Bill of Rights

The Bill of Rights Revisited

The Bill of Rights largely embodied uncontroversial traditional rights of Englishmen.

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Waldo Jaquith/Flickr

Drawing on work by historian Gordon S. Wood, I recently suggested that we see the U.S. Constitution not as a landmark in the struggle for liberty, but rather as a move to introduce elements of monarchy and aristocracy into an American political system that had become too democratic for America's upper crust. As Wood wrote in Empire of Liberty: A History of the Early Republic: 1789-1815, "Benjamin Rush [a signer of the Declaration of Independence] described the new government in 1790 as one 'which unites with the vigor of monarchy and the stability of aristocracy all the freedom of a simple republic.'" But is that union actually coherent?

Rush's invocation of "the freedom of a simple republic" was no mere lip service to satisfy ordinary Americans. The new country's patricians also valued personal liberty; no one wanted the arbitrary rule of a dictatorship. But it is important to understand that the framers of the second U.S. constitution—the successor to the Articles of Confederation—did not intend for the complex governmental structure devised at the federal convention of 1787 to protect Americans' liberty directly. Rather, the ultimate protector was to be the ruling elite, the gentlemen of leisure who, free of the daily care of laboring in the marketplace, could referee clashing particular interests and thereby effect the general welfare. The purpose of the political process established in 1789 was to assure that the right sort of people would be selected to govern and the wrong sort would be weeded out, as alas they had not been in the various states since the Revolution.

In light of this interpretation of constitutional history, we may now inquire into the nature and purpose of the Bill of Rights, the 10 amendments adopted immediately after the new government was put into operation.

As Wood notes, Americans were surprised that the proposed Constitution had no bill of rights. Furthermore, most of those who had participated in the convention were apparently surprised that everyone else was surprised. In fact, no one even mentioned a bill of rights during the convention until the closing days, when George Mason raised the matter.

"It was voted down by every state delegation," Wood wrote. Bear in mind that some state constitutions had bills of rights, so including one would have blazed no new ground. (The lack of interest in a bill of rights reminds me that when Alexander Hamilton was asked why God was not mentioned in the Constitution, he reportedly said, "We forgot.")

Anti-Federalists like Mason made the lack of a bill of rights the top talking point against the Constitution (a fatal strategic error, as we'll see), and the issue came up repeatedly in state ratifying conventions. While no state convention conditioned ratification on addition of a bill of rights, Wood wrote, "many of the states had ratified the Constitution on the understanding that some changes would be made in order to protect people's rights, and popular expectation was high that amendments would be added as soon as possible."

This made the Federalists unhappy. The last thing they wanted was to tamper with their handiwork before it had a chance to work. Besides, they said, no bill was needed. "The Constitution had been drafted in part to protect the rights of Americans," Wood wrote. "But the Constitution was designed to protect the Americans' rights from the abusive power of the state legislatures." Alexander Hamilton argued further that if the national government could exercise only those powers spelled out, then the document itself was a bill of rights. (The Anti-Federalists did not believe this talking point about enumerated powers, not should they have. After all, the power of eminent domain is not spelled out, but we know from the subsequently added Fifth Amendment that the framers viewed the power as an inherent possession of the government.)

After enough states ratified, all but one Federalist was willing to ignore the demand for a bill of rights: James Madison. At first he was also willing to let the matter go, but his sense of honor (and pressure from Thomas Jefferson) prevailed, and he strove to keep his promise when he was elected to the first Congress as a member of the House of Representatives. (He had lost out on the Senate when the Virginia state legislature selected two Anti-Federalists.) "Besides," Wood wrote, "as he [Madison] told a friend, a bill of rights would 'kill the opposition everywhere, and by putting an end to the disaffection to the Govt. itself, enable the administration to venture on measures not otherwise safe.'" 

Thus did Madison make a virtue of expediency.

Nearly 200 amendments had been recommended by the state ratifying conventions, and so Madison sorted through them. "Yet Madison was determined that his bill of rights would be mainly limited to the protection of personal rights," Wood wrote, "and would not harm 'the structure & stamina of the Government.'"

In other words, most of the proposed amendments and the most serious objections of the Anti-Federalists would be ignored. Revealingly, Madison favored an amendment, in Wood's words, "to protect certain rights from the states," which shows that the Federalists were actually nationalists. It failed, just as Madison's proposal at the federal convention to empower Congress to veto state legislation failed. (The states were seen as obstacles to a consolidated political system. For more on this, see "James Madison: Father of the Implied-Powers Doctrine," in which I describe how Madison watered down what would become the 10th Amendment by arguing for "powers by implication.")

