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Title: Why the Bill of Rights Is Failing
Source:
Mises Wire
URL Source: https://mises.org/blog/why-bill-rights-failing
Published: Dec 17, 2016
Author: Ryan McMaken
Post Date: 2016-12-17 18:06:59 by Hondo68
Keywords: population is willing to, accept more state control, over their lives
Views: 12878
Comments: 36
225 years ago today, the first ten amendments were added to the new Constitution of 1787. Those amendments have come to be known as the Bill of Rights, and taken as a whole, these amendments represent what can only be described as one of the few parts of the Constitution worth applauding today.
While most of the Constitution is concerned with centralizing government power, raising tax revenue, protecting the institution of chattel slavery, and hammering the independent states into a consolidated political union, the Bill of Rights, on the other hand, was concerned with limiting government power:
Bizarrely revered by many as a "pro-freedom" document, the document now generally called "the Constitution" was originally devoted almost entirely toward creating a new, bigger, more coercive, more expensive version of the United States. The United States, of course, had already existed since 1777 under a functioning constitution that had allowed the United States to enter into numerous international alliances and win a war against the most powerful empire on earth.
That wasn't good enough for the oligarchs of the day, the crony capitalists with names like Washington, Madison, and, Hamilton. Hamilton and friends had long plotted for a more powerful United States government to allow the mega-rich of the time, like George Washington and James Madison, to more easily develop their lands and investments with the help of government infrastructure. Hamilton wanted to create a clone of the British empire to allow him to indulge his grandiose dreams of financial imperialism.Fortunately, there were some who stood in the way of the people we now refer to as "the Founding Fathers." They were the anti-federalists — the good guys who stood against Washington and his friends — and who demanded a Bill of Rights before they would even consider ratifying the new Constitution.
In the end, however, the Bill of Rights was far weaker than it should have been. It was, essentially, just a bone the Federalists threw to the opposition in order to get the new Constitution ratified. The anti-Federalists, after all, couldn't even conceive of a federal government as enormous, bloated, and powerful as the US government is today. Living in a world where the individual state governments were both highly democratic and powerful in relation to the central government, the anti-Federalists figured they had enough tools at their disposal to prevent the sort of centralization that has taken place over the past two hundred years. The optimistic anti-Federalists were, unfortunately, wrong.
But, there was much more than could have been done had the anti-Federalists insisted. William Watkins offers some insights today into what could have been:
The state conventions that ratified the Constitution suggested over 200 amendments to the Constitution to cure structural problems. For example, Virginia offered a lengthy amendment on the judicial power. The proposal, in the main, would have limited the federal judiciary to the Supreme Court and various admiralty courts established by Congress. State courts would serve as the trial courts of the Union with the possibility of appeal to the Supreme Court. Virginians rightly feared that the federal judiciary would become an engine of consolidated government and sought to limit its power.
Massachusetts feared the new power of taxation in the federal government. Massachusetts, through the pen of John Hancock, offered a proposal that would have prohibited Congress from levying direct taxes ... As a check on the national government, Massachusetts wanted the states to retain some control on Congress’s demands for revenue.
Massachusetts also proposed an amendment dealing with concerns about inadequate representation. Massachusetts asked that the Constitution be amended to guarantee “one representative to every thirty thousand persons . . . A ratio in excess of one representative for every 30,000 people would not, in Massachusetts’s opinion, be a true and viable representation. How disappointed would Hancock and Company be to see that today we average 1 representative for about every 750,000 person. Do we have truly representative government? Not in the eyes of the patriots from Massachusetts who understood that true representation can only take place on a human scale.
[RELATED: "The US Should have 10,000 Members of Congress"]
Rather than sitting back today and mindlessly celebrating the “high temple” of our constitutional order, Americans should dust off copies of the substantive amendments proposed by the state ratifying conventions but ignored by Madison and the Federalist majority in the first Congress. (Massachusetts’ Amendments, Virginia’s Amendments, New York’s Amendments, North Carolina’s Amendments).
The Bill of Rights Means Nothing Without the Liberal Ideology Th[at] Produced It
Better, more limiting, and more numerous amendments may indeed have been helpful.
But, no law written on parchment can control the size and scope of government if the population is willing to accept more state control over their lives.
