, and of the Militia when in actual Service, and in cases of Impeachment) a Presentment or Indictment by a Grand Jury ought to be observed as a necessary preliminary to the trial of all Crimes cognizable by the Judiciary of the United States, and such Trial should be speedy, public, and by an impartial Jury of the County where the Crime was committed; and that no person can be found Guilty without the unanimous consent of such Jury. But in cases of Crimes not committed within any County of any of the United States, and in Cases of Crimes committed within any County in which a general Insurrection may prevail, or which may be in the possession of a foreign Enemy, the enquiry and trial may be in such County as the Congress shall by Law direct; which County in the two Cases last mentioned should be as near as conveniently may be to that County in which the Crime may have been committed. And that in all Criminal Prosecutions, the Accused ought to be informed of the cause and nature of his Accusation, to be confronted with his accusers and the Witnesses against him, to have the means of producing his Witnesses, and the assistance of Council for his defense, and should not be compelled to give Evidence against himself.

—  That the trial by Jury in the extent that it obtains by the Common Law of England is one of the greatest securities to the rights of a free People, and ought to remain inviolate.

—  That every Freeman has a right to be secure from all unreasonable searches and seizures of his person his papers or his property, and therefore, that all Warrants to search suspected places or seize any Freeman his papers or property, without information upon Oath or Affirmation of sufficient cause, are grievous and oppressive; and that all general Warrants (or such in which the place or person suspected are not particularly designated) are dangerous and ought not to be granted.

—  That the People have a right peaceably to assemble together to consult for their common good, or to instruct their Representatives; and that every person has a right to Petition or apply to the Legislature for redress of Grievances.

—  That the Freedom of the Press ought not to be violated or restrained.

—  That there should be once in four years an Election of the President and Vice President, so that no Officer who may be appointed by the Congress to act as President in case of the removal, death, resignation or inability of the President and Vice President can in any case continue to act beyond the termination of the period for which the last President and Vice President were elected.

—  That nothing contained in the said Constitution is to be construed to prevent the Legislature of any State from passing Laws at its discretion from time to time to divide such State into convenient Districts, and to apportion its Representatives to and amongst such Districts.

—  That the Prohibition contained in the said Constitution against ex post facto Laws, extends only to Laws concerning Crimes.

—  That all Appeals in Causes determineable according to the course of the common Law, ought to be by Writ of Error and not otherwise.

—  That the Judicial Power of the United States in cases in which a State may be a party, does not extend to criminal Prosecutions, or to authorize any Suit by any Person against a State.

—  That the Judicial Power of the United States as to Controversies between Citizens of the same State claiming Lands under Grants of different States is not to be construed to extend to any other Controversies between them except those which relate to such Lands, so claimed under Grants of different States.

—  That the Jurisdiction of the Supreme Court of the United States, or of any other Court to be instituted by the Congress, is not in any case to be increased enlarged or extended by any Fiction Collusion or mere suggestion;

—  And That no Treaty is to be construed so to operate as to alter the Constitution of any State.

Under these impressions and declaring that the rights aforesaid cannot be abridged or violated, and that the Explanations aforesaid are consistent with the said Constitution, And in confidence that the Amendments which shall have been proposed to the said Constitution will receive an early and mature Consideration: We the said Delegates, in the Name and in the behalf of the People of the State of New York Do by these presents Assent to and Ratify the said Constitution. In full Confidence nevertheless that until a Convention shall be called and convened for proposing Amendments to the said Constitution, the Militia of this State will not be continued in Service out of this State for a longer term than six weeks without the Consent of the Legislature thereof; — that the Congress will not make or alter any Regulation in this State respecting the times places and manner of holding Elections for Senators or Representatives unless the Legislature of this State shall neglect or refuse to make Laws or regulations for the purpose, or from any circumstance be incapable of making the same, and that in those cases such power will only be exercised until the Legislature of this State shall make provision in the Premises; — that no Excise will be imposed on any Article of the Growth production or Manufacture of the United States, or any of them within this State, Ardent Spirits excepted; And that the Congress will not lay direct Taxes within this State, but when the Monies arising from the Impost and Excise shall be insufficient for the public Exigencies, nor then, until Congress shall first have made a Requisition upon this State to assess levy and pay the Amount of such Requisition made agreeably to the Census fixed in the said Constitution in such way and manner as the Legislature of this State shall judge best, but that in such case, if the State shall neglect or refuse to pay its proportion pursuant to such Requisition, then the Congress may assess and levy this States proportion together with Interest at the Rate of six per Centum per Annum from the time at which the same was required to be paid.

[Reference:  http://teachingamericanhistory.org/library/document/new-york-ratifies-30-27-with-31-proposed-amendments/ ].

 

II.  VIRGINIA RATIFICATION (June 25, 1788), with 20 Bill of Rights and 20 proposed amendments:

Ratification of the Constitution by the State of Virginia, June 26, 1788. Virginia ratified the Constitution in two steps. The first was the declaration of ratification. The second was a recommendation that a bill of rights be added to the Constitution, and that a list of amendments also be added in accordance with Article 5.  [Reference: https://www.usconstitution.net/rat_va.html ]

Step 1:

WE the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination, can be cancelled, abridged, restrained or modified, by the Congress, by the Senate or House of Representatives acting in any capacity, by the President or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes: and that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States.  [Note:  This provision, or condition is known as a “RESUMPTION CLAUSE.”  This condition to ratification, as the states of New York and Rhode Island also exercised this condition, is critical to understanding the reserved right of a state to secede from the Union].

With these impressions, with a solemn appeal to the searcher of hearts for the purity of our intentions, and under the conviction, that, whatsoever imperfections may exist in the Constitution, ought rather to be examined in the mode prescribed therein, than to bring the Union into danger by a delay, with a hope of obtaining amendments previous to the ratification.

Step 2:  Virginia, do by these presents assent to, and ratify the Constitution recommended on the seventeenth day of September, one thousand seven hundred and eighty seven (September 17, 1787), by the Federal Convention for the Government of the United States; hereby announcing to all those whom it may concern, that the said Constitution is binding upon the said People, according to an authentic copy hereto annexed, in the words following:

Wythe reported, from the Committee appointed, such amendments to the proposed Constitution of Government for the United States, as were by them deemed necessary to be recommended to the consideration of the Congress which shall first assemble under the said Constitution, to be acted upon according to the mode prescribed in the fifth article thereof; and he read the same in his place, and afterwards delivered them in at the clerk’s table, where the same were again read, and are as follows:

That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable rights of the people in some such manner as the following:

1st. That there are certain natural rights of which men when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

2d. That all power is naturally vested in, and consequently derived from, the people; that magistrates therefore are their trustees, and agents, and at all times amenable to them.

3d. That the Government ought to be instituted for the common benefit, protection and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression, is absurd, slavish, and destructive to the good and happiness of mankind.

4th. That no man or set of men are entitled to exclusive or separate public emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate, legislator or judge, or any other public office to be hereditary.

5th. That the legislative, executive and judiciary powers of government should be separate and distinct, and that the members of the two first may be restrained from oppression by feeling and participating the public burthens, they should at fixed periods be reduced to a private station, return into the mass of the people; and the vacancies be supplied by certain and regular elections, in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of Government, and the laws shall direct.

6th. That elections of Representatives in the legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to the community, ought to have the right of suffrage: and no aid, charge, tax or fee can be set, rated, or levied upon the people without their own consent, or that of their representatives, so elected, nor can they be bound by any law, to which they have not in like manner assented for the public good.

7th. That all power of suspending laws, or the execution of laws by any authority without the consent of the representatives, of the people in the legislature, is injurious to their rights, and ought not to be exercised.

8th. That in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

9th. That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges or franchises, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty, or property but by the law of the land.

10th. That every freeman restrained of his liberty is entitled to a remedy to enquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

11th. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolable.

12th. That every freeman ought to find a certain remedy by recourse to the laws for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay, and that all establishments, or regulations contravening these rights, are oppressive and unjust.

13th. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

14th. That every freeman has a right to be secure from all unreasonable searches, and seizures of his person, his papers, and property; all warrants therefore to search suspected places, or seize any freeman, his papers or property, without information upon oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive, and all general warrants to search suspected places, or to apprehend any suspected person without specially naming or describing the place or person, are dangerous and ought not to be granted.

15th. That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the Legislature for redress of grievances.

16th. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

17th. That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms, is the proper, natural and safe defense of a free state. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to and governed by the civil power.

18th. That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the laws direct.

19th. That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.

20th. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the exercise of religion according to the dictates of conscience, and that no particular sect or society ought to be favored or established by law in preference to others.

[References:  https://www.usconstitution.net/rat_va.html  and http://teachingamericanhistory.org/library/document/virginia-ratifies-89-79-with-20-proposed-amendments/ ]

 

III.  MASSACUSETTS RATIFICATION (“Conditional Ratification,” February 6, 1788), with 9 proposed amendments:

The Convention have impartially discussed, and fully considered the Constitution for the United States of America, reported to Congress by the Convention of Delegates from the United States of America, and submitted to us by a resolution of the General Court of the said Commonwealth, passed the twenty fifth day of October last past, and acknowledging with grateful hearts, the goodness of the Supreme Ruler of the Universe in affording the People of the United States in the course of his providence an opportunity deliberately and peaceably without fraud or surprise of entering into an explicit and solemn Compact with each other by assenting to and ratifying a New Constitution in order to form a more perfect Union, establish Justice, insure Domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of Liberty to themselves and their posterity; Do in the name and in behalf of the People of the Commonwealth of Massachusetts assent to and ratify the said Constitution for the United States of America.

And as it is the opinion of this Convention that certain amendments and alterations in the said Constitution would remove the fears and quiet the apprehensions of many of the good people of this Commonwealth and more effectually guard against an undue administration of the Federal Government, The Convention do therefore recommend that the following alterations and provisions be introduced into the said Constitution.

First, That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.

Secondly, That there shall be one representative to every thirty thousand persons according to the Census mentioned in the Constitution until the whole number of the Representatives amounts to Two hundred.

Thirdly, That Congress do not exercise the powers vested in them by the fourth Section of the first article, but in cases when a State shall neglect or refuse to make the regulations therein mentioned or shall make regulations subversive of the rights of the People to a free and equal representation in Congress agreeably to the Constitution.

Fourthly, That Congress do not lay direct Taxes but when the Monies arising from the Impost and Excise are insufficient for the public exigencies nor then until Congress shall have first made a requisition upon the States to assess levy and pay their respective proportions of such Requisition agreeably to the Census fixed in the said Constitution; in such way and manner as the Legislature of the States shall think best, and in such case if any State shall neglect or refuse to pay its proportion pursuant to such requisition then Congress may assess and levy such State’s proportion together with interest thereon at the rate of Six per cent per annum from the time of payment prescribed in such requisition.

Fifthly, That Congress erect no Company of Merchants with exclusive advantages of commerce.

Sixthly, That no person shall be tried for any Crime by which he may incur an infamous punishment or loss of life until he be first indicted by a Grand Jury, except in such cases as may arise in the Government and regulation of the Land and Naval forces.

Seventhly, The Supreme Judicial Federal Court shall have no jurisdiction of Causes between Citizens of different States unless the matter in dispute whether it concerns the realty or personally be of the value of three thousand dollars at the least. nor shall the Federal Judicial Powers extend to any actions between Citizens of different States where the matter in dispute whether it concerns the Realty or personally is not of the value of Fifteen hundred dollars at the least.

Eighthly, In civil actions between Citizens of different States every issue of fact arising in Actions at common law shall be tried by a Jury if the parties or either of them request it.

Ninthly, Congress shall at no time consent that any person holding an office of trust or profit under the United States shall accept of a title of Nobility or any other title or office from any King, prince or Foreign State.

And the Convention do in the name and in behalf of the People of this Commonwealth enjoin it upon their Representatives in Congress at all times until the alterations and provisions aforesaid have been considered agreeably to the Fifth article of the said Constitution to exert all their influence and use all reasonable and legal methods to obtain a ratification of the said alterations and provisions in such manner as is provided in the said Article.

[Reference:  http://teachingamericanhistory.org/library/document/massachusetts-ratifies-187-168-with-9-proposed-amendments/ ]

 

 IV.  SOUTH CAROLINA RATIFICATION (May 23, 1788), with 5 Declarations and Resolves

And Whereas it is essential to the preservation of the rights reserved to the several states, and the freedom of the people under the operations of a General government that the right of prescribing the manner time and places of holding the Elections to the Federal Legislature, should be forever inseparably annexed to the sovereignty of the several states. This convention doth declare that the same ought to remain to all posterity a perpetual and fundamental right in the local, exclusive of the interference of the General Government except in cases where the Legislatures of the States, shall refuse or neglect to perform and fulfil the same according to the tenor of the said Constitution.

This Convention doth also declare that no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.

