The Constitutionality Crisis


The Bill of Rights

Food For Thought

The first ten amendments to the Constitution comprise the Bill of Rights. Hamilton and the federalists argued that the Bill of Rights was not necessary since the Constitution does not expressly grant to the national government the power to do what was forbidden in the proposed amendments. In other words, we don't need a list of rights because we've given the government very limited powers. Others, the anti-federalists, wanted certain things in writing regardless. They feared that government would not limit itself to its enumerated powers. And they insisted on the 9th amendment as well, stating categorically that the rights specifically listed were not the only rights that We the People have.

A Quick Quiz

Read the question carefully. What gives Americans the right to their Freedom of Speech?

If you answered: "The First Amendment" then you are mistaken. The First Amendment states, in part: "Congress shall make no law ... abridging the freedom of speech..." Freedom of speech was assumed to be pre-existing and the First Amendment simply says that the Congress cannot abridge that right. The same goes for freedom of the press, freedom of religion and other rights mentioned in the first amendment. The rights are yours and always have been; you were born with them.

The founders considered rights to be "God-given" or "natural." I believe that we err when we speak of "Constitutional Rights." We should be referring to them as "Constitutionally protected rights." The Constitution does not confer these rights, it only protects them. Some, those mentioned in the Bill of Rights, are expressly protected. Others are protected by the fact that the government is not expressly empowered to violate them.

Do you have a right to sing in the shower? Of course. The government is not empowered by the Constitution to prohibit it. You therefore have that right. How do we know that you have that right? It's covered in the Ninth Amendment which says that, just because some rights are listed in the Constitution, that's no reason to deny or disparage other rights that are retained by the people — us.

For that matter, even if freedom of speech was not included in the Bill of Rights, you would still have that right. Why? Because you were born with it and government is not empowered to deprive you of it.

People today worry that the United States of America is becoming a police state. The federal government pays little more than lip service to constitutionally protected rights. This is with a constitution that very specifically prohibits government from doing some of the things they are in fact doing. Try to imagine how much worse the Unites States would be today were it not for the existence of the Bill of Rights.

In the current climate, imagine what we'd be reading in the "free" press today (or not reading) if there were no First Amendment. Imagine the fate of Muslims without the First Amendment.

All in all, I am given to believe that the anti-federalists were right — government, even one of "limited" powers, will always be trying to expand its powers. I just wish that the founders had enumerated even more of our rights in the Constitution.

"Find out just what the people will submit to and you will have found out the exact amount of injustice and wrong which will be imposed upon them; and these will continue until they are resisted with either words or blows, or both. The limits of tyrants are prescribed by the endurance of those whom they oppress."

Frederick Douglass, August 4, 1857