A Bill of Rights and Power Brakes

While referring to the first Ten Amendments as the Bill of Rights, some scholars rightfully claim these to be “brakes” on the power of the Federal Government.

The first article of the Bill of Rights provides that Congress shall make no law respecting freedom of worship or abridging freedom of opinion. There are some among us who seem to feel that this provision goes too far, even for the purpose of preventing tyranny over the mind of man. Of course, there are dangers in religious freedom and freedom of opinion. But to deny these rights is worse than dangerous, it is absolutely fatal to liberty. The external threat to liberty should not drive us into suppressing liberty at home. Those who want the Government to regulate matters of the mind and spirit are like men who are so afraid of being murdered that they commit suicide to avoid assassination.
Harry Truman

Words: 4,128 ~ Read time: 17 min

Foreword

Welcome to an updated and enhanced version of my essay from August 3, 2020, discussing the significance of the Bill of Rights. Our Constitution has faced challenges in the past three years, including closing churches during a pandemic. Some people accused of wrongdoing might lose their rights, while others escape punishment. Thus, we must direct our attention towards the importance of the Bill of Rights.

Executive Summary

Introduction: This section concerns the debate over the Bill of Rights in the U.S. Constitution. It explains the arguments of the Federalists, who opposed adding a list of individual rights, and the Anti-Federalists, who supported it. It also mentions some key figures, such as James Madison, Patrick Henry, and Thomas Jefferson, who wrote or spoke about the issue. The text shows how the Bill of Rights reflects the Framers’ belief in the rights of the people and their fear of tyranny.

The Bill of Rights Explained: The Bill of Rights is the name given to the first ten amendments to the U.S. Constitution. Ratified in 1791, they addressed the concerns of the Anti-Federalists, who opposed the ratification of the Constitution because they feared it gave too much power to the Federal Government. The Bill of Rights guarantees certain civil rights and liberties to the individual, such as freedom of speech, religion, and press, the right to bear arms, the right to a fair trial, and the protection from unreasonable searches and seizures. The Bill of Rights also limits the federal Government's power by reserving all powers not explicitly granted to it by the Constitution to the states or the people.

Analysis: In 1791, the United States ratified the Bill of Rights, initially applicable only to the Federal Government. The 14th Amendment (1868) extended these rights to states through the incorporation doctrine. The ongoing debate about the Second Amendment shows how we balance individual rights and public safety. There are worries about the treatment of the January 6 defendants. Some of the problems in prisons are overcrowding, solitary confinement, lack of medical care, and limited access to lawyers. These issues raise concerns about due process and civil rights. The text emphasizes the importance of supporting constitutional rights regardless of political ideology. It discusses the conviction of five members of the “Progressive Anti-Abortion Uprising” for violating the FACE Act. Federal charges are rare for violence against Catholic churches and pro-life organizations. Biden’s Department of Justice treats people based on their beliefs.

Introduction

During the hot Philadelphia summer of 1787, some delegates at the Constitutional Convention advocated a list of individual rights within their new document. Many opposed this idea because they thought that such a list might be subject to abuse. They wanted to form a new government. This government would get its powers from the people through the Constitution. The Founders wished for a government with powers confined by defined limits. Congress divided, separated, and balanced powers to prevent tyranny.

Historians know James Madison (1751-1836) as the Father of the Constitution. He, John Jay (1745-1829), and Alexander Hamilton (1755 or 1757-1804) wrote 85 Federalist Papers. The authors wrote and published these papers in New York. They wanted to persuade the States to ratify the Constitution after the Convention (1787-88). In Federalist No. 84, Madison wrote, “… The Constitution is itself, in every sense, and to every useful purpose, a Bill of Rights.”

Those who advocated a Constitution without a Bill of Rights point to the Preamble, which states, “... the People of the United States … secure the Blessings of Liberty ...” Still, the Bill of Rights further reflects the Framers’ belief in the rights of the people. Amendments One, Two, Four, Nine, and Ten invoke “the people.” Amendment Five states, “No person,” and Six, “the accused.”

The people against the new Constitution were “Anti-Federalists.” The famous Patrick Henry (1736-1799) was among a group that believed an all-powerful Federal government would lead to tyranny. During the Convention in France, Thomas Jefferson (1743-1826) had some concerns about the new Constitution. Henry and Jefferson were among those who advocated the addition of a Bill of Rights. “I … hope a bill of rights will be formed to guard the people against the Federal government,” Jefferson wrote. It is important to note that those who advocated a Bill of Rights and those at the Convention wanted to guard the people against the Government.

The delegates signed the Constitution on September 17, 1787, without a Bill of Rights. The Constitution became law on June 21, 1788, as this is the date that the required ninth State (New Hampshire) accepted it. Although the Constitution didn’t initially have a Bill of Rights, the Framers worked together to create one. It became an important priority for them in the new Congress. It was not until 1791 that Congress adopted the Bill of Rights, and the remaining States each accepted (ratified) the Constitution.

