[DRZinn]

You all have the opportunity once again to help me write a paper for a political science class!

The prompt: "The Bill of Rights is largely taken for granted in the United States. Is a Bill of Rights necessary or even desirable in a government based on popular consent? In what ways does a Bill of Rights limit the majority? In what ways does it enable it? What are other ways in which individual rights may be protected? Consider arguments from the Federalist Papers, The Anti-Federalist, and Jefferson."

Now, never mind the readings, I'll incorporate them just fine. I'm just looking for novel ways to explain why OF COURSE it's still necessary.

Anyone?

[50caliber123]

I just want to make a quick comment - its sad in this day and age, a lot of people do not believe that we need the Bill of Rights, because its "ancient" ( as told to me by a fellow college student who is extremely leftist). Make sure that you include how neccesary every part, all 10 amendments, are and why.

[Can'thavenuthingood]

Good idea, a brainstorming session, maybe spark a moment of brilliance.

If the government is based on popular consent then it stands to reason that a Bill of Rights is null and void. The reason for the rights to begin with is to protect those that may not be in the popular consent mindset, the majority.

So the B of A is not necessary or desirable in that form of government. What is there to govern? Just find out (polling) what the majority think or want and go with that, ala clinton.

Okay, I did the easy one.

Vick

[Zen21Tao]

strictly speeking the Bill of Rights isn't intended to restrict the "majority" or the "minority." It is intended to restrict the governments authority to limit the rights of the people. I would say that a true democratic republic is designed to facilitate the will of the majority not to stifle it to allow the will of the minority to be imposed. The ultimate limitation of the minority should its lack of popular support. As for the Bill of Rights being taken for granted, I don't know where you want to go with this. I think the entire Contitution is taken for granted with the recent way it which it has been interpreted as a "living beathing document." The minority are able to impose their will on the majority by claiming to find rights within the text of the Contitution that simply isn't there.

I don't if any of this helps it is just my humble opinion.

[50caliber123]

technically speaking, we are not a democracy. The United States of America is a constitutionally-limited republic.

[DRZinn]

strictly speeking the Bill of Rights isn't intended to restrict the "majority" or the "minority." It is intended to restrict the governments authority to limit the rights of the people.It restricts the majority in that they cannot take advantage of the fact that they are a majority and impose their will on the minority, if doing so would violate the rights of the minority.

[Can'thavenuthingood]

Yeah I like it better the way Zen21Tao says it.

The government imposes the will of the people in a popular consent based gov, which would overule any Bill of Rights. Though the government would decide what the will of the people is through their or its own surefire secure process.

As time passes though, it will become an imposing gov, authoritarian or tyranical.

Vick

[cracked butt]

The unfortunate thing is that the BOR does nothing to keep the peoples' representatives from creating barriers and insulation from the constituents (see McCain-Feingold) that allows them to be both influenced by the highest bidders and to buy votes from their constituents by providing pork projects.

I guess its not possible to have it both ways where we could have a true representative republic where the constituents' needs or issues are perfectly represented while removing the element of the tyrany of the majority. The system is very flawed but it works as well or better than any other system.

[Zen21Tao]

The unfortunate thing is that the BOR does nothing to keep the peoples' representatives from creating barriers and insulation from the constituents (see McCain-Feingold) that allows them to be both influenced by the highest bidders and to buy votes from their constituents by providing pork projects.


Again the BOR isn't designed to keep elected federal officials in check. It is my understanding that this was designed to be done through state appointments. With federal seats being won through popular vote their is no accountability. If, however, elected state legislators appoint federal congressional seats then the appointed official would be held accountable by state officials that are in turn held accountable by the people of their individual states. This would keep federal government beholding to the individual states.

[patentnonsense]

Strictly speeking the Bill of Rights isn't intended to restrict the "majority" or the "minority." It is intended to restrict the governments authority to limit the rights of the people.