The fact remains that the American public generally tolerates countless violations of the Tenth Amendment, the Ninth Amendment, the Sixth Amendment, the Fourth Amendment, and the Second Amendment. The federal government routinely seizes private property without due process, fails to provide for speedy trials, passes federal gun control laws, and invents powers for itself that are reserved to the states and the citizens alone. Even the First Amendment is now being targeted by the feds who are the throes of limiting freedom of speech and freedom of the press by labeling objectionable ideas as "fake news" and thus not so-called protected speech.
These attacks will be tolerated if the public is willing to go on doing so. After all, the Bill of Rights itself never actually limited government power. Government power — to the extent it has actually been limited — was limited because citizens valued the ideas reflected in the Bill of Rights.
Once the public abandons the ideology behind the Bill of Rights, then the Bill of Rights will cease to mean anything, even if it still ostensibly remains in force.
Not surprisingly, as the public ideological views have changed, the Constitution has failed to limit the power of the central government. Murray Rothbard observed this long ago when he wrote:
From any libertarian, or even conservative, point of view, it has failed and failed abysmally; for let us never forget that every one of the despotic incursions on man’s rights in this century, before, during and after the New Deal, have received the official stamp of Constitutional blessing.
Rothbard was echoing Lysander Spooner who wrote:
But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.
From a legal standpoint, this state of affairs was easy to bring about because in practice the Constitution, including the Bill of Rights, means whatever the Supreme Court says it means. But, even the Court is limited by the public's ideological views and the public's willingness to tolerate the Court's rulings. If the public is willing to accept the seizure of private property in the name of the War on Drugs or the War on Terrorism, then we should not be surprised when government agencies do so. If the public is willing to grant the federal government powers that are clearly not found in the Constitution itself, the fact that the Bill of Rights legally prohibits such things will be of little consequence.
As written, the Bill of Rights is a beneficial summary of many of the limitations that should be placed on government power. Without a public rooted in an ideology that supports and demands respect for the Bill of Rights, however, the words will ultimately mean nothing at all.
Poster Comment:
Ron Paul is wrong about liberty being popular. The voters want a tazering, and a hose down with pepper spray for their fellow man.
Sheeple, gonna sheeple.
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and who is to say they don't need it, too many with nothing else to do but make trouble
#2. To: hondo68 (#0)
"the Bill of Rights, on the other hand, was concerned with limiting government power"
The Bill of Rights, as written, was concerned with limiting federal government power, not the states.
#3. To: misterwhite (#2) (Edited)
was concerned with limiting federal government power, not the states
You're ignoring the 9th. It's the guiding philosophy of liberty. The heart & soul of the BOR and the USA.
Liberty is not confined to a narrow realm, like a fictitious "Free Speech Zone".
#4. To: hondo68 (#3) (Edited)
Liberty is not confined to a narrow realm, like a fictitious "Free Speech Zone".
Or an overly broad interpretation of borders.
Some states are entirely "constitution-free zones".
“Truth is treason in the empire of lies.” - Ron Paul
Those who most loudly denounce Fake News are typically those most aggressively disseminating it.
#5. To: hondo68 (#3)
"You're ignoring the 9th."
The 9th amendment says you have rights. It does NOT say those rights are protected.
This means you have the God-given right to do whatever you want, but if that right is not protected by a constitution the majority (acting through their elected representatives) may regulate or even prohibit that activity.
#6. To: Deckard (#4)
"Some states are entirely "constitution-free zones".
In those 100 miles extended international border zones, only the fourth amendment is modified to exclude probable cause and a warrant by Border Patrol agents. Reasonable suspicion is still required, as is adherence to the rest if the U.S. Constitution.
Calling it a "constitution-free zone" would be FAKE NEWS, now wouldn't it?
#7. To: misterwhite (#6)
only the fourth amendment is modified to exclude probable cause and a warrant by Border Patrol agents.
And you see no problem with that, "excluding" probable cause and/or a WARRANT? Any other rights you'd like to see "modified"?
Reasonable suspicion is still required, as is adherence to the rest if the U.S. Constitution.
If they are able to "modify" the Fourth Amendment it is certainly reasonable to think that they will eventually decide to "modify" the other 9.
I'm sure whitey approves, because - pot.
“Truth is treason in the empire of lies.” - Ron Paul
Those who most loudly denounce Fake News are typically those most aggressively disseminating it.
#8. To: misterwhite, hondo68 (#5)
The 9th amendment says you have rights. It does NOT say those rights are protected.
Unreal - the entire concept of rights implies that they are something that is protected by the constitution.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
“Truth is treason in the empire of lies.” - Ron Paul
Those who most loudly denounce Fake News are typically those most aggressively disseminating it.
