Sunday, March 24, 2013

The Bill of Rights

By Dave Dargo
In the previous post I pointed out that the Second Amendment to the United States Constitution does not give you the right to keep and bear arms.  I also pointed out that the First Amendment does not give you the right of free speech.

So, the question becomes, where do those rights originate and what does the Bill of Rights do?

Bill of Rights
The rights commonly thought to be granted to us in the Bill of Rights are fundamental rights.  Some call them natural rights.  Some call them God-given rights.  Whatever you choose to call them they are our rights simply because we exist.  All that you need to do in order to have these rights granted to you is to be born.

The Constitution of the United States of America is not a document conferring rights to the people of the United States.  Rather, it is a document conferring powers to the government by the people.

If you take the time to carefully read the Constitution you will quickly see that it defines the structure of the federal government and grants, on behalf of the people, certain powers to the government.

What is the Bill of Rights?

There was a great concern at the founding of this nation which generated a tremendous debate.  The concern was that the new government would do as all governments do and start to gravitate to become a tyrannical entity.  The founders of the nation wondered what would be an appropriate mechanism to prevent such a transformation.  One proposed solution was to craft a Bill of Rights and add it to the Constitution.  In fact, many signers of the Constitution expected such a Bill of Rights to be created.

There were two opposing opinions regarding the Bill of Rights.  One side felt that it would be impossible to list all rights retained by the people.  The other side felt that there were certain rights that simply must be identified so that they would never be encroached upon by the new national government.

A compromise was reached where a Bill of Rights was created with ten amendments.  But if you read the Bill of Rights carefully you will notice that it does not list rights to be retained by the people but, rather, lists prohibitions against the national government from infringing on those rights.

The preamble to the Bill of Rights captures very nicely the intent of the authors.
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 be ensure the beneficent ends of its institution.
Notice the language, the Bill of Rights was created " prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added...".  Read that again, "...restrictive clauses should be added...".  The Bill of Rights doesn't grant rights to the people it restricts the government from encroaching upon those rights.

Let's look at the first few amendments:
  1. Congress shall make no law...
  2. ..shall not be infringed
  3. No soldier shall...
  4. ...shall not be violated...
The choice of language is precise and articulate.  It is a list of prohibitions against the national government.

It is improper to say that the first amendment gives us the right of free speech.

It is very proper to say the first amendment prevents the government from infringing our free speech.

Though some think the distinction trivial or subtle it is actually quite overt and purposeful.  The Constitution of the United States of America and the Bill of Rights are documents authored by the people placing specific powers and restrictions on the government.

Never allow yourself to be caught thinking or saying that the government gives you any rights.  You, and the rest of the people, give the government certain powers.

In the next posting I'll cover some of the other things the people granted to the government.

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