LF: Bill of Rights Day: A Day of Mourning

Editor’s Note: Bill of Rights Day is December 15th. But as Kevin Gutzman points out in this article, originally published December 14, 2009, it’s not a day of celebration. Instead, it should be a day of mourning for the death of decentralized self-government.

In 2008, the Supreme Court of the United States decided Kennedy v. Louisiana. In that decision, the Court created a new categorical right to rape a child without receiving the death penalty.

Although the majority made mention of the Eighth Amendment’s prohibition of “cruel and unusual punishment,” no one really believed that this new right had any basis in the Constitution. The Court majority claimed that its decision reflected a new societal consensus, despite the fact that six states and, as it turned out, Congress recently had adopted legislation providing capital punishment for certain child rapists. The dissenting justices said that the actual basis of the Kennedy decision was “the Court’s ‘own judgment’ regarding ‘the acceptability of the death penalty,'” but the majority opinion made clear that the Court simply differed with the people’s representatives on the question how significant rape of a child is.

In other words, the justices substituted their legislative will for that of elected legislators. Alas, there was nothing unusual about this.

Kennedy v. Louisiana illustrates what has come of the Bill of Rights in our day.

The Bill of Rights should be mourned, not celebrated. It is defunct. Intended as the bulwark of the right of decentralized self-government, it now serves mainly as an excuse for the opposite: a roving judicial veto of state policies that federal judges dislike.

So, if the people of virtually every state ban flag burning or regulate abortion, provide capital punishment or support prayer in school, that does not settle the matter. Unlike 200 or 100 years ago, today the federal judiciary is apt to step in to stop state legislatures from adopting policies like this.

The purpose of the first ten amendments was laid out clearly by their Preamble. “Preamble?” You might ask. “What preamble?” Although the main body of the Constitution is never published without its Preamble, one could study American history for a lifetime without ever encountering the Preamble to the Bill of Rights.

That Preamble says that Congress is recommending amendments to the states because a number of states in ratifying the Constitution “expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.” Since the people were afraid of the new Federal Government, that is, the Bill of Rights was being added to hedge in the powers of the Federal Government more carefully.

So, for example, the Tenth Amendment stated what Thomas Jefferson called the underlying principle of the entire Constitution: “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.” In other words, the Constitution gave the Federal Government a few enumerated powers, and those were all.

That is why the First Amendment begins by saying that, “Congress shall make no law.” Congress, not government generally. The point was to leave such questions in the hands of elected state legislators.

America’s Revolution was fought and won in the name of self-government via elections to state legislatures. King George III and Parliament insisted that those legislatures could legislate only when and as far-off officials essentially unaccountable to American colonists said they could. The Americans rejected that idea. In fact, rejecting that idea was what made Britain’s North American colonists into Americans.

No surprise, then, that six years after the Revolution ended, in the First Congress, the people insisted that the principle of local self-government “” of federalism “” be made explicit through the Tenth Amendment and the other nine. They wanted explicit statements that the distant new Congress could not violate Americans’ most cherished rights “” rights the king and Parliament had repeatedly infringed.

This was an uncontroversial understanding of things in the Constitution’s first century and more. The Supreme Court unanimously said in 1833 and thereafter that the Bill of Rights was a limitation solely on the Federal Government.

But the 20th century saw a great change. The Progressives of the early part of the century opposed constitutional limitations on government power generally, and the New Deal of the 1930s stood for the elimination of the Tenth Amendment from constitutional law. Congress’s power is essentially unlimited today, and federal courts have come to supervise virtually all state policies – essentially on the basis of federal judges’ policy preferences.

No one today even pretends that the Bill of Rights serves its intended purpose of restraining the Federal Government. Quite the opposite. And the death of decentralized, election-based government is entirely lamentable.

BILL OF RIGHTS DAY, 2015
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BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION

The ratification of the Bill of Rights on December 15, 1791, marked one of our country's earliest and most important steps toward ensuring that the ideals enshrined in our founding documents are the birthright of all Americans. Written to guarantee our fledgling Nation would never succumb to the tyranny it fought against, these first 10 Amendments to our Constitution help safeguard the bedrock principles of equality, liberty, and justice. In the years since, America has carried forward the spirit enshrined in the Bill of Rights -- recognizing that freedom is a value we must forever work to uphold.