Resolved that the general Government of the United States ought never to impose direct taxes, but where the monies arising from the duties, imposts and excise are insufficient for the public exigencies nor then until Congress shall have made a requisition upon the states to Assess levy and pay their respective proportions of such requisitions And in case any state shall neglect or refuse to pay its proportion pursuant to such requisition then Congress may assess and levy such state’s proportion together with Interest thereon at the rate of six per centum per annum from the time of payment prescribed by such requisition

Resolved that the third section of the Sixth Article ought to be amended by inserting the word “other” between the words “no” and “religious,”

Resolved that it be a standing instruction to all such delegates as may hereafter be elected to represent this State in the general Government to exert their utmost abilities and influence to effect an Alteration of the Constitution conformably to the foregoing Resolutions.

Done in Convention the twenty third day of May in the year of our Lord One thousand Seven hundred and eighty eight and of the Independence of the United States of America the twelfth

[Reference:  http://teachingamericanhistory.org/ratification/tansill/ratification-southcarolina/ ]

 

V.  NEW HAMPSHIRE RATIFICATION (June 21, 1788), with 12 proposed amendments:

In Convention of the Delegates of the People of the State of New—Hampshire June the Twenty first 1788.

The Convention having Impartially discussed and fully considered the Constitution for the United States of America, reported to Congress by the Convention of Delegates from the United States of America & submitted to us by a Resolution of the General Court of said State passed the fourteenth Day of December last past and acknowleging with grateful Hearts the goodness of the Supreme ruler of the Universe in affording the People of the United States in the Course of his Providence an Opportunity, deliberately & peaceably without fraud or surprise of entering into an Explicit and solemn compact with each other by assenting to & ratifying a new Constitution in Order to form a more perfect Union, establish Justice, Insure domestic Tranquility, provide for the common defence, promote the general welfare and secure the Blessings of Liberty to themselves & their Posterity—Do In the Name & behalf of the People of the State of New—Hampshire assent to & ratify the said Constitution for the United States of America. And as it is the Opinion of this Convention that certain amendments & alterations in the said Constitution would remove the fears & quiet the apprehensions of many of the good People of this State & more Effectually guard against an undue Administration of the Federal Government— The Convention do therefore recommend that the following alterations & provisions be introduced into the said Constitution.—

First, That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them Exercised.—

Secondly, That there shall be one Representative to every Thirty thousand Persons according to the Census mentioned in the Constitution, until the whole number of Representatives amount to Two hundred.—

Thirdly, That Congress do not Exercise the Powers vested in them, by the fourth Section of the first Article, but in Cases when a State shall neglect or refuse to make the Regulations therein mentioned, or shall make regulations Subversive of the rights of the People to a free and equal Representation in Congress. Nor shall Congress in any Case make regulations contrary to a free and equal Representation.—

Fourthly, That Congress do not lay direct Taxes but when the money arising from Impost, Excise and their other resources are insufficient for the Public Exigencies; nor then, untill Congress shall have first made a Requisition upon the States, to Assess, Levy, & pay their respective proportions, of such requisitions agreeably to the Census fixed in the said Constitution in such way & manner as the Legislature of the State shall think best and in such Case if any State shall neglect, then Congress may Assess & Levy such States proportion together with the Interest thereon at the rate of six per Cent per Annum from the Time of payment prescribed in such requisition—

Fifthly. That Congress shall erect no Company of Merchants with exclusive advantages of Commerce.—

Sixthly, That no Person shall be Tried for any Crime by which he may incur an Infamous Punishment, or loss of Life, until he first be indicted by a Grand Jury except in such Cases as may arise in the Government and regulation of the Land & Naval Forces.—

Seventhly, All Common Law Cases between Citizens of different States shall be commenced in the Common Law—Courts of the respective States & no appeal shall be allowed to the Federal Court in such Cases unless the sum or value of the thing in Controversy amount to three Thousand Dollars.—

Eighthly, In Civil Actions between Citizens of different States every Issue of Fact arising in Actions at Common Law shall be Tried by Jury, if the Parties, or either of them request it—

Ninthly, Congress shall at no Time consent that any Person holding an Office of Trust or profit under the United States shall accept any Title of Nobility or any other Title or Office from any King, Prince, or Foreign State.—

Tenth, That no standing Army shall be Kept up in time of Peace unless with the consent of three fourths of the Members of each branch of Congress, nor shall Soldiers in Time of Peace be quartered upon private Houses without the consent—of the Owners.—

Eleventh, Congress shall make no Laws touching Religion, or to infringe the rights of Conscience—

Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.—

And the Convention Do. In the Name & behalf of the People of this State enjoin it upon their Representatives in Congress, at all Times untill the alterations and provisions aforesaid have been Considered agreeably to the fifth Article of the said Constitution to exert all their Influence & use all reasonable & Legal methods to obtain a ratification of the said alterations & Provisions, in such manner as is provided in the said article—And That the United States in Congress Assembled may have due notice of the assent & Ratification of the said Constitution by this Convention.—It is resolved that the Assent & Ratification aforesaid be engrossed on Parchment, together with the Recommendation & injunction aforesaid & with this Resolution—And that John Sullivan Esquire President of Convention, & John Langdon Esquire President of the State Transmit the same Countersigned by the Secretary of Convention & the Secretary of the State under their hands & Seals to the United States in Congress Assembled.

[Reference:  http://teachingamericanhistory.org/library/document/new-hampshire-ratifies-57-47-with-12-proposed-amendments/ ]

 

VI.  NORTH CAROLINA RATIFICATION (November 21, 1789), with 20 Bill of Rights:

Resolved, That a Declaration of Rights, asserting and securing from encroachment the great Principles of civil and religious Liberty, and the unalienable Rights of the People, together with Amendments to the most ambiguous and exceptional Parts of the said Constitution of Government, ought to be laid before Congress, and the Convention of the States that shall or may be called for the Purpose of Amending the said Constitution, for their consideration, previous to the Ratification of the Constitution aforesaid, on the part of the State of North Carolina.

Declaration of Rights:

1st. That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

2d. That all power is naturally vested in, and consequently derived from the people; that magistrates therefore are their trustees, and agents, and at all times amenable to them.

3d. That Government ought to be instituted for the common benefit, protection and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.

4th That no man or set of men are entitled to exclusive or separate public emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate, legislator or judge, or any other public office to be hereditary.

5th. That the legislative, executive and judiciary powers of government should be separate and distinct, and that the members of the two first may be restrained from oppression by feeling and participating the public burthens, they should at fixed periods be reduced to a private station, return into the mass of the people; and the vacancies be supplied by certain and regular elections; in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of Government, and the laws shall direct.

6th. That elections of Representatives in the legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to the community, ought to have the right of suffrage: and no aid, charge, tax or fee can be set, rated, or levied upon the people without their own consent, or that of their representatives, so elected, nor can they be bound by any law, to which they have not in like manner assented for the public good.

7th. That all power of suspending laws, or the execution of laws by any authority without the consent of the representatives, of the people in the Legislature, is injurious to their rights, and ought not to be exercised.

8th. That in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

9th That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges or franchises, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty, or property but by the law of the land.

10th. That every freeman restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

11th. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolable.

12th. That every freeman ought to find a certain remedy by recourse to the laws for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay, and that all establishments, or regulations contravening these rights, are oppressive and unjust.

13th. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

14th. That every freeman has a right to be secure from all unreasonable searches, and seizures of his person, his papers, and property: all warrants therefore to search suspected places, or seize any freeman, his papers or property, without information upon oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive, and all general warrants to search suspected places, or to apprehend any suspected person without specially naming or describing the place or person, are dangerous and ought not to be granted.

15th. That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the Legislature for redress of grievances.

16th. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of Liberty, and ought not to be violated.

17th. That the people have a right to keep and bear arms; that a well-regulated militia composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free state. That standing armies in time of peace are dangerous to Liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to, and governed by the civil power.

18th. That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the Laws direct

19th. That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.

20th. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by law in preference to others.

Amendments to the Constitution:  (21 amendments were proposed, but I only included the first here):

  1. THAT each state in the union shall, respectively, retain every power, jurisdiction and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.

[Reference:  http://teachingamericanhistory.org/ratification/tansill/ratification-northcarolina/ ]

 

VII.  RHODE ISLAND RATIFICATION (November 21, 1789), with 18 Bill of Rights:

We the Delegates of the People of the State of Rhode-Island, and Providence Plantations, duly elected and met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year one thousand seven hundred and eighty seven, by the Convention then assembled at Philadelphia, in the Commonwealth of Pennsylvania (a Copy whereof precedes these presents) and having also seriously and deliberately considered the present situation of this State, do declare and make known

1st That there are certain natural rights, of which men when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of Life and Liberty, with the means of acquiring, possessing and protecting Property, and pursuing and obtaining happiness and safety.

2d That all power is naturally vested in, and consequently derived from the People; that magistrates therefore are their trustees and agents, and at all times amenable to them.

3d That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness [Note: This is a “RESUMPTION CLAUSE.”  New York and Virginia also included such a clause/condition in their ratifications], :-That the rights of the States respectively, to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same; and that those clauses in the said constitution which declare that Congress shall not have or exercise certain powers, do not imply, that Congress is entitled to any powers not given by the said constitution, but such clauses are to be construed as exceptions to certain specified powers, or as inserted merely for greater caution.

4th That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, and not by force or violence, and therefore all men, have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored, or established by law in preference to others.

5th That the legislative, executive and judiciary powers of government, should be separate and distinct, and that the members of the two first may be restrained from oppression, by feeling and participating the public burthens, they should at fixed periods be reduced to a private station, return into the mass of the people, and the vacancies be supplied by certain and regular elections, in which all, or any part of the former members, to be eligible or ineligible, as the rules of the constitution of government and the laws shall direct.

6th That elections of representatives in legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to the community ought to have the right of suffrage, and no aid, charge tax or fee can be set, rated or levied upon the people, without their own consent or that of their representatives so elected, nor can they be bound by any law, to which they have not in like manner assented for the public good.

7th That all power of suspending laws or the execution of laws, by any authority without the consent of the representatives of the people in the legislature, is injurious to their rights, and ought not to be exercised.

8th That in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

9th That no freeman ought to be taken, imprisoned or disseised of his freehold, liberties, privileges, or franchises, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property but by the trial by jury, or by the law of the land.

10th That every freeman restrained of his liberty, is intitled to a remedy, to enquire into the lawfulness thereof, and to remove the same if unlawful, and that such remedy ought not to be denied or delayed.

11th That in controversies respecting property, and in suits between man and man the antient trial by jury, as hath been exercised by us and our ancestors, from the time whereof the memory of man is not to the contrary, is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolate.

12th That every freeman ought to obtain right and justice, freely and without sale, completely and without denial, promptly and without delay, and that a establishments or regulations contravening these rights, are oppressive and unjust.

13th That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.

14th That every person has a right to be secure from all unreasonable searches and seizures of his person, his papers or his property, and therefore that all warrants to search suspected places or seize any person, his papers or his property, without information upon oath, or affirmation, of sufficient cause, are grievous and oppressive, and that all general warrants (or such in which the place or person suspected, are not particularly designated,) are dangerous, and ought not to be granted.

15th That the people have a right peaceably to assemble together, to consult for their common good, or to instruct their representatives; and that every person has a right to petition or apply to the legislature for redress of grievances.

16th That the people have a right to freedom of speech and of writing, and publishing their sentiments, that freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

17th That the people have a right to keep and bear arms, that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural and safe defense of a free state; that the militia shall not be subject to martial law except in time of war, rebellion or insurrection; that standing armies in time of peace, axe dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times the military should be under strict subordination to the civil power; that in time of peace no soldier ought to be quartered in any house, without the consent of the owner, and in time of war, only by the civil magistrate, in such manner as the law directs.

18th That any person religiously scrupulous of bearing arms, ought to be exempted, upon payment of an equivalent, to employ another to bear arms in his stead.

Under these impressions, and declaring, that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid, are consistent with the said constitution, and in confidence that the amendments hereafter mentioned, will receive early and mature consideration, and conformably to the fifth article of said constitution, speedily become a part thereof; We the said delegates, in the name, and in the behalf of the People, of the State of Rhode-Island and Providence-Plantations, do by these Presents, assent to, and ratify the said Constitution. In full confidence nevertheless, that until the amendments hereafter proposed and undermentioned shall be agreed to and ratified pursuant to the aforesaid fifth article, the militia of this State will not be continued in service out of this State for a longer term than six weeks, without the consent of the legislature thereof; That the Congress will not make or alter any regulation in this State, respecting the times, places and manner of holding elections for senators or representatives, unless the legislature of this state shall neglect, or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same; and that n those cases, such power will only be exercised, until the legislature of this State shall make provision in the Premises, that the Congress will not lay direct taxes within this State, but when the monies arising from the Impost, Tonnage and Excise shall be insufficient for the public exigencies, nor until the Congress shall be have first made a requisition upon this State to assess, levy and pay the amount of such requisition, made agreeable to the census fixed in the said constitution, in such way and manner, as the legislature of this State shall judge best, and that the Congress will not lay any capitation or poll tax.

[Reference:  http://teachingamericanhistory.org/ratification/tansill/ratification-rhodeisland/ ]

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TENTH AMENDMENT KEEPERS: Keepers of the Tenth!

10th Amendment

by Diane Rufino, July 19, 2016

This short article is intended to alert the reader to the importance of the Tenth Amendment and hopefully inspire him or her to join the Tenth Amendment Movement and help bring government power back to the States in those areas historically belonging to them and reserved to them under the Tenth Amendment.

