Freedom Demands Vigilance

“Those who won our independence believed…that the greatest menace to freedom is an inert people, that public discussion is a political duty and that this should be a fundamental principle of the American government….They eschewed silence coerced by the law.” Justice Louis Brandeis

There is little doubt that the U.S. Constitution is the greatest political document every drafted and put into effect. It has stood the test of time and even weathered the Civil War.   In the end, however, it is the vigilance of the people who will keep our freedoms alive.

Our Constitution represents the classic solution to one of mankind’s greatest political problems – that is, of how can a small group of states combine into a strong union without the individual states losing their powers and surrendering control over local affairs. 

In an ultimate sense, the Constitution confirmed the proposition that original power resided in the people, but not in the people as a whole but in their capacity as people of the several states. To bring forth the requisite union, the people, through the states, would transfer some of their powers to the new federal government.  

However, the federal government (and local governments) would only be allowed to exercise those powers explicitly or implicitly given them by the states.  Individual state governments could exercise all power unless it was forbidden from doing so by the people of that state. Thus, the genius of federalism was in delineating central governmental power by spreading political power among various governmental units.

Determined to safeguard their hard-won rights, many Americans accepted the new federal government on the condition that provisions be made to protect their fundamental rights of “first liberties” against usurpation by the newly created federal government.

James Madison, Alexander Hamilton and others replied that incursions by the federal government into freedoms of speech, press, religion, and other liberties would be impossible since no authority was given to it to interfere with such things.

While Hamilton argued that a bill of rights would be dangerous because it would contain various exceptions to powers not granted; and, on this very account would afford a colorable pretext to claim more than were granted, fear of the new federal government was so strong that a bill of rights was demanded.

The Bill of Rights, the first ten amendments, is essentially a list of immunities from interference by the federal government. They are essentially a stance against statism, a clear rejection of centralized power.

The First Amendment was intended to ensure that the federal government would not interfere with matters of religion, speech, press, assembly and the like. The emphasis of the First Amendment was on Congress because the founders believed that if any branch would be tyrannical, it would be Congress since they had control over the purse string and could pass burdensome laws. The framers did not, for instance, concern themselves in detail with the courts because Congress would control the courts under Article III of the Constitution.

Having just broken away from Great Britain, our founding fathers feared that the new federal government might some day become just as tyrannical.  If they had the authority control citizen access to firearms they could easily disarm them making any attempt to restore liberties futile.  The Second Amendment was specifically included in the Bill of Rights to prevent this.

The Ninth Amendment states in essence that the Bill of Rights should not be used to deny rights which the people already possessed. The Tenth Amendment clarified that powers not delegated to the federal government nor prohibited by the states were to be reserved to the states or to the people. In other words, it was the province of the states, NOT the federal government, to deal with issues of life, liberty and property of the people. Jefferson commented that to “take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.”

Unfortunately the framers did not foresee the increasing role of the courts, specifically the powers that evolved in the Supreme Court following  Chief Justice John Marshall’s 1803 opinion in Marbury v Madison, declaring an act of Congress unconstitutional, a decision that ultimately gave the Supreme Court the right to define what the Constitution meant to each generation. In essence this decision brought about the left’s concept of a “Living Constitution,” which undermined key limitations on government power. 

This push by the left to destroy America’s freedoms,  according to Clark Niely, III, an attorney at the Institute for Justice, means that we now have “a dying constitution.

The Tenth Amendment is on life support. The idea of federalism and enumerated federal powers have become meaningless because the Supreme Court won’t enforce them. The contract clause is dead; the privileges or immunities clause of the 14th Amendment is dead; and the 5th Amendment’s public use provision is dead. 


source:  We the People and We the People Need to Circle the Wagons, Rutherford Institution

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