Mike Kapic

Bill of Rights Protection

By Mike Kapic / February 27, 2020 / Comments Off on Bill of Rights Protection

A Different Take on the Bill of Rights Rodney Dodsworth – February 3, 2020 I cringe a little when I read Facebook posts relating how our Constitution was designed to limit the federal government. They imply a pre-existing government went astray and needed curtailment. Our Constitution didn’t limit government in the way of Magna Carta…

Read More

Health Care Transparency

By Mike Kapic / February 26, 2020 / Comments Off on Health Care Transparency

Fighting for Transparency in Health Care By Andrew Mangione – February 21, 2020 Last June, President Trump issued an Executive Order instructing his Health and Human Services Department (HHS) to create a rule that would require hospitals to disclose the prices for medical services they negotiate with insurance companies, in addition to the cash prices they accept for specific…

Read More

National Federalism Task Force

By Mike Kapic / February 25, 2020 / Comments Off on National Federalism Task Force

States are Calling for a National Federalism Task Force By Stuart MacPhail – February 2020 Ken Ivory, a member of the State Legislators’ Article V Caucus Steering Committee and former Utah State Representative has submitted the following challenge to all US state legislators: In 2005, I was elected chairman of a chamber of commerce that had…

Read More

4 Common Capitalism Myths Debunked

By Mike Kapic / February 24, 2020 / Comments Off on 4 Common Capitalism Myths Debunked

The term Marx coined stuck and has led to some confusion about why markets actually work. James Davenport – January 9, 2018 One of the most disappointing things I face as a college professor is the lack of understanding most students have regarding capitalism. The simple fact is, despite its importance to our daily lives, relatively few…

Read More

Article V Progress Report

By Mike Kapic / February 21, 2020 / Comments Off on Article V Progress Report

Updated Article V Progress Report is Now Available By Stuart MacPhail – February 2020 Article V activist David Guldenschuh (an attorney in Georgia) has released his start-of-2020 Article V Convention Legislative Progress Report.  He notes “It was some ten years ago when Rob Natelson published his groundbreaking Article V research for the Goldwater Institute that the…

Read More

This message is only visible to admins.

Problem displaying Facebook posts.
Click to show error

Error: An access token is required to request this resource.
Type: OAuthException
Solution: See here for how to solve this error

Categories

This message is only visible to admins.

Problem displaying Facebook posts.
Click to show error

Error: An access token is required to request this resource.
Type: OAuthException
Solution: See here for how to solve this error

Bill of Rights Protection

A Different Take on the Bill of Rights

Rodney Dodsworth – February 3, 2020

I cringe a little when I read Facebook posts relating how our Constitution was designed to limit the federal government. They imply a pre-existing government went astray and needed curtailment. Our Constitution didn’t limit government in the way of Magna Carta in 1215, the 1381 Charter of Freedom or the 1689 English Bill of Rights that curbed the prerogatives, the inherent and established rights and authority of absolute English monarchs.

Not that anyone would notice today, but ours is a government of defined powers. The prerogatives reside with We The People who compacted to delegate certain authority and no more. Big diff between the American and Brit system, at least on paper.

Imagine the 1st Amendment didn’t exist. In its absence would Congress or Scotus have the authority to establish a religion, or restrict the civil freedoms of religious worship, speech, press, assembly or petition? Without the 1st Amendment, could Scotus have inverted its intent and walled off religiosity from the public square? No.

This was the essence of the Federalist stance regarding a Bill of Rights (BOR) pursuant to the draft Constitution of September 1787. If the new government wasn’t authorized to mess around with religion, speech, press, etc. in the first place, why mention the prohibitions and suggest the government can do otherwise? Without a BOR, perhaps our much-ignored Declaration of Independence would have assumed center-stage importance. What if all the Scotus had were its stirring proclamations of self-evident truths, unalienable rights, life, liberty, pursuit of happiness, and consent of the governed?

Delegate James Wilson (PA) remarked that nobody thought of a BOR until George Mason (VA) brought it up late in the federal convention. Every state voted against incorporating a BOR. The government of the Constitution concerned itself with matters of a general nature, and delegates regarded the status and extent of natural, civil, and political rights as state matters.

Patrick Henry beat up James Madison at the VA ratifying convention over the absence of enumerated rights. When Madison made the “enumerated powers” argument, Henry asked why, for instance, the prohibition of ex post facto laws if the new government didn’t contemplate them in the first place? Madison was so shaken, he promised that if elected to the new Congress he would press for a BOR. Still, the VA ratification vote was close: 89 to 79.

Anti-Federalists argued that most state constitutions opened with a BOR. True enough. But, per James Wilson, when the people established governments in 1776, “they invested their representatives with every right and authority which they did not in explicit terms reserve.” Federalists countered that hardly a dozen years since the Revolution, states often violated their own enumerated rights. Oh.

Perhaps most importantly, Federalists warned that in time, the enumeration of certain rights implied the government could impair others, the innumerable unlisted rights. Now, the Ninth Amendment was supposed to address this problem. Unfortunately the modern Scotus regards itself, and not the voice of the people in their state constitutions, as the fount of rights. So, in this regard, the Federalists were spot-on.

Also, federal courts weren’t expected to create rights; they were to protect them. Specifically, they were to protect our unenumerated Natural Rights, and when necessary, those civil and political rights declared by the people.

I suppose Scotus isn’t alone in upending the relationship with our government. How many Americans still believe, as Madison wrote to Jefferson, “that the powers granted by the proposed Constitution are the gift of the people, and may be resumed by them when perverted to their oppression, and every power not granted thereby remains with the people at their will?” Very few.

We the People are in a bad way. We’ve lost track of the proper relationship with our government and allow Scotus to define the breadth and depth of our rights. That is up to us, and not a few lawyers meeting in secret conclaves.

See: Wood, G. S. (1969). The Creation of the American Republic 1776-1787. Chapel Hill: The University of North Carolina Press, beginning page 536.

Article V Blog

Posted in

Mike Kapic