"By then," Wood added, "many Federalists had come to see that a bill of rights might be a good thing after all. Not only was it the best way of undercutting the strength of Anti-Federalism in the country, but the Bill of Rights that emerged, as Hamilton pointed out, left 'the structure of the government and the mass and distribution of its powers where they were.'"

In the end, Americans got a government with nearly comprehensive power to tax and potential blank checks in the form of the general-welfare, necessary-and-proper, and supremacy clauses, and more.

But what of the Bill of Rights?

"Madison's amendments, as opponents of the Constitution angrily came to realize, were 'good for nothing' and were 'calculated merely to amuse, or rather to deceive,'" Wood wrote. "They affected 'personal liberty alone, leaving the great points of the Judiciary & direct taxation & c. to stand as they are.'"

Aedanus Burke, Representative from South Carolina, said Madison's amendments "are little better than whip-syllabub, frothy and full of wind, formed only to please the palate.… I think it will be found that we have done nothing but lose our time, and that it will be better to drop the subject now and proceed to the organization of the government."

But since the Anti-Federalists had put so much emphasis on the lack of a bill of rights, once the amendments were ratified, the critics appeared to be unable to take yes for an answer. Further complaints against the Constitution looked obstructionist. Meanwhile, "Anti-Federalists in the Congress," Wood wrote, "began to realize that Madison's rights-based amendments weakened the desire for a second convention and thus actually worked against their cause of fundamentally altering the Constitution."

Actually, the Bill of Rights largely embodied uncontroversial traditional rights of Englishmen. Indeed, in sorting through the amendments, Wood wrote, "Madison … extracted mainly those concerned with personal rights that he thought no one could argue with."

"Unlike the French Declaration of Rights of Man and Citizen issued by the National Assembly in 1789," Wood noted, "the American Bill of Rights of 1791 was less a creative document than a defensive one. It made no universal claims but was rooted solely in the Americans' particular history. It did not invent human rights that had not existed before, but mainly reiterated long-standing English common law rights."

To see this point clearly, recall that in 1798 the Federalist Congress passed the Sedition Act, which prohibited one to "write, print, utter or publish …  any false, scandalous, and malicious writing or writings against the Government of the United States, or either House of the Congress of the United States, with intent to defame the said government, or either house of the said Congress, or the President, or to bring them … into contempt or disrepute, or to excite against them, or either or any of them, the hatred of the good people of the United States."

Little good the First Amendment did to stop it. "Americans believed in freedom of the press and had written that freedom into their Bill of Rights," Wood wrote,

But they believed in it as Englishmen did. Indeed, the English had celebrated freedom of the press since the seventeenth century, but they meant by it, in contrast with the French, no prior restraint or censorship of what was published. Under English law, people were nevertheless held responsible for what they published. If a person's publications were slanderous and calumnious enough to bring public officials into disrespect, then under the common law the publisher could be prosecuted for seditious libel. The truth of what was published was no defense; indeed, it even aggravated the offense" (emphasis added)

Bad as it was, the Sedition Act was more liberal than the common law because it permitted truth as a defense.

Wood summed up the story of the Bill of Rights thus: "Under the circumstances the states ratified the first ten amendments slowly and without much enthusiasm between 1789 and 1791; several of the original states—Massachusetts, Connecticut, and Georgia—did not even bother. After ratification, most Americans promptly forgot about the first ten amendments to the Constitution. The Bill of Rights remained judicially dormant until the twentieth century."

This does not mean the Bill of Rights was worthless. To the extent it has worked to restrain government power, we should be grateful. But its presence eventually shifted attention from asking where in the Constitution a claimed power was specified to asking where in the Bill of Rights a claimed right was specified. And the effort to procure the Bill of Rights distracted from weightier matters and left the national government with its frighteningly broad powers largely intact. I submit that the government would have been less threatening to our liberties had the Constitution been rejected or at least radically altered.

This piece originally appeared at Richman's "Free Association" blog. 

