In discussing rights I have heard people say all manner of falsehoods about them. I’ve heard the terms Constitutional Rights, or Constitutionally protected rights; both of which are wrong. I’ve also heard that the Bill of Rights grants us those rights, or that it protects them. Wrong again. The Bill of Rights is just words on a piece of paper and it couldn’t protect my rights anymore than a sheet of printer paper could protect my face if someone were to fire a gun at my head. What defends our rights is our willingness to stand up and oppose any and all attacks upon them; from whatever quarter those attacks may come.
So what is the Bill of Rights and what does it do if it doesn’t protect our rights? To understand what the Bill of Rights is will take more than a simple one paragraph explanation, but I think it needs to be discussed, as far too many are not aware of the truth regarding it.
To begin our discussion one must first look to how the States existed at the end of the American Revolution. Each State was a distinctly separate and sovereign nation unto itself, much like France or Germany are, or were, before the establishment of the European Union. Each State Legislature had completed control over the internal operation of their State and the authority to enact laws that directly affected the people living within their borders.
That said, they were all bound together in a loose confederation for their common and mutual needs with a central Congress as the governing body; whose delegates represented the States in their sovereign capacity. The Congress could enact no law of its own, instead suggestions were sent to the various representatives in it by their State Legislatures, and then they would issue a proposal which would be sent out to all the States for consideration. These proposals would only become binding if they were agreed to by all 13 State Legislatures.
Some say the Articles of Confederation were written in haste and that they made the central government weak and ineffective. I believe otherwise. I think it was their intent all along to create a weak central government, keeping most of the power and authority where it belonged; close to the people. Each State had their own written constitution which established a system of government to provide for the needs and requirements of their people, as well as having established Bills of Rights placing certain rights beyond the legislative authority of their chosen representatives.
That relationship between a weak central government and strong local governments was forever altered with the ratification of the Constitution in 1789. All manner of deceit was used by the proponents of this Constitution to hide the fact that it was, in fact, a consolidation of the States into a single Union under a strong system of government that could not be controlled by those who established it; which was the intent all along if you ask me.
Patrick Henry clearly addressed this point on June 4, 1788 when he asked the following of the delegates to the Virginia Ratifying Assembly, “My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.”
The Constitution, according to the Preamble, was to be ordained and established BY THE PEOPLE. It was to be ratified by conventions, or assemblies, of delegates chosen from AMONG THE PEOPLE. It, therefore was, as Abe Lincoln would later affirm, a government of the people, by the people, for the people. (Source: Gettysburg Address)
But there were those who saw through the deception and sought to stave off the institution of such a strong and centralized government. These Anti-Federalists, as they were called, wrote essays pointing out the myriad dangers and deficiencies of the Constitution, only to have their words fall upon, for the most part, mostly deaf ears. (I certainly know how that feels)
Yet they were a powerful enough force to cause those who supported ratification give in and consent to the drafting of a Bill of Rights; amendments to the Constitution which would supposedly place the rights they mentioned from being under the legislative authority of the government they were establishing.
If you think of the Constitution as a legal charter, delegating certain powers and authority to a system of government, then the Bill of Rights was a legal charter placing restrictions upon the power and authority of that government. The problem in both instances is that there was absolutely no means by which the government they were establishing could be held to its delegated authority, or prevented from infringing upon the rights listed in the Bill of Rights.
Think about it, they have agents for almost every executive agency who have the power to fine you, arrest you, and kill you if you resist the laws they enact; whether those laws be in accordance with their delegated authority or not. Where is the reciprocity; where is our authority to fine, arrest, or kill them if they violate the law we wrote to govern their actions? I’ll tell you where, it lives in the land of unicorns and dragons – it is imaginary – it does not exist.
The Bill of Rights is a parchment barrier set up to keep government from doing anything to violate the rights listed therein, but the actual defense of those rights is up to each and every person to whom the authority and jurisdiction of this government extends; meaning you and I. Our rights are only as well protected as we are willing to oppose laws that infringe upon them.