About the Tenth Amendment Movement:

The Tenth Amendment has its roots in the intent of each State to retain its full sovereignty and its right of self-determination. The Tenth Amendment comes from Article II of our very first constitution, the Articles of Confederation: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”  So concerned about their right of self-determination and their fear of being consumed by a centralized government under the US Constitution as drafted in 1787 at the Philadelphia Convention, that several crucial states were not willing to ratify it in convention. Virginia and New York would not ratify unless they were given assurances that amendments (for a Bill of Rights) would be added, and indeed they proposed several, including one with the language of the Tenth Amendment. To make their position firmer, they included Resumption Clauses with their Ordinances of Ratification which conditioned their ratification on the explicit right to resume all powers when they desired so. “We, the delegates of the people of Virginia do, in the name and on behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression.”

Supporters of big government (such as Abraham Lincoln, FDR, LBJ, Obama, many Supreme Court justices, and today’s progressives) have actively down-played the Tenth Amendment because it embodies States’ Rights and state power.  In the years leading up to the War of 1861 and most certainly with that war and afterwards, the political elites in government understood that the ordinary checks and balances provided in the Constitution could be co-opted and controlled, but the most critical of all the checks and balances that our Founders provided on the federal government – the tension created by sovereign states (“Dual Sovereignty,” “federalism”… or as I like to refer to it: “Titan versus Titan”) – is the one they could not, especially the Southern States. And so began the movement to destroy the concept of States’ Rights, the great movement of Thomas Jefferson.  Indeed, most Americans believe what the victor of the War of 1861 (ie, the federal government) has indoctrinated, which is that the sovereignty of the federal government, in all cases, trumps the States and that the States are powerless to oppose the government or leave the Union.  The Tenth Amendment Movement knows that this indoctrination can be reversed by education and by the willing re-assertion of the Tenth Amendment by the States.  The Tenth Amendment Movement is about educating folks and especially members and candidates for state legislatures about the compact nature of the Constitution, which essentially says that the States, as willing parties, mutually agreed to the terms of the Constitution and assented to be bound by it (forming the Union, with its “creature” – the federal government – providing certain functions on their behalf), so long as the terms were faithfully adhered.  Compacts implicate the laws of contract and to some degree the law of agency.

Unquestionably, the Constitution was created as a social compact. It had all the requisites of a contract. There were parties: thirteen States, to which were added those that similarly ratified the document in the years after 1781. There was mutuality: each State promised to give up some of its sovereignty in exchange for what the Union promised to deliver – for receiving a “common defense” and some regulation of commerce between the States where it was necessary to ensure free trade. The Constitution was created by the States and ratified by the States, each acting in Convention. It could only be amended by and between the States. And if there was any doubt about the fact that the Constitution was an agreement entered into by and between the States, Article VII states: “The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.”  Every one of our Founding Fathers characterized the Constitution as a compact. It was referred to as such in the Constitutional Convention in Philadelphia in 1787, in all the State Ratifying Conventions, Anti-Federalist Papers, the Federalist Papers, in the communications by Thomas Jefferson, in the Kentucky and Virginia Resolutions, written by Thomas Jefferson and James Madison (respectively), in Madison’s 1800 Report, in the several famous speeches by John C. Calhoun, and in the Ordinances of Secession.

It is critical that education by the Tenth Amendment Movement emphasize this compact nature of the Constitution and destroy the constitutional myth espoused by Lincoln to subjugate and consolidate forever the States because only then do certain remedies apply – such as nullification, interposition, and even secession itself.

The Constitution’s text and history before the War of 1861 did NOT change as a result of the surrender at Appomattox. Contracts do not textually change by the use of brute force; contracts change ONLY by the agreement of the parties. The Constitution was still a “constitution between the States” after the war as it was before. It remains so now.

Years ago, it would have been very rare to find folks who supported such critical doctrines such as Nullification and Interposition.  Even talk of States’ Rights seemed to be unpopular.  Which state would even think of daring to question the federal government?  But over the years, as the federal government has become exceedingly ambitious, arrogant, tyrannical, corrupt, reckless, and out of touch with the American people, I’ve seen things change. I’ve watched in seminars how voices of skepticism turned to support. Instead of people telling me such remedies were illegitimate, unconstitutional, and dangerous, all of a sudden, they started asking how to approach their legislators about using them against the federal government.  States are looking to nullification and interposition to finally define boundaries.  States are passing nullification measures on a wide range of issues – Obamacare, federal gun control, hemp, medical marijuana.

I hope that if you believe in the importance of this movement, as I believe, you will get involved, help educate others, and help elect like-minded representatives to your State legislature.  Whether individual freedom will be secured for “generations to come and millions yet unborn” will depend upon how the States choose to value the Tenth Amendment.  And the path that each State takes can be determined through the voice of its people.

How can you get involved?  Contact the Tenth Amendment Center, through its website.  If you have a chapter in your state, contact any of its members.  If you don’t have a chapter, either volunteer to start one or help recruit someone with the necessary time and skills to organize and run it. If you belong to an organization, such as the Tea Party or any other community organization, request that speakers be invited to talk about the Tenth Amendment, Nullification, Interposition, Judicial Activism, the Constitution and Original Intent, and other such topics.

Educate, educate, educate. The most important thing you can do is become educated!  You will find educational articles and updates on my blogsite (www.forloveofgodandcountry.com), on the Tenth Amendment Center website (http://tenthamendmentcenter.com/), and on the Abbeville Institute website (http://www.abbevilleinstitute.org/)

Finally, follow my blogsite – Tenth Amendment Keepers (https://tenthamendmentkeepers.wordpress.com) and the Facebook site of the same name.

Together, we must Keep the Tenth Amendment relevant.

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THE FEDERAL JUDICIARY HAS BECOME DANGEROUS & DESPOTIC: A CONSTITUTIONAL AMENDMENT

SUPREME COURT - Judicial Supremacy

by Diane Rufino, July 11, 2015

US CONSTITUTION:  AMENDMENT PROPOSAL

An amendment to replace the States’ influence in the federal government since the 17th Amendment was adopted.

“…If no remedy of the abuse be practicable under the forms of the Constitution, I should prefer a resort to the Nation for an amendment of the Tribunal itself.”  — James Madison, in a letter to Thomas Jefferson, 1832

AMENDMENT PROPOSAL:

Whereas, “The Creator has made the earth for the living, not for the dead.  Rights and powers can only belong to persons, not to things.”  (Thomas Jefferson).  Rights and powers do not originate or belong to a government, unless that power is exercised for the People – on behalf of them – and NOT against them;

Whereas, the several States, by a compact under the style and title “Constitution for the United States,” and of amendments thereto, voluntarily constituted a general government for special common purposes;

Whereas, the several States are parties to the compact (Constitution), with the people of said States acting in their own conventions to consider, debate, deliberate, and ratify it;

Whereas, our government structure is predicated on separation of powers between the States, as sovereigns, and the federal government, which is sovereign with respect to certain responsibilities;

Whereas, this separation of powers, known as federalism, is a critical feature of our government system, intended to safeguard the “precious gem” of individual liberty by limiting government overreach;

Whereas, there is no provision in the Constitution nor any grant of delegated power by which the States can be said to have (willingly or intentionally) surrendered their sovereignty, for it is clear that no State would have ratified the document and the Union would not have been established;

Whereas, the States were too watchful to leave the opportunity open to chance and using an abundance of caution, insisted that a series of amendments be added, including the Tenth Amendment, as a condition of ratification and formation of the Union;

Whereas, the Preamble to the Bill of Rights expressed the unambiguous intention of those amendments, and reads: “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”;

Whereas, that relationship between the states and the federal government is defined by the Tenth Amendment, which reads:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”;

Whereas, the critical relationship has been eroded through the many Supreme Court decisions which have transferred power from the States to the federal government in order to enlarge its sphere of influence;

Whereas, the federal government has made itself the exclusive and final judge of the extent of the powers delegated to itself, and as such, its need for power and its discretion – and not the Constitution – have been guiding those decisions.

Whereas, the federal government has created for itself an absolute monopoly over the possession and scope of its powers and has consistently assumed powers it wasn’t meant to have – misappropriating them from the States and from the People;

Whereas, the federal government has used said monopoly to change the nature of the Constitution and redefine its terms without using the lawful route, Article V;

Whereas, the particular security of the people is in the possession of a written and stable Constitution. The branches of the federal government have made it a blank piece of paper by construction;

Whereas, the federal government, through the consolidation and concerted action of its branches and said monopoly, the government has created a government that is bloated, vested with illegitimate powers, coercive, wasteful, corrupt, and out of touch with the People, is one in which less than a quarter of the people have trust in, and most importantly, is one that poses serious threats to the exercise of the freedoms that Americans are promised;

Whereas, the right of judging on infractions of inherent powers is a fundamental attribute of sovereignty which cannot be denied to the States, and therefore they must be allowed to do so;

Whereas, the States need a voice directly in the federal government in order to break up its monopoly and to serve as the only effective check to prevent unconstitutional laws from being enforced;

Therefore, in order to reverse the unintended concentration of power in the federal government and in order to divest it of powers it has misappropriated and assumed for the past 200 years

And Therefore, in order to replace the States’ influence in the federal government since the 17th Amendment was adopted, to recognize their sovereign right to meaningfully defend their sphere of power embodied in the Tenth Amendment, and to have them, as the parties who created and adopted the Constitution and from which the government’s powers derived, be the tribunal which offers the opinions of constitutionality, the following amendment is proposed to alter the make-up of the Supreme Court:

  • The Supreme Court’s membership will increase from 9 to 50. This way, citizens don’t incur the outrage that comes from a decision handed down by a mere 9 mortals, each motivated like other politicians with politics, legacy, passions, opinions, prejudices, personal preferences, ideology, etc., or the more outrageous situation of a 5-4 decision.]
  • Justices to the Supreme Court will be assigned by the States. Each state will select one justice to the Court. That justice will be selected by the particular state legislature (or popular referendum).
  • Justices selected by each state MUST have a documented history of adherence to the original meaning and intent of the Constitution and MUST have cited supporting documentation for its meaning and intent, including the Federalist Papers and the debates in the various state ratifying conventions. [Any change to the Constitution, including to reflect “modern times,” must be in the form of an amendment].
  • Justices can serve an unlimited term, but that term can be shortened upon a showing of incompetence, disloyalty to the state, or by violating the previous provision.
  • Justices will require each law passed by Congress to be prefaced with the particular grant of delegated Constitutional power which grants legal authority for that law. [Having 50 justices will allow the Court to render an initial opinion on the constitutionality of each piece of legislation, thus giving Congress the opportunity to be more cautious and responsible with its office.]
  • The first task of the newly-seated Supreme Court will be to review the federal budget for spending that is not constitutional. The analysis will be used to remind Congress what are the constitutional objects of spending, to adjust federal taxation, and to help return policy-making and legislative power to the states.
  • The next task of the newly-seated Supreme Court will be to invalidate all federal mandates (*) and eliminate all funding the government uses or plans to give/offer the states through “conditioned” grants or other forms of funding, contractual or otherwise. [Mandates are directly in violation of the 10th Amendment to the Constitution of the United States; Congress may not commandeer the legislative and regulatory processes of the states. With respect to federal grants and other forms of funding, if the government’s budget includes funds to “bribe” the states and otherwise attempt to influence state policy or planning, then it clearly overtaxes. Bribing the states or otherwise paying for any of its internal functions or projects is not one of the objects for which Congress can tax and spend under the Constitution. Such funding will end and the reduced federal tax rate will allow the states themselves to tax according to their own schemes to fund their own projects.]
  • The Supreme Court’s new membership will establish new constitutional law jurisprudence. They not be bound by any previous court decision and will agree to establish continuity in jurisprudence only among their own decisions.
  • Congress will not attempt to limit jurisdiction on this newly-organized Supreme Court in an attempt to frustrate the intent of this amendment.
  • Because the Constitution is the peoples’ document – their shield against excessive government in their lives and affairs – the justices will honor the rightful expectation that it is firm and unambiguous in its meaning. “The Constitution of a State is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events; notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain amidst the raging of the waves.”  [Justice William Patterson, in Vanhorne’s Lessee v. Dorance(1795)]. A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed.  The purpose of having a stable and firm constitution is so that when government transgresses its limits, the people can immediately recognize such action. [Thomas Paine].  Any change in the meaning of the US Constitution will be sought through the amendment process provided in Article V.

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INTRODUCTION:

There is one principle upon which the Supreme Court should most firmly stand united. It is explained, proclaimed, assured in Federalist #78: “There is no position which depends on clearer principles than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.  To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

The servant has indeed become more powerful than the master.

The reason the servant has become more powerful than its master is because the Supreme Court has expanded and re-defined the authority granted to the Congress and to the Executive in the US Constitution. And in order to do so, it first had to expand and re-define its own authority, which it did in 1803 – only 12 years after it heard its very first case (in 1791).

