Influenced by the English Bill of Rights of 1689, the Bill of Rights was also drawn, as mentioned above, from Virginia's Declaration of Rights, drafted by George Mason in 1776. While Mason refused to sign the Constitution drafted in Philadelphia, in the ratification struggle that followed, Mason and other critics agreed to support the Constitution in exchange for the assurance that amendments would be passed immediately. While our Bill of Rights was indeed strongly influenced by the plight of the British to limit the "divine" power of the King in their lives and the many charters of freedom they extracted from their rulers, James Madison saw one very important difference between those documents and the Constitution: "In Europe, charters of liberty have been granted by power. America has set the example of charters of power granted by liberty."
On December 15, 1791, Virginia became the 10th of 14 states to approve 10 of the 12 amendments, thus giving the Bill of Rights the two-thirds majority required by Article V of the Constitution to go into effect. Finally, the rights held most dearly by free men would not merely "rest on inference."
In the end, the anti-Federalists won the day.
Of the two amendments not ratified, the first concerned the population system of representation, while the second prohibited laws varying the payment of congressional members from taking effect until an election intervened. The first of these two amendments was never ratified, while the second was finally ratified more than 200 years later, in 1992.
In 1789, the new Union of States was established under the US Constitution. Its enumeration of limited powers was intended to provide a basis for unity but the flexibility the states sought to remain the sovereigns they wanted to be. As Thomas Jefferson explained to Joseph Cabell in 1816: "The way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to everyone exactly the function he is competent to. Let the National Government be entrusted with the defense of the nation and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man's farm by himself; by placing under everyone what his own eye may superintend, that all will be done for the best."
Thomas Jefferson
While many Americans are familiar with the Bill of Rights and especially the ones that we hear often in the news and on pop culture law enforcement shows, no one mentions the preamble to the set of ten amendments ratified on December 15, 1791. The Preamble to the Bill of Rights reads: "The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution." We see that the first ten amendments are intended to be "declaratory and restrictive clauses." This means they supersede all other parts of our Constitution and restrict the powers of our Constitution. The Bill of Rights is a declaration of restrictions to the powers delegated to the federal government. While amendments one through eight (1-8) have some historical context and many are direct and almost verbatim texts from British compacts/charters, the Ninth and Tenth Amendments are uniquely American.
Why is it that we never hear anyone refer to this phrase when looking for support of states' rights? This is probably the clearest expression of intent by the States to have the government respect their bulk of reserved sovereign powers.
The Bill of Rights was meant to prevent a repeat of the abuses that compelled our forefathers to take up arms. It was meant as a shield to protect the people against tyranny, so that the sacrifices and bloodshed by our forefathers would not be in vain. History is repeating itself, and once again, a free people is engaged in the endless struggle between good and evil, between liberty and tyranny. Just like colonial times when a group of liberty-minded folks - the Sons of Liberty - emerged from the People to remind them of this struggle, the modern-day TEA party and other Liberty-minded groups have emerged to do the same thing. And like the Sons of Liberty, which started out as a small group of "agitators" in the several colonies, the Tea Party and other Liberty-minded groups are growing in number as well. The problem in confronting the steady consolidation of power by the federal government has been the reluctance of states to stand up to their one-time "agent" (now their "master"). Too many state leaders ignore their oaths of allegiance to the US Constitution and ignore the Ninth and Tenth Amendments - the very amendments they fought so hard in convention for. They question their right to second-guess the decisions of the federal government. That's like a 12-year-old bossing his parents around and the parents capitulating because they don't feel they have the right to second-guess his actions or constrain his conduct. When we have leaders who are supposed to be "on our side" - on the side of limited government and maximum liberty - but don't fundamentally believe in our core conservative and government principles, then we have a problem. We have this problem in my home state of North Carolina.
