[LC: Photographs Div; Theodor Horydczak]
In 1787, the Congress of the newly formed United States met to discuss changes in the Articles of Confederation. What resulted was a complete redrafting of the Constitution under a Federalist system. The new document contained 7 Articles outlining the duties and responsibilities of the federal government. It was written very specific on certain issues to clearly define the duties and restrictions of the federal government. It was written vague on other issues as to leave enough uncertainty that the matter should be defined by the individual states.
Some of the original signers of the Constitution actually refused to sign it. When a guarantee was made that if they would sign the document to be referred to the people for ratification, the first order of business would be to write a "Bill of Rights" defining individual rights of the people.
It then it became a responsibility of those who were stressing the federalist government to sell the American people on the idea. From this came the Federalist Papers which were written in order to be reassurances to the people that they would have specific rights and the government would be limited in scope.
Then as promised, the first Congress took up the matter of adopting a "Bill of Rights". Ten Amendments were written into our founding document which outlined specific rights and limitations on the government. The catch all of these rights as defined by our first Congress was the 9th and 10th Amendments.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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.
[L. of C; Prints Div-035-n.com]
"I...affirm that bills of rights...are not only unnecessary...but would even be dangerous. They would contain various exceptions to powers, which are not granted; and on this very account, would afford colourable pretext to claim more than were granted. For why declare that things shall not be done
which there is no power to do?"
I doubt that Hamilton would fully understand exactly how prophetic this actually was.
[J. Madison; Hamilton's collaborator]
And everything was fine until the Civil War. In the wake of the war, while it was still being fought as a matter of fact, several more Amendments were added outlawing slavery within the Union and conferring the full rights and benefits of citizenship to the newly freed slaves. The most prominent of which was the 14th.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,4 and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Fast forward to the twentieth century and Justice Hugo Black and other liberal activists on the court under the spell of the newly formed American Civil Liberties Union. It then became fashionable to attempt to apply the restrictions and requirements that the Bill of Rights holds the federal government to on the states.
Robert S. Sargent, Jr wrote in his essay about Hugo Black the following:
In 1868, in order to protect ex-slaves, the 14th Amendment did apply certain rights that the states couldn't intrude upon: "Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Somehow Hugo Black, in his dissent in Adamson v. California (1947) found this to mean that all the rights enumerated in the Bill of Rights applied to the states: "My study of the historical events that culminated in the Fourteenth Amendment...persuades me that one of the chief objects that the provisions of the Amendment's first section were intended to accomplish was to make the Bill of Rights applicable to the states." One must ask, if this was one of the "chief objects," why didn't they put it in the text? (For a scholarly, devastating refutation of this interpretation of "the original purpose," see Raoul Berger's book on the 14th Amendment, "Government by Judiciary.")And the culmination of this happens in 1973. In the Roe v Wade decision, the court decided that a medical procedure regulated or banned under state law was not valid because it did not protect a woman's right to privacy in what happens to her body. In other words, the Warren court decided that a state law, in a state matter, was invalid because it did not protect the privacy of the individual.
This concept of "Incorporation Theory" goes against the idea of federalism envisioned in the Constitution. Now that Justice Black's dissent is accepted jurisprudence, state laws can be reviewed in federal court, which means that the Supreme Court now decides what our rights are. The 9th Amendment in its original sense is now irrelevant.
Privacy - I can't find it in the Constitution anywhere. The ACLU claims that it's there. Some liberal Senators would have you believe that it is there, but I can't find it. The words right to privacy do not exist in any of the 7 Articles or 26 Amendments of the Constitution. Neither is federal regulation of medical procedures. But under the Hugo Black mentality and approach to applying the restrictions and powers of the federal government to the states and making state laws subject to federal review, has now greatly expanded the reach of the federal government.
And if we can expand the federal government to so that states laws are reviewable in the federal judiciary, why not expand the reach of the Establishment Clause. And as such, the ACLU in its arguments have consistently tried to apply the restriction on the Congress of the United States to the individual states and local governments.
~Hamilton was right....
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