Constitutional minute for 27 december 2022 "Life without the bill of rights" part 2
The 15th of December was National Bill of Rights Day, based on the fact that on that day in 1791, proposed amendments 3 through 12 received the required ratification of 3⁄4 of the states. I hope you didn’t celebrate by arguing with your spouse that the long shopping lines at this time of year constitute cruel and unusual punishment. There is typically a whole day of activities at the National Constitution Center in Washington – exhibits, seminars and presentations galore. If you didn’t get there --maybe next year.
Last week we explored the idea of an America without the Bill of Rights. I argued that under the view of the Founders prevailing at the time the Constitution was drafted, our Bill of Rights could be entirely repealed without jeopardy because the federal government had been provided no power that would impinge on our rights. Thomas Jefferson stipulated in 1776 that our natural rights were unalienable, irrevocable.
Unfortunately, both the view of rights as unalienable gifts of God as well as the view of a government of limited enumerated powers no longer hold sway with either the ruling elite in Washington nor even many Americans. Many Americans seem to want a powerful central government, even if that power occasionally steps on the liberties of some of our less empowered citizens. We’ve subscribed to Mr. Spock’s philosophy that “The needs of the many outweigh the needs of the few.” This of course is the central tenant of democracy; a political system the Founders soundly rejected.
I also mentioned last week that had the Bill of Rights not been adopted, the State Constitutions would have still provided their citizens many protections, but these protections varied from state to state. There used to be a comparison of the rights contained in the various state declarations of rights. But the old link onhttp://teachingamericanhistory.org no longer seems to work. Pity, it was a good comparison.
Virginia’s original Declaration of Rights, while superior to the Bill of Rights in many respects, had no protections for free speech, peaceable assembly, defense against double jeopardy or use of a Grand Jury. These deficiencies were ultimately corrected in later Constitutions, and the Virginia Supreme Court is on record as stating that Virginia’s statement protecting free speech is now even stronger than that of the U.S. Bill of Rights.
But assuming that the Bill of Rights had never been adopted, and neither did state constitutions have rights protections, what could life be like in America?
Without a Sixth Amendment, criminal trials, if you got one at all, would not have to be conducted in public or be speedy, and a jury, again, if you got one, would have no requirement to be impartial (did you know there is no Constitutional requirement for “a jury of your peers?”). You could be tried
anywhere, even outside the jurisdiction where the crime was committed. You would have no right to be informed of the charges against you, no right to confront witnesses against you, nor any ability to compel witnesses in your behalf. If you could afford an attorney you’d probably have one, otherwise you’d go without -- echoes of England’s infamous Star Chamber.
Without the Seventh Amendment there would be no requirement for a jury trial in common law matters, and if the prosecutor didn’t like the innocent verdict you received he could try you again in another venue until he obtained the verdict he was looking for.
Without the Eighth Amendment, bail could be set way above any amount you could afford or borrow, thus ensuring your confinement until your trial date (remember, the trial needn’t be “speedy,” so you could be in jail quite a while). It would be interesting to see whether we the people would vote to resume drawing and quartering people for certain particularly heinous crimes. Probably not, but hangings, firing squads, maybe even the guillotine, all quick and cheap means of dispatching the condemned could certainly return.
Without the Ninth Amendment, we might easily forget that we have other unalienable rights that have not been heretofore specified. But here there is also danger. Under our Constitution, who has the authority to identify and define unenumerated rights – the people or the government? I answer: Whose document is it? Does it begin with “We the people” or “We the government?” If the people forsake their authority over the Constitution, government will gladly step in.
Take the case of Griswold v. Connecticut. Here the Supreme Court identified and defined a right of privacy that had thus far been unknown to the Constitution. The Court did not ask the American people whether a general right to privacy was to be protected or how it was to be defined, the Justices went ahead and defined it themselves.
From Griswold came Roe v. Wade. Did a majority of the American people want to have the Constitution protect an essentially unrestrained right to kill unborn babies? Clearly no, but that is what we now have thanks to the Supreme Court. Without the Court’s usurpation of the people’s authority there would likely be 50 million more wage earners in the workplace today, enough to keep Social Security solvent, for instance. I firmly believe in a natural right to privacy and that this privacy should be secured by our Constitution, but I also believe that the people have the sole power to determine how that right is to be defined and secured.