Each generation is tasked with continuing the work of perfecting our Nation. In the 224 years since this codification of our most fundamental freedoms, America has been propelled by the persistent effort of her citizens -- people from all walks of life who have accepted the challenge of pushing to expand liberty to all. The same American instinct that sparked our revolution and spurred the creation of the Bill of Rights still inspires us to step forward to defend our founding ideals. It is what inspired a groundbreaking convention in Seneca Falls, drove courageous people to march in Selma, and started a transformative movement for LGBT rights at a bar in New York City. Generations of heroes who believed America is a constant work in progress have advocated and sacrificed to realize that progress and have worked to uphold the belief at the heart of the Bill of Rights: Free men and women have the capacity to shape their own destiny and forge a fairer and more just world for all who follow.

Today, we stand on the shoulders of those who dedicated their lives to upholding the meaning of our founding documents throughout changing times -- a mission made possible by the fundamental liberties secured in the Bill of Rights. As we reflect on the strides we have made to lift up an engaged citizenry, we pay tribute to the extraordinary foresight of our Founders who granted the protections that enable us to bring about the change we seek. Let us recommit to continuing our legacy as a Nation that rejects complacency, empowers its citizens to recognize and redress its imperfections, and embraces the struggle of improving our democracy so that all our people are able to make of their lives what they will.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim December 15, 2015, as Bill of Rights Day. I call upon the people of the United States to mark this observance with appropriate ceremonies and activities.

IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of December, in the year of our Lord two thousand fifteen, and of the Independence of the United States of America the two hundred and fortieth.

BARACK OBAMA

Thank God that no special rights for gay community organizers, ended up in the BOR.

The problem with the Bill of Rights and complaints about the demise of state power to trump Federal judges is the same one that everything always comes back to: history.

In American history, the Declaration of Independence was made, the Constitution was set up, the Bill of Rights adopted, the government began...and a quarter of the population were still chained black slaves.

Almost 100 years after that, about a quarter of the population was STILL black slaves.

Now, it's true that the slavery issue by that time was such a glaring contradiction that Americans divided and fought on account of it, but the truth of the Civil War is that the slaves were not freed constitutionally. The Civil War was not constitutional as such. It was, rather, a complete breakdown of the Constitution, with the Union winning the war under the management of a quasi-dictatorship. Habeas corpus and the like were suspended. The slaves were freed by executive order, without compensation to the slaveholders.

The Constitution was set aside, the war was fought, the slaves were freed, the Constitution was amended - under duress - and then the Constitution was picked back up again and started functioning again.

But EVEN THEN fierce segregation, protected by "states rights", endured ANOTHER 100 years until, once again, having to be crushed down by federal power, this time the courts backed by the occasional deployments of federal troops.

One looks back across the whole sorry record of the treatment of blacks, from slavery to segregation, and one realizes that the Bill of Rights NEVER worked. The Constitution was used to protect the states' desire to oppress the rights of substantial numbers of their citizens.

This is why the "pure" states rights argument always fails. Yes, the IDEA was that the states would be sovereign in their sphere, but what they did in their sphere was a massive crime against humanity, and when beaten down on account of it, the states PERSISTED, for another century, in using the shield of states rights to STILL crush out the equal protection under the law of a substantial oppressed minority of the people.

And given the behavior of the police, there is no good reason to believe that state and local government have learned a damned thing even to our day.

So we CAN'T simply follow the Constitution as written, because if we DID, we would still have a major portion of the population in chains.

We had to modify the experiment to get to something more just. Unfortunately, the modifications don't work too well either. They concentrate too much power over everything else NOT involving personal liberty. So, the blacks are free, thank God, but then the whole economy is bound up in special interest rules made by the federal gov't and imposed on all.

In American history, the Declaration of Independence was made, the Articles of Confederation was adopted creating a union of 13 states, and a government was set up pursuant thereto. Eight Presidents [of the United States in Congress Assembled] were elected under the Articles of Confederation.

The Constitution was adopted creating a union of 11 of the original 13 states, and a government was created pursuant thereto, with George Washington being elected President of the union of 11 states, 10 states participating. Six months later the 12th original state [NC] joined and another six months after that, the 13th original state [RI] joined.

Under the Articles and under the Constitution, slavery was lawful and protected. George Washington, who presided over the constitutional convention, was a slaveowner when the Articles were adopted, he was a slaveowner when the Constitution was adopted, he was a slaveowner when he died, and his will left his slaves, in slavery, to his wife.

Neither the Declaration of Independence, nor the Preamble to the Constitution, nor the preamble to the Bill of Rights have ever been considered law.

The Emancipation Proclamation did not free any slaves. It proclaimed slaves to be free only in the Confederate states, and only in those counties not occupied by Union forces, and exempted all of Tennessee.

Slavery continued after the Civil War, in the Union or Northern states which had never been affected by the Emancipation Proclamation. It was terminated by the 13th Amendment.