The first question we must ask is this:  What is a constitution?  A constitution is instrument by which authority for government is delegated from its natural depository. As the Declaration of Independence makes abundantly clear, the laws of Nature and God’s Law have established that man himself is vested with this authority. There is a natural order…  First there is man, then there are communities when men join together, and finally, there is government established by social compact whereby rules and laws are established so that men can live successfully among one another, enjoying security and without surrendering their essential rights and liberties (including property). Thomas Paine, in his publication Rights of Man (1791-92), wrote:  “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.”  In other words, government action needs legitimate authority and that authority must be spelled out so that people know at which point power is being abused.

Justice William Patterson explained in more detail the significance of a constitution in one of the Supreme Court’s earliest cases, Vanhorne’s Lessee v. Dorance (1795):  “The Constitution of a State is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events; notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain amidst the raging of the waves.”   He continued:

“In England, the authority of the Parliament runs without limits, and rises above control. It is difficult to say what the constitution of England is; because, not being reduced to written certainty and precision, it lies entirely at the mercy of the Parliament: It bends to every governmental exigency; it varies and is blown about by every breeze of legislative humor or political caprice. Some of the judges in England have had the boldness to assert, that an act of Parliament, made against natural equity, is void; but this opinion contravenes the general position, that the validity of an act of Parliament cannot be drawn into question by the judicial department: It cannot be disputed, and must be obeyed. The power of Parliament is absolute and transcendent; it is omnipotent in the scale of political existence. Besides, in England there is no written constitution, no fundamental law, nothing visible, nothing real, nothing certain, by which a statute can be tested. In America the case is widely different: Every State in the Union has its constitution reduced to written exactitude and precision. What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-doing stroke must proceed from the same hand. What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution: they derive their powers from the Constitution: It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void. The Constitution is the work or will of the People themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the Legislature in their derivative and subordinate capacity. The one is the work of the Creator, and the other of the Creature. The Constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move. In short, gentlemen, the Constitution is the sun of the political system, around which all Legislative, Executive and Judicial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the Legislature, repugnant to the Constitution, as absolutely void…..

      I hold it to be a position equally clear and found, that, in such case, it will be the duty of the Court to adhere to the Constitution, and to declare the act null and void. The Constitution is the basis of legislative authority; it lies at the foundation of all law, and is a rule and commission by which both Legislators and Judges are to proceed. It is an important principle, which, in the discussion of questions of the present kind, ought never to be lost sight of, that the Judiciary in this country is not a subordinate, but a co-ordinate, branch of the government.”

What makes the Constitution stable and permanent is the strict and consistent understanding of its terms and its intent.   James Madison, who is considered the author of the Constitution, advised: “If we were to look for the meaning of the instrument [Constitution] beyond the face of the instrument, we must look for it, not in the general Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution.”

BACKGROUND:

In 1776, the 13 original British colonies in America sent delegates to a general congress, who there, for the colonies they represented, made the declaration “that these united colonies are, and of right ought to be, free and independent states.”  The permeating principle pronounced and proclaimed in the Declaration of Independence was that every people had the right to alter or abolish their government when it ceased to serve the ends for which it was instituted. Each State decided to exercise that right, and all of the thirteen united (with their representatives pledging their lives, their fortunes, and their sacred honor) to seek independence from Great Britain. A long war ensued. After a heavy sacrifice of life and treasure, the Treaty of Paris was negotiated in 1783, by which Great Britain recognized the independence of the States separately, not as one body politic, but severally, each one being named in the act of recognition.

In 1777, the delegates from each of the thirteen States, met once again in the general congress and agreed to “certain articles of confederation and perpetual union between the States.”  They agreed that the union formed would be a confederation of states. That no purpose existed to consolidate the States into one body politic is manifest from the terms of the second article, which was: “Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this confederation expressly delegated to the United States in congress assembled.” The meaning of this article is quite plain.  Under the Articles, representation in the Congress of the Confederation was one vote per state, irrespective of population or the number of delegates in attendance, and the powers available were only those expressly delegated, with all others being reserved to the States separately. Under the Articles of Confederation, the War for Independence (Revolutionary War) was conducted.

On October 19, 1781, British General Charles Cornwallis surrendered his troops at the battle of Yorktown, Virginia, and the colonies were finally free!  It was not until September 3, 1783, with the signing of the Treaty of Paris, that the Revolutionary War came to its final conclusion.

In the face of the Declaration of Independence, and of the Articles of Confederation, and of the Treaty of Paris, it is clear that in 1783 each State was a sovereign, free, and independent community.

After the pressure and necessity of war was removed, it became clear that the “common government” – the Congress of the Confederation – was impracticable and ineffective to administer the general affairs of the Union; it would need to possess additional powers.  In 1786, 12 delegates from 5 states (NY, NJ, PA, DE, and VA) gathered at a tavern in Annapolis MD to discuss and develop a consensus about reversing the protectionist trade barriers that each state had erected. That was the limited purpose of the convention. Other states were supposed to attend but never made it in time.  (Under the Articles of Confederation, each state was largely independent from the others and the national government had no authority to regulate trade between and among the states).  Alexander Hamilton wrote the Convention’s final report and sent it to Congress. It explained that the delegates decided not to proceed on the business of their mission on account of such a deficient representation, but believed that there was an even more compelling reason to hold another convention. The delegates noted that the Articles possessed “important defects” and lacked enough power to be effective, and if the problems were not addressed, the perceived benefits of the confederation would be unfulfilled. As conveyed in the Report, the delegates to the Annapolis Convention decided that another conference, “with more enlarged powers” should be called and should meet in Philadelphia the following summer to “take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.”

And so, the following year, May 1787, delegates from 12 of the 13 states (Rhode Island refused to send delegates), met in Philadelphia for the specific purpose of amending the Articles of Confederation.  They ended up proposing a new form of government (thanks to the dubious scheming and planning by James Madison).  The newly-drafted Constitution for the United States, a voluntary compact, was to be submitted to the States, and, if ratified by 9 of them, would go into effect as between the States so ratifying it.  As it turned out, 11 states ratified and the Constitution became effective in 1788 (with Washington being chosen unanimously by the electoral college to be the first president and the first Congress meeting in March 1789).  North Carolina finally joined the Union (ratified the Constitution) in 1789 after a Bill of Rights was proposed by James Madison in Congress and Rhode Island joined in 1790.  The old union under the Articles was replaced by “a more perfect” union under the US Constitution.

The Union was made “more perfect” because the general government thus created, would be more effective to provide certain common services for all the states. Each state, in adopting the Constitution, contended, believed, and certainly articulated that the general government was one of specifically enumerated powers only and that they reserved the residuary of sovereign powers for themselves, as individual states.

So fearful and apprehensive were the states that the common government would usurp sovereign state powers and attempt to enlarge its powers that they took several steps:

1). They designed a bicameral legislative body that included a body that directly represented the States’ interests.  Before the 17th Amendment was adopted, US Senators were selected by the state legislatures, including on a rotating basis if need be, specifically to provide a check on legislation that burdened states’ sovereign interests or exceeded constitutional authority.  The intent was to include an express federal element to the government structure and to provide an additional and critical Check and Balance on government. The sovereign states would jealously guard their sphere of power directly, at the source.

2). Two of the delegates to the Constitutional Convention (James Madison and Alexander Hamilton) went on to write a series of essays to explain and clarify the language and provisions of the Constitution to assure the states assembled in their state ratifying conventions that the document is one that creates a “common” government of very specified delegated powers.  These are the Federalist Papers, which to this day is the greatest authority on the meaning and spirit of the Constitution. The essays were explanations upon which the states relied in their decision to ratify, much the same way as parties to the purchase and sale of real property rely on contract terms and covenants when they agree to sign and be bound.

3). They conditioned their adoption of the Constitution on certain definitions and assumptions.

4). They demanded a Bill of Rights

5). They included “Resumptive Clauses”

6). The repeatedly referred to the Constitution as a “compact” between the states (the parties) to create a common government

7). They asserted their right of nullification and interposition (the refusal to acknowledge the legitimacy of a federal law passed by abuse any Constitutional power or as a result of usurping power from any State or the People themselves)

Alexander Hamilton wrote in Federalist No. 32:  “An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.”

And James Madison wrote in Federalist No. 45:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

      The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.

And again, Hamilton write in Federalist No. 78:  “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

Even though such assurances were given, there were many who still did not trust that the Constitution could effectively check consolidation of power by the federal (common) government.  Such voices were particularly loud in the state ratifying conventions.  That is why several states either refused outright to ratify (such as North Carolina) or ratified only when promised that a Bill of Rights would be added. To emphasize exactly WHY the Bill of Rights was demanded by the states and why it was added, a preamble was included. The Preamble to the Bill of Rights reads: “Congress of the United States, in the City of New York, on March 4, 1789:  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 to extend public confidence in the Government to best ensure the beneficent ends of the institution.”  In other words, the first ten (10) amendments were demanded by the States as a condition to joining together in a new Union in order to FURTHER LIMIT the scope of government (should they not understand the limits in Articles I – III) and to REMIND and RESTATE for the purpose of the federal government (all 3 branches) that the government is predicated on federalism – the notion of the states being sovereign and vested with all reserved powers not expressly delegated under Article I, Section 8 (nor prohibited to them under Section 9).

Aside from the Preamble to the Bill of Rights which again was specifically written to explain the reason and intention of the first ten amendments, several states inserted RESUMPTIVE CLAUSES into the adoption texts when they   officially adopted the Constitution.

The RESUMPTIVE CLAUSES were intentionally inserted because of a distrust of the government that would be created under the Constitution. They were meant as express conditions on adoption and continued membership in a Union ruled by a common government.  These states included New York, Virginia, and Rhode Island.  (It is most likely that North Carolina would have included one as well but was given firm assurances that James Madison would draft and send a Bill of Rights to the States to include in the Constitution for their protection).

New York was the eleventh State to assent to the compact of union, and her ratification was particularly important because she was seen as a potential hold-out to the ratification of the Constitution. It was a state dominated by many influential anti-Federalists, including its governor. To make her ratification conditioned on the understanding that only specifically delegated powers were intended for the federal government and nothing more, her ratification text included a declaration of the principles on which her assent was given (ie, a “Resumptive Clause”), which the following language: “That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right which is not, by the said Constitution, clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same…”

Rhode Island’s clause read: “That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.”  And Virginia’s clause read: “Having fully and freely investigated and discussed the proceedings of the federal Convention, and being prepared to decide thereon, do in the name and in behalf of the People of Virginia, declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.”

Reassumption (resumption) is the correlative of delegation.

At the time the Constitution was written and then submitted to the States for ratification, most of the Founders – and most notably, most Virginians and New Yorkers – saw the Constitution as a compact.  Reference to this was made in several Federalist essays (No. 39, 43, 44, 49, for example), in many anti-Federalist essays (written to urge skepticism of the Constitution and which prompted the writing of the Federalist Papers), and in several of the state ratifying conventions.  [Dave Brenner documents the compact nature of the Constitution in detail in his book, Compact of the Republic].  In fact, the term was commonly used for at least 100 years after. [See the various articles of secession by the southern states in 1861 and commentary explaining federalism and states’ rights].

James Madison wrote: “There is one view of the subject which ought to have its influence on those who espouse doctrines which strike at the authoritative origin and efficacious operation of the Government of the United States. The Government of the U.S. like all Governments free in their principles, rests on compact; a compact, not between the Government and the parties who formed and live under it; but among the parties themselves, and the strongest of Governments are those in which the compacts were most fairly formed and most faithfully executed.”

In his Report of 1800 to the Virginia House of Delegates, expounding on the Virginia Resolutions which addressed constitutional violations with the Alien and Sedition Acts of 1798), James Madison explained: “The resolution declares, first, that ‘it views the powers of the federal government as resulting from the compact to which the states are parties;’ in other words, that the federal powers are derived from the Constitution; and that the Constitution is a compact to which the states are parties.  Clear as the position must seem, that the federal powers are derived from the Constitution, and from that alone, the committee are not unapprised of a late doctrine which opens another source of federal powers, not less extensive and important than it is new and unexpected. The examination of this doctrine will be most conveniently connected with a review of a succeeding resolution. The committee satisfy themselves here with briefly remarking that, in all the contemporary discussions and comments which the Constitution underwent, it was constantly justified and recommended on the ground that the powers not given to the government were withheld from it; and that, if any doubt could have existed on this subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the 12th amendment, now a part of the Constitution, which expressly declares, “that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

In 1798, in Supreme Court case Calder v. Bull, Justice Samuel Chase discussed the leading doctrines of American constitutional law with respect to states’ rights prior to the Civil War – the Doctrine of Vested Rights (the 10th Amendment) and the Doctrine of Police Powers.  He wrote: “The people of the United States erected their constitutions to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect persons and property from violence. The purposes for which men enter into society will determine the nature and term of the social compact; and as they are the foundation of legislative power, they will decide the proper objects of it. The nature and ends of legislative power will limit the exercise of it….  There are acts which the federal or state legislatures cannot do without exceeding their authority. There are certain vital principles in our fee republican governments which will determine and overrule an apparent and flagrant abuse of legislative power…..  An act of the legislature (for I cannot call it a law) contrary to the great principles of the social compact cannot be considered a rightful exercise of legislative authority.  There are certain vital principles in our fee republican governments which will determine and overrule an apparent and flagrant abuse of legislative power…..  An act of the legislature (for I cannot call it a law) contrary to the great principles of the social compact cannot be considered a rightful exercise of legislative authority…”

In The Federalist Papers, James Madison addressed the question, ‘On what principle the confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it?’ He answered: “By recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.”