Without the Tenth Amendment, the idea of nullification would itself be nullified and states would be left without a basis for resisting the unlimited power of the federal government. All governmental power would clearly reside at the federal level; none would be retained by the states or the people.
I think you can see that without the Bill of Rights, government’s power would grow unrestrained (Oh wait, that’s happening already). We would still have a republic, but it would be anyone’s guess as to what rights would be protected. On the plus side, we would certainly not be experiencing a flood of illegal immigrants coursing across our southern border to live “La Dolce Vita” -- there’d be little “dolce” in our “vita.”
Perhaps if they had not ratified the Bill of Rights in 1791 the American people would have gradually seen the need for its protections and demanded amendments be added, one by one. Maybe we’d have ended up with something similar, perhaps something very different. But the fact remains: we do have the Bill of Rights, and it is incumbent upon all Americans to understand what it secures: unalienable rights.
© 2014 This essay first appeared in the Fairfax Free Citizen on 18 Dec 2014. Reproduction for non-profit purposes is hereby given.
Prepared by: Gary R. Porter, Executive Director, Constitution Leadership Initiative, Inc. for The Breakfast Club.
constitutional minute for 13 december 2022 "Life without the bill of rights" part 1
I’ll wager few Americans realize that we owe our Bill of Rights to a mere 336 votes. That was the margin that sent James Madison to the first Congress instead of his friend, and rival James Monroe. Without Madison’s dogged persistence in that first Congress it is likely the idea of rights-based amendments to the Constitution would have “died on the vine.”
What would life in America be like without the Bill of Rights? Downright terrifying!
First, remember that in 1787, one of the primary arguments against a Bill of Rights was that it was unnecessary; government was not being given any power that would infringe upon the liberties of the people. In Federalist 84, Alexander Hamilton wrote: "I ... affirm that bills of rights ... 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?" Under this logic, if the entire Bill of Rights was repealed tomorrow nothing would change regarding our rights. They would be equally present and secure with or without the first ten amendments. How wrong the Founders were on this point. Given that over the years the courts have granted Congress nearly unrestrained power to legislate in whatever way it wishes; the argument that a Bill of Rights was unnecessary now looks ridiculous. Today, the Bill of Rights may be the only thing holding back “Leviathan’s” desire to control our liberty. That doesn’t make it right, just a reflection of reality. Former Representative Peter Stark’s (D-CA) view that “The federal government, yes, can do most anything in this country” is much closer to the truth today than Madison’s view of limited and enumerated powers.
In addition to the threat from a government unrestrained by enumerated powers, loss of the Bill of Rights would be worsened by the fact that we have also abandoned the concept of natural rights. Jefferson’s idea that “certain unalienable rights” had been “endowed by their Creator” is today viewed by many as a quaint relic of a by-gone era. Our “enlightened” intelligentsia has risen above this “infantile” attachment to an omniscient Creator. Unfortunately for the intelligentsia, unalienable rights and the God who created them don’t disappear just because you click your heels three times and wish real hard. We obtain our unalienable rights (Virginia’s Declaration called them “inherent” rights) at conception. They are irrevocable and non-transferable (some can of course be forfeited by breaking certain laws).
At law schools, natural rights theory was replaced by “legal positivism,” the theory that all laws (and thus the rights that laws protect) are the creation of man. The effect of this stark: take away the law and you’ve taken away the right. This view is why you can find on today’s White House website a sentence claiming “The 2nd Amendment grants us the right to bear arms.” The Amendment, of course, does no such thing, but such is the thinking of today’s progressives. In their view, to provide government an unrestrained power to control guns we need only get rid of the 2nd Amendment.
Although natural rights have fallen out of favor, they have not completely disappeared, just as the God who created those rights has not “left the building,” as Elvis famously did. The rights are still there, waiting to be invoked. So what would America be like without the Bill of Rights?
Government would have full sway in determining what verbal and symbolic speech would be prohibited. Our government has attempted to limit speech many times, of course, and has usually been rebuked by the Court, based on the First Amendment. Without the Amendment, expressions allowed today could easily be prohibited tomorrow.
Without the First Amendment a national religion might have been declared; New England’s Congregationalists were all for it and their Federalist party dominated the first Congress. Such a national religion might have even persisted for a time before the waves of Virginia’s Statute for Religious Freedom washed over the rest of the country.
