December 23, 2008
'Tis the season to be spending!
But in January, the joy of giving will give way to the pain of "payment due." Bills are not pleasant for anybody, but there is one bill that all Americans should be thankful for—the Bill of Rights.
Last Monday was the 217th birthday of the Bill of Rights. This cherished document provides some great insights into the principles the Founding Fathers prized. In it they listed some of the fundamental rights they believed were due every American and the restrictions on government they felt were necessary to preserve our liberties.
Controversy Over the Bill of Rights
The Bill of Rights was controversial in its time. While the Founders largely agreed on many basic human rights, there was disagreement over whether to include a list of such rights in the Constitution. Patrick Henry, Virginia's first governor, was a strong advocate for enumerating our rights in America's governing document.
Henry believed that the enumeration of specific core rights would provide important protection for human freedom against the new federal government established by the Constitution. As he described it, "The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change [in the form of our government], so loudly talked of by some, and inconsiderately by others.... Is it necessary for your liberty that you should abandon those great rights by the adoption of this system? 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!"
Henry's concerns have been proved valid, as the growth of federal power since the adoption of the Constitution in 1787 has often been checked by the rights set forth in the Bill of Rights. It is important to recognize, however, that the Founders did not see the Bill of Rights as a document granting new rights to the people. Rather, they saw it as the written enumeration of specific rights already held by the people.
Some of the Founders argued that a listing of rights was not necessary or wise. Alexander Hamilton believed that the Constitution as written already secured the necessary rights, while others, including James Madison, were concerned that enumerating some rights would undermine rights that were not enumerated. Madison worried, "My own opinion has always been in favor of a bill of rights; provided that it be so framed as not to imply powers not meant to be included in the enumeration."
Bulwark of Freedom
Despite these various opinions, the Bill of Rights was eventually accepted as a sound addition to the Constitution. Its acceptance enabled the ratification of the Constitution by providing the freedom-loving Anti-Federalists with a safeguard for their liberties against a new federal government they mistrusted. Thomas Jefferson believed that a Bill of Rights, despite its imperfections, would be a net boon to the people. In writing to James Madison, he said, "A positive declaration of some essential rights could not be obtained in the requisite latitude.... Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.... The declaration of rights will be the text whereby they will try all the acts of the federal government." In the end, the Bill of Rights proved so important that five states ratified the Constitution only on the condition that the Bill of Rights would be added to it.
Such an important document in the founding of our government should be known to all, but how many of these core liberties can the average citizen recite today? Many are aware of the right to free speech, but what about the many other liberties guaranteed by the Bill of Rights?
The most famous of the ten amendments which compose the Bill of Rights is the first. It guarantees that Congress will not establish a specific religion, that citizens will have the liberty to exercise their religion freely, that they will have the right to speak freely, that the press will be free, and that the people will have the freedom to assemble and to petition the government for "a redress of grievances." Each of these rights protects the power of the people to resist or criticize their government should it overstep its bounds. The importance of such liberties is seen clearly by considering the practices of tyrannical governments. In Stalin's regime, for instance, criticism of the government through speech or written word was often punished by imprisonment or death. The silencing of dissent is a sure sign of governmental tyranny. Their fear of tyranny drove the Founders to establish these rights in their core governing document.
Nevertheless, the religious freedom clauses of the First Amendment are often poorly understood today. Most people believe that the Constitution somehow guarantees a "separation of church and state," but this phrase does not appear in the Constitution. What the First Amendment guarantees is that the government will not establish a "state religion," like the official establishment of the Anglican Church under King Henry VIII as the Church of England. Though the Founders prevented the government from establishing an official church, they went out of their way to guarantee the freedom of people to practice their religion as they see fit. Ironically, this "free exercise" of religion is under assault by those today who try to twist the First Amendment and reinterpret it as banning religion from the public square. Such was never the intention of the Founders.
