I recently had a very long discussion with a law student about the Constitution and the Bill of Rights. I must say that it was alarming. I want to share this publicly so as to provide a lesson of historical frame and proper perspective for those who teach, those who study, and those who are subject to the “law”. It is understood that these topics have been debated since the beginning, but I aim to provide a simple and definitive explanation for those who seek additional context.
This law student’s argument (in a nutshell) was that Constitutional interpretations have evolved over the years and have garnered us many substantive due process rights. He said that originally, the states were free to disregard the Bill of Rights with impunity but that due to modern Constitutional interpretations, states are chained to the Bill of Rights protecting our very basic freedoms. He went on to suggest that the 14th Amendment was evidence of this and that it is almost a “second constitution” because it has acted as a means to extend due process rights to the citizens.
Ultimately, he argued that “Originalism” would have not given this result, because (as he says) the Bill of Rights did not pertain to the states, and that without modern interpretations, states could effectively legislate the Bill of Rights out of existence. He pointed to the fact that for many years, states have disregarded the Bill of Rights in matters of criminal procedure as evidence. He argues that “If we had adhered to original interpretations of the constitution the states would be able to effectively do away with the bill of rights. Original interpretation of the constitution was that the Constitutional Rights in the Bill of Rights only applied to the federal governments. Therefore modern originalism really is flawed.”
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Allow me to retort with the idea that I simply disagree. Yes, interpretations have changed over time, but they have not garnered us anything. The government has not provided us Rights. The only thing that has changed is the willingness to adhere to Constitutional provision, or not. This point alone actually negates the rest of his position entirely. Allow to me explain.
Let’s get some verbiage squared away first. In the context of United States constitutional interpretation, “originalism” is a principle of interpretation that views the Constitution’s meaning as fixed as of the time of enactment. Also, and in this discussion, we must understand that an “interpretation” is nothing more than a stylistic representation of a fact. It may NOT necessarily be its original intent.
Yes, we could talk about things like “Selective incorporation”, Article VI – Clause 2, Marbury v. Madison (1803), and so on. You need to understand that all of this is actually entirely irrelevant. To really appreciate the truth behind the Bill of Rights, there are really just a few things that must be understood.
So let me make a few things abundantly clear.
- It is simply a fact that the American Bill of Rights was inspired by Thomas Jefferson. So it’s probably a good idea to listen what he has to say on the matter.
- The Bill of Rights was eventually drafted by James Madison
- The Bill of Rights became the law of the land in 1791.
- The phrase “law of the land” is a legal term, equivalent to the Latin lex terrae, or legem terrae in the accusative case. It refers to all of the laws in force within a country or region, including common law.
- Any statute or other law can only be made in pursuance of the Constitution. Thomas Jefferson said that “Every law consistent with the Constitution will have been made in pursuance of the powers granted by it. Every usurpation or law repugnant to it cannot have been made in pursuance of its powers. The latter will be nugatory and void.” (Thomas Jefferson, Elliot, p. 4:187-88.) This was actually backed up in Marbury vs.Madison, 1803 which states that “All laws which are repugnant to the Constitution are null and void.”
- A true Right exists in the absence of authority and will not naturally infringe upon the Rights of another.
With that being said, let me express that this law student made the case that “It is an established fact that the bill of rights was drafted to only pertain to the federal government. States could enact their own bill of rights and many did. However states were free to deny protections of the bill of rights prior to incorporation. Many of them did, and many did not. But the fact remains that without modern interpretation and incorporation the federal bill of rights would have no bearing on the state governments.”
Established fact? It’s also an “established fact” that Mount Everest is the tallest mountain in the world. It still doesn’t make it true. This is because the “actual fact” is that Mauna Kea beats it by about 4,400 feet. It’s also an established fact that humans have five senses. Again, not true. Pesky little details. Well, the details matter in this case as well.
The 9th Amendment makes it clear that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The 10th Amendment makes it clear that “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.”
The Bill of Rights is the “Law of the Land”. The Law of the Land states that the enumeration of the Constitution is not supposed to be interpreted in such a way that it would or could deny or disregard the Rights of the PEOPLE. It further states that the powers that were not enumerated in the Constitution and not made illegal by it or by the states… are left to the people themselves.