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  1. There are some clouds in the air for sure.

    http://www.Full-VPN.tk

    1. my roomate’s step-sister makes $68 an hour on the laptop . She has been out of a job for five months but last month her pay was $12476 just working on the laptop for a few hours. read this post here

      ???????? http://www.netjoin10.com

      1. Truly, the Singularity is near.

        1. If bot A thinks that bot B is human, does bot B pass the Turing Test?

  2. OT: Possible slight reverse nutpunch…however RTFA and tell me the nutpunch that ultimately come out of this story.

    http://www.tbo.com/pinellas-co…..-20160129/

    1. The cop had the cahones to claim a drunk man, handcuffed from behind, reached for the cop’s gun. And so the cop shot him with the same gun. Now that is just trolling.

      1. He was using his lizard tongue to reach for the gun.

        1. Well that is quite possible. I usually get muzzled when they take me in

        2. There various possibilities.
          *NSFW?*

          1. I thought it was sweet. And just in time for Valentine’s Day.

            Thanks for the link.

      2. “Now that is just trolling.”

        Pissing on our backs, and asking us how we like the rain.

        The more absurd the story, the better to spit in our faces.

        “Yeah, of course I’m lying. What can you do about it?”

  3. The point regarding eminent domain is pretty interesting. Since no general power of eminent domain is authorized in the Constitution, one would presume that eminent domain could only be used for the areas of authority enumerated in article I, section 8. I bet few modern federal uses of eminent domain pass that test without a lot of sophistry.

    1. Also,the commerce clause there to keep trade between the states free.To ‘keep regular’. Not to stop some guy from growing ‘too much wheat and other examples.

    2. I bet few modern federal uses of eminent domain pass that test without a lot of sophistry.

      Nah, it just takes one piece of sophistry: their interpretation of the commerce clause.

  4. But its presence eventually shifted attention from asking where in the Constitution a claimed power was specified to asking where in the Bill of Rights a claimed right was specified.

    Enumerated powers and unenumerated rights have become unlimited powers and enumerated rights. But that’s just the natural evolution of government. On the one had it could be argued that without the BoR our government would have remained one of enumerated powers, but on the other hand I would argue that without the BoR the government would recognize no rights of the people at all.

    1. See: Every other government in the world, particularly England.

      The evolution of that is simple. Without a right being enumerated in black and white as absolute exceptions are made and then expanded. Most Englishmen claim to have freedom of speech, yet so many exceptions are made and defined so vaguely that people are thrown into the clink for making fun of fatties. Police seek out people who are overheard on public transport muttering ‘racist’ things to themselves. In England freedom of speech means people are prosecuted for thought crime.

      Richman, a true genius.

      1. The English love free speech. I mean they dropped the case against the kid who called a police horse gay didn’t they?

        All kidding aside, Shelderp is either lying or amsoc level stupid if he doesn’t think our rights would be even more trampled now if we didn’t have the Bill of Rights.

        1. Of course things wouldn’t necessarily be better if we just dropped the Bill of Rights, we’d also need to become besties with Iran /Shelderp

        2. One English politician was actually jailed for quoting Winston Churchill in the last year or two,

          How far have they sunk to be able to jail someone repeating the words of one of their greatest statesmen.?

          1. Wow, that’s insane. But as the protesters at Yale told us, you can’t use speech to hurt people’s feelings, unless they’re being “intolerant”.

      2. The way it works is if you can’t change the law, change the meaning of the words! “Infringe” becomes *subject to court whim*; “freedom” means serfdom. What a list. Someone should write a book on all the political perversions of word meanings.

        1. The Bill of Rights was not intended to apply to a government with general police powers (i.e. state and local govts) when it was written. So the courts have to make exceptions to avoid neutering state and local govts’ ability to protect public safety and the functioning of the justice system. The first amendment read literally would protect fraud, jury tampering, perjury, and threats, and those cannot be allowed.

          It’s a short road from those reasonable exceptions to unreasonable ones, of course.

          1. It doesn’t matter what was intended, because the constitution was later amended, with the effect being that the power of the states was limited somewhat.

            I am opposed to all government oppression, no matter if it’s done locally, by the state, or by the federal government. This “public safety” nonsense can vanish.

            So the courts have to make exceptions

            No, they don’t “have to” violate the constitution, and in fact they have no legitimate power to do so. It doesn’t matter if they use excuses like “public safety” when they are doing it; that doesn’t change the fact that they are moral thugs.

            The first amendment read literally would protect fraud, jury tampering, perjury, and threats, and those cannot be allowed.

            Not only would it protect those things, but it does; it’s just that the government is ignoring the constitution. The government has no legitimate authority to make any kind of speech illegal, and I am surprised that there are people here who would say otherwise.

          2. fuck off, tulpa.