Attempts by the citizens to assemble and petition their government would be greatly restricted if not outright prohibited. Governments hate criticism. The press would likely have to obtain permission to publish on certain topics, particularly anything critical of the current administration.
Guns, since they are clearly “dangerous,” would be limited to the military, the police, and the bodyguards of the rich and powerful. Of course, the lawless element in society would still obtain them, and use them, as folks in Britain and Australia from time to time discover. Personal self-defense would probably be limited to pepper spray and baseball bats (sharp knives would even be controlled, as is now being attempted in Britain).
Government could lodge troops in your home at any time, for any reason.
Governments at all levels would search your person, vehicle and home at any time, for any reason, without the need to obtain consent of a judge. Store security would be able to pat you down leaving their store if you even looked suspicious. Any police traffic stop could result in a search of your car, with or without “probable cause.” Based on phone calls from jealous neighbors, homes would be raided and searched at all hours of the day and night. People would live in fear of a knock on their door. “We’re here to search your home, Sir; we observed you were staying up past the mandatory curfew hour and just want to see what you were up to. Won’t take long; could you and the misses please step outside while we take a look around?” (Notice they said “please.”)
Your testimony in court (or even before you are charged with a crime) could be compelled, including through torture if necessary. “We can’t have the guilty remaining free now, can we?”
Whew! This only covers the first five articles of the Bill of Rights, and then only superficially, but you can see where this is going. Read Amendments 6-10 yourself and imagine life without them. Life in America would be a very bad experience, for everyone. Think about it. (To be continued)
Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founder’s view of their Constitution. Comments on this essay and ideas for future essays should be sent to firstname.lastname@example.org. This essay first appeared in the Fairfax Free Citizen on 11 December 2014 and in the Yorktown Crier-Poquoson Post on 18 December 2014.
To download any previous Constitutional Minute essay in .pdf format click here.
Prepared by: Gary R. Porter, Executive Director, Constitution Leadership Initiative, Inc., for The Breakfast Club.
"A bill of rights is what the people are entitled to against every government on earth." — Thomas Jefferson
"The Bill of Rights was essentially a compromise between the competing factions and a win for the Anti-Federalists" Read more here.
It’s interesting to notice which historical events we celebrate and which we largely ignore. Sometimes on radio shows you’ll hear a commentator groping for content do a piece on “This Day in History.” “On this day in 1952, Elmer Jenkins rolled a peanut 2 miles using only his nose to earn donations for the Red Cross.” (Note: full disclosure here, I made that up; don’t go looking it up on Wikipedia!)
Most patriotic Americans remember “Constitution Day,” September 17th, the day in 1787 when the Constitution was signed; but I don’t know anyone who even remembers, let along celebrates “Ratification Day,” June 21st, the day in 1788 when New Hampshire’s ratification put the Constitution in operation. On September 17, 1787, the Constitution was just a piece of paper (actually four pieces of parchment), just like any other draft document. As opposed to most legal documents which are put into effect with signatures, signing the Constitution had no legal effect whatsoever. Ratification did, at least when nine states had done so. So why don’t we celebrate Ratification Day with fireworks and concerts the way we do Independence Day? Asking for a friend.
Another day we should celebrate, and don’t, is December 15th, especially here in Virginia. On that day in 1791, Virginia’s ratification of ten of the twelve articles proposed by Congress to “amend” the Constitution, put what we now call the Bill of Rights into effect (it wasn’t routinely called the Bill of Rights until after the Civil War, when Amendments 13-15 were added).
The debate over the idea of adding a “Bill of Rights” to the Constitution didn’t even come up until 5 days before the convention adjourned. George Mason thought it a good idea (“It would give great quiet to the people”); others saw no need for it, most of the state constitutions in effect at the time had declarations of rights, a federal one would be redundant. Mason’s motion to form a committee to draft a Bill of Rights (BoR) was defeated and its absence became the primary reason Mason and two other gentlemen refused to sign the finished document. At the Virginia Ratification Convention in 1788, Partick Henry chided the Federalists over the omission: “Would it consume too much paper?”
Massachusetts is the state that actually started the ball rolling on a BoR. In exchange for the Anti-Federalists votes to ratify the Constitution, the Federalists at Massachusetts’s convention promised them they would be allowed to submit recommendations for both amendments to the Constitution and articles for a new Bill of Rights. After Massachusetts “broke the ice,” most other states followed Massachusetts’s example and submitted their ideas along with their ratification certificate.
