The Bill of Rights: Birthday or Funeral?

This week marked the 220th anniversary of the ratification of the first ten amendments to the U.S. Constitution, collectively known as the Bill of Rights. Many Americans today would be surprised to learn that the Bill of Rights was adamantly opposed by some of the Founding Fathers, including Alexander Hamilton. Why? Hamilton explained in Federalist No. 84, declaring “I…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…For why declare that things shall not be done which there is no power to do?” This alluded to the rule of “inclusio unius est exclusion alterius” (the inclusion of one thing necessarily excludes all others), whereby the very enumeration of certain rights as being free from regulation implied that all others were subject to the general legislative powers of the Congress.

Hamilton understood that the Constitution strictly limited the powers of the federal government, and feared a bill of rights would open the door for expansion of congressional power. James Madison, the “Father of the Constitution”, agreed there was not necessarily a need for the Bill of Rights, but was also not opposed to one. As he explained in an October 1788 letter to Thomas Jefferson, “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. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I suppose it might be of use, and if properly executed could not be of disservice.”

In the end, it was the courage of an oft-forgotten Founding Father, George Mason of Virginia, which led to the establishment of the Bill of Rights. Mason, called “the wisest man of his generation” by Jefferson, was a powerful figure in the debates on the Constitution, and in the end refused to sign it without the inclusion of a Bill of Rights. This was terribly unpopular, but Mason stood firm, along with fellow Virginian Edmund Randolph and Elbridge Gerry of Massachusetts, and as a result we have our Bill of Rights.

Unfortunately, the passage of 220 years has led to a dimming in the national understanding of our founding principles and the Bill of Rights. Most Americans can’t tell you what is in the Bill of Rights beyond freedoms of religion, speech, press and the right to bear arms. Even our understanding of those rights, particularly the freedom of religion and the erroneous understanding of the “separation of church and state,” is often tenuous at best, and puts those rights at risk. How can we preserve and defend that which we do not understand?

Today, the Bill of Rights is steadily eroding right before our eyes, and far too many Americans are either ignorant of or apathetic to this impending disaster. Far too many fall prey to the soothing assurances of a federal government which promises us complete security from physical harm, hunger, destitution, and any other unpleasantness that life may throw at us, if only we will give up our freedoms.

Some might consider this hyperbole, but is it?

The First Amendment declares “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” yet anti-religionists misinterpret the first phrase and omit the second altogether. Even former Chief Justice of the U.S. Supreme Court William Rehnquist with frustration admitted that the “Court bristles with hostility to all things religious in public life.” Today there are constant attempts to ban any public expression of religion. Each year around Christmas the ACLU bullies into submission those that would erect scenes of the Nativity in the public square. Attempts to limit religious expression under the rubric of constitutionality is difficult, as seen by the confusing rulings in two 2005 cases concerning public displays of the Ten Commandments. In a pair of 5-4 decisions, the Court ruled that the a six foot tall granite monument to the Ten Commandments on the grounds of the Texas state capitol could remain, but forbade a pair of framed copies of the Ten Commandments in two rural Kentucky courthouses. Regardless, such encroachments continue.

The First Amendment protects free speech, yet that is also under attack. It was specifically written to protect unpopular political speech, but today we are supposed to believe the Founders would have agreed with the Incumbent Protection and Free Speech Suppression Act (passed under the moniker of “campaign finance reform”, and shamefully co-authored by former Republican presidential candidate John McCain) which drastically limits the content and timing of political speech, At the same time we are supposed to believe the Founders would have defended child pornography as protected speech (Ashcroft v. Free Speech Coalition, 2002, in which Justice Kennedy, writing for the majority, unbelievably asserted that “virtual child pornography is not ‘intrinsically related’ to the sexual abuse of children,” as if some people view kiddie porn as harmless fun).

The Fourth Amendment (theoretically) protects us from unreasonable search and seizure, yet any airline passenger recently that has been groped, prodded, stripped and fondled can attest that the TSA has absolutely no respect for this amendment. In addition, buried in the recently submitted 2012 Defense Reauthorization Bill was a provision which allowed American citizens to be indefinitely detained without trial for simply being suspected of association with terrorism. Considering a 2009 internal report of the U.S. Department of Homeland Security associating those that reject broad federal powers over our lives with being potential terrorists, or the statement by Vice President Joe Biden earlier this year declaring the TEA Party as “a bunch of terrorists”, this is a frightening prospect for millions of Americans.

There are literally thousands of examples of government violations of the Bill of Rights each and every day, and all too often Americans meekly submit to this subjugation to federal power, the act of which reduces us to mere slaves to the federal leviathan. They do so out of ignorance, apathy, or the belief that it is better to submit to a little government abuse in exchange for protection from larger threats.

Yet ours is a nation that was founded on the primacy of individual liberty, with stringent protections put in place against government authority in order to protect us from the tyranny of government. To acquiesce to these subjugations is simply a matter of choosing which master we shall be slaves to.

Samuel Adams, speaking vigorously in favor of the decision to break with Great Britain, summed it up powerfully, when he proclaimed, “If ye love wealth better than liberty, the tranquility of servitude than the animating contest of freedom, go from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that ye were our countrymen!”

If we are to retain our freedoms, passed down from our forefathers through the shedding of much blood, we must learn of our heritage of freedom and then fight to protect it from the tiniest encroachment. May we celebrate the birthday of the Bill of Rights by studying it and defending it.

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