        2. The way it works is if you can’t change the law, change the meaning of the words!

          Yep.

  5. The Bill of Rights is basically Adam Lanza.

    1. It will let I.S.I.S win.

  6. OT: White coed gets space in the Washington Post to document all the problematic instances of white actors playing nonwhite characters in Hollywood.

    For example, did you know that in “The Conqueror,” they had John Wayne play Genghis Khan instead of hiring a Mongolian actor?

    1. We all know that Mongols speak perfect English.

    2. So Aussies, Brits or Canadians can never play the parts of Americans again!

      It’s amazing how an editor of a major paper who upon presented with this idea/rough draft didn’t laugh it off and see the retardation in it. Such are the times, huh.

      1. And Alexander Hamilton can never be played by a black guy.

        1. Heimdal not only can’t be played by a black guy, he can’t be played by a human.

      2. What is amazing about it? The nonsense that brainwashed marxists come up with gets worse than that by many orders of magnitude.

        See – http://redalertpolitics.com/20…..s-racists/

        It doesnt occur to that idiot that the rapists she refers to are also rabid racists.

        Or just see our very own AmSoc who treats Stalin as a saint and hero of the people.

        This is mild stuff.

        1. Er, not to pour cold water or anything, but this image appears to have been ‘Shopped. The original can be found by doing a Google image search.

          To be fair, even the original doesn’t exactly make the woman holding the sign look like a genius.

    3. OMG!!! Actors put on make-up and pretend to be other people!!!

      Where is the justice!?!?!?

      1. It all started with those Ancient Greeks who use to wear masks and pretend to be gods!!!!

        1. That’s different!

    4. Also, the author is a law student and should know that in the eyes of U.S. law Arabs are white. So until the U.S. Census revises its criteria, you can watch all those sheikh movies without guilt, because it’s just white actors playing white characters.

      1. Heh, I was just about to bring up Sean Connery in The Wind and the Lion.

    5. Mexican Ricardo Montalb?n played a Japanese kabuki actor in “Sayonara”.

      1. Didn’t Henry Sylva play various parts as well? I seem to recall him playing a psychopath hick in a b-horror flick in the 80s. I forget the name.

        1. Henry Silva; an often overlooked member of the Rat Pack. Great character actor.

        2. Silva.

          And among other things, he played Mr. Moto in a failed reboot of the series.

      2. Not to mention a genetically engineered Sikh superman in “Wrath of Khan.” Why not cast a *real* genetically engineered Sikh superman? WHERE IS THE JUSTICE!?

        1. Funny enough in the new movie Abrams deliberately whitewashed the character because he apparently didn’t want to demonize Sikhs. You lose either way.

    6. Honestly you’d probably never be able to make even a slightly sympathetic portrayal of Genghis Khan in a Hollywood film now thanks to the Chinese market. Barring stuff like Netflix’s hilarious attempt in Marco Polo to make the Mongols out to be anti-war.

    7. Charles Bronson kinda came to fame playing an Indian in old Westerns.

      Casino Indian not call center Indian.

    8. After a performance of his play Frederick 2, John Chodes introduced me to the one who played the harem girl. I wanted to compliment her on her accent, but found that was how she talked regular, being Greek. I said to John, “That’s not acting, that’s cheating!”

    9. She really hates it when white guys play Jesus. I’m surprised she didn’t mention 1973’s Jesus Christ Superstar,. which had not only a white Jesus, many disciples, pharisees, etc., but a a black Judas! Think of all the poor, out of work Jews in Hollywood, who are actually a white demographic. She seems to be okay with Spaniard Antonio Banderas playing Mexicans. I wonder if she’s equally upset about the black Annie star, a historically white character.

    10. This bitch is a fucking idiot and should be regarded as such…anyone who disagrees should be cast out of the overall debate/progtard.

  7. Has reason posted about Cruz’s creepy mailers yet.

    http://althouse.blogspot.com/2…..ailer.html

    This may just propel Trump to victory tomorrow.

    1. Part of the creepiness is the idea that you can bully people like this and it will actually make them go to the polls and vote for you.

      What kind of candidate thinks he’s going to get the support of the easily-intimidated?

      1. One that’s leading a cult.

      2. BTW when this story was first breaking, a lot of the sheep at red state and other Cruz sites,were swearing that it had to be a false flag pulled by Trump because only he was vile enough to pull it off.

      3. Well,there is the free kool-aid

    2. Yes.

      I have a very big disapoint.

      I’m surprised and saddened that Cruz thought of or allowed this.