James Madison, “Father of the Constitution” (a title he argued was inappropriate) is in fact solely responsible for creation of the Bill of Rights. Had he lost the election to the First Congress, I’m certain a Bill of Rights would today not exist. Congress was busy building a government from the ground up and had no interest in adding a Bill of Rights, but Madison’s dogged determination to fulfill a campaign promise he made to the Baptists of Orange County, Virginia met with success. Wikipedia has a very comprehensive page on the Bill of Rights, showing the various iterations the articles went through as they worked their way through Congress; it is worth the read.
As a testament to the success of the Bill of Rights we now have myriad copycats: “Patient’s Bill of Rights,” “Passenger Bill of Rights,” “Cell Phone Bill of Rights,” “Children’s Outdoor Bill of Rights.” Might there be a “Ferret-owners Bill of Rights” being drafted as I write this?
Franklin Delano Roosevelt famously proposed adding a Second Bill of Rights in 1944. Americans, he thought, had a “right” to a decent job, an adequate income, freedom from unfair competition and monopolies, a decent house, adequate medical care, social security (of course) and a right to an education. If people had trouble providing these accoutrements for themselves, government would provide them. Congress didn’t take the bait (thank goodness) and propose the various amendments necessary to bring FDR’s idea to fruition and the proposal died. But you’ll occasionally encounter people today trying to resurrect it.
I think I’ve mentioned that from 2013 to 2017 I was writing a weekly column called “Constitutional Corner” and sending these at times lengthy essays (sometimes they would run to 8 pages or more) to an extensive subscriber list. I’m going to put my “pen” down for the remainder of December and enjoy the holidays, but I can’t countenance any of my faithful readers suffering from Constitutional Minute “withdrawal,” so, in keeping with our Bill of Rights Day theme I will send you on or before 20 and 27 December, essays I wrote on 18 and 21 December 2014 entitled: “Life Without the Bill of Right” Parts 1 and 2. I hope you enjoy them (warning, there might be some dated material therein).
I think we can all agree that the contention of the Federalists in 1787 that a Bill of Rights was unnecessary (“Why declare that things shall not be done which there is no power to do”[i]), have turned out to be shockingly wrong. Without the Bill of Rights, America would today be a far different place in terms of individual freedom. The Supreme Court has given the federal government powers it created out of thin air or through expansive interpretations of ambiguous language; and without the Bill of Rights.…. Well, you’ll see in the next two essays.
Have a very Merry Christmas and don’t forget the “Reason for the Season.” See you next year.
[i] Alexander Hamilton writing in Federalist 84
To download any previous Constitutional Minute essay in .pdf format click here.
Prepared by: Gary R. Porter, Executive Director, Constitution Leadership Initiative, Inc., for The Breakfast Club.
Interview With an Actual Journalist
Meet Quin Hillyer, an actual journalist, who currently writes for the Washington Examiner as a senior commentary writer and editor. He has worked at the American Spectator as executive editor, the Washington Times as senior editorial writer, and as contributing editor at National Review Online. Hillyer’s articles have appeared in many national publications such as the Wall Street Journal, Washington Post, National Review, the New Republic, the (UK) Guardian, and Investor’s Business Daily.
Quin grew up in New Orleans, Louisiana, where he remembers being inspired at age 12 as nearly a year-long Bicentennial celebration, in 1976, of the Declaration of Independence, enveloped the country. “It made a huge impression on me,” Hillyer expressed, as he saw the entire country caught-up in the commemoration of the document that was the mission statement for our Constitution. He said that in 1976, “there was none of this breast-beating of how awful we are” as a nation. It was there that Quin began a lifetime of respect and admiration for all things American, with a thirst to learn more about our founding and the Constitution.
He graduated from the Isidore Newman School in 1982 and went on to acquire an A.B. in government and theology in 1986 from Georgetown University. Hillyer speaks fondly of his experience at Georgetown as a freshman in his honors government program which was taught by renowned Constitutional scholars. He says after Georgetown, because of his keen interest in both disciplines, that he “hopped around between both the political world and journalism for a while, like you’re not supposed to do.”
To begin his career after graduation, Quin returned home to New Orleans and became a correspondent at the Times-Picayune. He cut his journalistic teeth while covering sports. Because of his love of our founding documents, Hillyer was a Reagan appointee to Public Affairs in late 1986, however, his real experience in politics was launched in 1987, while serving as research and issues director for U. S. Representative Bob Livingston’s gubernatorial campaign.
