Do you Really have Rights?

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.

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James Madison on Religion

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James Madison:

“What influence in fact have Christian ecclesiastical establishments had on civil society? In many instances they have been upholding the thrones of political tyranny. In no instance have they been seen as the guardians of the liberties of the people. Rulers who wished to subvert the public liberty have found in the clergy convenient auxiliaries. A just government, instituted to secure and perpetuate liberty, does not need the clergy.”

via Thomas Jefferson. earlyamericanhistory.net

Religion and the Federal Government: PART 2 (Religion and the Founding of the American Republic, Library of Congress Exhibition)

THE STATE BECOMES THE CHURCH:

JEFFERSON AND MADISON

It is no exaggeration to say that on Sundays in Washington during the administrations of Thomas Jefferson (1801-1809) and of James Madison (1809-1817) the state became the church. Within a year of his inauguration, Jefferson began attending church services in the House of Representatives. Madison followed Jefferson’s example, although unlike Jefferson, who rode on horseback to church in the Capitol, Madison came in a coach and four. Worship services in the House–a practice that continued until after the Civil War–were acceptable to Jefferson because they were nondiscriminatory and voluntary. Preachers of every Protestant denomination appeared. (Catholic priests began officiating in 1826.) As early as January 1806 a female evangelist, Dorothy Ripley, delivered a camp meeting-style exhortation in the House to Jefferson, Vice President Aaron Burr, and a “crowded audience.” Throughout his administration Jefferson permitted church services in executive branch buildings. The Gospel was also preached in the Supreme Court chambers.

Jefferson’s actions may seem surprising because his attitude toward the relation between religion and government is usually thought to have been embodied in his recommendation that there exist “a wall of separation between church and state.” In that statement, Jefferson was apparently declaring his opposition, as Madison had done in introducing the Bill of Rights, to a “national” religion. In attending church services on public property, Jefferson and Madison consciously and deliberately were offering symbolic support to religion as a prop for republican government.

via Religion and the Federal Government: PART 2 (Religion and the Founding of the American Republic, Library of Congress Exhibition).

Religion and the State Governments (Religion and the Founding of the American Republic, Library of Congress Exhibition)

PERSECUTION IN VIRGINIA

In Virginia, religious persecution, directed at Baptists and, to a lesser degree, at Presbyterians, continued after the Declaration of Independence. The perpetrators were members of the Church of England, sometimes acting as vigilantes but often operating in tandem with local authorities. Physical violence was usually reserved for Baptists, against whom there was social as well as theological animosity. A notorious instance of abuse in 1771 of a well-known Baptist preacher, “Swearin Jack” Waller, was described by the victim: “The Parson of the Parish [accompanied by the local sheriff] would keep running the end of his horsewhip in [Waller’s] mouth, laying his whip across the hymn book, etc. When done singing [Waller] proceeded to prayer. In it he was violently jerked off the stage; they caught him by the back part of his neck, beat his head against the ground, sometimes up and sometimes down, they carried him through the gate . . . where a gentleman [the sheriff] gave him . . . twenty lashes with his horsewhip.”

The persecution of Baptists made a strong, negative impression on many patriot leaders, whose loyalty to principles of civil liberty exceeded their loyalty to the Church of England in which they were raised. James Madison was not the only patriot to despair, as he did in 1774, that the “diabolical Hell conceived principle of persecution rages” in his native colony. Accordingly, civil libertarians like James Madison and Thomas Jefferson joined Baptists and Presbyterians to defeat the campaign for state financial involvement in religion in Virginia.

Unlawful Preaching

Many Baptist ministers refused on principle to apply to local authorities for a license to preach, as Virginia law required, for they considered it intolerable to ask another man’s permission to preach the Gospel. As a result, they exposed themselves to arrest for “unlawfull Preaching,” as Nathaniel Saunders (1735-1808) allegedly had done. Saunders, at this time, was the minister of the Mountain Run Baptist Church in Orange County, Virginia.

