Bill of Rights Necessary?


Allen

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Under a proper government, wouldn't a bill of rights be unnecessary since the constitution proscribes the actions the government may take. Hamilton's argument on the subject is the best I've read, so i'll post a portion below...

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."

From Federalist #84

http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss7.html#note1

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Under a proper government, wouldn't a bill of rights be unnecessary since the constitution proscribes the actions the government may take. Hamilton's argument on the subject is the best I've read, so i'll post a portion below...

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."

From Federalist #84

http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss7.html#note1

Taking a stab at the bolded, I think it's because it is possible to circuitously restrain the liberty of the press using only powers explicitly granted in the constitution. For example, levying a 100% tax on all news company profits would effectively outlaw any state-independent news organization.

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Alien and Sedition Acts (1798)

James Thomson Callender, writing for the Richmond Examiner, indicted, fined $200, sentenced to nine months in jail.

  • Matthew Lyon, Democratic-Republican congressman, indicted for an essay in the Vermont Journal accusing the administration of "ridiculous pomp, foolish adulation, and selfish avarice", fined $1,000 and sentenced to four months in jail.
  • Benjamin Franklin Bache, editor of the Aurora, arrested in 1798 under the Sedition Act, died of yellow fever before trial.
  • Anthony Haswell reprinted parts of the Aurora, found guilty of seditious libel, two-month imprisonment and $200 fine.
  • Luther Baldwin was indicted, convicted, and fined $100.
  • David Brown led a group in Massachusetts in setting up a liberty pole with the words, "No Stamp Act, No Sedition Act, No Alien Bills, No Land Tax, downfall to the Tyrants of America; peace and retirement to the President" -- fined $480 and sentenced to eighteen months in prison.

during the Civil War:

  • Four newspapers in New York City: New York Daily News, Journal of Commerce, Day Book, and Freeman’s Journal were all given a presentment by a Grand Jury of the United States Circuit Court for “frequently encouraging the rebels by expressions of sympathy and agreement”. This began a series of federal prosecutions of newspapers throughout the Northern United States during the Civil War which printed expressions of sympathy for Southern causes or criticisms of the Lincoln Administration. Lists of "peace newspapers" that had been published in protest by the New York Daily News were used to conduct planned retributions. The Bangor Democrat, in Maine, was one of these newspapers, where assailants, believed to be part of a covert Federal raid, destroyed the press and set the newspaper facility ablaze. These actions all followed various "executive orders" issued by President Lincoln, including his eighth order on August 7, 1861, which made it both illegal and punishable by death to hold "correspondence with" or give "intelligence to the enemy, either directly or indirectly".

Sedition Act of 1918 prohibited willfully publishing disloyal, profane, or abusive lan­guage about the United States government, the flag, or the military. Law enforcement officials arrested and prosecuted thousands of individuals simply for criticizing the war effort, President Wilson, or both. Courts, applying a com­bi­nation of constructive intent and the bad tendency test, convicted hundreds of them. Thus, officials successfully convicted speakers for obstructing the draft based on statements such as, “The war itself is wrong. Its prosecution will be a crime.” Appellate courts upheld convictions, reasoning that criticism could “undermine the spirit of loyalty” that inspired men to enlist or to register for the draft.

and my personal favorite:

United States v. 12 200-ft Reels of 8mm Film (1973)

Fat lot of good 1st Amendment was.

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A negative right vs. a positive right:

Negative rights and the United States Constitution
Wikipedia has a good short article on the distinction between negative and positive rights. "A negative right is a right, either moral or decreed by law, to not be subject to an action of another human being (usually abuse or coercion)." To use Justice Brandeis' famous phrase more broadly than he used it, negative rights are "rights to be left alone." All civilized legal systems beyond the village or tribal level have been systems of negative rights. For example, Anglo-American common law defines spheres of personal space which other persons must not invade -- especially spheres involving the body, residence, possessions, and property. The only way to create positive rights in traditional common law is to personally agree to them -- i.e. to make a contract.