Yet people still think the Bill of Rights protects their rights; or worse, that it grants them those rights. No, those rights existed before our government was established, and all the Bill of Rights does is place restrictions upon our government’s ability to pass laws that violate them. But hey, murder is against the law too, yet people still commit thousands of them per year. So the restrictions placed upon government by the Bill of Rights is as effective as the enforcing mechanism attached to it is; and the Bill of Rights has only our understanding, our love of, and our willingness to defend those rights as an enforcing mechanism.
The best way of explaining what the Bill of Rights is would be to compare it to the Ten Commandments. When Moses came down from Sinai with the two tablets containing God’s laws for the people they were laws given to the people by their Creator. The Bill of Rights is similar in that they are laws given to the government by its creator; the people.
The Ten Commandments say that thou shalt not kill; thou shalt not covet; thou shalt not commit adultery; yet the people disobey them anyway and commit those offenses. The only way that those laws can be upheld is if the people know them, and our virtuous enough to live by them; there is no punishing mechanism attached to them; not in this life anyway. The same goes for the Bill of Rights, they impose restrictions upon our government, but those restrictions have no means of enforcing them upon government by which we can hold those we elect accountable if they do things that violate the rights contained within it.
Think of the Bill of Rights as if they were commandments to our government. For instance, the First Amendment might very well have been written as follows: Thou shalt not pass any law telling the people what they can and cannot say; whether they must or must not attend church, or when, where and how they may worship according to their faith.
The Second Amendment, thinking along the same lines, might have been written to say: Thou shalt not deny the people the right to form militias; nor to keep and bear the arms of their choosing; nor require that fees or permits be required to exercise these rights.
The Fourth Amendment could very well say: Thou shalt not spy upon the people, perform searches and seizures without a warrant stating the things to be searched for and the reasonable cause for performing these searches.
The Fifth Amendment might, therefore say: Thou shalt not deprive a person of their life or liberty without their having been charged by a Grand Jury and found guilty of a crime against the life, liberty or property of another. Thou shalt not deprive anyone of their life, liberty, or property without their having due process of law where they may confront their accusers and present evidence in their defense.
The best explanation I’ve seen from anyone in government about our Bill of Rights comes from a 1943 Supreme Court case where Justice Robert H. Jackson states, “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.” Do you understand that? I mean honestly, is that too complex a thought for your pea brains to comprehend?
My rights are not dependent upon whether the government passes laws protecting or infringing upon them; they are not dependent upon whether society finds them offensive or considers me dangerous because I choose to exercise them. My rights neither require, nor can they be limited by an act of government; nor can the public call for their repeal and restriction because they are offended by, or fearful of those who exercise them.
END OF STORY!!!
Yet that’s the whole problem with government today; people view it from the perspective of this big benevolent entity whose purpose is to protect us, provide us with comfort and security, and keep us safe from ideas and beliefs that we disagree with. When people view government from that perspective it becomes acceptable for government, or society itself, to restrict and deny certain rights.
We, meaning the people of the United States collectively, both present and past, have lost most of our rights because we have craved comfort and security. Yet the freedom to exercise to exercise those rights laid at the root of why the Colonists rose up and shook off the ties that had bound them to their system of government for over a century and a half.
They did not wait until volumes of law books had been written denying their ability to exercise their rights, they resisted each and every infringement upon them; sometimes in methods that would turn the stomachs of people today. Yet we call them patriots and honor their cause every July 4th, while at the same time calling people like me radicals and domestic terrorists.
Excuse the language, but where’s the fucking logic in that?
We have not lost our rights because government has enacted laws restricting them; we have lost our rights because we have asked and expected government to pass laws protecting them; when that was our responsibility all along. We have lost our rights because we have lost the backbone to stand up to government, and we won’t get them back until we, collectively as a people, grow a set of balls and stand up to Uncle Sam and fight for them.
And that’s the truth about the Bill of Rights; as uncomfortable as it may be for you….