Summons to Nathaniel Saunders, August 22, 1772 [cover] – [summons]

Manuscript

Virginia Baptist Historical Society (140)

Dunking of Baptist Ministers

David Barrow was pastor of the Mill Swamp Baptist Church in the Portsmouth, Virginia, area. He and a “ministering brother,” Edward Mintz, were conducting a service in 1778, when they were attacked. “As soon as the hymn was given out, a gang of well-dressed men came up to the stage . . . and sang one of their obscene songs. Then they took to plunge both of the preachers. They plunged Mr. Barrow twice, pressing him into the mud, holding him down, nearly succeeding in drowning him . . . His companion was plunged but once . . . Before these persecuted men could change their clothes they were dragged from the house, and driven off by these enraged churchmen.”

The Dunking of David Barrow and Edward Mintz in the Nansemond River, 1778

Oil on canvas by Sidney King, 1990

Virginia Baptist Historical Society (141)

Petition Against Religious Taxation

This anti-religious tax petition (below), composed, scholars have assumed, by a Baptist and clearly stating the Baptist point of view, was printed in large numbers and circulated throughout central and southern Virginia. It was signed by more citizens than any other document opposing Patrick Henry’s bill, including James Madison’s more famous Memorial and Remonstrance. What distinguished this petition from others was its strong evangelical flavor. It argued that deism, which many of the temporary allies of the Baptists espoused, could be “put to open shame” by the exertions of preachers who were “inwardly moved by the Holy Ghost.” It also presented the Baptist reading of history, namely, that the state ruined, rather than helped, religion by supporting it.

Petition to the Virginia General Assembly, Westmoreland County,

Virginia, November 27, 1785 [left page] – [right page]

The Library of Virginia (139)

Madison’s Memorial and Remonstrance

Madison’s principal written contribution to the contest over Henry’s general assessment bill was his Memorial and Remonstrance. Madison’s petition has grown in stature over time and is now regarded as one of the most significant American statements on the issue of the relationship of government to religion. Madison grounded his objection to Henry’s bill on the civil libertarian argument that it violated the citizen’s “unalienable” natural right to freedom of religion and on the practical argument that government’s embrace of religion had inevitably harmed it. Thus, he combined and integrated the two principal arguments used by opponents of Henry’s bill.

via Religion and the State Governments (Religion and the Founding of the American Republic, Library of Congress Exhibition).

Charters of Freedom – The Declaration of Independence, The Constitution, The Bill of Rights

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The people made the Constitution, and the people can unmake it.

It is the creature of their will, and lives only by their will.

Although most of the Framers of the Constitution anticipated that the Federal judiciary would be the weakest branch of Government, the U.S. Supreme Court has come to wield enormous power with decisions that have reached into the lives of every citizen and resolved some of the most dramatic confrontations in U.S. history. The word of the Supreme Court is final. Overturning its decisions often requires an amendment to the Constitution or a revision of Federal law.

The power of the Supreme Court has evolved over time, through a series of milestone court cases. One of the Court’s most fundamental powers is judicial review–the power to judge the constitutionality of any act or law of the executive or legislative branch. Some of the Framers expected the Supreme Court to take on the role of determining the constitutionality of Congress’s laws, but the Constitution did not explicitly assign it to the Court. Marbury v. Madison, the 1803 landmark Supreme Court case, established the power of judicial review. From the modest claim of William Marbury, who sought a low-paying appointment as a District of Columbia Justice of the Peace, emerged a Supreme Court decision that established one of the cornerstones of the American constitutional system.

via Charters of Freedom – The Declaration of Independence, The Constitution, The Bill of Rights.

Bill of Rights Transcript

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The Bill of Rights: A Transcription

The Preamble to The Bill of Rights

Congress of the United States

begun and held at the City of New-York, on

Wednesday the fourth of March, one thousand seven hundred and eighty nine.

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 ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

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.

Note: The following text is a transcription of the first ten amendments to the Constitution in their original form. These amendments were ratified December 15, 1791, and form what is known as the “Bill of Rights.”

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

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.

via Bill of Rights Transcript.