      But I still will not let great get in the way of good.

      My prime desire this election is to break the grip of the two headed Hydra that controls the purse strings holding our tax dollars. Only Cruz and The Donlad hold any promise of that at all. Cruz much more than Trump hence the Republican establishment recently playing nice with Trump while continuing their open hatred of Cruz.

      If the spokesfigures of both heads of the Hydra unite in their hatred and fear of one individual I figure S/He must be doing a good thing.

  8. “Actually, the Bill of Rights largely embodied uncontroversial traditional rights of Englishmen. Indeed, in sorting through the amendments, Wood wrote, “Madison … extracted mainly those concerned with personal rights that he thought no one could argue with.”

    I’m going to take issue with that on two amendments, at least.

    The right to bear arms and train with them so that the people could rise up against and overthrow the government was not a traditional right of Englishmen.

    The Ninth Amendment, which makes it clear that our rights do not originate in law or from the government and specifies that we have myriad rights reserved, so many that they can never be completely listed–that is not a traditional right of Englishmen.

    “If a person’s publications were slanderous and calumnious enough to bring public officials into disrespect, then under the common law the publisher could be prosecuted for seditious libel. The truth of what was published was no defense; indeed, it even aggravated the offense”

    Excuse me for pointing out that libel laws in the UK, Australia, and Canada are still more like this than our own, and the reason our laws are different is because of the radical ideas enshrined in the First Amendment.

    Google “MP sues for libel” and see what you get.

    1. And free speech didn’t exist any where else .The divine right of kings still ruled much of the world also.

      1. Doesn’t the fact that the Alien and Sedition acts were passed so soon after the First Amendment was enacted strongly suggest that First Amendment free speech was novel?

        1. Ye,and the 2ed was also quite new,the peasants with guns?

      2. The divine right of kings still ruled much of the world also.

        The divine right of kings still rules the world today.

        Instead of the King you have the Will of the People, and instead of the power being granted by God it is granted by Representation.

    2. The right to bear arms and train with them so that the people could rise up against and overthrow the government was not a traditional right of Englishmen.

      The right to keep and bear arms was in fact a traditional English right, for Protestants at least. Read Blackstone.

      The Ninth Amendment, which makes it clear that our rights do not originate in law or from the government and specifies that we have myriad rights reserved, so many that they can never be completely listed–that is not a traditional right of Englishmen.

      The English don’t have a list of rights, so this is inherently the case for them, without an amendment necessary. All their rights come from the rabbit-out-of-the-hat process that SCOTUS uses to conjure rights out of the Ninth Amendment.

      Excuse me for pointing out that libel laws in the UK, Australia, and Canada are still more like this than our own, and the reason our laws are different is because of the radical ideas enshrined in the First Amendment.

      Initially, US courts held with the English precedent of truth not being a defense against libel. The standard changed because states passed laws requiring that truth be allowed as a defense, and because it was argued that the British press was tame because of the stricter libel laws. (Talk about legislating from the bench) It didn’t happen because of the first amendment.

      1. “The English don’t have a list of rights”

        According to the Ninth, we don’t have a list of rights.

        The English only have those rights that the government gave them.

        1. We do have a list of rights; the Ninth merely indicates that it is not a complete list.

          The English have the rights that the judiciary gave them, which is the same in practice as here in America. The lack of a written bill of rights makes it easier for the judiciary to change its mind and retract rights, of course.

          1. Read the Ninth again.

            It makes it clear that our “list” of rights isn’t a list. If a right not being on the list doesn’t make any difference, then there is no list of rights.

            The Bill of Rights highlights a few. There is no list. I have the right to wear green boxers on Tuesdays, and because no one can see them, that right is not grounded in the First.

            Moreover, the English don’t have any rights that either the crown, the courts, or Parliament didn’t give them. They have a list of rights. What rights do the English have that aren’t enumerated somewhere? Do they have the right to wear green boxers on Tuesdays? I don’t think so. Not if it isn’t granted by the government somewhere.

            1. So “including, but not limited to…” never introduces a list?

      2. “The right to keep and bear arms was in fact a traditional English right, for Protestants at least.”

        Didn’t the right of Protestants to bear arms only come into effect in the wake of the Glorious Revolution?

        Wasn’t this right subject to Parliamentary regulation from the onset and didn’t Parliament subsequently regulate gun ownership into an effective ban?

