The Bill of Rights is somewhat of an anomaly in the United States Constitution, as it is more of a list of government restrictions than a list of powers. In fact, the Bill of Rights was not included in the original version of the Constitution because many felt that the document should only include those responsibilities and power that the new Federal government should be involved in. But some of the southern states, Virginia in particular, refused to ratify the Constitution until some protection was allowed for individuals and the member states of the union (the limiting of the federal powers would be a key reason for the succession of the southern states, precipitating the Civil War). Thus the first ten amendments to the Constitution were created even before the ink was dry on the original document.
As I mentioned before, the Bill of Rights, or BOR, is really a list of personal rights that the federal government must not intrude upon. The list was intended to protect its citizenry from a potentially overbearing federal government. The BOR has its roots in the many grievances the American citizens had with the British government’s rule of colonies. In other words, every one of the individual rights mentioned in the Bill of Right had, at one time or another, had been violated by the British Government or Military Forces.
Many in the new Federal Government took the BOR to heart, and made sure that these rights were untouched by public laws. Unfortunately, it only took a few years before those men who fought for and got the BOR into the Constitution were retired from public service. The new members of Federal Government did not have the stake in the BOR that the founding fathers had. Perhaps their interpretation of the Constitution was just different from the original framers. Eventually, a Congress here passed a law to "protect" one of the individual rights in the Constitution. A President there issued an Executive Order to "suspend" one of the individual rights in the Constitution.
It is not just in the distant past that the BOR have been violated by our Federal Government. The following is the first of several more recent examples of these violations:
AMENDMENT VI.
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."
Like many of the amendments in the BOR, the Sixth Amendment grew out the new nation's hatred of a former British practice, this one of secret trials (e.g. Star Chamber) and almost indefinite detentions. The idea that the accused was innocence until proven guilty and that he or she was entitled to some level of protection from the government was important enough to early leaders to be included in the BOR. There has several instances where the President has "suspended" aspects of the Sixth Amendment, including Abraham Lincoln suspending habeas corpus during the Civil War, but the recent violations of detainees held at the military base in Guantanamo Bay, Cuba, is by far the worst of all. All of the detainees were captured in foreign countries (mostly Afghanistan) and were tranferred to Cuba in order to keep them outside the sphere of the U.S. court system. They have been denied the right to a speedy trial (some have been detained there for three years or more), let alone a public trial (the Pentagon recently set up "classified" military tribunals as a concession to Congressional inquests). All were denied access to legal council for most of their detention, and most were not even informed of what crimes they were being accused of committing. The rationale from the Pentagon, Justice Department and White House is that these were foreign combatants captured by military forces outside the U.S., and thus were not entitled to the protection of the Sixth Amendment. But nowhere in the amendment does it refer to U.S. citizens, residents, aliens (legal or illegal) or other foreigners. It simply states "the accused". The Constitution and its amendment apply the Federal Government, its officer, elected or appointed, its actions and inactions. By detaining those accused of planning or conducting terrorist activities, the DoD and other agencies of the Federal Government should be required to accord the accused protection under the Sixth Amendment.
AMENDMENT X.
"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."
Two of the most prominent example of the Federal Government's disregard for the states right to govern themselves are the "No Child Left Behind" initiative and the countless other unfunded mandates passed down by the current administration. No Child Left Behind, or NCLB, was created by the Bush Administration early in their first term as a means to improve thc basic level of education in our public and private school systems. But public education is clearly a power of the individual states (or even lower governments), for nowhere is education mentioned in the Constitution as a federal power. NCLB has noble goals and would clearly make improvements to some public school districts, however many of the initiatives of NCLB, including standardized testing of students and teachers, are too restrictive for many districts. Plus, though NCLB has no federal funding, the Federal Government has repeatedly threatened to pull other education funds from states that do not implement NCLB initiatives. This is a form of coersion on the part of the Federal Government. More important is the fact that the education of our youth is clearly the responsibility of the individual states (some may argue that even the states shouldn't be involved in education, but that goes deeper than this discussion).
Sources used during the writing of this article:
- "Are Current Bill of Rights Erosions Unprecedented?" by Anthony Gregory
- "Bush’s War on the Bill of Rights" by Anthony Gregory
Stay tuned for Part 2...
