There Are No Qualifiers In The Bill of Rights

Preamble to the Constitution of the United States and American Flag

Language is the tool by which human beings communicate with each other. Without language all music would be instrumental pieces. Without language all films would be silent movies. Without language we wouldn’t have amazing literary pieces to read. Without language history would be lost to the ages.
But language is more than just words; it is grammar too. I’ll be the first to admit that I’m not the best when it comes to the usage of grammar, but I have gotten better over the course of nearly two decades of writing these commentaries of mine.

Grammar, in the simplest of terms, is the instructions for putting words together to form a coherent thought or statement. Grammar, if used incorrectly, can change the entire meaning of the words in a sentence. Take for instance a headline found on the cover of a magazine which read, “Rachel Ray finds inspiration in cooking her family and her dog.”

Really, Rachel Ray cooks her family? The proper way of formatting that sentence would have been, “Rachel Ray finds inspiration in cooking, her family, and her dog.” The simple use of commas between the three items Ms Ray finds inspiration in makes a world of difference in the way the sentence is read.
But grammar is much more than the use of periods, commas, question marks, and all the other things we insert into our sentences to form them. If you want to dig really deep into grammar, there are other things that dictate the meaning of a string of words; such as qualifiers.

A qualifier is a means of writing by which the words of a sentence, or a particular phrase, limit or enhance the meaning of the words that precede, or follow it. Qualifiers are/were used extensively by our nation’s Founders; especially within the documents that concern our system of government.

I do not expect you to become experts in grammar; especially if I am to be the instructor. What I wanted to do was to bring your attention to the fact that the particular way words are strung together can make a big difference in their meaning; and if you don’t understand the purposes for which they were written that way, you won’t understand what the writer had intended you to understand.

Take for instance the meaning of the words general welfare found in the Constitution. Today people, (as well as the Supreme Court apparently), believe those words imply a whole host of powers not specifically mentioned within Article1, Section 8 of the Constitution. The same can be said of the Commerce and Necessary and Proper Clauses of the Constitution.

However, according to James Madison, that is not the case. In an 1831 letter to James Robertson, Madison writes, “With respect to the two words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” The phrase general welfare, according to Madison, is qualified by the list of particulars found in Article 1, Section 8 of the Constitution, listing the ‘specific’ powers granted government.

Another of our Founders, Thomas Jefferson, spoke on the qualifying of the general welfare in his Opinion on the Constitutionality of a National Bank, 1791, “To lay taxes to provide for the general welfare of the United States, that is to say, ‘to lay taxes for the purpose of providing for the general welfare.’ For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union.”

I know this was a roundabout way of getting to the main point of this article, but I wanted to make sure you had, at least, the inkling of an understanding of what qualifiers were before I got to the matter at hand.

My job as a writer is to try to make things as easy for you to understand as possible. Therefore, what I am about to say may seem like a violation of that cardinal rule by making you confused. But by the time I’m finished I hope to have clarified any confusion the following statement might created.

The statement I would like for you to consider is this: “The Bill of Rights contains no qualifiers, but in, and of itself, is a qualifier.” There, I’ve said it. Are you shaking your heads in disbelief? Are you sitting there slack jawed, asking what the hell I’m talking about? If so, let me try to explain what I just said.

I don’t know how many of you reading this have ever sat down and read the Bill of Rights, but did you know that it also contains a Preamble? I think there is a great deal of misunderstanding as to what a Preamble is. A preamble is, merely, an introductory statement regarding the intent, or purpose of the document that follows.

Since I just spent a great deal of time discussing grammar and language, allow me to provide a short sentence as an example of how a preamble works. If I were to say to you, “I want to tell you something about your car; it has a flat tire.” In that sentence the part where I say that I want to tell you something about your car would be considered a preamble, of sorts, as it explains the intent of the words that follow.

While not always the case, typically preambles are only found in legal documents, or charters. Joseph Story said the following regarding the Preamble to our Constitution, “And, here, we must guard ourselves against an error, which is too often allowed to creep into the discussions upon this subject. The preamble never can be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the constitution. Its true office is to expound the nature, and extent, and application of the powers actually conferred by the constitution, and not substantively to create them.”

Therefore, the Preamble to the Bill of Rights only declares the purpose for which the actual amendments that follow it were written. And what does this Preamble say? Well, it says, “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.” (My emphasis)

Therefore, the Bill of Rights is actually a qualifier upon the powers granted our government; restricting it from interfering with, or violating the specific rights mentioned in the first ten amendments to the Constitution.

Yet the actual amendments themselves contain no qualifiers, no limiting features which could be construed to restrict the specific rights they protect. If you’ll note, I did not say these amendments grant us any rights; those rights existed long before the Bill of Rights was ever written. The Bill of Rights was simply written to place restrictions upon our federal government from violating those rights.