        1. Gun ownership and carrying was subject to regulation in the US from the outset, too. Several state constitutions explicitly allowed bans on concealed carry in their versions of the second amendment.

          1. You’re missing a couple of points.

            1) The right to bear arms is specifically protected by the Constitution, but it does not originate from the Constitution–and that is according to the Constitution.

            That is radical, and it is not the way things are in the UK.

            2) That the states or even federal government violated our rights does not mean that our rights didn’t exist–or that they don’t exist independent of government.

            Yes, the government has routinely violated people’s rights and the Constitution at various times and in various ways. Still, the Constitution says what it says, and our rights are what they are.

            If Barack Obama ordered the BATFE to go rob a bank tomorrow, that wouldn’t mean no one’s rights were violated, and if he ordered them to confiscate our guns with Congress’ approval, that wouldn’t mean no one’s rights were violated either.

            How does that compare with the rights of Englishmen? Aren’t their rights only what the government says?

          2. no,fuck off troll

      3. “Initially, US courts held with the English precedent of truth not being a defense against libel.”

        One of the interesting differences between American and commonwealth libel laws is how it pertains to comments on websites like this.

        If I write a comment saying that so and so is a convicted child molester on the New York Times website, the Times might take my down because they don’t want the expense and legal headaches, but the courts won’t hold them responsible for what I write on their website.

        That isn’t necessarily true in the UK, Canada, or Australia. If you go to some Australian News Corp website and claim that some sports figure under investigation is using steroids, or if you claim that some politician is doing something illegal there, you probably can’t even get your comment pre-approved. And they preapprove most of their comments to prevent successful libel cases against them for what commenters write.

        If I wanted to accuse A-Rod of using steroids or Bernie Sanders of being a child molester, few websites here in the U.S. are going to stop me. Part of that is because I as an individual have the right to free speech–so only I can be held responsible for what I write–and part of that is because Bernie Sanders is a politician, and we can can say pretty much anything about politicians we like. That is not a traditional right in the commonwealth–it’s quite radical really.

        1. See Watts v. United States. Speech that might be interpreted as threatening to shoot the President has been held by the Court to be protected by the First Amendment.

          P.S. Can someone give me a +1 wood chipper?

          1. I gotchu bruv.

            *Fist bump

    3. This is historical navel gazing. Of course you can look at the dozens of delegates involved in the Constitution and come up with various viewpoints to suit your needs. You had the South where a deeply rigid Aristocracy was being entrenched with slavery, and the North where things were much more fluid.

      In any case, Sheldon makes a lot of assertions, but offers very little evidence in the way of quotes to back this up. Did the founders fear rule of the mob? Of course. The majority came from a heavily classist and aristocratic England. That said, the Jefferson side was radically trying to change that mindset.

      It is noteworthy that Rush, quoted above, tried to relieve Washington as CinC. Washington was famously condescending (see 1776 by McCullough). That term meant something different back then- that he was always talking politely to people and treating them with respect even if they were from an inferior class. See also Tribal Leadership a pretty good gem in the terrible genre of management books. Washington was one of the few leaders whose sphere of influence transcended multiple sub-populations- Aristocrats in Congress, Soldiers in the military and the unwashed masses of the general population. Rush saw Washington as tolerating the whims of commoners, leading to a rabble of a Militia and sought to replace him with a much more rigid aristocrat, Horatio Gates.

      1. As relates to this subject, the chaotic founding of our republic had many overlapping factions and the Federalists vs Anti-Federalists schism is a bit of a distraction. Instead you should look to the groupings of individualists and paternalists. There were Aristocrats who saw it as their duty to set the masses free and instill in every man the ability to govern himself (individualists). There were also more traditional Aristocrats who felt that the commoner would always be ungovernable and it was the job of benevolent superiors to maximize their freedom while preventing them from harming themselves (paternalists). Among the latter paternalists, both Abolitionists and pro-slavery people sought to institutionalize a hierarchy that would meet their vision of “freedom”.

        Any Constitution would require compromises that would meet the expectations of Individualists and Paternalists. Trying to map their diverging visions to a specific reason the Constitution is the way it is is a fool’s errand.

    1. Hehehehehe!

  9. I … I nearly have no words. I’m stunned that _anyone_ could reach the conclusions arrived at by the likes of Sheldon Richman and Gordon Wood. Exactly how much alcohol and LSD are required to distort facts to reach this level of self-delusion?

    Wow. Just … wow.