What we all need to understand is that it does not matter that any state does or does not recognize it or would or would not adhere to it. Your Rights exist regardless of anyone’s approval. Rights are NOT privileges – even if the vast majority are tricked into believing so or following along. Ignoring this fact does not make it any less true. Yes, some states have successfully contorted this by interpreting it all in such a way that fits their agenda. Yes, law enforcement officers (who have sworn an oath to defend the Constitution but have never actually read it) have enforced unconstitutional orders and laws handed down by the governments they serve. However, this is not only a violation of the oath they took, but it is also a violation of the Founder’s intent. It still doesn’t make it legal or just.
Let me address these modern interpretations for a moment. Thomas Jefferson wrote a letter to Judge William Johnson, from Monticello on June 12, 1823 that says that “On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.” In other words – STOP IT.
What the state either does or does not do is irrelevant. The PEOPLE are what the Bill of Rights were for; not the state. This was stated clearly by Jefferson and others. Thomas Jefferson said the following:
“It would have been much more just and wise to have concluded the other way that as most of the states had judiciously preserved this palladium, those who had wandered should be brought back to it, and to have established general right instead of general wrong. Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.”
No government (no local, no state or federal) can interfere with the Bill of Rights – said the guy who inspired it. This is not a “philosophical” debate. Philosophical debates allows for interpretations that take away rights. Originalism would have actually negated the need for things like the 14th Amendment because under the Law of the Land, EVERYONE IS EQUAL. It was an interpretation that created the inequalities to begin with. Definitions are like math; they just are. Let me show you an example of what I mean.
The second paragraph in the Declaration of Independence states, “We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”
- Definition of Men: a human being of either sex; a person
- Definition of endowed: to be given
- Definition of unalienable: cannot be licensed, altered, adjusted, traded, or taken away.
- Definition of Rights: a moral or legal entitlement
So basically, ALL HUMANS of EITHER SEX are created EQUAL. Their creator (not government and not religion specific) has given them moral and legal entitlements which cannot be licensed, altered, adjusted, traded, or taken away. These include life, liberty and the pursuit of happiness (property).
Thomas Jefferson took it a step further (as demonstrated previously) and said that the “Law of the Land” (Bill of Rights) is what all humans automatically and permanently have AGAINST EVERY GOVERNMENT (which includes local, state, and federal) on earth, general or particular, and what no government which might behave according to what is morally right and fair would ever refuse.
This is by definition; not interpretation. An interpretation is what stole the Rights from women, children, and people of color. Interpretation is what has denied elements of the Bill of Rights on the state level. It is an interpretation which has denied such rights to citizen and non-citizen alike.
The people, lawyers, courts, states and feds have all screwed up quite a bit. That is not in debate. However, it does not take away from the purpose or point either. Most of the opposing positions to my statements also come from those who believe that we reside in a Representative Democracy. This is also false considering Article 4 Section 4 – and reaffirmed via the notes Dr. James McHenry, a delegate at the Constitutional Convention. On page 618 of the American Historical Review (vol. 11, 1906), there was an anecdote which reads: “A lady asked Dr. Franklin; “Well Doctor what have we got, a republic or a monarchy?” “A republic” replied the Doctor (Franklin) “if you can keep it.”
Let me drive the point home. Many people today tend to believe that bulls don’t like red, that penguins mate for life, that Napoleon Bonaparte was short, that people only use 10% of their brain, that white slaves or black slave owners didn’t exist or that the US was intended to be a Christian nation. Established facts? These are all false. Just because you believe these things, or try to convince someone else to believe them along with you, does not mean they are true.
As made abundantly clear by the guy who inspired them, the Bill of Rights are not laws or privileges that can be handed out, taken away or amended. They are ours and not exclusive to a certain state or people. Whether a state writes them down or not, abides by them or not, does not affect whether I do or do not have them. We don’t need any more modern interpretations of falsehoods and contorted (and often bigoted) case law. Instead, perhaps we should try something radical for a change; something never actually tried before; something like “strict adherence“.
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