One proposal was for the new Congress to enact a statute rather than amendments to the Constitution. Yet, there was a concern that a future Congress may repeal such a statute. Alexander Hamilton gathered 200 proposals on fundamental rights from the states. This list narrowed down to 12, then 10. On December 15, 1791, Congress ratified the Bill of Rights as the first ten Amendments to the Constitution.

While we refer to these Amendments as the Bill of Rights, some scholars rightfully claim these to be “brakes” on the power of the Federal Government. Here they are in italics (emphasis and explanations added):

The Bill of Rights Explained

One

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.

This Amendment provides four crucial safeguards for the American people:

1. The government cannot create a national religion. You have the freedom to practice your chosen religion.

2. The government cannot stop you from expressing yourself through speech, writing, or printing.

3. It guarantees your ability to assemble peacefully with others to discuss any subject you choose.

4. It safeguards your right to petition the Government for a redress of grievances.

These rules stop the government from getting in the way of your religious beliefs. They also protect your freedom of speech, peaceful gatherings, and seeking government solutions. They establish protection against the federal Government encroaching upon these fundamental human rights.

The right to use a pen name or pseudonym is fundamental to freedom of expression. A pseudonym allows an author to express their views without fear of persecution, censorship, or retaliation. Using a pseudonym also keeps the author’s privacy and identity safe from unwanted attention.

The Federalist Papers are a well-known example of pseudonymous writing in American history. Alexander Hamilton, James Madison, and John Jay wrote 85 essays. They used a pen name (Publius) to protect themselves from the Anti-Federalists, who disliked the Constitution. They avoided personal attacks because the Anti-Federalists wanted a weaker central government. The authors also wanted to focus on the merits of their arguments rather than on their reputations or motives.

The Federalist Papers greatly influenced American history with their political theories and interpretations. They reveal the intentions and reasoning of the framers of the Constitution and their vision for the new republic. In American politics, politicians discuss essential subjects. The Federalist Papers discuss important topics like federalism, separation of powers, checks and balances, representation, and judicial review. Writing the Federalist, absent a pseudonym, may have doomed the Constitution. These issues still affect politics today.

The Constitution and Bill of Rights do not mention using a pen name, but the First Amendment implies it. The Supreme Court has recognized that the First Amendment protects anonymous speech in several cases, such as Talley v. California (1960), McIntyre v. Ohio Elections Commission (1995), and Watchtower Bible & Tract Society v. Village of Stratton (2002). The Court has also acknowledged that the Federalist Papers exemplify how pseudonymous writing can contribute to public debate and civic education.

The right to use a pseudonym is not absolute, however. It can be limited by legitimate state interests, such as preventing fraud, defamation, or incitement to violence. The author can also waive it if they voluntarily reveal their identity or consent to its disclosure. Moreover, it can be overridden by a court order if there is a compelling need to identify the author for legitimate legal purposes.

The right to use a pseudonym is vital to our constitutional heritage and democratic culture. It allows us to express ourselves freely and creatively without fear or intimidation. It also enables us to engage in meaningful dialogue and deliberation with our fellow citizens without prejudice or bias. It is a right that we should cherish and defend, as Publius did more than two centuries ago.

Nikki Haley, a candidate for president (2024), wants to expose anonymous social media accounts. She supports using government power to do this. This proposal raises concerns. It questions if she has a rudimentary understanding of the principles in the Bill of Rights.

Two

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment Two is a vital protection of the individual’s right to bear arms. In certain nations, military leaders have usurped governmental control and infringed upon the rights of the people. Fearing such a scenario, our citizens desired the capability to form state militias and citizen-led armed forces, exemplified by the volunteer-based National Guard in each State. The writers crafted the text to prevent the Federal Government from enacting regulations that might infringe upon firearms’s lawful possession and utilization.

For an in-depth essay about the right to bear arms, please see The Right of The People - Guest Post by Kristian Solem.

Three

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

During the Revolution, the British Government made American colonists house and feed soldiers. They felt intense resentment about this practice. This Amendment stops the Government from forcing soldiers to stay in a home without a good reason. It ensures protection from the imposition of unwanted soldier occupancy in your house.

Four

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

An old English law said government officials couldn’t arrest people or search their homes without a good reason. British officers in America disregarded this law. The people introduced this Amendment to stop unfair arrests and searches by the Government. A judge can only issue a warrant if there is a solid reason to arrest someone or search their home. This Amendment states that no Federal officer can arrest or search your home without a warrant. This Amendment protects your freedom and privacy. Yet, if there is reasonable suspicion of law violation, it does not apply.