The broad picture remains: whether the Declaration of Independence was considered "law" or not is really quite irrelevant. In the bigger picture, the PURPOSE of the Declaration was to justify treason and murder, because that's what making war on your own government and your own countrymen is. The colonists decided they had had enough, so they committed treason, which resulted in the mass murder of war.

Their JUSTIFICATION for treason and murder was that "all men are created equal...etc." That's what they wrote and declared. Take that away, because it's not legal, and what were the colonists doing? Murdering people so that they could steal property and set themselves up in charge. They were a bunch of thugs and killers, like a drug cartel in Colombia. And they won.

The Declaration of Independence, by stating lofty REASONS for declaring independence, gave a justification for treason and murder. The justification was compelling enough to actually JUSTIFY the treason and the murder.

Trouble is, it was a lie. It was always a lie. The Americans declaring those things never intended to free a quarter of the population. They meant to steal the British property, put themselves in charge, and were willing to murder everybody who stood in their ways. After the war, the drove the Tories to Canada, seized their property also, and continued to hold slaves.

So, yes, the Declaration of Independence was not really a legal document - Americans certainly never considered it binding. And the Americans were lying through their teeth before the world when they declared that their principles were "all men are created equal" - yadda yadda. They never, ever intended to be bound by that, they WEREN'T bound by it. Rich Americans intended to put themselves in charge and replace the king, and a third of the population was willing to commit mass murder to do it. And they did. And they won. The bad guys won the American Revolution. That's what happens when you knock out the Declaration of Independence: the Founders are reduced to murderous plutocrat thugs.

This is why slavery is the fly in the ointment. It puts the lie to all of the American declarations until the immediate post-war amendments - which were shoved back down by the majorities - and which didn't really get full effect until the 1960s.

And it's why States Rights will never be what they were under the original Constitution: because the states abused the hell out of the black minorities, twice - before the war and after it - and proved that states cannot be, and never again will be, trusted with the sort of sovereignty to let them do that.

The worst crime in American history was slavery. And TO THIS DAY there are many Americans, particularly self-described "conservatives" who will not face the crime eye to eye. Many of them are racists who agree that blacks SHOULD be kept down, because they're ghetto apes, etc. Others are just naive.

Either way, they will pine away in vain for the Constitution as written, because the Constitution as written was evil and had to be destroyed in a civil war. The evil at the heart of it was the callous indifference to slavery, and the power structure that let states choose if they wanted to oppress people en masse like that or not.

A lot of blood was shed to change that, and that blood and the effort grabbed control of the government and changed things. Some of the change was in written law - amendments to the Constitution, but more important was the culture shift in which a new majority was put together that simply will not let the old structures rise again, because they were evil, and because there are so many unreconstructed conservatives out there who will not admit it, and who still viciously hate blacks and say so.

Therefore, the hard lines of war are still drawn, and my side is going to keep on oppressing the neo-Confederates until the end of time or the end of the nation, whichever comes first. The bad guys never get to win again. And if the law and the Constitution says they do, then we change the law and the Constitution if we can - and disregard the law and Constitution if we can't - to get to the right result.

In THIS regard, we are exactly like Washington and Adams and the like. There is a law. If it's good, we follow it. But if it's bad, if it goes back to the old oppression, we try to change it - to a point - but if it won't give way, because the people supporting it are assholes and racists - then we ignore the law and do what is right, and rely on the superior force of arms to impose our will.

That's how the Founders got a country, and it's how the slaves got free and segregation ended.

All of those efforts spent minutely studying the law, trying to find an angle to slip back in what amounts to a re-empowering of the states to reinflate their "we can discriminate against whom we choose" past are wasted time, because if you win on the law, we change the goal posts and refuse to enforce it, or just reinterpret the law to mean what it needs to mean so that the neo- Confederates never ever win.

There is a proper answer. It's great if the legal process gets you there, But if it doesn't, you simply use the institution to override the law, do the right thing, and then rewrite the law retroactively.

The conservative argument dies on the vine if the principles of the equality espoused in the Declaration of Independence are not treated as binding. The majority of us are going to enforce them as binding and make them the law even if the law says otherwise. And where the law does say otherwise, then Nelson puts his blind eye to the telescope and says that the law says the RIGHT answer, as oppose to what it says.

The law got on top of a quarter of the population and tormented them in chains for century. To break those chains required breaking the law in many places. So we did. The law can be patched back together, and has been, but in the end the result is more important than the rule.

Presidential Proclamation -- Bill of Rights Day, 2015