When discussing rights, there are two words that pop up frequently in regards to them, those word being inherent and unalienable. Your eyes may see those words, they may travel along the optic nerve and make their way into your brain, but I’m guessing that is as far as the thought process goes in regards to what they actually mean; and that is one of the reasons why so many people care so little for their rights.

The dictionary defines the word inherent as: existing in something as a permanent, essential, or characteristic attribute. When they say your rights are inherent, they are saying that they are as much a part of your being as your DNA. Can you give up a small portion of your DNA without losing who you are? Of course not; nor can you give up even a portion of your ability to freely exercise your rights without losing the title of a free man/woman.

The next word I’d like to discuss is unalienable. According to Black’s Dictionary of Law, 2nd Edition, (1910), the definition of unalienable is: Not subject to alienation; the characteristic of those things which cannot be bought or sold or transferred from one person to another such as rivers and public highways and certain personal rights; e.g., liberty.

The 18th century English jurist William Blackstone, had this to say about the word unalienable, “Those rights, then, which God and nature have established, and therefore called natural rights, such as life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture.”

The only time a person can forfeit an unalienable right is when, in the exercising of that right they abuse it, restrict someone else from exercising their rights, or bring harm to another. As an example, a man may own 100 firearms and hundreds of thousands of rounds of ammunition, but if he never uses those weapons to commit a crime, he has violated no one else’s rights, nor has he brought harm to anyone; therefore his right to own them cannot be restricted or taken away from him.

I believe I have proven, to a satisfactory extent, that our Bill of Rights is a qualifier upon the powers given the powers given the federal government. I also believe I have proven that the Bill of Rights itself contains no qualifiers; if it says those rights are not to be violated, then they are not to be violated–under any circumstances.

Justice Hugo Black said it best when he declared, “It is my belief that there are ‘absolutes’ in our Bill of Rights, and that they were put there on purpose by men who knew what the words meant and meant their prohibitions to be ‘absolutes.'”

Our Bill of Rights was written because there were those alive at the time who felt the Constitution did not do enough to protect the rights of the people; that over time government could seek to infringe upon some of them, and take others away entirely. They agreed to ratify the Constitution only if a Bill of Rights was written to secure certain inherent and unalienable rights.

In 1943 Justice Robert H. Jackson ruled, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” (Source: West Virginia Board of Education vs. Barnette)

You cannot restrict a person’s unalienable rights because the exercising of those rights make you feel uncomfortable. You cannot ask your lawmakers to enact laws which restrict a person’s unalienable rights because you do not like it when they exercise them. You cannot restrict a person’s unalienable rights because someone else abuses them and causes harm to others. If someone says something that brings harm to another person’s reputation, or hurts their feelings, how would YOU feel if Congress passed a law banning ALL SPEECH? If you did nothing wrong, how would YOU like government to restrict one of your rights?

Those who abuse their rights, or bring harm to others by exercising them irresponsibly should be punished; but those who have done no harm should not see their rights restricted due to the actions of others.

I know this is already pushing the limits as to how long I can write before I lose my audience; but I would like to take a few minutes discussing each of the first ten amendments to the Constitution which make up our Bill of Rights, and how they have been violated.

The First Amendment states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
There are 5 distinct, and separate, rights which the First Amendment protects; the freedom of religion, of speech, of the press, of the people to peaceably assemble, and finally to petition their government for a redress of grievances.

Much ado has been made in regards to the separation of church and state; banning prayer or any religious discussion in places that are funded by tax dollars. If you were to sit down and think about what the First Amendment actually says, you will see that by banning prayer anywhere you are violating the First Amendment. Does the amendment not say that one of the rights it protects is the free exercise of religion?

The restrictions intended by the First Amendment were not upon religion itself, but upon the government sanction of any one particular sect, or faith. Yet at the same time it left the people free to exercise their religious beliefs when, and where they chose. Prayer in school, if it is by a voluntary act of the students, harms no one. Your being offended by it does not matter. I am offended by much I hear coming out of the mouths of artists and so-called musicians these days, but for me to say they cannot speak those words, or sing those lyrics violates their right to freedom of speech. And is not prayer but a person speaking to their god? How can you ban one without banning the other?

In his Kentucky Resolutions, Thomas Jefferson wrote, “One of the amendments to the Constitution… expressly declares that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,’ thereby guarding in the same sentence and under the same words, the freedom of religion, of speech, and of the press; insomuch that whatever violates either throws down the sanctuary which covers the others.”