Five

No person shall be held to answer for a capital, or otherwise, infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Government can’t put you on trial for a serious crime unless a grand jury agrees that a crime has happened. There must also be a good reason to think you did it. (Capital crimes are those for which the penalty may include death, while infamous crimes are those punishable by more than one year in prison.) The rest of this Amendment stipulates more rules on what the Government can do.

1. If you have already been trialed and found not guilty, they cannot try you again for the same crime.

2. During your trial for a crime, the Government cannot compel you to incriminate yourself. The Government must follow a fair legal process to punish you.

3. They can’t execute or imprison you or take your property without cause.

4. If the Government requires your property for a valid reason, it must compensate you for that property.

This Amendment limits the Government’s control over your life, freedom, and possessions. It bestows upon you protections of utmost importance as a free individual.

Six

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.

This Amendment lists the rights the Government must provide if you’re arrested on criminal charges. These rights encompass the following:

1. A prompt public trial shortly after your arrest.

2. Twelve unbiased people who live close to where the crime happened make up a jury.

3. Authorities will inform you about the charges against you so you can understand them before preparing your defense.

4. The opportunity to observe, hear, and respond to the witnesses testifying against you.

5. If you need help, the Government will provide a lawyer to call witnesses.

6. Legal representation in the form of an attorney to defend you, with the Government covering the expenses if you cannot afford one.

This Amendment defines these precise instructions to ensure you will receive a fair trial if someone accuses you of a Federal crime. They safeguard against any trial procedures that might be unjust or prejudicial to you.

Seven

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, then according to the rules of the common law.

Amendment Seven focuses on “civil suits.” These are disagreements between people about their rights and duties. In Federal court, individuals involved in such cases can request a trial by jury. Yet, a jury is not mandatory if all parties agree to waive it or if the amount in question is $20 or less. In certain situations, judges in a higher court can change the decision made by the lower court’s jury.

1. If there was a misunderstanding of the precise interpretation of the law in the lower court or

2. If the jury reached its verdict without enough evidence for the facts presented to them.

These provisions provide the following benefits:

1. Ensure the right to a jury trial in all civil cases, except those of minor significance, to safeguard against unjust outcomes.

2. Creating clear rules for how much courts can review jury’s discussions, promoting respect for jury’s verdicts.

3. If the jury fails, there’s a chance for a different outcome. It ensures fairness and justice by providing a way to seek redress.

Eight

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

After arresting someone, authorities can usually let them out of jail until their trial. Yet, before their release, the arrested person or someone else must provide the court with money or other assets, known as “bail.” The court returns this bail when the accused appears for trial.

This Amendment establishes that Federal judges must not demand excessive bail amounts. It ensures that authorities don’t torture, overcompensate, or unfairly imprison criminals. These provisions provide the following guidance:

1. Both individuals who accuse others of crimes and those who have faced convictions should ensure that the courts are fair.

2. Safeguarding against unfair treatment within the judicial system.

Nine

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The initial eight amendments in the Bill of Rights enumerated certain rights held by the people. The writers articulated them so precisely that the federal government could understand them. Yet, it needed to be more practical to catalog all the rights people intended to keep for themselves. The framers added Amendment Nine to stop the Federal Government from violating people’s rights. That was because the Constitution didn’t mention those rights. This Amendment says that the Federal Government cannot control any rights not in the Constitution. So, it provides:

1. Protection against the potential loss of any rights not documented in the Constitution or the Bill of Rights.

2. An extra assurance that the people’s authority and liberties will not get diminished in an arbitrary manner.

Ten

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.

The phrase “Powers not delegated . . . are reserved ... to the people” holds profound significance. The Constitution included the people’s ultimate political authority, as believed by prominent Americans. John Adams (1734-1826) stated that any government’s laws cannot take away the rights that come before them. These rights come from a higher power.” In simpler words, this means people have rights before government rights. Human laws cannot take away these rights from a divine source.

Each State created its own Constitution, giving certain powers to the state government and keeping others for the people. The national Government had some powers delegated to it by the Articles of Confederation. However, the people gave powers to the Federal Government with the United States Constitution.

The new national Government worried people, so they added Amendment Ten to the Constitution. This change made it clear that the Federal Government only has the powers listed in the Constitution. The states reserved certain powers, and the people reserved all other powers. If people decide to give the Federal Government more power with constitutional changes, they can still use that power.

State governments use their powers to help schools, fix roads, enforce laws, keep people healthy, and do other jobs. States delegate some of these powers to county, town, and city governments for effective governance.

State constitutions include “bills of rights” like the one in the national Constitution. As a result, the people have defined the powers given to their state governments and the powers they keep for themselves.

Amendment Ten represents the final addition to the Bill of Rights in our Constitution. These amendments establish vital protections for all United States citizens. In many other nations worldwide, millions of people lack bills of rights to safeguard their interests. Yet, the Constitution and its Bill of Rights ensure that all U.S. citizens keep their rights to “life, liberty, and the pursuit of happiness.”