That's a very important point - note that your stated assignment conflates government with majority. However, that assumption should be questioned. Outside of New England town meetings or the like, real wide-open democracy is very rare. (In the historical case of Athens, the city's decline could arguably be traced to the incoherence of the popular assembly's actions.)

a government based on popular consent

This is another tricky point: ALL governments are based on popular consent, to the extent that the populace is not actively rebelling. Since the popular consent is implied, not express, it is irrelevant to this argument, and could perhaps be treated as myth. (If you get into discussion of Locke/Rousseau on social contract, I would suggest that the idea of contract implies constraints on unilateral modification.)

I'm just looking for novel ways to explain why OF COURSE it's still necessary.

Simplest is just to run over the plain-English statements in amts 1 4 5 6 8 which are currently being violated. (And 2 of course, but that's more likely to get you a knee-jerk negative reaction.) If the express language is violated, that shows that the BoR was not unnecessary: arguably it shows that it is more necessary than ever. (Laws restricting buggy-whip manufacturing plants, or requiring all new automobiles to be able to go at least 1mph, would be unnecessary for various other reasons.) A disregarded law may need to be changed, or those who violate it may find it inconvenient, but the mere fact that it is violated shows that it is not unnecessary. (Ineffective, perhaps, or inconvenient - but it's supposed to be inconvenient.)

[RealGun]

The BoR doesn't apply to gun owners.

[hugh damright]

Is a Bill of Rights necessary or even desirable in a government based on popular consent?"What use, then, it may be asked, can a bill of rights serve in popular Governments? I answer, the two following, which, though less essential than in other Governments, sufficiently recommend the precaution: 1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the National sentiment, counteract the impulses of interest and passion. 2. Although it be generally true, as above stated, that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter source; and on such, a bill of rights will be a good ground for an appeal to the sense of the community. Perhaps, too, there may be a certain degree of danger that a succession of artful and ambitious rulers may, by gradual and well-timed advances, finally erect an independent Government on the subversion of liberty. Should this danger exist at all, it is prudent to guard against it, especially when the precaution can do no injury. -Madison, in Letter to Jefferson, October 17, 1788"

I disagree with Madison that the USBOR can "do no injury", I think it does great injury in that, just as feared, it has lead to people thinking that the US has jurisdiction over "rights".

And besides, why ask about a USBOR and popular government when the US is *NOT* a popular government? Maybe it makes more sense to see the States as popular governments, and the USBOR as protecting the rights of the States.

[DRZinn]

I think it does great injury in that, just as feared, it has lead to people thinking that the US has jurisdiction over "rights".But, seeing how often it has been not the last, but the ONLY line of defense against oppression, our situation could have been much worse without it.

[ssr]

The problem with the BOR is that as time has gone on, people begin to assume that the only "rights" we truely have are those enumerated in the BOR, and that government has jurisdiction over everything else. Rather than the assumprion being that government does not have power over the people.

People have come to believe that those are our only "guaranteed" "rights", and all else is up for grabs. And now, as we can clearly see, even those "rights" in the BOR are continually eroded by both major parties, by executive and legislative branches, all endorsed by the Supreme Court (which is itself bogus if whatever decision is handed down depends upon the personal makeup and political opinions of those on the court.

[hugh damright]

But, seeing how often it has been not the last, but the ONLY line of defense against oppression, our situation could have been much worse without it.
I don't follow ... what are some of these cases where the USBOR was the ONLY line of defense against oppression, and where does the Constitution fit in? I mean ... are we talking about the original Amendments, and how they kept the limited federal government in check .... or are we really talking about the 14th "Amendment" and an attempt to turn the limited federal government into a national government?

[DRZinn]

are we talking about the original Amendments, and how they kept the limited federal government in check .... or are we really talking about the 14th "Amendment" and an attempt to turn the limited federal government into a national government?The Bill of Rights.

[Zen21Tao]

are we talking about the original Amendments, and how they kept the limited federal government in check .... or are we really talking about the 14th "Amendment" and an attempt to turn the limited federal government into a national government?
The Bill of Rights.