The Second Amendment has also caused much tumult in recent years. In the face of many attempts to restrict or ban the possession of guns by individual citizens, the Second Amendment's guarantee of "the right to keep and bear arms" is alive and well. It was bolstered recently by the Supreme Court's ruling against the District of Columbia's ban on handguns in District of Columbia v. Heller. Despite this ruling, efforts to restrict gun use will undoubtedly continue. The Founders saw the right to keep and bear arms as a fundamental affirmation of the individual's right to self-defense and as a defense of the citizenry against the potential tyranny of the government. If our forefathers put such a high value on this right, it behooves us to understand it more fully.
Third and Fourth Amendments
The next two amendments attempt to secure a person in their home and possessions from unwarranted governmental intrusion. The Founders highly valued their privacy and their right to ownership of private property. Therefore, in the Third Amendment, they guaranteed the right of the people to refuse to quarter troops in their houses in times of peace (and only in a manner prescribed by law during time of war). In the Fourth Amendment, they sought to protect "against unreasonable searches and seizures" by the government. They felt strongly that government could not abridge this right without issuing a specific warrant based upon "probable cause" and supported by "oath or affirmation."
Fifth, Sixth, and Eighth Amendments
Amendments five through eight are perhaps the most neglected and, consequently, the most under assault today. The Founders, many of them lawyers, viewed the courts as the guarantors of individual justice and liberty. They understood that government could not be trusted to uphold the freedoms of the individual, so they granted power to the courts to protect those freedoms and to the people to make their case in their local court. The Fifth Amendment guarantees several rights to an individual faced with criminal charges. Among these are the right to an indictment by a grand jury before being charged with a capital crime, the right against self incrimination, the right against “double jeopardy,” and the right not to be "deprived of life, liberty, or property, without due process of law." The Fifth Amendment also requires compensation for private property taken for public use. The Sixth Amendment affirms the right to a "speedy and public trial, by an impartial jury" as well as the right to confront one's accusers, subpoena witnesses, and to have the assistance of counsel in one’s defense. The Eighth Amendment prohibits "excessive bail" and "cruel and unusual punishments." After suffering from the rule by fiat of the King of England, the Founders came to value greatly the rule of law and the protection of the courts.
Regrettably, many conservatives today have abandoned the trust the Founders placed in the jury system. In rhetoric that condemns "greedy trial lawyers" and a "sue-happy culture," big business and insurance interests are arguing that legislatures should restrict the rights of juries to resolve disputes between litigants in court. This flies in the face of the Bill of Rights, particularly the Seventh Amendment, which protects "the right to trial by jury” in suits at common law where the amount in controversy exceeds twenty dollars. The Founders did not trust politicians to resolve competing interests in court. They understood the vulnerability of government officials to be influenced by powerful interests (sound familiar?). They wanted litigants to have their disputes resolved on a level playing field. They, therefore, placed their confidence in juries comprised of ordinary people to make just decisions after hearing the relevant evidence.
Ninth and Tenth Amendments
In response to the fears of some Founders that a listing of specific rights in the Bill of Rights would imply that those were the only rights guaranteed to the people, the Ninth Amendment affirms that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Founders placed a high value upon the liberty and judgment of the people, emphasized further by the Tenth Amendment's decree that any powers not explicitly granted to the federal government by the Constitution were reserved to the States or the people.
Power to the People
In the Ninth and Tenth Amendments, the Founders wanted to emphasize that the bastion of liberty and authority in these United States is the people, not the government. This is an important principle to remember today. In a world plagued by terrorism and economic uncertainty, there are many who would sacrifice their freedoms for the security of a big government. The Founders, on the other hand, were willing to die for their liberty. Patrick Henry famously declared, "Give me liberty or give me death!" We must never forget that a government big enough to give us everything we want will be big enough to take everything away—including our freedoms. The preservation of liberty requires courage on the part of every citizen and a willingness to live with risk.
The Bill of Rights is a wonderful guide to the rights and freedoms which have made our nation great. So, this week, take a few minutes to read these rights and reflect upon the principles of government and human liberty for which our forefathers sacrificed their lives, their fortunes, and their sacred honor.
This is one bill you can't afford to ignore.