[brianjade00]

I have a question regarding the bill of rights. A few friends of mine and me have “checked out” of this whole general government and trying ways to start talks of secession, or just to re-declare independence in our own little town. Our idea is just to simply show that this is not a “nation” as we see it today, but it is an actual union of states/nations. How this ties to the bill of rights is, the bill of rights, in its origin, is checks against the general government, not the states as it is today. During the federal convention and the Virginia convention, the anti-federalist argued for a bill of rights, but Madison and the other federalist argued that this is dangerous because putting a bill of rights somehow said that the enumerated powers actually granted power over these rights, which it didn’t, so putting these amendments in here is not necessary. Now I believe that the only thing the federalist wanted was to expedite the ratification and adding amendments would slow this process down. But do we not have federal regulations on firearms? Do we not have the SCOTUS ruling on prayer? And isn’t incorporating the bill of rights on the states just simply stripping away the 10th amendment? I wanted to title the paper “Bill of Constraints?” Now I am under no illusion that the regulations would not have happened without a BOR, but shouldn’t the states have the bill of rights, and the general government strictly limited powers, very few and precise? If there is no bill of rights to pervert, then the scope of the governments powers are more defined. Correct? Or is my thinking gone off the tracks.

[gutzmank]

Forrest McDonald has famously argued that the Federalists were right about that. By his reading, the Bill of Rights has been a mechanism for further self-aggrandizement by the Federal Government.

My own feeling is that anyone who could turn a ban on the Federal Government’s having anything to do with church-state relations into a federal veto of state laws having to do with church-state relations would have found some other way to do that in the absence of the Bill of Rights.

[brianjade00]

I totally agree, and this question was more less directed at you, prof on a particular show that did a recent town hall meeting. Thank you for your response, and thank you for everything that you have done to further my own self education. I own many of your books, but I am a very proud owner of James Madison and the making of America, autographed.

[gutzmank]

Very kind of you. You’re welcome.

[jim]

The Bill Of Rights (Amendments 1-10) have ultimately failed. What if they had included a specific crime of usurpation by any member of the government claiming a power of the general government not explicitly granted? Where the usurpation was by the legislature any Congressmen or Senator who proposed, advocated or voted for any legislation not authorized by Article 1 could be indited by a state grant jury for the high crime of Usurpation and if found guilty would forfeit all his legal property and serve one year in prison. Similar viscous legal sanctions for executives and judicial officials could be written.

[maester_miller]

I believe many states do (or at least did) have bills of rights, or at the very least, similar sounding articles in their own constitutions.

Keep in mind that prior to the civil war, the bill of rights was NOT interpreted as binding on the states. Many states, for example, established an official state religion, and the federal government never made a peep about it. Then of course we had the civil war, and the 14th amendment, which was interpreted as making the provisions of the U.S. constitution (and most federal laws and regulations as well) as completely binding on the states.

So I guess my point is that the BOR might have held up a little better, were it not for the civil war and the 14th amendment. At the very least, we wouldn’t have the Supreme Court ruling on school prayer or gun bans or any such things.

[jim]

My thought is that if a local grand jury could indict members of the Federal Government for a felony crime if they usurped powers not granted to them under the Constitution, then they would not violate their oath of office with impunity. The missing element to make the Constitution hold up is that it does not treat the wrongful acts of its members as crimes that are enforceable by local citizens. Only the club (members of the Federal Government) can hold themselves to the limits of the Constitution. All members of the club have intensive to increase their powers not keep themselves restrained.

[gutzmank]

Marshall DeRosa’s book on the Confederate Constitution notes that in the C.S.A., state legislatures could impeach Confederate officials (e.g., judges) within their territories. This would be a powerful check on federal overreaching.

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