Following his calling once again, Hillyer felt he “was meant for journalism” which led him in 1989 to become managing editor of Gambit Weekly, a newsmagazine in the New Orleans area where he gained notoriety “doing investigative pieces on the rise of David Duke and pointing out (Duke’s) neo-Nazi ties.”
Quin boomeranged back into politics for 5 years, serving as press secretary for Congressman Bob Livingston. But, by 1996, he realized he missed writing again. With the battle between his two passions raging, Hillyer told me that columnist Fred Barnes “advised me to go make a name for myself away from D. C. and make my way back.” That’s when Pulitzer-Prize winner Paul Greenberg at the Arkansas Democrat Gazette hired him to join the editorial staff. Quin says he “did not particularly enjoy the circumstances of the job.” He was hired as lead editorial writer at the Mobile Register in 1998, where he earned the Carmage Walls Commentary Award and the Green Eyeshade Award, making good on the suggestion by his colleague, Fred Barnes.
Hillyer was ready to return to Washington in 2006 to navigate covering the political scene once again as executive editor with The American Spectator before assuming the post of Associate Editorial Page Editor at The Washington Examiner in 2008.
Today, Quin resides in Alabama and writes furiously and brilliantly on the matters plaguing the nation.
I asked Hillyer why journalism has become more of an activist profession rather than what it was originally intended to be, a watchdog over the government for the people protected by the First Amendment. Hillyer responded that “very few (journalists) try to be neutral or watchdogs.” He reminds us that at the turn of the 20th century, the “rise of the objective neutral media was a good thing,” however, today, that neutrality “has disappeared.”
“For the left, everything is politics,” lamented Quin. “So many writers are covering things they know nothing about.” According to Quin, media-types mostly consider ideology when hiring writers these days, unless they are conservative media employers who mainly look for skill and talent. When I asked how many writers in the country know the Constitution and what the law means, he responded, “less than 10%.” That explains a lot about the establishment media.
As an actual journalist, Hillyer digs for the facts. One of his latest investigative reporting projects for the Washington Examiner centers around the controversy at James Madison’s Montpelier and the “hostile takeover” of the property, as well as at Thomas Jefferson’s Monticello. Hillyer further characterizes the takeover from his article, “Woke Montpelier leaders envision massive land grab in Virginia” in this way:
“. . . the wholly untrustworthy “trusts” that operate James Madison’s Montpelier and Thomas Jefferson’s Monticello — the homes of the two most influential thinkers who laid the foundation of this nation’s grand experiment of liberty — are on a malevolent mission to trash the reputations of those two great founders.”
This is personal for Quin and to those of us who value the truth and the legacy of our brilliant founders.
In 2000, Quin penned a column asking Congress to establish a commission of scholars to commemorate James Madison’s 250 birthday in 2001 and use it as an occasion for civic education. He said the commission “should sponsor or encourage high school essay contests about the Constitution, that the scholars should meet together at least once, and a few other things.”
Senator Jeff Sessions (R-AL) “saw the column and turned it into a bill.” Quin writes of the event on March 16, 2001: “The scholars were appointed; they held a symposium in an ornate room in the Library of Congress on March 16, 2001, with me as the only reporter present for the private part of the session; and they promulgated a call for civic education. There was a grand dinner that night at a banquet hall in the Library of Congress honoring Madison, with Chief Justice William Rehnquist and Sessions presiding and Justice Antonin Scalia among the numerous public officials in attendance. By happenstance, I rode the elevator with Scalia, but I couldn’t think of anything intelligent to say.”
In his Washington Examiner commentary, “The woke assault on James Madison feels personal, but everyone should care,” from July 20, 2022, Hillyer continued to recall that day, “For me, it capped a day in which I had driven the 95 miles out to Montpelier, then only in the early phases of its restoration from what the DuPont family had done to alter it radically, and I enjoyed a fascinating private tour of all they were planning. The curators said the law creating the commission and the commemoration had hugely helped draw attention to Montpelier’s mission of celebrating the life and thought of the Father of the Constitution.”
The Montpelier Foundation, formed in 1998, has been busy for two decades restoring the estate of James Madison, accurately preserving his legacy while also telling the critical story of slavery and its impact on the history of the plantation. After all, one of the first acts of the Foundation was to locate descendants of Montpelier’s slave population to honor their stories in the exhibits on the property.