North Carolina has a proud history of standing up against government oppression. It was the first state to push for a Declaration of Independence from Britain, it was the first state to authorize its delegates to vote such a Declaration, and it refused to sign the Constitution unless it was amended (to make sure power could not be concentrated in a federal government). And while Virginia (the home of Thomas Jefferson, James Madison, George Washington, and Patrick Henry) proposed twenty alterations to the Constitution and a separate Bill of Rights consisting of twenty items (modeled on George Mason's 1776 Virginia Declaration of Rights), North Carolina said they still weren't good enough and wanted an additional six amendments. North Carolina didn't want to secede from the Union in 1861, but given the choice between being forced by President Lincoln to take up arms and use them on its southern neighbors (who had seceded peacefully and established a new nation), it chose to respect the freedoms laid out in the Declaration of Independence and Constitution and sever its political bonds with the federal government. With a history so rich and distinguished, it is a sad state of affairs when state leaders announce that they are powerless to question the actions of the federal government even when they know full well that the actions of our current administration are equally egregious to those committed by King George back in the 1770's.
Other states have a similar history of freedom and have contributed greatly to our shared values and principles. What's more, some of these states are beginning to re-assert their sovereignty under the 10th Amendment, as well as their "express desire" to "restrict the misconstruction" and "abuse" of federal powers, as they did when they adopted the Preamble and the Bill of Rights in 1791. For example, the Montana state house passed a State Sovereignty resolution (House Joint Resolution H.J. 26) to assert state rights and define the "line in the sand" which separates the "numerous and indefinite" sovereign powers of the state from the "limited and defined" sovereign powers of the federal government. ["The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." James Madison, Federalist Papers No. 45] The Resolution declared that Montana would jealously guard certain rights and would not tolerate the government intruding in them.
In a time when the government is more concerned with its own existence and power than with protecting the rights and interests of a free and sovereign people, I would suggest that more states need to adopt resolutions like the one Montana endorsed (although the state senate did not pass) and draw that "line in the sand" and reverse the injustice that has been done to the American people over the last 145 years or so. That line in the sand is necessary to re-establish the proper balance of power between the government and the states that the Constitution, and the Bill of Rights, established in order that individual freedom is most firmly secured. It is necessary, as James Madison himself came to understand and appreciate, to maintain the strength of the individual states to "obtain the confidence of our fellow citizens, in proportion as we fortify the rights of the people against the encroachments of the government."
Thomas Jefferson probably said it the best: "When injustice becomes law, rebellion becomes a duty."
A State Sovereignty Bill that my state of North Carolina should consider is as follows:
MODEL LEGISLATION AFFIRMING STATES' RIGHTS AND CONDEMNING ENCROACHMENT OF THOSE RIGHTS BY THE FEDERAL GOVERNMENT AND EXECUTIVE ORDERS
The government of the great State of North Carolina re-acknowledges and re-asserts the following:
(1). The Constitution of the State of North Carolina declares that all political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole, and that the people of North Carolina have the inherent, sole, and exclusive right of regulating the internal government and police thereof, and of altering or abolishing their Constitution and form of government whenever it may be necessary to their safety and happiness; but every such right shall be exercised in pursuance of law and consistently with the Constitution of the United States.
(2). The aforementioned "inherent and exclusive right" may never be expressly delegated to the United States Congress.
(3). The Constitution that is legitimately recognized by the State of North Carolina is the one interpreted according to the intent of its creation, defined by Federalist Papers, limited by the understanding of the states and assurances given them when they signed the document in their Ratification Conventions, limited by the express language included in the Preamble of the Bill of Rights, limited by the full scope of each amendment comprising the Bill of Rights (including the Ninth and Tenth Amendments), limited by the essence of the Supremacy Clause (only those laws pursuant to a valid constitutional exercise of authority are supreme; all others are not), amended strictly and legitimately according to Article V, and spirited by the federal design of our government system (which is our most critical of checks and balances).
(4). The People of North Carolina together form a free, sovereign, and independent body politic (ie, a state) by the name of "The State of North Carolina."
(5). The People of North Carolina agree that all powers not expressly delegated to the federal government in the United States Constitution and Bill of Rights must be reserved and exercised by individual states or by themselves.
(6). Although North Carolina became an independent and completely sovereign state on December 18, 1776, it freely entered into the federal Union on July 21, 1778 when it adopted the Articles of Confederation for mutual benefit and security ("Join or Die") and re-committed itself to the Union on November 21, 1789 when it became the twelfth state to ratify the US Constitution.
(7). When North Carolina agreed to join the Union, it did so by social compact. In signing the Constitution, it established a social compact (or contract) with its fellow states, to delegate certain common functions to a common, federal government in order to act like a Union of states instead of 13 independent states.