The United States Constitution was drafted by people who, at least for amendments made before the 1930s, defined rights as negative rights. Thus, when the Constitution in the Fourteenth Amendment protects the "life, liberty, or property" and "equal protection of the laws" to "any person," it is referring to acts which government must refrain from doing, not to any positive duty of the government to act. The only time the government has a positive duty to act is when it has already deprived a person of liberty (e.g., prisoners, and arguably children compelled to attend public schools). Unfortuneately, the Court since the 1940s has departed sharply from this basci tenent of civilized law. It has read positive rights into the Constitution, thereby depriving citizens and other persons of negative rights to which we are entitled.

http://unenumerated.blogspot.com/2005/10/negative-rights-and-united-states.html

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Under a proper government, wouldn't a bill of rights be unnecessary since the constitution proscribes the actions the government may take. Hamilton's argument on the subject is the best I've read, so i'll post a portion below...

There are no "proper" governments. As soon as power falls into the hands of an ambitious few, tyranny will bloom. Count on it.

There are only bad governments and worse governments and no matter how felicitous the start, the end will always be the same, tyranny followed by breakdown or revolution. Mankind is about two or three evolutionary leaps behind where it has to be to have "proper" government.

I happen to be one of the mutations necessary for the advance. I could govern without letting my ego get sucked into the power trap. Unfortunately people like me are not wanted by the public at large and not permitted by those in power.

Ba'al Chatzaf

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I saved the following but I am not sure who Ken is.

Peter

[This is a note to me from Dr. Linda Thompson of the American Justice Federation that I am passing along to everyone...email me with your comments ken]

[to ken]

You left off the MOST IMPORTANT PART of the Bill of Rights -- the PREAMBLE which tells SPECIFICALLY that the Bill of Rights was to make sure the government knew it was limited to the powers stated in the Constitution and if it didn't, the amendments were rights of the people the government couldn't screw with.

Our revisionist historians ALWAYS leave this off the Constitution!!!

Here's a copy!!!

quote

Effective December 15, 1791

Articles in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

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: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

end quote

The first ten amendments are "declaratory and restrictive clauses". This means they supersede all other parts of our Constitution and restrict the powers of our Constitution.

There are people in this country that do not want you to know that these two sentences ever existed. For many years these words were "omitted" from copies of our Constitution. Public and private colleges alike have based their whole interpretation of our Constitution on the fraudulent version of this text. Those corrupt individuals have claimed that the amendments can be changed by the will of the people. By this line of reasoning the amendments are open to interpretation. This is a clever deception. The Bill of Rights is separate from the other amendments. The Bill of Rights is a declaration of restrictions to the powers of our Constitution. The Bill of Rights restricts the Constitution. The Constitution restricts the powers of government. The deception is that the government can interpret the all of the amendments and the Constitution itself. Without the presence of the Preamble to the Bill of Rights this may be a valid argument.

End the deception.

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The Preamble is Good Intentions. It is NOT law.

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The first ten amendments are "declaratory and restrictive clauses". This means they supersede all other parts of our Constitution

Well, no. The U.S. Supreme Court decides what's constitutional, like 1st Amendment freedom of speech, for instance:

We have sometimes said that [certain] categories of expression are not within the area of constitutionally protected speech, or that the protection of the First Amendment does not extend to them. Such statements must be taken in context, however, and are no more literally true than is the occasionally repeated shorthand characterizing obscenity "as not being speech at all." What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc) ... a State may choose to regulate price advertising in one industry but not in others ... sexually derogatory words may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices. R.A.V. v. City of St. Paul, 1992, citations omitted.

In Morse v. Frederick (2007) the Court ruled that schools could, consistent with the First Amendment, restrict student speech at school-sponsored events, even events away from school grounds... [Wikipedia]

Dariano v. Morgan Hill Unified School Dist. (9th Cir., 2014) upheld a California high school’s decision to forbid students from wearing American flag T-shirts ... under the Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. School Dist. (1969), student speech could be restricted if “school authorities forecast substantial disruption of or material interference with school activities” stemming from the speech. [Washington Post]

The exercise of rule-making power by Federal agencies is seldom contradicted by the courts:

Edmonds School District in Washington state and others are cracking down on birthday cupcakes students bring from home under a directive from the federal lunch police, according to news reports. “Birthday parties in classrooms may be celebrated with non-food treats and favors for students. No food is allowed as part of a birthday celebration,” according to a new Edmonds School District policy tied to the federal lunch rules... “The change in procedure was inspired by a new federal Wellness Policy, which requires superintendents to monitor nutritional standards for unregulated items such as food prepared by parent groups, vending-machine fare, student store offerings and classroom parties,” The Herald reports. [EAG news]