As explained, constitutions speak to the very foundation of law. They provide the authority for a governing body.  Thomas Jefferson wrote: “Every law consistent with the Constitution will have been made in pursuance of the powers granted by it. Every usurpation or law repugnant to it will be null and void.”  And Chief Justice John Marshall explained: “All laws which are repugnant to the Constitution are null and void.” (Marbury v. Madison, 1803).  Authority is not without limits, otherwise a written constitution would not be necessary. And so there are boundaries. For a government to take a step beyond such boundary would result in a nullity. Nullification is a doctrine that derives not only from the “compact theory” of the Union, but derives from the very nature of constitutions in general.  Nullification essentially states that a law made without legitimate, delegated legal authority is null and void and is not enforceable (on a State or on the People). It is a remedy to prevent government overreach and abuse.  As an effective remedy, of course, the offending law must be identified and then affirmative efforts must be made to prevent its enforcement. Nullification flows from the nature of the Constitution and as such it fundamental and foundational.  It flows from the fact that the Constitution is a compact….  an agreement by parties (the States) to be bound in a union and thereby abiding by the responsibilities (burdens, including the burden of delegating some of its sovereign powers) while benefitting by its service.

As the leading authority on Nullification, Thomas Woods, explains: “The mere fact that a state’s reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist.  The Constitution is supposed to establish a federal government of enumerated powers, with the remainder reserved to the states or the people.  Essentially nothing the states do is authorized in the federal Constitution, since enumerating the states’ powers is not the purpose.”

Thomas Jefferson and James Madison were the Founders (are most influential, to be sure) who articulated Nullification most clearly.

In the Kentucky Resolutions of 1798, Jefferson wrote:

  1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

In the Kentucky Resolutions of 1799, he wrote:

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that anullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy……

In the Virginia Resolutions of 1798, James Madison wrote:

RESOLVED……. That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

The point is that the Constitution created a common government of limited delegated powers.  The delegation of sovereign powers had to come from somewhere, and because of the declaration of liberty proclaimed in our founding document, the Declaration of Independence, we know those powers came from the States, and the People themselves. Any delegation of sovereign individual rights is always temporary in nature and any delegation of state powers is temporary as well.  Any assumption of powers not expressly delegated to government remains with the States and People, and every time any branch of government exceeds its delegated powers, it usurps them from the rightful depositories.  The States and our Founders took every possible opportunity to ensure that the government would remain limited in size and scope.  Their goal, their vision was to use the power of the states to limit the power of the federal government. It was the unique design feature that would ensure the greatest degree of freedom and bring to life the promises in the Declaration of Independence.

THESE are the principles upon which the general government was created.  This was the common understanding of the states in forming the Union.

Supremacy Clause (cartoon - States saluting Constiution)

DISCUSSION:

As predicted and despite the numerous warnings, by such esteemed intellects as Patrick Henry, Thomas Jefferson, and George Mason (to name a few), members of the federal government have attempted, and have almost always succeeded, in concentrating power in all three branches.  They have weakened the status of the states at every turn. It began, unfortunately, when the very father of our nation, George Washington, supported the very proposition rejected at the Philadelphia Convention and in the ratifying conventions — that the Constitution is not only one of expressly enumerated powers but one of “implied” powers as well (thus enlarging at the time the federal taxing power). And then came the devastating decision by the Supreme Court in 1803 in Marbury v. Madison which proclaimed, without any provision in the Constitution as support, that its decisions on constitutional matters are binding upon the other branches of government, on the States, and on the People.

The monopoly that we see today by the federal government over the meaning and intent of the Constitution, as well as the scope of its powers, was clearly beginning to take shape in 1803.

The Civil War was an unfortunate time in our history.  While the creation of the first National Bank (1791) and then the passing of the Alien and Sedition Acts (1798) posed the scenarios of what would happen if the federal government attempted to usurp or re-define its powers and what would happen if the government passed laws violative of the Constitution, the Civil War showed us what would happen if the government refused to respect its status under the Declaration of Independence and instead decided to seek its own self-preservation rather than protect the rights of the parties which created it as the agent. In other words, the Civil War presented the case of a rogue government.  Yet, at the end of the Civil War, the Constitution essentially remained unchanged except for the addition of the Reconstruction era amendments – the 13th, 14th, and 15th amendments.  The balance of power between the States and the federal government, as embodied in the Constitution, remained intact. It was only when the Supreme Court decided to re-interpret and twist and mold the 14th amendment that federalism was significantly eroded.

But then the coup de grace….  the passage of the 17th amendment.

The 17th amendment was added to the Constitution, making Senators elected and accountable only to the people. As we all know, because of the transient nature of habitation – the ability of people to move freely from state to state – as well as the overwhelming influence of immigration, the interests and concerns of the people are most often not the interests and concerns of the state as a sovereign unit. Now Senators cannot be removed for bad voting behavior for six years and have an incredible opportunity and incentive to become not only rogue representatives but to become agents of the government rather than agents of the people.

With the passage of the 17th amendment, the monopoly was firmly established.

And from that point on, the federal government has grown by leaps and bounds, mostly at the hands of a few cloaked individuals.  The turn of the century (1900) saw the rise of the omnipotent and omniscient Supreme Court.  For that, we have Chief Justice John Marshall to thank, with his decision in the landmark case of Marbury v. Madison, as mentioned above.  Thomas Jefferson was president at the time and wrote to Abagail Adams to comment: “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

Dave Brenner discusses the Marbury decision excellently in his book Compact of the Republic.  Of course, the “compact” is the Constitution itself.  In the book, Brenner writes: “John Marshall’s Supreme Court became the very representation of what the anti-Federalists feared the most – a judiciary that overstepped its own authority and ruled on state law.  Through sweeping court decisions, the Marshall Court carved out the foundations for how the Supreme Court would be perceived more than 200 years later: as a powerful, decisive oligarchy that overturned state law and bound the states to its opinions.”

The book continues:

One of the last actions of the John Adams administration was to pass the Judiciary Act of 1801. This act would become known by Adams’ political opponents as the ‘midnight appointments’ because Adams literally worked feverishly to write and sign the commissions in the last days of his presidency.  Adams hoped to methodically extend the power of the Federalists by appointing relatively large groups of (Federalist) civil officers that would serve for life. One of the commissions was written for William Marbury, an avowed Federalist who Adams wished to make Justice of the Peace for the District of Columbia. 

      The Senate confirmed the appointment of Marbury and many of the other judges. It remains clear that Jefferson, as the newly-inaugurated president, instructed James Madison, the new Secretary of State, not to deliver the remaining commissions to the ‘midnight judges.’  The Constitution did not require him to grant commissions to judges he did not appoint, and it was clear that he did not wish to extend the Federalist judiciary.  After the incredibly contentious 1800 presidential election, Jefferson clearly viewed that contest as a referendum on Federalist rule….

As a result, Marbury brought suit, seeking as his relief a writ of mandamus, an order by the court requiring Jefferson to deliver his commission and thereby allowing him to take his position.

Writing the decision, Chief Justice Marshall held that part of the Judiciary Act – the part that gave rise to Marbury’s commission – was unconstitutional, and therefore he was not entitled to the relief he sought. It would be the first time the US Supreme Court declared an act of Congress to be unconstitutional. The analysis should have ended right there. But Marshall went further. He wrote: “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”  The decision concluded by saying that “a law repugnant to the Constitution is void, and courts, as well as other departments, are bound by that instrument.” It was the first time a federal court proclaimed judicial supremacy. It was the first time a federal court proclaimed that federal courts have the final say on what the Constitution means.  In other words, this decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and once it has rendered its opinion, all the other branches, the States and the people are to bound by that decision. As the Supreme Court likes to remind everyone: “This principle has ever since been respected by this Court and the County as a permanent and indispensable feature of our constitutional system.”  (Cooper v. Aaron, 1958)

Marbury’s declaration of judicial supremacy ignores the opinion in Vanhorne’s Lessee v. Dorance (1795).  [See above].

It is interesting to note that the Supreme Court would not declare another act of Congress unconstitutional until 1957, when it struck down the Missouri Compromise in Dred Scott v. Sanford].  From that point until June of this year, 2016, the high court has only declared approximately 174 acts of the US Congress (whether in whole or in part) to be unconstitutional, which would amount to about 1 statute per year].

Up until this case, most Founding Fathers and many legal scholars understood that the role of the judiciary was to “render” or “offer” an opinion, to be considered by the other branches.  Indeed, when ratifying the Constitution, the understanding was that the Supreme Court would not have a monopoly over its meaning and interpretation.  Alexander Hamilton assured the state delegations in Federalist No. 78:  “Whoever attentively considers the different departments of power must perceive that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution because it will be least in a capacity to annoy or injure them….    “The Judicial Branch may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

In Federalist No. 49, Hamilton wrote: “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance?”

Again, in Vanhorne’s Lessee v. Dorance, Justice Patterson emphasized: “It is an important principle, which, in the discussion of questions of the present kind, ought never to be lost sight of, that the Judiciary in this country is not a subordinate, but a co-ordinate, branch of the government.”

Without authoritative language in Article III of the Constitution, it was believed that all three branches of the federal government would interpret the Constitution, and check usurpations of power by the other branches. Additionally, some believed that state courts would have the right to determine constitutionality as well.  Article III, Section 1 reads: “The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”  Section 2 lists the types of cases that the courts can hear, including the Supreme Court, and whether those cases have original or appellate jurisdiction).

Indeed, the Constitution does not speak to judicial supremacy, and no one claimed that the federal courts would have a monopoly on determining the constitutionality of all government action.

What the Constitution DOES speak to is Separation of Powers and Checks and Balances.  The officials of two branches are elected by the People. If they are unpopular, the People can use their power at the ballot box. We can see where the Legislative and the Executive can check each other (although clearly, the Legislative branch was vested with the most power; Congress is the People’s house). But nothing makes sense about having a third branch, NOT elected by the people but appointed solely on political and social ideology for a term that doesn’t expire, that is supreme to the others.  What makes sense is that a branch that is not accountable to the people was intended to be exactly what Alexander Hamilton said it would be — the least dangerous branch.

James Madison, the author himself of the Constitution, asked: “I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments.”   Furthermore, he wrote: “Nothing has yet been offered to invalidate the doctrine that the meaning of the Constitution may as well be ascertained by the Legislative as by the judicial authority.”  Thomas Jefferson was of the same opinion. He wrote: “Each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action.”

These great men recognized the threat to government balance should the view be otherwise.  “As the courts are generally the last in making the decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary department paramount in fact to the Legislature, which was never intended, and can never be proper,” wrote Madison.  Jefferson wrote: “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

In 1820, after witnessing the ready willingness of men once infatuated with the simple language of Constitution and the limited nature of the government, to alter their positions once they sat in a position of power on the Supreme Court, Thomas Jefferson wrote:  “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps.”

More than any other branch of government, the US Supreme Court in particular has undermined and destroyed America’s onetime democratic republic. It has chiseled away and eroded the protections promised and pledged to each American by the Declaration of Independence and the boundaries of government established by the US Constitution adopted by the states in their ratification conventions during the years 1787- 1791.  The justices to the Supreme Court are appointed by the President (approved by the Senate, and are rarely denied, except when they are “Borked”), and enjoy permanent tenure with a fixed income for life. They are selected according to ideology only, in the supreme attempt by a president to determine “policy” from the bench. That is, they want the Court to interpret the Constitution in the most liberal manner possible (according to the “Living Document” approach, which means that the Constitution means whatever they decide it means) or according to the letter and spirit under which it was adopted.  It matters not to those who wish a very liberal reading of the Constitution that there is a legitimate way to alter its meaning and interpretation – and that is according to Article V – the “amendment process.”

Speaking about the “human” nature of justices which can cloud their decisions, one often hears someone comment that President Obama “must have something very damaging on Chief Justice John Roberts” to explain why he would have written two very constitutionally tortuous decisions on the healthcare bill in order to save it for the federal government. Judge Andrew Napolitano opined publically that Roberts used tyrannical power to find ways to save Obamacare.  He said the Court “violated every grant of authority and ignored every historical and reliable treatise on the role and limitations of the Court as a branch of government, including those written by the very men who wrote and ratified the Constitution.”  The justices that look to the actual (intended) meaning and spirit of the Constitution (the “strict-constructionists) wrote dissenting opinions and essentially agree with Judge Napolitano.  Justice Scalia offered the most scathing dissent and in fact ended by simply saying “I dissent” rather than the usual “I respectfully dissent.”  Scalia accused the majority of disregarding the plain meaning of words and re-defining terms and called the decision “pure applesauce.”  He accused his colleagues of doing “somersaults of statutory interpretation” and wrote: Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”  When he wrote “We should start calling this law SCOTUScare,” he was sarcastically hinting that the statute owes its existence more to the Supreme Court than to Congress.