(8). A social compact must be implemented consistent with the terms and understandings in place at the time it is entered into.
(9). Legally, a compact, like a contract, is valid only when the terms defining the responsibilities, burdens, and benefits of that agreement are still in place. Once the terms are materially altered, the contract no longer legally binds the parties.
(10). One important term of the contact is the protection of states' rights, as reflected in the 10th Amendment ("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 government of the great State of North Carolina, on behalf of its People and for their protection and liberty interests, declares the following political posturing with respect to the federal government:
(1). That the federal government was created and vested with specified powers that are "limited and defined" for the general management of the independent states but not for the internal regulation of their people and their affairs; the latter are matters rightfully left to the states themselves. To assume otherwise would be to define the government as a national one; yet that scheme was roundly rejected by the states.
(2). That the several states of the United States, and particularly the State of North Carolina, are not united on the principle of unlimited submission to general government; rather, by ratifying the federal Constitution and Bill of Rights, they designed, created, and constituted a general government for special purposes and delegated to that government certain definite powers, while reserving to themselves all other rights.
(3). That when the general government assumes undelegated powers, its acts are void and of no force; they are unenforceable by the states.
(4). That the government created by the federal Constitution and the Bill of Rights was not granted the right to determine the extent of the powers delegated to itself, since that would have made its discretion, and not the federal Constitution and Bill of Rights, the measure of its powers.
(5). There are various examples of constitutional over-reach and abuse by the federal government which have already burdened the sovereign rights and interests of the State of North Carolina, as well as its People, including:
(a) the federal power to punish crimes, under the Constitution, is limited to treason, counterfeiting of the securities and current coin of the United States, piracies, felonies committed on the high seas, offenses against the law of nations, and slavery. The government is not authorized to punish any other crimes, and the Constitution been amended to include others. Therefore, all acts of Congress that assume to create, define, or punish crimes, other than those enumerated in the federal Constitution, exceed the scope of the federal compact and are void and of no force. The power to create, define, and punish other crimes is reserved by the states.
(b) the individual rights of freedom of religion and conscience, freedom of speech, and freedom of the press are beyond the reach of the federal government and therefore reserved to the states or the people, allowing states the power to judge the appropriate scope of each right. All acts of Congress and decisions of the federal courts that abridge freedom of religion, freedom of speech, or freedom of the press violate the federal compact and are not law and are void. [Furthermore, the Supreme Court introduced a legal fiction - the "Wall of Separation" doctrine - into First Amendment jurisprudence to abridge the right of religion and thereby frustrate the states in their ability to legislate morality, which is a legitimate state police power].
(c) the power over the freedom of the right to keep and bear arms was reserved to the states and to the people, allowing states the right to judge how far infringements on the right to bear arms should be tolerated, rather than allowing that exercise to be defined by Congress. All acts of Congress and decisions of the federal government that attempt to abridge this freedom will violate the federal compact and will be deemed null and void and unenforceable.
(d) that Congress has usurped the meaning of certain phrases of the federal Constitution, such as those phrases that delegate to Congress a power "to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States" and "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof," in order to unilaterally concentrate its powers and destroy the limits placed on its authority.
(e) that Congress and the President have usurped the Constitution's war powers. The Constitution divides war powers between the Congress and the President. This division was intended by the framers to ensure that wars would not be entered into easily or unnecessarily send our citizens into battle. The Constitution's division of powers leaves the President with some exclusive powers as Commander-in-Chief (such as decisions on the field of battle) and Congress with certain other exclusive powers (such as the ability to declare war and appropriate dollars to support the war effort). The federal government has committed US forces without formal declarations of war. With such laws as the Military Authorization Act and National Defense Authorization Acts, the government has done an end run on the Constitution by declaring an undefined "war on terrorism" (where "terrorism" is not a defined enemy or country, but a "tactic") and extending the battlefield to our very United States. By defining the US as a battlefield, the government is claiming it has the power to apply the laws of war over the protections of the Bill of Rights.