Way back in 1844, with a unanimous decision I might add, the Supreme Court delivered the following ruling, “Why may not the Bible and especially the New Testament be read and taught as a divine revelation in school? Where else can the purest principles of morality be learned so clearly or so perfectly as from the New Testament?” (Source: Vidal v. Girard’s Executors)

Anything which restricts what words a person may utter, be it prayer, speech, or the written word, cannot be banned or restricted simply because it offends; to do so undermines the entire First Amendment and is a violation of an unalienable right. All this talk of political correctness, hate speech, is a means of restricting what a person cannot say because it offends others, and is a violation of the right to speak freely. I am deeply offended when I hear people discuss politics and government, when they don’t know the first thing about what they are talking about. That does not give me the right to make them shut up! Nor does the fact that the things I say offend someone else give them the right to tell me that I must remain quiet.

I could write 3 more pages on the First Amendment, but I think I’ve made my point, so let’s move on to the Second Amendment now. The Second Amendment reads: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

The Second Amendment protects two separate rights; the right to form militias and the right to keep and bear arms. Up until recently it was held by many that the right to keep and bear arms was tied to membership in a militia. Fortunately, in D.C. v Heller, the Court ruled that the right to keep and bear arms is an individual right; as they well should have I might add.

The purpose of a militia, as explained by the Second Amendment, is the security of a free state. Now that can be read two different ways. First, it could be read to mean that the states themselves are to remain free; from foreign invasion, or whatever else that may put them into a state of non-freedom. On the other hand, it could be read to mean that membership in a militia was to secure a state of freedom for the people…possibly from their government???

The fact that so many laws have been enacted which restrict the right of the people to peaceably own, and carry, arms for their defense shows that far too many people are not aware of why this right was felt to be so important.

In his Commentaries on the Constitution, Justice Joseph Story writes, “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

In a letter to a William Smith, Thomas Jefferson said, “And what country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms….The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants…”

The defense of one’s home, of one’s property, of one’s life, the ability to hunt and target shoot are but inconsequential side benefits of the right to keep and bear arms. The Second Amendment was written so that the people would have the ability to rise up and shake off the yoke of tyranny if it every raised its ugly head in America again.

And how can you protect yourself from your government if you do not have the same arms that they do?

In 1846 the Georgia Supreme Court ruled, “The right of the people to keep and bear arms shall not be infringed.’ The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the milita, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right.” (My emphasis) (Source: Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251)

This was not an isolated ruling; in Wilson v. State of Arkansas, (1878), the Court ruled, “To prohibit a citizen from wearing or carrying a war arm . . . is an unwarranted restriction upon the constitutional right to keep and bear arms. If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege.” (My emphasis)

Although the Bill of Rights was written to apply only to laws passed by the federal government, I want you to consider something. If our rights are, as our Founders believed, inherent and unalienable, then they existed long before any government came into existence; including the State governments.

The Bill of Rights was written because at the time the people of each State enjoyed the full exercise of their rights, and it was believed that any violations of them would come from the newly established federal government. Yet the fact that these rights existed before the establishment of any system of government, should be sufficient to prove that even the States are prohibited from enacting any law which restricts the right to keep and bear arms.

How is it that creatures of our own creation can carry arms that we, the people who established government, are prohibited from owning or carrying? If the purpose of the Second Amendment is to secure OUR state of freedom, then how can we do so if those we are supposed to be able to protect ourselves from are better armed than we are?

And I haven’t even gone into the laws which require I obtain a permit to exercise my constitutionally protected right…

If you can answer that question logically I will give you $100; and I don’t want to hear a single word about, “But think about the children who have been killed by lunatics on shooting sprees.” I want clear concise arguments with plenty of evidence to back up your position. As with the First Amendment your sense of comfort or security does not come into play. So leave my right to keep and bear whatever arms I choose alone!

Next up is the Third Amendment, the only one of the first ten amendments to the Constitution which has not yet been violated. The Third Amendment states: No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Next on the menu is the Fourth Amendment, which states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment was written to prevent what, at the time, were called Writs of Assistance. Writs of Assistance were broadly worded search warrants that gave authorities the power to search anywhere, anytime, did not specify what was to be searched for, and did not expire.

Unless you have been living in a cave you have heard the name Edward Snowden. His release of classified information which proved the extent to which your government monitors you caused him to flee to Russia to avoid prosecution. Some call him a traitor and say he deserves punishment; I call him a hero for showing us the extent to which our government has violated our right to be free from unreasonable searches and seizures.

You may ask, what has been seized? Well, how about every phone call you make, every text message you send, every keystroke you make on your computer? All of these are collected and stored in massive data banks run by the National Security Agency, and recently proven, the CIA as well.

You might say that if I don’t have anything to hide why should I worry that they are watching me, to which I reply if you don’t have anything to say why should you care about being free to open your mouth and speak whenever you do? It is the principle of being able to retreat into my home and be free of prying eyes and ears that is the point here. If they can turn on my phone and listen in to my most personal conversations with my wife, where has my right to privacy gone?

Where is the warrant stating probable cause that gives them the right to spy upon you or I? Or does government consider every citizen their enemy now?