Analysis

In 1791, the United States ratified the Bill of Rights, which only pertained to the Federal Government. In 1868, the ratification of the 14th Amendment changed the landscape. That marked the start of extending the Bill of Rights to the states. Afterward, the Supreme Court created the “incorporation doctrine.” This rule made states follow the Bill of Rights. The relevant part of the 14th Amendment states:

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.¹

The Second Amendment debate over the right to bear arms vs. a collective right is a longstanding and contentious issue in the United States. The way people see the Second Amendment shows how America balances personal freedom and community duty. It is difficult to balance individual rights and public safety regarding firearms. This challenge still influences the country’s policies and discussions. In the end, lawmakers, judges, and the American people will decide how to handle gun rights and gun control (aka “gun safety”) in the 21st century.

Given the Bill of Rights protections, it is essential to note abuses. For example, some January 6 defendants reportedly face poor conditions in their detention. Some of the concerns raised include:

1. The Capitol incident led to the arrest of many people, resulting in overcrowding in some detention facilities. Overcrowding can lead to inadequate space, compromised sanitation, and increased tension among detainees.

2. Sometimes, authorities put certain defendants in solitary confinement. They usually do this for the most dangerous or disruptive inmates. Isolating someone for a long time can cause severe mental and emotional problems, a form of cruel and unusual punishment.

3. Detainees face a lack of medical care. Everyone deserves access to healthcare. Denying care to those in detention can harm their well-being.

4. Defendants struggle to communicate with their lawyers, making it difficult for them to mount a defense. That raises concerns about due process and the defendant’s right to a fair trial.

5. Concerns about the treatment of detainees worsen. They accuse correctional officers of verbal and physical abuse.

Everyone values personal freedom and civil rights, no matter what they believe. Regardless of your political views, supporting the Bill of Rights is essential. That helps to protect everyone's rights. Consider an event like January 6 but from a left-wing ideology. If that happens, regardless of “ideology,” it is imperative that we all support the defendants’ constitutional rights. That includes their right to a fair trial, freedom of speech, and equal treatment under the law.

But there is more. In August 2023, the “Progressive Anti-Abortion Uprising” convicted five of its members. The court convicted them of “felony conspiracy against rights” and “felony violation of the FACE (Freedom of Access to Clinic Entrances) Act.”

If someone violates FACE, they could face serious consequences, like up to 11 years in prison and fines of up to $350,000. These charges stem from their actions of entering and obstructing a Washington, D.C., abortion clinic. They allegedly protested against Cesare Santangelo, an abortionist at the clinic. In a recorded statement, he admitted to letting a baby die if the abortion failed, which is against the law. The Department of Justice should investigate Santangelo with the same vigor and dedication to justice. It shows determination to punish those who break the FACE Act in pro-abortion situations.

Meanwhile, in the aftermath of the Supreme Court draft opinion in Dobbs v. Jackson Women’s Health Organization, Catholic churches have suffered 189 attacks. Eight-eight attacks have targeted pro-life organizations. Fewer than 1% of these egregious crimes have resulted in Federal charges. These incidents included bombing clinics, damaging statues, breaking windows, and writing scary messages on walls. One of the messages said, “…if abortions aren’t safe, then neither are you.”²

Given the above, under President Biden’s leadership, the Department of Justice has shown disregard for equal treatment under the Bill of Rights. And, of course, there have been past instances of “conservative” (neo-con) abuses as well. The Bill of Rights is blind to ideology.

Conclusion

The following quote nicely summarizes the principles behind the Bill of Rights: History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government. — Bell v. Hood, 71 F. Supp., 813, 816 (1947) U.S.D.C., So. Dist. CA.

Today, it seems the phrase “the people” (Amendments One, Two, Four, Nine, and Ten), “No person” (Amendment Five), and “the accused” (Amendment Six) each means something entirely different to certain people. Is this an anomaly, or is it modernist planned confusion? 📕

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Sources

Books

• Your Rugged Constitution ~ Bruce and Esther Findlay, 282 pages, Sanford University Press 1952

• The American Ideal of 1776: The Twelve Basic American Principles ~ Hamilton Abert Young, 398 pages, Your Heritage Books 1976

• 1787: The Grand Convention ~ Clinton Rossiter, 443 pages, W W Norton & Company (publisher), 1966

Web Sites

• The Man Who Brought Us The Bill of Rights ~ Paul Engle

• How James Madison Saved The Constitution This Month By Writing The Bill Of Rights ~ David Azerrad

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1. This is just one of many elements of the 14th Amendment. Also, please see Frederick R. Smith’s essay Lawerence Patton McDonald and the Fickle Fourteenth.

2. Source: Daily Caller: BRIAN BURCH: Biden’s DOJ Is Where Justice Goes To Die