The 14th Amendment's "equal protection" clause is used with the 9th Amendment's "enumeration" clause. What the liberal (as opposed to the traditional strict constructionist) thoeries of interpreting the Constitution do is interpret the 9th Amendment as if it contains rights not presented in the text but visable by "reading between the line." The 14th Amnedment then allows these "newly discovered" rights to be extended areas like privacy.

[DRZinn]

Well, what else could the Ninth Amendment mean, even without the 14th?:confused:

If you're referring to the most common argument that conservatives have against this view, then it's either murder or it isn't. If it isn't murder then it's a right.

PLEASE don't get my thread locked by discussing that. My point is that the ninth covers all kinds of things they didn't specifically include. They knew they couldn't think of everything, that's why they added it.

[One of Many]

It has been many years since I studied the History of the founding of the United States, the Declaration of Independence, and the United States Constitution.

My memory of that study tells me that the original (ten ratified, of twelve proposed) amendments to the U.S. Constitution, were to appease the citizens of the various states, that were afraid of the Federal Government performing a power grab and supplanting the power of the States and individual citizens. That without these assurances (BoR), the U.S. Constitution would never have been ratified. The citizens wanted assurance that the rights they held dear as individuals and as citizens of the various states would never be trampled by the Federal Government, the way the English Government had done prior to the Revolutionary War.

These amendments did not grant rights; they enumerated rights currently held by the people and States, and stated explicitly that those rights would not be subject to Federal Government actions. Just as the main body of the U.S. Constitution granted powers to the Federal Government, the amendments prohibited certain powers to the Federal Government. The combination formed a declaration of powers, and limitation of powers incumbent upon the Federal Government. The founders did not forsee that in a few short years, the separation of powers would be challenged by the U.S. Supreme Court, when it began creating law by judicial fiat, instead of interpreting laws and evaluating their role with respect to the U.S. Constitution. Since that time the BoR has been eroded and expanded by judicial fiat, without the constitutionally approved method of modifying the U.S. Constitution. In effect, the BoR means only what the SCOTUS says it means. That meaning changes with the passage of time, and as justices are retired and replaced.

Power comes at the point of a gun; the government has the biggest and the most guns, along with the training, organization, and willingness to use those guns to further the interest of the government - the people are not capable of resisting the power of the government (even if they have guns), because they do not have the training and organization (militia) to stand against a corrupt government and it's military might.

The nation's founders thought to rely on a citizen militia, without a standing army, to prevent the people becoming subjects of the government; when the government discovered that it needed a standing army to prevent the destruction of the government by foreign invasion, that sounded the death-knoll of the citizen militia. The citizen militia was replaced by the standing army, and the reserve army/navy/airforce (National Guard).

Other rights and duties specified in the U.S. Constitution and it's amendments, have been effectively ignored by the government. When the law enforcer is failing to enforce discipline of law upon itself, there is nowhere to turn for relief and protection. We are all at the mercy of an arbitrary enforcement of the law, by agents that use the law to further their own agendas; to the extent that their agendas benefit everyone else, we survive as a viable nation.

The intent of our nation's founders was to keep the government as servant of the people, but as we have heard repeatedly - power corrupts people, and corrupt people seek more power. The Federal Government has worked long and hard since the beginning of the nation, to eliminate the restrictions placed upon it by the constitution. The form of our government has been changed to expedite the transfer of power from the People/States to the Federal Government; we are less and less a Republic, and more and more a manipulated democracy (and democracy is chaos and anarchy) - a manipulated democracy has many elements of a dictatorship and tyranny, only the power is wielded by committees instead of single individuals.

We claim to be a Constitutionaly limited Republic, with Democratically elected Representatives that serve the will of the People; in practice, our Constitution is largely ignored by the Legislative, Executive and Judicial branches of government. The primary purpose of the elected officers of the government is to be re-elected as often as possible, and grant favors to people that will in turn increase the wealth and prestige of the elected. The judicial system has been captured by special interests in many areas of the country, so that the populace no longer trusts the courts to dispense justice for all, on an equal footing.