Archaeologist, Matthew Reeves, was hired by the Foundation Board in 2000 to oversee the rigorous endeavor to uncover details about the lives and work of Montpelier’s enslaved. Quin reports, ”In 2001, shortly after Madison’s 250th birthday celebration, Montpelier organized a three-day Slave Commemoration Gathering , and over the next 15 years, it received numerous national awards for permanent and prominent exhibits on slavery’s role there.” I should note here that Reeves was fired from his Director of Archaeology and Landscape Restoration position this year.
Quin visited Montpelier several years after 2001 for another private tour, then again 5 years later, when the “restoration” was almost complete. He said that by that time, “the foundation was well into its efforts to excavate evidence of the lives of the slaves who lived there.” In context, that undertaking was appropriate and wise. Little did I know that almost all context would be thrown aside, with slavery essentially becoming Montpelier’s predominant focus.”
Incrementally, monied leftists and radical organizations have successfully orchestrated a coup upon the Boards and the Trusts tasked with operating both Monticello and Montpelier. Mary Alexander, an authentic and verifiable descendent of Madison’s manservant, Paul Jennings, has said that Montpelier is now “a black history and black rights organization that couldn’t care less about James Madison and his legacy.”
Acknowledging that slavery was “an unjust and horrible system,” she nonetheless said that Montpelier has a unique mission (to honor Madison). “There were hundreds of thousands of slaveowners but not hundreds of thousands who wrote the Constitution,” as Alexander so precisely asserted the obvious as documented by Quin Hillyer in “The ideals – and homes – of Madison and Jefferson are worth defending from the leftists.”
In his September 9, 2022, “James Madison’s Foundation, destroyed from within,” Hillyer determines, “. . . self-proclaimed “termites,” aided by a sympathetic media and discredited organizations such as the Southern Poverty Law Center, have driven the foundation, put its financial health at great risk, and even flirted with a United Nations-aided land grab of the region around James Madison’s Montpelier by designating it one large UNESCO heritage site,” explains Hillyer.
Enter stage left, the National Trust for Historic Preservation at Montpelier. “In 2017, the ascendant liberal leadership of the National Trust for Historic Preservation, which owns Montpelier but by charter is not supposed to “have authority over either management or board governance,” created an African American Cultural Heritage Action Fund, dedicated not just to the preservation of sites related to “significant African American history” but also to a “social justice … movement that uses preservation as a force for enacting positive social change … to realize equity-driven outcomes.”
In other words politics, not history.
Even on September, 17, 2022, Constitution Day, the ideological overthrowers decided to ignore the facts again. Hillyer writes, “amid staff disruptions and swirling questions about its finances, the foundation created to honor the “Father of the Constitution” is scrambling to mark Constitution Day on Saturday with two woke, anti-Constitution panel discussions.” Read “Saturday is Anti-Constitution Day at James Madison’s house.”
The latest on how Montpelier’s National Trust is faring, or not, read Hillyer’s “National Trust must worry about finances of Madison’s Montpelier,” and “National Trust CEO steps down amid unrest at James Madison’s Montpelier.”
“The plan is to establish Montpelier as a beachhead for radical reinterpretations of history. To a somewhat lesser extent, leftists have succeeded in doing the same at Thomas Jefferson’s Monticello.” No, James Madison is not alone.
Meanwhile, back over at Thomas Jefferson’s Monticello, Quin continued his reporting on the matter this year by encapsulating Jeffery Tucker’s demoralizing excursion to Monticello on the Fourth of July. From the Thomas Jefferson Foundation, to the exhibits and the tour guides, our beloved author of the Declaration of Independence is being besmirched and defamed in his own home.
Affluent Democrat donors to social justice organizations populate the Board of the Thomas Jefferson Foundation, so they can have their way with how history is rewritten at Monticello. Books by Ibram X. Kendi and fans of critical race theory occupy the gift shop. You can read “How and Why the Thomas Jefferson Foundation Trashes its own Namesake” here.
As the actual journalist, Quin Hillyer notes, “. . . but suffice it to say that the Sage of Monticello did more for human liberty and expansion of human knowledge than all but a handful of individuals in human history. The Left’s obsessive attempts to destroy his [Jefferson’s] reputation are both malicious and historically and contextually ignorant.”