  10. The whole damn thing was written by Jooos.

  11. My understanding was the Constitution as understood by the guys who wrote it was that it was a list of things the government could do. There was no need for a Bill of Rights because the Constitution didn’t not give the federal government the power to do those things. And the Bill of Rights was just a way to get the Constitution to pass, and not something really needed.

    Of course neither side realized there would be people spending months, if not years, trying to figure out ways to allow or ban their pet cause.

    1. I gather this was Hamilton’s argument. The Constitution limited the federal government to certain specified powers. It could do nothing else (a notion that quickly fell by the wayside, and partly at Hamilton’s suggestion), such as restricting the various civil liberties that the Bill of Rights protects. Never mind that in less than a decade the Sedition Act (which Hamilton opposed) would be passed to restrict free [removed]but it was carefully set to expire at the end of Adams’s term).

    2. Although the Constitution didn’t give government the power to do certain things it specifically couldn,t prevent men in government from trying to do those things.

      Hence The Bill Of Rights.

      1. there it is

    3. bingo

  12. You write one little article equating an autistic child murder to a decorated soldier, and people never let you forget it.

    Life is so unfair.

    1. He would compare us to Adam Lanza too but we’re actually worse.

  13. But its presence eventually shifted attention from asking where in the Constitution a claimed power was specified to asking where in the Bill of Rights a claimed right was specified.

    The BoR didn’t cause that. The enumerated powers doctrine was expected to be enforced via the Senate by state governments jealous of their power. This got partially derailed by the Civil War and totally obliterated by direct election of Senators. The common belief now that the govt can do anything that’s not prohibited by the Bill of Rights is an effect of that power shift, not the cause.

    1. Yeah. The complete and total lack of representation of state governments in the federal government ended any notion of a limited federal government.

      1. It’s amazing that even Sheldon doesn’t see the fundamental premise of the constitutional system: power can only be constrained by other power. Ink on paper is meaningless unless it’s backed by power.

        1. I’m starting to think Sheldon is a bit of a dipshit.

          1. Starting? Late to the party lol

        2. What was that famous saying that goes something like, ” how many divisions has the pope ” ?

          1. Or the famous Jackson quote, “John Marshall has made his decision; now let him enforce it.” “The decision of the supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate.”

  14. “But it is important to understand that the framers of the second U.S. constitution?the successor to the Articles of Confederation?did not intend for the complex governmental structure devised at the federal convention of 1787 to protect Americans’ liberty directly. Rather, the ultimate protector was to be the ruling elite, the gentlemen of leisure who, free of the daily care of laboring in the marketplace, could referee clashing particular interests and thereby effect the general welfare. The purpose of the political process established in 1789 was to assure that the right sort of people would be selected to govern and the wrong sort would be weeded out,”

    Then why not simply establish an aristocracy? It seems to me that they went through a great deal of trouble to contrive a system that would do exactly the opposite. Success in this is entirely dependent on the character of the people, the very people that Sheldon dreams of establishing a stateless society.

    *facepalm*

    1. In what other country can I freely shop for one of these:

      http://www.springfield-armory……1a-loaded/

      Where else can I walk into a store, fill out eh paperwork and walk out with it an hour later?

      1. Somalia. Except for the part about the paperwork.

      2. There are probably a few places, but I can’t buy one – and I’m in the US.

        Anyway, what kind of pansy wants a stock like that, in that color?

      3. There are probably a few places, but I can’t buy one – and I’m in the US.

        Anyway, what kind of pansy wants a stock like that, in that color?

        1. Who’d have thought this would interest the squirrels?

      4. That better not have one of those thingys that fold up and attack people !

    2. Then why not simply establish an aristocracy?

      In an aristocracy, the elite is determined by birth. The founders wanted elite status to be determined by merit, which they considered to be evidenced by financial success.

      1. Why then limit power if they believed these elite to be so wise? I am not buying it. There simply is no evidence that they believed in or wanted to establish an elite class.

        1. The elite weren’t necessarily part of government. Think Warren Buffet, George Soros, and the eeeeeeeeeevil Kochtopus.

    3. Thomas Jefferson did endorse the idea of a “”nat?ural aristocracy among men, founded on virtue and talents.” Which simply meant that the nation would have government composed of wise, virtuous citizens rather than people who just happened to be born into the right family.

      On its face this is an incredibly naive statement but looking deeper I can see why Jefferson would think that with a constitutional framework in place that checked the power of the Federal government and protected the rights of the people from a centralized authority.