It is ironic that we send our U.S. fighting men and women abroad to fight for others freedom, yet we readily give ours away back home to make us feel safer and more secure. This sentiment was echoed by the Court in U.S. v Robel, “It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of the liberties … which makes the defense of the Nation worthwhile.”

As recently as 1961 the Courts upheld that our homes were places of sanctuary, free from unreasonable intrusion, “The 4th Amendment and the personal rights it secures have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” (Source: Bartkus v. Illinois, Justice Potter Stewart)

For all intents and purposes, the Fourth Amendment no longer protects anything.

Then there is the Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I could write a treatise on the violations of the Fifth Amendment. I can’t count the times I have read about violations of a person or family having their lives upturned, their property taken, and their liberty threatened by the IRS alone. But I am trying to keep this within tolerable reading levels, so I’ll move one.

The Sixth Amendment states: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Let me pose you a question. Let’s say I am brought on charges of treason based upon information collected by the government from my correspondence and writings. If I were to go to trial would I be allowed to face the person who collected that data? Would I be allowed to use the unconstitutional collection of that data in my defense? Would the trial be held within the district where I live, or in some federal courthouse that may be unfriendly towards me? Where is the right to a free and impartial trial when the judge will not allow the jurors to know the names of the accusers or the constitutionality of the means by which the evidence against me was collected?

Nuff said about this, so let’s move on to the Seventh Amendment: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Let me ask you another question. Let’s say you are some John, or Jane Doe, working a minimum wage job and you find yourself wronged, or harmed by some multi-million dollar a year corporation. How can obtain a trial by jury and be provided with the justice you deserve if you cannot afford the cost of hiring a lawyer experience enough to do battle against a whole team of lawyers that company bring to bear against you?

Yet the Seventh Amendment declares that trial by jury in suits exceeding $20 the right to a jury trial shall be preserved. Could this be why many settle out of court for far less than their case was worth?

What about Tort Reform laws which seek to put caps on how much a person can sue another for? Are those not restrictive upon the right of a jury to decide if the amount asked for is fair compensation? What about laws seeking to restrict how much many of these lawyers, who will take the case and only receive payment if you win, can charge as commissions? Does this not limit your ability to find competent legal representation?

While this is not so much a direct frontal assault upon this right by the government, they are participating, to an extent, in the deprivation of this right.

The Eighth Amendment reads: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Need I say more than water boarding?

The Ninth Amendment reads: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This is a catch all amendment that safeguards a whole list of others not specifically mentioned. When the time came for an actual Bill of Rights to be written, a long list of suggestions were sent to the federal government by the States. James Madison culled through them, rewording some, to come up with 12 he thought were worth submitting to the States for ratification. Ten of them were, and that is how we got our Bill of Rights.

But do you not have the right to breathe the air, to eat, to sleep? Yet those rights are not specifically mentioned. The Ninth Amendment covers them.

How has this been violated? Try seatbelt laws, helmet laws, or laws which regulate whether you can grow and sell produce from your home? I could provide a shopping list of rights you have that have been violated by both federal and state laws.

And finally, we get to the Tenth Amendment, which declares: 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.

A perfect example of how this has been violated is federal law criminalizing the possession and use of marijuana. Where in the Constitution does it give the federal government the authority to decide what a person may put into their body? If that power is not specifically given, it is reserved to the States. Yet I can be fired from my job for using marijuana on my off time because it is a violation of federal law; even though the State of California recently passed a law legalizing is recreational use.

Our Founders fought a war against their government to secure their liberty. The Preamble to the Constitution says that the job of the government it established was to secure that liberty. Yet it has actively sought to restrict it–across the broad spectrum of rights protected by the Bill of Rights.

Yet we the people, and I’m speaking primarily to you, still support this government? I no longer support it in any actions it takes; not only because of these infractions, but upon the litany of infractions upon the other violations of the Constitution itself.

In closing, I’d like to leave you with a quote that echoes the sentiments I feel today, “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.”

Oh, in case you’re interested, that quote was uttered by Patrick Henry in 1788. Imagine how he’d feel today.

About Br'er Rabbit

I'm just one person out of millions of others. The only thing different about me is that I don't walk around with my head up my ass.
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3 Responses to There Are No Qualifiers In The Bill of Rights

  1. Don B. says:

    11 pages Neal? But a good one. Probably only those of in the choir might read such a lengthy tome in its entirety. Nonetheless, I will try to get some of the snowflakes I know to read it all – and then think!

  2. Chris Green says:

    Nicely put! Sad that common sense is rarely applied. I’ll share for sure.

  3. Neal says:

    Thanks guys. I almost stopped at the point before I broke down the Bill of Rights amendment by amendment; but then I said screw it, hardly anyone reads these things anyway, so I’m gonna write whatever the hell I wanna write.

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