(f) that the federal government has created a new power for itself - the power to declare American citizens as "enemy combatants" in order to detain them indefinitely and suspend the protections protected for them in the Bill of Rights. "Enemy combatants" are defined by the government as those who fight or engage in hostilities against the United States. What constitutes conduct that justifies "enemy combatant" status is not clear. It appears that the US Constitution already addresses the situation where an American engages in hostilities against the United States or gives aid and support to an enemy. It is called "treason" and is addressed in Article III, Section 3. The government is already given the power to deal with treason and is given precise guidelines to prosecute traitors. The National Defense Authorization Act (NDAA) relies on this "new" (and unconstitutional) power in order to expand the government's defense power.
(g) that the federal government was created to perform common functions for all states and not to use its powers to spy on American citizens, such as patrolling the skies with drones, monitoring speech, evaluating the extent of property, and establishing political profiles.
(h) that the US Supreme Court exceeded its power under Article III of the Constitution in the healthcare decision of June 28, 2012 (National Federation of Independent Business v. Sibelius) by expanding Congress' taxing power rather than confining it within the scope of Article I, according to the intent of the provision (James Madison believed that the true meaning of the Constitution was to be found in the state ratifying conventions, for it was there that the people, assembled in convention, were instructed with regard to what the new document meant. Thomas Jefferson agreed as well. He said: "Should you wish to know the meaning of the Constitution, consult the words of its friends."). With the decision, the Supreme Court re-characterized the Individual Mandate as a tax and not a "penalty" (as Congress itself defined) and said Congress is within its power "to impose a tax on those who have a certain amount of income but choose to go without health insurance." The decision seems to disregard the fairness notion of "equal application of the laws." While the government does not have the power to order people to buy health insurance, the Court says it has the power to impose a tax to force people to do so. In other words, the decision says that the government has unlimited power to use its taxing power to coerce Americans into conduct it desires; it has unlimited power to control every economic decision that every individual makes. This is a grave violation of the Liberty guarantee outlined in the Declaration of Independence. [There is another constitutional violation. Article I, Section 7, clause 1 of the Constitution say that all bills that raise revenue must originate in the House. The healthcare bill, which includes at least 21 embedded taxes to raise revenue to fund the healthcare scheme, originated in the Senate, as H.R. 3590. Reminded of the offensiveness of the Stamp Act of 1765, imposed by King George, the Founders drafted the Constitution to require that taxes and tax increases originate in the House of Representatives. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. In Federalist No. 58, James Madison defended the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue. The Supreme Court, as part of the system of checks and balances, was supposed to "check" the legislative branch on this violation of the Constitution]
(i) that the federal government has used its taxing power to control and coerce states, and in general, to undermine the powers of the States to regulate under the Tenth Amendment. If the federal government has the ability to provide funding to the States for projects and policies that it wants to promote (federal grants which are "conditioned"), then it is taxing Americans too heavily. Under concepts of federalism, the government should reduce its federal income tax rate and allow the states the ability to increase its state taxation rate in order to raise the funding for its own projects. This way, states can spend money the way it sees fit for its own people and circumstances and not as the federal government demands.
(j) That the Executive is using Executive Orders to usurp the legislative powers of Congress when its constitutional powers are limited to those of executing the laws. As such, many Executive Orders violate the Separation of Powers and blatantly violate the Constitution.
(k) that the federal government used the events of the secession of the southern states and the Civil War to illegally and unconstitutionally erode the sovereign powers of the individual States. The events leading up to the Civil War and then Reconstruction were so marred with unconstitutional violations that it can be argued that the government and its actions during that time were illegitimate in many respects and therefore not binding on the respective parties (ie, the States). [For example, President Lincoln took extraordinary liberties with the office of the Presidency in initiating the Civil War and suppressing opposition, in violation of the Constitution - such as ordering actions to initiate hostilities and suspending habeas corpus and having Americans put to death for exercising freedom of speech. Congress, after the fact, sought to affirm those violations on July 11, 1861 with a Joint Resolution in which it declared Lincoln's "extraordinary acts, proclamations, and orders" to be "legal and valid" and "necessary for the preservation of the government." The preservation of government was what was at stake with the signing of the Constitution. Restraining government on the States and the People was. The government cannot violate the Constitution in order to claim to uphold it. The government itself cannot use the Constitution to seek its own immortality.
(l) that there are numerous other examples of government constitutional over-reach.