      1. Instead we end up with Elon Musk and his ilk.

  15. Also, it’s becoming a pet peeve of mine, the idea that if only the Constitution had been written differently, everything would be okay.

    Many (maybe even most) of the problems we have today are because of the Court’s unwillingness to enforce the Constitution the way it’s written. You can’t have a Constitution that’s much better than the people who interpret it, and if they refuse to call it like it is (sometimes because it’s too radical), then having written the Constitution differently probably wouldn’t have made much difference.

    The government can prohibit you from growing wheat or marijuana on your own property and for your own consumption because of interstate commerce? The government can penaltax you for not buying whatever it wants you to buy–and that’s what protecting our rights is all about? How would writing the Constitution differently have prevented the Court from reaching such bizarre conclusions?

    It isn’t about the text of the document. It’s abut what a majority of justices want the text to mean and their reluctance to undo past wrongs.

    1. You have to admit that the language in some parts of the constitution is so vague that it’s all in the interpretation.

      The commerce clause is a perfect example. You can make an argument that the Necessary and Proper Clause combined with the Commerce Clause allows Congress to regulate anything that affects interstate commerce. You and I may consider that argument weak, and the writers and ratifiers could not possibly have had that intention, but even weak arguments that favor giving power hungry people more power always seem to win out in the end.

      If I could go back to 1787 in a time machine I’d definitely have some edits to suggest.

      1. Is it vague language or (maybe partially) a change in the usage of words like “condesending” pointed out it the article ?

        Honest question.

      2. “Have you guys considered adding something about privacy in files accessible on smart phones, including those stored on clouds administered by third parties?”

    2. Hey,Japs are bad,Mkay,and too much wheat is a threat to all.

    3. I think the 17A was the end of limited government. Before that amendment, Senators were chosen by state governments. That basically gave the states a veto power within the federal government. Had the 17A never been passed then I doubt the federal government would have gained the power to coerce state governments into doing things as it does now. The states would have blocked things like unfunded mandates and other tricks the feds use to force states to adopt policies and programs that they never would have on their own. The fact that 25 states governments sued to repeal Obamacare tells me that it would have never made it through a Senate that was chosen by those state governments.

      1. What makes you think that popular election of US senators wouldn’t’ve happened anyway? States were adopting it left & right at the time the 17th Amendment was passed. Nothing in the US Const. said that was an invalid way for the states to select them, any more than it proscribed it as a means of selecting electors of president & VP.

        1. What makes you think that popular election of US senators wouldn’t’ve happened anyway?

          The fact that popular election of senators resulted in the feds steamrolling over the state governments. Perhaps the state governments may have learned that popularly elected senators have no incentive to veto legislation that forces state governments to adopt policies and spend money that they may not want to do on their own. Perhaps the states that did choose to have their senators popularly elected may have wised up and changed the law to instead have their senators chosen by the state legislatures to represent the state governments.

          The 17A forced states to have their senators popularly elected, which closed the door to those governments doing anything different.

    4. It isn’t about the text of the document. It’s abut what a majority of justices want the text to mean and their reluctance to undo past wrongs.”

      Women lie Ken. Text does matter. The bigger the Text the better.

      This notion that it’s all about how the Text is used is nonsense. Sure, small Text used well can compensate for small Text but it can’t best big Text also used well.

  16. The Bill of Rights, unfortunately was/ is a scam. A closely calculated fraud.

    The very same people who wrote it,[ all the while knowing that whatever left Congress would take at least year or more to be ratified by the individual states], had, the day _before_ the BoR left congress, written into law the Judiciary Act of 1789, in which paragraph 25 gave the Supreme court the ultimate power to “interpret” [ 🙂 ] the entire constitution, including all subsequent amendments, such as any Bill of Rights, should it be later ratified.

    See: “The Bill of Rights Scam – [aka The 1789 Judiciary Act Scam] “:
    http://onebornfree-mythbusters…..-scam.html

    Regards, onebornfree

    1. Thank you for showing up today, Pirate Truther. It’s been a while.

  17. “Madison … extracted mainly those concerned with personal rights that he thought no one could argue with.”

  18. They may have once have been traditional rights, but they no longer are uncontroversial. Britain has begun rejecting those same rights, and liberals want to do the same hing here.

    1. And not just liberals. Many conservatives think the 4th amendment is a hindrance to the surveillance state they crave.

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  24. Hate Hate Hate, Hate America First!

    But, Sheldon, I don’t see you explaining how it’s really the fault of Da Joos! Is this a two parter?

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