I will cover the three significant amendments in discussion here. They are the First Amendment, Ninth Amendment and the Tenth Amendment.
Rights are “Natural” all human beings are born with their natural rights intact. Your natural rights are life, freedom, speech, and those which allow man to enter into social contacts for the betterment of the community as well as himself. America’s social contract is the U.S. Constitution and the laws we agree to obey by being part of the community.
In this post I will attempt to provide an idea as to the concepts of several articles of the American Bill of Rights. The history of rights, personal and property under English Law was in general common law. The Englishman expected his personal and property rights to be protected by Parliament and the laws established automatically. There was no Bill of Rights built into the Constitution. The English Bill of Rights and the many laws passed to protect the people were just that, laws. The basic rights of Englishmen was a given and to be respected.
As we began to look at a new constitution some of the elements of the Articles of Confederation were brought forward. The Founding Fathers had much history to work with in creating the US Constitution. The idea of the Bill of Rights was not originally thought of as necessary. Why you ask? Because they also were influenced by the concept that by establishing limiting powers and clearly defining the role of the government then the need for a Bill of Rights was not necessary.
The Bill of Rights are referred to as negative rights, that means that they are rights that are spelled out. They cannot be taken away, but they can be lost or given away by violating laws, allowing Congress to make laws that circumvent the Constitution and the Bill of Rights. The laws that come into question are those that provide security with minor violations of liberty, discrimination by ethnicity, religion, sexual orientation, or any other perceived disqualification for protection.
During the creation of the U.S. Constitution The First Amendment ,also known as the “establishment clause” was meant to separate church and state, this was of course the prevention of the establishment of a religion. The very idea of allowing for the protection of the various faiths strengthened the Bill of Rights and the Constitution. It is interesting to note that competing christian faiths were privileged in various states and received tax support while others did not. Also, some people received threats or physical harm because of religious differences. Both Madison and Jefferson found it disturbing and highly suspect to have religion and government tied together considering past European history. There are religious quotes by our Founding Fathers that is quite revealing.
Freedom of the Press is vital to free society. The “establishment clause” also applies to Freedom of the Press. Another factor in insuring freedom of speech and press was the fear of the “necessary and proper clause”. It prohibits the government from abridging the right of the people to publish or write about the government and or people. The idea of being sued is a major deterrent to bad press. Freedom of Speech falls within the scope of Freedom of the Press and is protected. There are some restrictions such yelling fire in a crowded theater, or inciting riot.
The Right of Assembly and Petition is a right by which the people can meet and discuss political and social issues. Join parties, caucuses, and shape policy.
As one looks at the First Amendment of the U.S. Constitution the four parts are related and yet vastly different in scope and impact on the country. Freedom of Religion, Press and Speech are linked to the establishment clause. So, when we the people look at issues concerning the First Amendment we must begin at the beginning words of the amendment.
Amendment 9 of the U.S. Constitution is one that has left many Americans scratching their heads. Edmund Randolph questioned James Madison on this very amendment because it does not enumerate any rights. The Ninth Amendment to the Constitution clearly states; The enumeration in the Constitution of certain rights shall not be construed to deny or disparage any others retained by the people.
Our enumerated rights are definable and secured because they are protected from abridgement. Madison defined the Ninth Amendment in similar context as to the enumerated rights all ready contained in the Bill of Rights. His argument was “that the line between power granted and right retained amounted to the same thing if a right were named”.The difficulty with the Ninth Amendment is that no affirmative or enumerated right has been identified that scholars, judges, politicians or layman can clearly say; this is this is it.
However difficult the Ninth Amendment may be, it is difficult because the legislature, courts and the press are looking through a prism. That prism is narrowed due to the Bill of Rights. Madison, I believe intended to have the Ninth Amendment for those rights which could not be enumerated, specifically “Natural Rights”.
It makes sense, why because whether God is our creator or was and allowed nature to take its course we are all human beings deserving of dignity. We have life, liberty, and the pursuit of happiness which are inherent in man. (Declaration of Independence) Being of a different race, gender, sexual persuasion, or physical appearance does not preclude one from having their rights respected.The idea of Gay Rights, Equal Rights for Women, Racial Discrimination are just a few of the modern issues.
The Constitution does not nor was it meant to have so much power as to allow for the state legislatures or the federal legislature to commit to a process of denying human rights.
The Tenth Amendment of the U.S. Constitution clearly defines “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states are reserved to the states respectively, or to the people. There are of course the general laws of each state necessary to maintain law, civil liberties, and the social contract which the citizens participate in.
There have been on occasion violations of natural rights and the Bill of Rights at the state level. It has been said, that the Bill of Rights did not apply to the states, I would argue that since much of the Bill of Rights was found in state constitutions perhaps Madison’s idea that applies to the NInth Amendment could be applicable here “power granted and right retained is the same thing if a right were named”.
John Marshall and James Madison considered the doctrine of “Nullification” as noxious. Nullification was seen as the greater threat to the Constitution and the country. Another important comment from Madison in condemning nullification was “supremacy of the federal judicial power as a “vital principle of the Constitution” and a prominent feature of the text. Nullification is for some states a right of non compliance with federal law, the right to pick what laws apply to them. That is not the case.
It is my contention that the Tenth Amendment allows for each department to establish laws applicable to its purview, and that the sovereignty of the people who was foremost in the creation of the Constitution must be honored. The state legislatures are responsive to the people and that can be both good or bad depending on the factions in power. The states can do many things for the good of the people. For those who still believe that the states are being legislated to death they must remember the members of Senate and House come from the people.
Do you Really have Rights? Yes; you do, I do, but they can be lost through negligence and not participating in our Republican form of government. Voting is essential. Do we have rights that are not enumerated, of course we do, and though many people insist that the right is not enumerated we must not grant it is contrary to the likes of Madison, Jefferson, Hamilton and many others who worked to ensure our Bill of Rights.