#9. To: Deckard (#7)
"If they are able to "modify" the Fourth Amendment"
Because when it comes to international border security, the interests of the citizenry as a whole outweigh the interest of the individual.
In addition, coming into the United States from abroad is a voluntary act, and people are aware they will be searched. By entering, they give their implicit consent.
If their privacy is more important, they're free not to enter.
#10. To: Deckard (#8)
"Unreal - the entire concept of rights implies that they are something that is protected by the constitution."
Nope. The entire concept of rights implies that you automatically have them and they're not given to you by the government.
Whether or not society chooses to protect those rights is up to the majority.
#11. To: misterwhite (#10)
Whether or not society chooses to protect those rights is up to the majority.
Where did you dig up that cockamamie BS?
#12. To: misterwhite (#9)
the interests of the citizenry as a whole outweigh the interest of the individual.
Are you channeling Spock now?
This isn't "Star Trek" and the United States is not the "Federation of Planets".
...coming into the United States from abroad is a voluntary act, and people are aware they will be searched.
That would make the entire population of many states susceptible to search, even if they had never crossed the border and even if they have lived in the United States their entire lives.
If their privacy is more important, they're free not to enter.
Maybe you should have added "If their privacy is more important, they're free to leave."
“Truth is treason in the empire of lies.” - Ron Paul
Those who most loudly denounce Fake News are typically those most aggressively disseminating it.
#13. To: buckeroo (#11)
"Where did you dig up that cockamamie BS?"
You have a different version of the truth?
#14. To: Deckard (#12)
"Maybe you should have added "If their privacy is more important, they're free to leave."
Sure. They're free to go to another country which values their privacy more than the U.S. Where would that be, pray tell?
#15. To: Deckard (#12)
"Are you channeling Spock now?"
Nope. The U.S. Supreme Court in Almeida-Sanchez v. United States, 413 US 266 - 1973
"Not only is the expectation of privacy less at the border than in the interior, the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border."
#16. To: Deckard (#12)
"That would make the entire population of many states susceptible to search, even if they had never crossed the border and even if they have lived in the United States their entire lives."
Many? The entire population of how many states? FAKE NEWS!!
The Border Patrol requires "reasonable suspicion" of an immigration violation (or crime) in order to conduct a search within 100 miles of the United States international border.
#17. To: misterwhite (#15)
"Not only is the expectation of privacy less at the border than in the interior, the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border."
AT the border, not 100 miles AWAY from it.
As it stands no, no one within these zones has any expectation of privacy.
And if you think that it only applies to CBP and not other law enforcement operative within these areas, then you are hopelessly naive.
“Truth is treason in the empire of lies.” - Ron Paul
Those who most loudly denounce Fake News are typically those most aggressively disseminating it.
#18. To: misterwhite (#16) (Edited)
Many? The entire population of how many states?
I guess you ignored the map.
All of Florida, Delaware, Rhode Island, Massachusetts, Most of Connecticut, all of Michigan, most of New York and Pennsylvania.
FAKE NEWS!!
Whatever you say Hillary.
“Truth is treason in the empire of lies.” - Ron Paul
Those who most loudly denounce Fake News are typically those most aggressively disseminating it.
#19. To: Deckard (#17)
"AT the border, not 100 miles AWAY from it."
No. AT the border AND 100 miles away from it.
"As it stands no, no one within these zones has any expectation of privacy."
Sure they do. Unless they give the Border Patrol "reasonable suspicion" of an immigration violation (or crime).
"And if you think that it only applies to CBP and not other law enforcement operative within these areas, then you are hopelessly naive."
Oh? Who else has this authority?
#20. To: Deckard (#18)
"All of Florida, Delaware, Rhode Island, Massachusetts, Most of Connecticut, all of Michigan, most of New York and Pennsylvania."
So that would be the entire population of 1,2,3,4 ... 5 states.
Your statement was, "That would make the entire population of many states susceptible to search ..."
5 states out of 50 states is "many"? What an idiot.
#21. To: misterwhite (#19)
"AT the border, not 100 miles AWAY from it."No. AT the border AND 100 miles away from it.
I'll refresh your memory - you cited this: The U.S. Supreme Court in Almeida-Sanchez v. United States, 413 US 266 - 1973
These 100 mile zones DID NOT EXIST in 1973.
“Truth is treason in the empire of lies.” - Ron Paul
Those who most loudly denounce Fake News are typically those most aggressively disseminating it.