Ultimately, Quin wisely chose writing over politics. When asked why, he said, “I could have my own voice, rather than promoting someone else's interests/agenda. Plus, I really detested many parts of politics – and, I like to write.”
We need more actual journalists like Quin Hillyer who dig for the truth, gather facts and report them so the people can decide. Quin is that watchdog for the people on a quest to protect our heritage so future generations can know the truth.
I recently answered a question on Quora.com which read: “In the 10th Amendment, what does "to the people" mean?” The requestor was, of course, referring to these words:
"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."
Here’s how I answered the question (note: I get a half-dozen requests on Quora each day. I don’t take them all, but even when I do I tend to write short, succinct answers):
"The People are Sovereign…(A)t the Revolution, the sovereignty devolved on the People and they are truly the sovereigns of the country…the Citizens of America are equal as fellow Citizens and as joint Tenants in the sovereignty." (Chief Justice John Jay, writing in Chisholm v. Georgia, 1793)
Basically, the 10th Amendment implies that all political power not given up, through constitutions, to either the state or federal governments, remains (theoretically at least) in the hands of the ultimate sovereigns: the people.
Unfortunately, the 10th Amendment is largely a “dead letter” today, the Supreme Court long ago having given Congress plenary power not found in the Constitution. Today, Congress can spend money on anything its little heart desires, whether that object is found in the Constitution or not (see U.S. v. Butler, 1936 and Helvering v Davis, 1937). Congress can borrow money without limit, and tax us without limit. They can delegate their legislative power to the Executive Branch whenever they want (see Mistretta v. U.S., 1989). Today, nearly all political power lies with the federal or state governments, not with the people. The people appear to retain, for the time being, simply the power to elect their representatives and change those representatives when the previous choice reveals itself to have been wrong.
"It is only when the people become ignorant and corrupt, when they degenerate into a populace, that they are incapable of exercising their sovereignty. Usurpation is then an easy attainment, and an usurper soon found. The people themselves become the willing instruments of their own debasement and ruin. Let us, then, look to the great cause, and endeavor to preserve it in full force. Let us by all wise and constitutional measures promote intelligence among the people as the best means of preserving our liberties.” (James Madison, First Inaugural Address, 1809)
There is a lot more to the 10th Amendment than my short answer covers. For instance, while I claimed the 10th as a “dead letter,” implying it was devoid of meaning, the Supreme Court’s official stance, expressed in United States v Darby Lumber Co., was that “The amendment states but a truism that all is retained which has not been surrendered” In other words, the court agreed with the basic premise that the Constitution is one of limited powers, which is essentially what the 10th says, and thus the 10th adds nothing new to our understanding of the Constitution. “Its purpose was … to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.”
There had been a similar statement in the Articles of Confederation (Article II), which read: “Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” Note that mention of “the people” was added in the 10th Amendment.
So, to summarize: All political power originates in the sovereignty of the people. They give up some sovereign to the national government through the U.S. Constitution and some to their state government through the state constitution; the rest they retain or reserve to themselves. If “we the people” would only remember that.
The Supreme Court has often ruled that certain powers are reserved to the states simply because they are not found in the U.S. Constitution; but what I find lacking in the Court’s logic is an acknowledgement that the state don’t have every power not given in the U.S. Constitution, they have only those powers given them in their respective stateconstitutions. The court seems to conveniently forget “the people.” (Of course, “the people” know none of this is going on because “the people” don’t usually read SCOTUS rulings -- except a few Breakfast Clubbers).
The Court occasionally rules that the national government simply lacks the power it is trying to implement, not necessarily that it is a reserved power of the states. An example: the Gun-Free School Zones Act of 1990 mandated a "gun-free zone" on and around public school campuses across the country. In United States v. Lopez (1995), the federal government claimed the gun-prohibiting power was to be found in the Constitution’s Commerce Clause. Without specifically mentioning the Tenth Amendment, the Supreme Court ruled that there was no clause in the Constitution authorizing such a power. And so, the GFSZA was struck down, replaced two years later by a new law that did the same thing, claiming a different origin for the power.
If “the people” could ever figure out how to speak with one voice, I think they could be more powerful than even Joe Biden’s “we’ve got nukes” federal government. Granted, that’s a big “if,” but I can dream, can’t I?
Prepared by: Gary R. Porter, Executive Director, Constitution Leadership Initiative, Inc., for The Breakfast Club.
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