A few weeks ago (June 26, 2015), in Obergefell v. Hodges, the Supreme Court held that the right to marry is a fundamental right inherent in the liberty of the person, and therefore protected under the Due Process and Equal Protection Clauses of the 14thAmendment, and accordingly couples of the same-sex may not be deprived of that right and that liberty. Journalist Frank Turek explained why the decision rests on a fatal flaw. Back in March, he penned an article (in anticipation of the case) and wrote: “The Supreme Court is about to decide if the 14th amendment to the United States Constitution requires the states to redefine marriage to include same sex relationships. There are several reasons why the answer is no. The most decisive of these reasons is the fact that when the 14thamendment was passed in 1868, homosexual behavior was a felony in every state in the union … If the people of the United States have ‘evolved’ on the issue, then the Constitution provides them with a very clear and fair way for the document to intelligently ‘evolve’….  They need to convince a supermajority of federal and state legislatures to amend the Constitution. That’s the very reason our Constitution has an amendment process!  If we fail to use the amendment process and permit judges to substitute their own definitions and judgments for what the people actually meant when they passed the law in the first place, then we no longer govern ourselves. Why vote or use the political process if unelected justices strike down our laws and impose their own as they go? … It’s a pretext that allows judges to invent rights and impose any moral (or immoral) position they want against the will of the people.”  Liberty interests are those enshrined in the Bill of Rights. The Bill of Rights were included in the Constitution to make sure that the federal government (only) would never violate them. The ‘incorporation doctrine’ is the legal doctrine by which the Bill of Rights, either in full or in part, is applied to the states through the 14th amendment’s Due Process clause. But the Supreme Court, even up until the 1960s, has held that not all the interests outlined in the Bill of Rights are to be incorporated. The only sections of the Bill of Rights that federal courts should apply against state action, according to the Court, are those that have been “historically fundamental to our nation’s scheme of ordered liberty.”  When a federal court reviews a case claiming an asserted right is one protected under “substantive due process” (due process involving “liberty interests”), the court usually looks first to see if there is a fundamental right by examining “if the right can be found deeply rooted in American history and traditions.”  Because the incorporation test includes the clarifiers “historically” or “deeply rooted in American history and traditions,” in making its determination, the Court must look back to the era in our country’s history beginning from our founding up until the adoption of the 14thamendment – or it SHOULD.  Just as not all proposed “new” constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states.  Although the Supreme Court has stated in prior decisions (see Loving v. Virginia) that marriage is a fundamental right, the historical perspective is that marriage is between heterosexual couples. The idea of a “fundamental right to marry” invites controversy.  The notion of a “fundamental right” implies firm privileges which the state cannot deny, define, or disrespect unless it finds that the challenged law was passed to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest (ie, the “strict scrutiny” test).  But marriage rules (who can marry, health records required, what formalities are required for marriage, the legal ramifications of marriage, etc) in the United States have always been subject to almost complete state control (pursuant to its traditional police powers).  As the dissent points out: “Removing racial barriers to marriage (Loving v. Virginia) did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases ‘presumed a relationship  involving opposite-sex partners.’  In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage, as traditionally defined, violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here. What petitioners seek is not the protection of a deeply-rooted right but the recognition of a very new right.”   Re-definition of marriage is something society decides as a whole, through the legislature.  It is not the role of a court. “This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’”  Another dissenting opinion states: “The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

On June 26, the day the ruling was released, Texas Governor Greg Abbott issued a scathing criticism: “The Supreme Court has abandoned its role as an impartial judicial arbiter and has become an unelected nine-member legislature. Five Justices on the Supreme Court have imposed on the entire country their personal views on an issue that the Constitution and the Court’s previous decisions reserve to the people of the States.”

Thomas Paine wrote:  “A constitution defines and limits the powers of the government it creates. It therefore follows, as a natural and also a logical result, that the governmental exercise of any power not authorized by the constitution is an assumed power, and therefore illegal.”  The Supreme Court, while improperly assuming the power to decide what powers the states have and what they don’t have and thereby shuffling power from the states to the federal government, has ushered in an era of a technically illegal government.

With respect to the federal judiciary, Thomas Jefferson wrote: “This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”

Furthermore, he wrote: “The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”  (in a letter to Spencer Roane, 1819)

Similarly, he wrote: “The judiciary of the United States is a subtle core of sappers and miners constantly working underground to undermine the foundations of our confederated fabric. They are construing our constitution from a coordination of a general and special government to a general and supreme one alone. The opinions are often delivered by a majority of one, by a crafty Chief Judge who sophisticates the law to his mind by the turn of his own reasoning.”   (in a letter to Thomas Ritchie, December 1820)

And again, he commented: “The germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.”    (in a letter to Charles Hammond, August 18, 1821)

Joseph Story, in his Commentaries on the Constitution (1833), wrote: “The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defense of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day.” 

US Rep. Joseph Nicholson (1770-1817) warned:  “By what authority are the judges to be raised above the law and above the Constitution? Where is the charter which places the sovereignty of this country in their hands? Give them the powers and the independence now contended for and they will require nothing more, for your government becomes a despotism and they become your rulers. They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country, differing essentially with us upon the great principles of government; and after being clothed with this arbitrary power, they are beyond the control of the nation, as they are not to be affected by any laws which the people by their representatives can pass. If all this be true – if this doctrine be established in the extent which is now contended for – the Constitution is not worth the time we are now spending on it. It is, as its enemies have called it, mere parchment. For these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws; they may laugh the legislature to scorn and set the nation at defiance.”

If the federal government acts outside the scope of its delegated and carefully enumerated powers, and has sanction by the Supreme Court, then it’s no better than an armed mob.  While a mob has the power of organized civil unrest and perhaps violence to coerce and strip others of rights and liberty, the government assumes a power of law to coerce and deprive.

By design, the separation of functions into separate branches (Separation of powers) and the system of checks and balances that our Founding Fathers provided has always been intended to act as a safeguard against the federal government’s potential tyranny and oppression. The history of the Supreme Court shows how, almost immediately, it began to enlarge certain clauses in the Constitution – the Necessary and Proper Clause, the Commerce Clause, and the General Welfare Clause. Patrick Henry called these “sweeping clauses” because he felt they might ultimately be used by the federal government to sweep authority away from the states.  And he was right. Not only has the Court interpreted the clauses as positive grants of power to Congress but it has also interpreted them as limitations on the States to regulate internally, for their own interests and for their citizens. The Commerce Clause, for example, has been interpreted broadly to give the government extreme powers to regulate commerce, both interstate and intrastate.  It has also been interpreted to prevent states from regulating commerce within their borders and also to prevent individual farmers, for example, from growing too much wheat on his property for fear that he may consume that which he grows and thus not engage in commerce (thus affecting commerce!)  The General Welfare clause has become an independent grant of power to Congress rather than as a statement of purpose qualifying the power to tax.

On July 9, 1868, during the Reconstruction era – the era when the US Congress radically transformed the southern states – the 14th amendment was added to the Constitution. As the nation entered the 20th century, not only did the Supreme Court have the “sweeping” or “elastic” clauses, but all of a sudden, it had this brand new tool in its arsenal to sap power from the States.  Beginning in 1925, it began to incorporate the Bill of Rights as prohibitions against the States, through the Due Process clause of the 14th amendment. In this first case, Gitlow v. New York, the 1st amendment’s Guarantee of Free Speech was applied to the states.  Through the “Incorporation Doctrine,” the Court has held if the federal government cannot burden the rights recognized in those amendments, the states may not either. And so the trend continued, particularly in the second half of the 20thcentury and now into the 21st century. By turning again and again to the 14th amendment, the Supreme Court has overturned state laws restricting the rights of speakers (and most recently, allowed states to censor speech), has struck down state laws permitting prayer in public schools, has forced states to remove Christian symbols from public property and forced them to censor prayer before state and local meetings, has forced them dismiss gender identify in marriage laws and required them to redefine marriage, has forced them to forcibly integrate schools and now to forcibly integrate neighborhoods, and has overturned state laws restricting the rights of criminal defendants, private property owners, gun owners, members of racial and ethnic minorities, and others.  In short, the Supreme Court has used its unchecked power at the bench to use whatever authority or non-authority it wishes in order to neuter the states, recreate the United States as a boundary-less, one-size-fits-all nation, cookie-cutter type nation, and usher in sweeping social change.  Typically today, as we have seen year after year, cases that pit the rights of states against the power of the federal government are usually decided by a closely-divided Supreme Court, with Justice Anthony Kennedy acting as the swing voter. It’s hard to imagine that a mere difference in opinion, represented by a 5-4 majority, can abolish traditional norms and dismantle historic institutions, and thus change the entire social landscape of a nation.

At one point, the clear meaning of the Bill of Rights was recognized, as stated in its Preamble: “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, in order to extend the ground of public confidence in the Government and will best ensure the beneficent ends of its institution.”  The Bill of Rights was clearly intended as a set of limitations on the powers of the federal government.

This point was emphasized by the Marshall Court in 1822.  In the case Barron v. Baltimore, a profitable businessman suffered losses due to the buildup of sand in the Baltimore Harbor and particularly in the area of his wharf, denying him the deep waters he needed.  He then sued the city for the losses caused by the sand-build up.  In the decision, Chief Justice Marshall found that the limitations on government articulated in the 5th amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the 5th amendment was not applicable to the states.  The decision read:

Had the framers of the Bill of Rights intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protections from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.”

The Bill of Rights was NEVER intended to be applicable to the States. If that was even a consideration at the time that the States were debating whether to adopt the Constitution, they never would have done so.

Despite the efforts by the Supreme Court to twist constitutional jurisprudence, the 14thamendment was not intended to make the Bill of Rights applicable to the states.  It was an amendment passed in 1868 in somewhat conjunction with the 13th amendment in order to make sure that the civil rights of the newly-freed blacks would not be infringed.  Under the original Constitution, citizens of the United States were required to be first a citizen of some State, which is something that blacks could not claim (thanks to the Dred Scottdecision).  This is why it was imperative for the first section to begin with a definition of citizenship so that no State could refuse recognition of newly freed slaves as U.S. citizens and thereby leaving them with less protection and remedies under State laws of justice compared with a white citizen. The goal and function of the 14th amendment’s first section was to give legal validity to the Civil Rights Bill of 1866. The goal of both the Civil Rights Act and then the amendment was to put an end to criminal black codes established under former rebel States that at the time were being administered under policies of President Andrew Johnson.  The author of the language of the 14th amendment, Rep. John Bingham of Ohio admitted that he borrowed the language for both the Due Process and Equal Protection clauses from Chapters 39 and 40 of the Magna Charta.  He further explained:

(a)  That the privileges and immunities of citizens of the United States refer only to those privileges and immunities embraced in the original text of the Constitution, Article IV, Section II.  [See House Report No. 22, authored by Rep. Bingham on January 30, 1871]

(b)  That “citizens of the United States, and citizens of the States, as employed under the 14th amendment, did not change or modify the relations of citizens of the State and the Nation as they existed under the original Constitution.”

As Alan Mendenhall writes that any debate over the 14th amendment must address the validity of its enactment. “During Reconstruction, ratification of the amendment became a precondition for the re-admittance of former Confederate states into the Union.  [This has been termed] ‘ratification at the point of the bayonet’” because in order to end the military rule imposed by the victorious North during Reconstruction and in order to be allowed to have representatives in Congress, the southern states were required to ratify the 14thamendment. “The conditional nature of this reunification belies the claim that the Fourteenth Amendment was ratified by any mutual compact of the states.”  For this reason, and for many others that are legally, ideologically, and constitutionally sound, it should be emphasized that many learned constitutional scholars are convinced that the 14th amendment was never constitutionally – legitimately – adopted.

Just a few years after the (questionable) adoption of the 14th amendment, in 1873, the Supreme Court heard its first case addressing it, The Slaughterhouse Cases.  The cases were a consolidation of three suits challenging a Louisiana law that established the Crescent City Live-Stock Landing and Slaughtering Company and required that all butchering of animals in New Orleans be done in its facilities. The Louisiana law was enacted for health concerns; it wanted to control animal blood that was seeping into the water system.  The law seriously interfered with the businesses of individual butchers who were accustomed to slaughtering animals on their own property.  It not only required them to do their butchering away from the city at the facilities of the Crescent City Livestock Company, but also to pay a fee for doing so. The law essentially created a monopoly. Justice Samuel F. Miller, joined by four other justices, held that the 14thamendment protected the privileges and immunities of national and NOT of state citizenship. The case involved state regulations of slaughterhouses to address the health emergencies resulting from animal blood that was seeping into the water supply. In the opinion, Justice Miller wrote that the 14th amendment was designed to address racial discrimination against former slaves rather than the regulation of butchers:

The first section of the fourteenth article, to which our attention is more specially invited, opens with a definition of citizenship — not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution . . . . But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled.  To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State, the first clause of the first section was framed.  That its main purpose was to establish the citizenship of the negro can admit of no doubt.

       The next observation is more important in view of the arguments of counsel in the present case. It is, that the distinction between citizenship of the United States and citizenship of a State is clear recognized and established.  We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs. . . speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States.

      Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?  All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

       We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

      The war (the Civil War) being over, those who had succeeded in re-establishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the Executive [the Emancipation Proclamation], both of which might have been questioned in after times, and they determined to place this main and most valuable result in the Constitution of the restored union as one of its fundamental articles.’

In other words, Justice Miller’s point is that the meaning and purpose of the 14thamendment is to negate the Dred Scott decision, legally establish citizenship rights to freed slaves and to ensure the privileges and immunities of national citizenship (as provided in Article IV, Section 2 of the US Constitution].  For example, as Miller explains, “the 15th amendment declares that ‘the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude.’ The negro having, by the 14th amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union.”  The 14th amendment does nothing to alter the relationship between the federal government and state governments, nor does it remove any sovereign state power that existed prior to the amendment.

Clearly, Justice Miller did not believe the federal government was entitled under the Constitution to interfere with authority that had always been conceded to state and local governments.

To be clear that the amendment did not include or intend the “incorporation doctrine,” another proposed amendment during the same era can confirm this.  In December 1875, Senator James Blaine of Maine (rhymes) proposed a joint resolution that would “incorporate” the 1st amendment’s guarantee of religious freedom as a limitation on the States.  It read: “

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

The amendment would become known as the Blaine Amendment. The effect was to prohibit the use of any public funds (federal or state) for any religious school. The bill passed the House but failed in the Senate. This amendment is significant (but ignored by the Supreme Court) because of this implication:  If the 14th amendment was already understood to apply the Bill of Rights against the States, then why would such an amendment even need to be proposed.  Furthermore, it was struck down by the Senate, particularly because it was seen as an improper effort to keep schools free from religion and also because it was seen as targeted religious persecution. The mid-1800s saw a great influx of Catholics into the country. They soon began establishing their own schools, where Catholic children could recite their own prayers and read from their own version of the Bible. The creation of these schools made many Protestants worry about whether the government would start funding Catholic schools and so the Blaine Amendment arose from this concern about the “Catholicization” of American education.

SUPREME COURT - government v. states

As explained above, prior to the 1890s, the Bill of Rights was held only to apply to the federal government, which was a principle solidified even further by the Supreme Court’s decision in 1922 in the case Prudential Insurance Company of America v. Cheek.  The case concerned the state of New York’s ability to restrict freedom of speech.  The decision read: “As we have stated, neither the 14th amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about ‘freedom of speech’ or the ‘liberty of silence’; nor, we may add, does it confer any right of privacy upon either persons or corporations.”

In 1930, in the case Baldwin v. Missouri, the Supreme Court found that an inheritance tax imposed on intangible property (bonds and promissory notes) to property in Missouri held by a dying woman in Illinois violated the due process clause of the 14th amendment. Justice Oliver Wendell Holmes, a realist, was becoming worried that the Supreme Court was overstepping its boundaries with respect to the 14th amendment and scolded his fellow bench members in what would be one of his last dissents:

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the 14th amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the 14th amendment as committing to the Court, with no guide but the Court’s own discretion, the validity of whatever laws the States may pass.

Originalists (those who interpret the Constitution according to the original meaning and intent) and non-originalists alike have been skeptical over the years of the Court’s 14thAmendment substantive due process jurisprudence.  2 of the 3 current “originalist” members of the Supreme Court, Justice Antonin Scalia and Justice Clarence Thomas, reject the substantive due process doctrine, and Supreme Court Justice Antonin Scalia has called it a “judicial usurpation” and an “oxymoron.” [See Chicago v. Morales, 1999  andU.S. v. Carlton, 1994]   Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As he made obvious in his dissents in Moore v. East Cleveland and in Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick (the first Supreme Court sodomy case), he argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to “repeat the process at will.”  He further wrote that guaranteeing a right to sodomy would be the product of “judge-made constitutional law” and would send the Court down the road of illegitimacy.  While originalists generally do not support substantive due process rights, they do not necessarily oppose protection of the rights.  Rather, they believe in the paths that have been traditionally, and constitutionally, provided – through legislation and through the amendment process.

Yet despite the legislative history surrounding the amendment and established jurisprudence regarding the limited reach of the “Privileges and Immunities Clause” in theSlaughterhouse Cases, the Supreme Court would later turn to the Due Process and the Equal Protection clauses to strike down state laws.  As mentioned earlier, incorporation of the Bill of Rights into state law began with the case Gitlow v. New York (1925), in which the Supreme Court upheld that states must respect freedom of speech. By the last half of the 20th century, nearly all of the first 8 amendments were found to be incorporated into state law through the 14th amendment. (All except the 3rd amendment, and certain parts of the 5th, 7th, and 8th). The 9th and 10th amendments apply expressly to the federal government, and so have not been incorporated.  Despite its narrowly-intentioned purpose, the 14th amendment is cited in US litigation more than any other amendment.

The use of the 14th amendment as a sword against the States has blurred state boundaries and has all but reduced the state governments to looking after its day-to-day responsibilities. In most cases, the governments have become enforcement arms of the federal government.  What the government can’t do legislatively, judicially, or through executive action, it can accomplish through federal grants and funding (“money with strings”).

Again, the federal government is supposed to legislate only pursuant to the express powers delegated in the Constitution and for the express objects listed in Article I, Section 8.  The 10th amendment emphatically states that all remaining (reserved) sovereign powers remain with each State.  The definition of a “sovereign” includes the understanding that it has a fundamental, unquestioned right to make all necessary laws for those in its jurisdiction, as well as for its self-preservation and self-defense.  Our government system is based on the notion of Dual Sovereignty.  That is enshrined in the 10th amendment.  The federal government is sovereign when it comes to those objects that the States delegated to it under the Constitution and the states are sovereign when it comes to everything else.  In other words, when it comes to legislation and policy, the States have broad power within their individual spheres. Nothing written or originally intentioned in the Constitution (before the Court was given the chance to change things, through interpretation and judicial construction) has changed that balance.  And that is why the federal government has no “Police Powers.”  Only the states have police powers.  What are “police powers”?  In the United States, a state’s police power comes from the 10th Amendment, which gives states the rights and powers “not delegated to the United States.” States are thus granted the power to establish and enforce laws protecting the welfare, safety, health, and morality of its people.  The Supreme Court, at least until the turn of the 20th century (1905), has consistently held that the police power of a state embraces any law for such purposes that a state believes are necessary to protect and benefit its people, as long as such law does not infringe on any power delegated to the general government in the Constitution.  Morality is outside the jurisdiction of the Supreme Court because then the decision rests on the morality of the justices.  Welfare is a state issue, unless it is an issue that touches on “all Americans, in general.”  The Supreme Court must stick to an opinion based on the interpretation of the Constitution.

In 1932, Justice Brandeis, in the case New State Ice Co. v. Liebermann wrote: “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.” (dissenting opinion).  The term “states as laboratories of experimentation” is, of course, a not only a reference to federalism but a statement of one of its greatest benefits – innovation and solutions. The case concerned the constitutionality of an Oklahoma statute forbidding the manufacture and distribution of ice without a license. Under the challenged statute, the state was authorized to issue such a license only upon a showing “of the necessity for a supply of ice at the place where it is sought to establish the business.”  The plaintiff was denied a license because it was deemed that there was a sufficient supply.  A six-Justice majority invalidated the statute under the Due Process Clause of the 14th amendment as an unwarranted interference with the right to engage in private business in a lawful occupation.  In his dissent, Justice Brandeis laid out some of his growing frustrations with the Court’s substantive due process jurisprudence.  The full comment reads: “There must be power in the States and the Nation to re-mould, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the 14thamendment, or the States which ratified it, intended to deprive us of the power to correct the evils of technological unemployment and excess productive capacity.  To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

In 1982, in the case Southcenter Joint Venture v. National Democratic Policy Committee, Justice Utter wrote:  “Federalism allows the states to operate as laboratories for more workable solutions to legal and constitutional problems.”  In that case, the Washington Supreme Court held that the Washington Constitution’s protection of free speech does not extend to privately owned shopping malls, thus not adopting the Supreme Court’s jurisprudence as relating the Free Speech from the federal perspective. Justice Utter criticizes the majority for borrowing heavily from federal precedents, contending that the Washington courts need not follow the Supreme Court’s lead.

In 1995, in United States v. Lopez, the Supreme Court struck down a federal law that criminalized the possession of a gun within 1000 feet of a school.  At the end of his concurrence, Justice Anthony Kennedy professed respect for areas of traditional state concern and the role of the states as “laboratories of democracy”:

While it is doubtful that any State, or indeed any reasonable person, would argue that it is wise policy to allow students to carry guns on school premises, considerable disagreement exists about how best to accomplish that goal. In this circumstance, the theory and utility of our federalism are revealed, for the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.

        The statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term. Justice Kennedy, in his concurrence, argued that the Commerce Clause should be read to allocate to the states exclusively the power to regulate gun use in school zones. This result, he wrote, is dictated by federalism, under which “the States may perform their role as laboratories for experimentation.”

In another case before the Supreme Court that same year, U.S. Term Limits, Inc. v. Thorton, Justice Kennedy described federalism as the Framers’ attempt to “split the atom of sovereignty.”  The case involved the (constitutional) qualifications for congressional office and the time, place, and manner of elections.

There are some state officials who urge their state legislatures to acknowledge their sovereign status and to look more to their own constitutions rather than to US Constitution. For example, Justice Bablitch of the Wisconsin Supreme Court wrote in 1991: “The Wisconsin Constitution is not and has never been intended to be a potted plant. It can serve, if this court chooses to give it life, as a bedrock of fundamental protections for all Wisconsin citizens…. Even the U.S. Supreme Court has recognized, if not encouraged, the use of state constitutions for just such a purpose. It is consistent with our deeply held notions of federalism, our notions that states should be encouraged to be the laboratories of the nation.. .. We may, in many if not most cases, reject an alternative interpretation [ie, construe the state constitution differently from the federal].  But we should at least look.”

To the Supreme Court justice, the historical record is of little importance or concern.  To be sure, the historical record hardly, if ever, mattered in their deliberations.  Rarely are the original debates and writings of the ratification conventions cited.  They have only been cited 122 times total in the over 30,000 cases they’ve ruled upon in the 225 years the high court has been deciding cases. They were only cited 30 times in the first 100 years of the Court’s existence – in the formative years. Sadly, they haven’t been consulted as the authority on the meaning and intent of the Constitution as they clearly are.  In fact, when the Supreme Court goes so far to side with Alexander Hamilton, an outlier at the Constitutional Convention (who wanted a monarchy), an outright enemy of the Constitution (wanted a consolidated government of unlimited powers), an ideological enemy of the very men who wrote the Constitution (went up against them during George Washington’s term with respect to the taxing power and the elastic clauses), and contradicted in words and actions the very assurances he wrote in the Federalist Papers, knowing that the Union would be predicted on those assurances, as opposed to James Madison, Thomas Jefferson, other Founders, and the leaders in the state conventions, there can be no other explanation than that the Court will do whatever it takes to seek the ends it desires.  If the original Convention (Philadelphia, 1787) and ratification debates were cited, they would have “served to refute every conflicting claim regarding the elastic clauses,” as Dave Brenner wrote, and would have served to refuse every illegitimate power grab they sanctioned.

With almost every decision, and certainly with decisions handed down during the Obama administration, the Supreme Court’s mantra has been: “WHERE THERE IS A WILL, THERE IS A WAY.”  It has shown that it will go through incredible lengths and legal acrobatics to save a federal law. It will distort the Constitution in ways the American people – including the intelligent ones – would never imagine.  Yet it will never do the same for the states.  While enlarging every possible delegation of power for the government, it has never once enlarged the states’ domain under the 10th amendment.  While reading every clause and every delegation in the broadest sense possible for the government, it has never once done so for the states.  And therefore, the delegate balance of power has shifted further and further towards Washington DC – a body of lawmakers and politicians who sit far away from, and secluded from, the communities where citizens live.

The shift is so striking and alarming that citizens are urging their state legislatures to assert state sovereignty and state representatives are submitting such bills and resolutions. These measures assert state sovereignty under the 10th amendment, re-assert their position that the government is one of delegated powers only, and emphasize that powers not delegated are reserved to the state.  Some of the measures go farther and announce that if the federal government continues to usurp powers, those efforts will be met with nullification and interposition.  Some states have already enacted various nullification bills. Indeed, nullification has never been such a popular topic. By mid-2009, ten states had already introduced bills and resolutions declaring and reaffirming their sovereignty, and another 14-15 states were considering it.  New Hampshire’s resolution (HCR 6) included a rather interesting and long dissertation and culminated in the statement “That any Act by the Congress of the United States, Executive Order of the President of the United States of America or Judicial Order by the Judicatories of the United States of America which assumes a power not delegated to the government of United States of America by the Constitution for the United States and which serves to diminish the liberty of the any of the several States or their citizens shall constitute a nullification of the Constitution for the United States of America by the government of the United States of America. (The resolution was not passed by the state house, as it was deemed to be not judicious to do so).  Montana’s bill was very similar and it almost passed.