#22. To: misterwhite (#20) (Edited)
5 states out of 50 states is "many"?
How about "the entire population of SEVERAL of the states" then?
Would that make you understand the fact that this 100 mile border zone bullshit is infringing upon the rights of MILLIONS of people within those states?
“Truth is treason in the empire of lies.” - Ron Paul
Those who most loudly denounce Fake News are typically those most aggressively disseminating it.
#23. To: Deckard (#21) (Edited)
"These 100 mile zones DID NOT EXIST in 1973."
Irrelevant. The case I cited was to demonstrate the balance between the interests of the Government and the privacy right of the individual -- to show I wasn't "channeling Spock".
Pay attention.
#24. To: Deckard (#22)
"How about "the entire population of SEVERAL of the states" then?"
How about "the entire population of five states"?
#25. To: Deckard (#22)
"Would that make you understand the fact that this 100 mile border zone bullshit is infringing upon the rights of MILLIONS of people within those states?"
That's not a fact. This zone may encompass millions, but it doesn't infringe the rights of millions.
Within 25-75 miles of our southern border, for example, the Border Patrol operates 71 traffic checkpoints, including 33 permanent traffic checkpoints, along major U.S. highways.
#26. To: misterwhite, gov thugs not protected (#5)
It does NOT say those rights are protected.
It does not say that the government goons who violate God given rights are protected.
Whatever they get, they asked for it when they chose the gov gangbanger criminal thug lifestyle.
More and more often, when faced with a pile of shot up cops, juries say... no problem, they asked for it.
#27. To: hondo68 (#26)
When the officer drew in response, you would drop to your knees weeping in terror.
#28. To: hondo68 (#26)
"More and more often, when faced with a pile of shot up cops, juries say... no problem, they asked for it."
If you're proposing lawlessness, you might want to rethink that.
#29. To: misterwhite, lawless police goons, criminals at large (#28)
lawlessness
Maybe you should contact the DA/AG and inform them that a jury determined that the police deserved to be shot, but they were never prosecuted for their botched home invasion. When they have been tried, sentenced, and are serving time, then justice will have been served, and lawless kept at bay.
Most of these lawless police are still out there looking for another victim.
#30. To: hondo68 (#29)
"and inform them that a jury determined that the police deserved to be shot"
What are you talking about?
#31. To: misterwhite, roscoe, nolu chan, y'all (#5)
The Bill of Rights, as written, was concerned with limiting federal government power, not the states.
That is the opinion of the 'states right's' fanatics, not to be taken seriously.
The 9th amendment says you have rights. It does NOT say those rights are protected. -- This means you have the God-given right to do whatever you want, but if that right is not protected by a constitution the majority (acting through their elected representatives) may regulate or even prohibit that activity.
Most of our rights can be reasonably regulated, --- but prohibited? - The power to prohibit is not constitutionaly endowed to ANY level of govt, fed/state/local.
Misterwhite is a fanatical statist, except when he argues with nolu chan.
#32. To: misterwhite (#5) (Edited)
God-given right
How
does
that
work
most
people
don't
believe
live
in
God
reality
they
are
libertarian
liberal
loons
fighting
about
the
size
kind
of
their
slavery
stupidity
love
boris
If you ... don't use exclamation points --- you should't be typeing ! Commas - semicolons - question marks are for girlie boys !
#33. To: BorisY (#32)
Seems pretty clear -- if you don't believe in God, you have no God-given rights.
#34. To: misterwhite, Deckard, book em Danno (#30)
a jury determined that the police deserved to be shot"What are you talking about?
Incidents where the victim was found not guilty of shooting a cop, or a few cops, like this story posted by Deckard, but the home invader officer perps weren't prosecuted...
libertysflame.com/cgi-bin...gi?ArtNum=49065&Disp=0#C0
Or other cases of self/home defense where cop shooters were no billed, but the police perps escaped justice. If they're guilty enough to justify shooting them, they should be in jail and off of the police force.
#35. To: misterwhite (#33) (Edited)
no God-given rights.
no
God
given
sanity
too
love
boris
ps
absent
God
reality
they
don't
know
it
you
can't
shouldn't
expect
hope
much
Happy
Christianity
eternity
lib
free
too
If you ... don't use exclamation points --- you should't be typeing ! Commas - semicolons - question marks are for girlie boys !
#36. To: hondo68 (#34)
"like this story posted by Deckard"
Do us all a favor -- post your comments on the appropriate thread.
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