The Bill of Rights

Part 2

…the first official act of this nation declared the foundation of government in these words:  “We hold these truths to be self-evident***.”  While such declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit, and it is always safe to read the letter of the constitution in the spirit of the Declaration of Independence.” 

– US Supreme Court, majority opinion; Gulf, Colorado & Sante Fe Railroad Co. v Ellis, 165 U.S. 150, 159-160 (1897)

This sets the tone for the beginning of these United States and I promise not to digress too far from the subject matter.  As a unified people the Declaration of Independence was the first legal act of this country to the world thereby separating the ties that bound us to the English Empire forever.

Now, I understand the Supreme Court had ruled in the case of Cohens v. Virginia, 19 U.S. 264 (1821) that The Federalist Papers, was the exact record of the intent of the framers of the constitution Madison, Hamilton, and Jay. I have also seen references, in many instances where the Anti-Federalist Papers were also given much weight in court cases heard by the Supreme Court of the United States.  So obviously being able to read their published thoughts as they were doing this constitution is very forceful in terms of constitutional interpretation. The intent of the lawmaker is the law. And it shall be liberally enforced in favor of you; you are the clearly intended and expressly designated beneficiary.  Everything you can do to enhance your position in terms of how your lawmakers thought when the framed this constitution clearly makes your case even stronger for the constitution to be interpreted in favor of you. So, it is recommend you get a copy of The Federalist Papers and read it.  That being said, you also need to research the Debates concerning the creation of the Constitution, which would also be considered the mind of the Founding Fathers.

How, you may ask, do either of these two relate to the Bill of Rights?  First of all, the Declaration of Independence set the tone for these United States and for every legal act thereafter.  Secondly, the Supreme Court of the United States tells us that the Federalist Papers (written by Alexander Hamilton, James Madison, & John Jay) are the basis of the Founding Fathers decisions and mind with respect to the United States Constitution, with respect to the Cohens case.  And through deduction we can also extrapolate the messages from the Anti-Federalist Papers (written or inspired by Thomas Jefferson, George Clinton, Robert Yates, Samuel Bryan, Melancton Smith, Richard Henry Lee, Mercy Otis Warren, & Patrick Henry) as also being the mind and basis of the decisions of our Founding Fathers.

In Federalist Pater #84, Alexander Hamilton was attempting to influence the American People that there was no need for a Bill of Rights to be added to the Constitution because the rights of man were retained by him if not specifically given to the state or the federal government.  Hamilton stated in this paper, The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital: “To bereave a man of life, [say she] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls “the BULWARK of the British Constitution.”  Despite the old English in which it is written you can discern from it its meaning and if you consider the present day events of our Legislature you can see that he was completely off point.  The reason I say he was completely off point is just consider the USA PATRIOT ACT (which was the start of the indefinite detentions); consider the Japanese-American camps during WWII in which American citizens were cast and thereby lost all that they owned and this was by one of our beloved Presidents (FDR); the JOHN WARNER DEFENSE ACT in which our Fourth and Fifth Amendment protected and secured RIGHTS were gutted and do not forget the one hundred twenty five year old Possee Comitatus Act of 1878 which said military forces could not act on American soil as it was not constitutional for them to do so.  Despite all that Hamilton spoke within that paper it only took 236 years to steal the rights away from America’s Citizens.  You can also pinpoint some Constitutional violations as early as George Washington with the quashing of the Whiskey Rebellion of 1791, or John Adams with the Alien and Seditions Act of 1796.

I, for one, am of the belief that there are no reasonable restrictions on a man’s God given rights other than, perhaps, if one’s exercise of rights would denigrate the rights of another in an illegal and unconscionable way.  There have been a great number of Supreme Court cases which either strengthened the Citizen’s rights or degraded them.  There are two minds in the Supreme Court of the United States that you need to be aware of: One is the “Originalist” and the other is the “Living Document”.  Each mind has valid points; however, I am of the mind that should be an Originalist, which means you possess the ideological mindset to determine the mind and meaning of the Founding Fathers when they wrote the Constitution.  Those with the Living Document mindset believe that the Constitution is a living breathing document and its meaning changes upon the whims of society and with the times…this mindset is dangerous to the Rights and Liberties of every American, in my opinion; one day you have a specific Right and the next, based upon the whims of society, you no longer have that right.  Consider the above paragraph where you possess the Right of Habeas Corpus written within the text of the Constitution, but President Lincoln through extra-constitutional means suspended the writ of Habeas Corpus.  This was a duty of the Congress in Article I, section 9.  You will note throughout our history that Presidents have time and again overstepped their boundaries with respect to their duties and responsibilities and those of another branch of government.  This is more noticeable in more recent days with the information technology available to us.

More to come…

See also: Part 1, Part 2, Part 3, Part 4, Part 5

Works Cited

Alexander Hamilton, J. J. (1788). THE FEDERALIST PAPERS.

Butler, J. (n.d.). THE BEST OF CARL MILLER. Retrieved January 15, 2013, from MY PRIVATE AUDIO: http://www.myprivateaudio.com/CARLTEXT.pdf; https://www.youtube.com/watch?v=1s-zHrNPfkQ (PARTS 1, 2, & 3)

LII. (n.d.). 18 USC § 1385 – Use of Army and Air Force as posse comitatus. Retrieved January 15, 2013, from Legal Information Institute: http://www.law.cornell.edu/uscode/text/18/1385

Know Your Constitution – Carl Miller Parts 1 – 3 (abt. 1980). [Motion Picture].

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