The shift is also so striking and so alarming that Americans are finally beginning to imagine how the colonists felt under British rule and why they would urge for separation from the mother country.  In some states, talk of secession is a regular part of talk radio (Vermont, for example), and has been for the past several years. In 2012, after a New Orleans resident petitioned the White House to allow Louisiana to secede from the United States, 69 separate petitions, spanning all 50 states, were filed with the White House (the “We the People” online petition system).  The site was launched on November 7, 2011, the day after Obama was elected for his second term.  President Obama had promised to respond to each petition that collected at least 25,000.  As of the deadline for the petitions, 47 states easily reached the threshold and some collected significantly more.  Texas, for example, collected over 100,000 signatures.  Most petitions made an excellent case for secession and separation from the federal government. States like New York explained that it would be far better off, economically especially, if it broke legal ties.

President Obama indeed responded.  Essentially the answer was NO….  A state has no right to secede. It is stuck with the federal government, whether it likes it or not.  This is the response the White House issued on January 11, 2013:

Our founding fathers established the Constitution of the United States “in order to form a more perfect union” through the hard and frustrating but necessary work of self-government. They enshrined in that document the right to change our national government through the power of the ballot — a right that generations of Americans have fought to secure for all. But they did not provide a right to walk away from it. As President Abraham Lincoln explained in his first inaugural address in 1861, ‘in contemplation of universal law and of the Constitution the Union of these States is perpetual.’ In the years that followed, more than 600,000 Americans died in a long and bloody civil war that vindicated the principle that the Constitution establishes a permanent union between the States. And shortly after the Civil War ended, the Supreme Court confirmed that ‘the Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.’

        Although the founders established a perpetual union, they also provided for a government that is, as President Lincoln would later describe it, ‘of the people, by the people, and for the people’ — all of the people. Participation in, and engagement with, government is the cornerstone of our democracy. And because every American who wants to participate deserves a government that is accessible and responsive, the Obama Administration has created a host of new tools and channels to connect concerned citizens with White House. In fact, one of the most exciting aspects of the We the People platform is a chance to engage directly with our most outspoken critics.”

Essentially, the site, the initiative by the government was a ruse; a mere “feel-good” initiative.  It gave the people the illusion that they flex their muscles and their voice and have their frustrations heard and internalized.  As Commodus’ sister Lucilla told her conniving brother in the movie GLADIATOR: “Give the people their illusions.”  As we watched the freight train that is the Obama administration forge full speed ahead with his plans, we sadly note that the voices of frustration never gave our president a moment’s pause.

The people used to believe in our system of checks and balances – especially the courts – to reign in the violent swings in government from side to side (extreme left and extreme right) and restore a tolerable balance in government. The people used to believe they had a voice in their government through the ballot box. But being constrained by an aggressive two-party system where neither party offers voters any hope of reigning in the tentacles of government or divesting it of the objects of its spending. What fringe groups fail to achieve at the ballot box, they can achieve through the activism of progressive courts.  Judges no longer uphold or strike down legislation, based on their legitimacy; for quite some time now, they’ve also been in the business of legislating from the bench.  For the most part, federal courts have become the enemy of the people.  Representatives run for congressional office, and even for president, on a platform of promises, pretending that their allegiance is with their people. And then when they take their oath and assume their office, their allegiance changes. They clearly become agents for the federal government, putting its goals above those of their constituency.  Political leaders move along ideological line, even within the same party, making sure that grassroots voices and other voices of frustration can never translate into political weight. Mark Levin commented once that political leaders act like Josef Stalin, cleaning out all opposition in the Kremlin. Power corrupts.  There is a reason that Americans have never viewed the federal government with more distrust.  Since the passage of the Affordable Care Act, only about 22% of Americans feel they can trust their government.  That percentage is less for Congress alone.  Less than a quarter of Americans believe that their representatives take their concerns to heart.  Less than that believe they can change the course their government is on.  [See Pew Research].

When you have a candidate who runs not on economic promises but on a promise “to protect your phone” (that is, to protect your right not to have the government collect your messages), then you know that all is certainly not well in the United States. When people are fighting an ideological war with their government leaders over its right to censor your speech, to tell you that you can’t display a flag, to force you to violate your sacred rights of conscience, to control your healthcare decisions, to force you to purchase its insurance policies, to put you on a Homeland Security Department watch list simply because you adhere to traditional notions of government and society, to outfit the IRS with 16,000 new goons to investigate you to enforce Obamacare alone, to question your right to own and possess a gun for your safety, and to force you to live in a one-size-fits-all, borderless society that defies laws of science and human nature, then you know your government has become hostile to the reasons it was created in the first place.

Frustration with the federal monopoly is growing.  Limits need to be restored and reliable Checks and balances need to be put into place. Otherwise, our sunset years will be spent reminiscing about what it was once like to live in the greatest, freest country on Earth.

Right now, we have to ask: Who watches the watchers?  The Supreme Court is untouchable. Its decisions are final; unreviewable. They stand as precedent (stare decisis) for as long as the justices themselves, and themselves alone, decide.  The Court’s nine justices decide the fate of both federal and state law, but of course, as it is a branch of the federal government, sitting in Washington DC, immersed in its politics and in closer contact with DC officials than state players, it is impossible to see how it can be an impartial tribunal. The federal government will never divest itself of its powers, even though most of them are misappropriated, stolen from the States and the People.

As explained earlier, the three branches of government have worked to support one another rather than check one another. The US Constitution was written in plain and simple language so that every American could understand it and understand the boundaries of government on his or her life. People know when their government – this government – has transgressed limits and has overstepped its authority.  When ordinary people can figure it out and then watch as the branches do what they do to allow the conduct to go forward and affect their lives, they have no confidence in their government structure. They don’t believe there are reliable procedures in place to arrest the growing evil and tyranny that we all understand government has displayed. Liberty, which is defined as the extent to which people can exercise their freedoms, is secure when there are such procedures in place and government can be contained.  The transformation of government from that of limited powers to one of vast concentrated powers by its decisions has undermined the liberty interests of the People. The most important and powerful check on the abuse of government, as discussed above, is the separation of government powers among two sovereigns; dual sovereignty.  The 10th Amendment reminds us of the balance of power: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  By pitting the two sovereigns against one another, the balance is maintained.  Each one jealously guards and protects its sphere of power.  The only problem is that one sovereign has a monopoly over the determination of its sphere. The federal government has made itself the exclusive and final judge of the extent of the powers delegated to itself.  And as such, its need for power and its discretion – and not the Constitution – have been guiding those decisions. The other sovereign, the States, have no chair at the table.  And the only way our system can work — that is, work to protect the rights of the people rather than promote its own interests and longevity – is if the states get that chair at the table.

“If it be conceded that the sovereign powers delegated are divided between the General and State Governments, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself…. The existence of the right of judging of their powers, so clearly established from the sovereignty of States, as clearly implies a veto or control, within its limits, on the action of the General Government, on contested points of authority . . . . to arrest the encroachment.”   [John C. Calhoun, South Carolina Expositionand Protest, 1828]

In light of this mandate, and in light of the fact that it has been the Supreme Court, as the self-appointed final tribunal to decide on constitutional matters which has done the most harm to the precarious balance built into our government structure, the following amendment should be proposed and passed in order to effect meaningful change to the federal judiciary and to our government structure in general.  In short, the amendment proposes to alter the manner in which justices are appointed to the Supreme Court.  With the proposal, justices will no longer be appointed by the President but instead will be appointed by each state.  Rather than 9 justices, the membership of the Court will increase to 50, thereby giving the tribunal more credibility. The common – or federal – government will finally have a representation of the states in, to ensure fairness and equal representation of sovereign interests.

It is a moral imperative that we should seek to restore the proper balance.

How fitting, and ironic it should be to end this proposal for a constitutional amendment with a line from Chief Justice Roberts in his infamous healthcare decision (NFIB v. Sibelius, 2012):  “The States are separate and independent sovereigns. Sometimes they have to act like it.”

References:
James Madison, Report on the Virginia Resolutions, Jan. 1800; Elliot 4:546–50, 579.

House of Delegates, Session of 1799–1800. (aka, Madison’s Report of 1800).  Referenced at:  http://press-pubs.uchicago.edu/founders/documents/v1ch8s42.html

Allen Mendenhall, “Is the Fourteenth Amendment Good,” Mises Daily, January 2, 2015.  Referenced at:  https://mises.org/library/fourteenth-amendment-good

P.A. Madison, “Historical Analysis of the Meaning of the 14th Amendment’s First Section,”Federalist Blog, last updated August 2, 2010.  Referenced at: http://www.federalistblog.us/mt/articles/14th_dummy_guide.htm

Frank Turk, “Why the 14th Amendment Can’t Possibly Require Same-Sex Marriage,”Townhall, March 17, 2015.  Referenced at: http://townhall.com/columnists/frankturek/2015/03/17/why-the-14th-amendment-cant-possibly-require-samesex-marriage-n1971423/page/full

Prudential Ins. Co. of America v. Cheek, 259 U.S. 530 (1922)

Barron v. Baltimore, 32 U.S. 243 (1833)

Marbury v. Madison, 5 U.S. 137 (1803)

Vanhorne’s Lessee v. Dorance, 2 U.S. 304, 308 (1795).  Referenced at: https://supreme.justia.com/cases/federal/us/2/304/case.html

The Slaughter-House Cases, 83 U.S. 36 (1873)  – The first US Supreme Court interpretation of the 14th amendment

New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

Baldwin v. Missouri, 281 U.S. 586, 595 (1930)

Southcenter Joint Venture v. National Democratic Policy Comm., 780 P.2d 1282 (Wash. 1989).

United States v. Lopez, 514 U.S. 549 (1995)

State v. Seibel, 471 N.W.2d 226  (Wis. 1991) (Bablitch, J., dissenting)

US Term Limits, Inc. v. Thornton, 514 US 779 (1995)

Calder v. Bull, 3 U.S. 386 (1798)

Cooper v. Aaron, 358 U.S. 1 (1958)

Chicago v. Morales, 527 U.S. 41 (1999)

U.S. v. Carlton, 512 U.S. 26 (1994)

Moore v. East Cleveland, 431 U.S. 494 (1977)

Roe v. Wade, 410 U.S. 113 (1973)   [A woman has the fundamental right to have an abortion]

Bowers v. Hardwick, 478 U.S. 186 (1986)   [A gay man has no fundamental right to engage in sodomy and states are allowed to enact laws to prohibit the conduct. The Court will protect rights not easily identifiable in the Constitution only when those rights are “implicit in the concept of ordered liberty”]   Note: This case was overturned in Lawrence v. Texas, 2003, in which the Court said it had taken too narrow a view of substantive due process and liberty interests in the earlier case and now (that the strong voice in the Bowers case, Justice White, was no longer on the Court), the Court agreed that intimate consensual sexual conduct is a liberty interest protected by the substantive due process clause of the 14th Amendment].

Obergefell v. Hodges, June 26, 2015.  (Gay Marriage decision of 2015).    Referenced at: http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

Dave Brenner, Compact of the Republic, Life and Liberty Publishing, Minneapolis, MN (2014).

The Kentucky and Virginia Resolutions, Bill of Rights Institute.  Referenced at: http://billofrightsinstitute.org/founding-documents/primary-source-documents/virginia-and-kentucky-resolutions/

Edwin S. Corwin, “A Basic Doctrine of American Law,” Michigan Law Review, Feb. 1914; pp. 247-250.  Referenced at:  http://www.jstor.org/stable/1276027?seq=1#page_scan_tab_contents.  [Addresses the case Calder v. Bull].

Jefferson Davis  [The Abbebille Review, June 2014.  http://www.abbevilleinstitute.org/review/the-doctrine-of-states-rights/

“Quotes from the Founding Fathers,” RenewAmerica, March 13, 2009.  Referenced at: http://www.renewamerica.com/article/090313

James A. Gardner, “The “States-as-Laboratories” Metaphor in State Constitutional Law,”Valparaiso University Law Review, Vol. 30, No. 2.  Referenced at:http://scholar.valpo.edu/cgi/viewcontent.cgi?article=1888&context=vulr

James G. Wilson, “The Supreme Court’s Use of the Federalist Papers,” Cleveland State University, 1985.  Referenced at: http://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1265&context=fac_articles

The White House Online Petition System, “Our States Remain United.  January 11, 2013.  Referenced at:  https://petitions.whitehouse.gov/response/our-states-remain-united

New Hampshire’s State Sovereignty Resolution (HCR 6 – “A Resolution Affirming States’ Rights Based on Jeffersonian Principles”)  –  http://www.gencourt.state.nh.us/legislation/2009/HCR0006.html

John C. Calhoun, South Carolina Exposition and Protest (1828).  Referenced at: http://www2.bakersfieldcollege.edu/kfreeland/H17a/activities/Ch11docs.pdf

Texas Governor Greg Abbott, press release (June 26, 2015).  Referenced at: http://gov.texas.gov/news/press-release/21131

Thomas Paine, Rights of Man (1791-1792).  Referenced at: http://www.let.rug.nl/usa/documents/1786-1800/thomas-paine-the-rights-of-man/

The Federalist Papers.  Referenced at:  http://avalon.law.yale.edu/subject_menus/fed.asp

* Federal mandates:  Federal mandates include requirements imposed on state, local, or tribal governments or on entities in the private sector that are not conditions of aid or tied to participation in voluntary federal programs.]