...we presume that when an agency-administered statute is ambiguous with respect to what it prescribes, Congress has empowered the agency to resolve the ambiguity. Utility Air Regulatory Group v. EPA (2014). This Court routinely accords dispositive effect to an agency's reasonable interpretation of ambiguous statutory language. EPA v EME Homer City (2014)

WASHINGTON, July 1, 2014 (AP) — President Barack Obama defiantly dared congressional Republicans on Tuesday to try to block his efforts to act on his own and bypass a divided Congress that has thwarted his policy initiatives... He has already taken a series of executive actions, including an order requiring federal contractors to pay a higher minimum wage and initiating steps to to lower carbon emissions in coal-fired power plants. Earlier Tuesday, Obama met with his Cabinet secretaries and urged them to "be creative about how we can make real progress" on issues where Congress won't act.

Executive orders are as old as the U.S. Constitution itself... More than 13,000 have been issued... While there is no specific provision in the Constitution that permits them... [only] two executive orders have been overturned by the judiciary branch. [CNBC]

executive-orders-over-the-years2.png

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The first ten amendments are "declaratory and restrictive clauses". This means they supersede all other parts of our Constitution

Well, no. The U.S. Supreme Court decides what's constitutional, like 1st Amendment freedom of speech, for instance:

We have sometimes said that [certain] categories of expression are not within the area of constitutionally protected speech, or that the protection of the First Amendment does not extend to them. Such statements must be taken in context, however, and are no more literally true than is the occasionally repeated shorthand characterizing obscenity "as not being speech at all." What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc) ... a State may choose to regulate price advertising in one industry but not in others ... sexually derogatory words may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices. R.A.V. v. City of St. Paul, 1992, citations omitted.

In Morse v. Frederick (2007) the Court ruled that schools could, consistent with the First Amendment, restrict student speech at school-sponsored events, even events away from school grounds... [Wikipedia]

Dariano v. Morgan Hill Unified School Dist. (9th Cir., 2014) upheld a California high school’s decision to forbid students from wearing American flag T-shirts ... under the Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. School Dist. (1969), student speech could be restricted if “school authorities forecast substantial disruption of or material interference with school activities” stemming from the speech. [Washington Post]

The exercise of rule-making power by Federal agencies is seldom contradicted by the courts:

Edmonds School District in Washington state and others are cracking down on birthday cupcakes students bring from home under a directive from the federal lunch police, according to news reports. “Birthday parties in classrooms may be celebrated with non-food treats and favors for students. No food is allowed as part of a birthday celebration,” according to a new Edmonds School District policy tied to the federal lunch rules... “The change in procedure was inspired by a new federal Wellness Policy, which requires superintendents to monitor nutritional standards for unregulated items such as food prepared by parent groups, vending-machine fare, student store offerings and classroom parties,” The Herald reports. [EAG news]

...we presume that when an agency-administered statute is ambiguous with respect to what it prescribes, Congress has empowered the agency to resolve the ambiguity. Utility Air Regulatory Group v. EPA (2014). This Court routinely accords dispositive effect to an agency's reasonable interpretation of ambiguous statutory language. EPA v EME Homer City (2014)

WASHINGTON, July 1, 2014 (AP) — President Barack Obama defiantly dared congressional Republicans on Tuesday to try to block his efforts to act on his own and bypass a divided Congress that has thwarted his policy initiatives... He has already taken a series of executive actions, including an order requiring federal contractors to pay a higher minimum wage and initiating steps to to lower carbon emissions in coal-fired power plants. Earlier Tuesday, Obama met with his Cabinet secretaries and urged them to "be creative about how we can make real progress" on issues where Congress won't act.

Executive orders are as old as the U.S. Constitution itself... More than 13,000 have been issued... While there is no specific provision in the Constitution that permits them... [only] two executive orders have been overturned by the judiciary branch. [CNBC]

executive-orders-over-the-years2.png

FDR was an elected king who ruled by decree

Ba'al Chatzaf

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