The general feeling among the populace is that justice serves those with the biggest purse, and the highest priced lawyer. The general populace is suspicious of the police, afraid of the prosecutors, and distrustful of the courts; this is a far cry from what the nation's founders envisaged for the country. The courts were to be representattive of the will of the People, by means of a Jury of Peers, acting in judgement of law and action. Juries now are so manipulated in the selection process, that the result of a trial is often determined before the first testimony is heard. Judges refuse to instruct juries that they have the power of Nullification, and often juries say that they wanted to aquit a defendant, but they could not do so because of the instructions the Judge gave them.

We do not live in the same nation that the founders created; it has been modified so extensively that we are a radically different system of government. We do lip service to the U.S. Constitution, but it is not the controlling document it started out to be. When people claim that the Constitution is a living document, they are correct; we may want it to be a strict and unyielding guide, but unless We The People take hold of the prod, and apply it to the appropriate anatomical regions of the servants we elect and appoint (by proxy via the President and Senate), we will continue to sway in the breeze of fickle popular opinion, as political servants cater to the wealthiest patrons.

[hugh damright]

Well, what else could the Ninth Amendment mean, even without the 14th?

Some would take the 9th and 14th and try to empower the US to have jurisdiction over every "right", which is, to put it mildly, too broad and general a power for a limited federal government. It is simply an attempt to transform the limited federal government into a national government, and that is the very thing that the USBOR was intended to prevent. From what I can tell, the main request, from seven of the thirteen States, was for a States' Rights Amendment, our Tenth.

If the first nine amendments are construed so as to deny or disparage the Tenth Amendment ... for instance, when people try to use the Second Amendment to deny or disparage the States' right to pass CCW laws, then I see that as using the enumeration of one right to deny or disparage others retained by the people.

[Sheldon J]

Used the Federalist paper's extensively here is one of the link's I used for data
http://www.u-s-history.com/pages/h1203.html I'll see if you want if I can find the link for the Federalist papers, they had them in great detail.

[Zen21Tao]

Well, what else could the Ninth Amendment mean, even without the 14th?

If you're referring to the most common argument that conservatives have against this view, then it's either murder or it isn't. If it isn't murder then it's a right.

PLEASE don't get my thread locked by discussing that. My point is that the ninth covers all kinds of things they didn't specifically include. They knew they couldn't think of everything, that's why they added it.

Don't worry about getting your thread locked my post doesn't have anything to do with the pro/anti abortion argument. While the 9th and 14th were used to allow abortion the argument really has nothing to do with the issue of abortion. The strict constructionist interpretation has to do with whether the wording of the 9th means that any concievable "right" that is said to be found between the lines of the 9th Amendment is constitutionally protected. The Originalists/Strict Constuctionists interpretation contends that such "rights" should be legislated by individual states.

[hugh damright]

I believe the Ninth Amendment is a declaration that the US is limited, not just in the enumerated ways, but in other ways too. In other words, the US is not a national government with broad and unenumerable powers that need limiting by a USBOR ... but rather, the US is a limited federal government, and the enumeration of certain limits does not mean that those are the only limits.

And I believe that to construe the Ninth Amendment to give the federal government unenumerated powers (such as jurisdiction over "privacy") is to turn the Ninth Amendment against itself.Here is a quote from http://caselaw.lp.findlaw.com/data/constitution/amendment09/#f2

''It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.'' It is clear from its text and from Madison's statement that the [Ninth] Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement. Recently, however, the Amendment has been construed to be positive affirmation of the existence of rights which are not enumerated but which are nonetheless protected by other provisions.
...

[DRZinn]

The first ten amendments to the Constitution of the United States, commonly referred to by their function as a Bill of Rights, have become ingrained into the American consciousness. The protections they offer have been under constant attack almost since the very birth of our nation. That they are still referenced daily is a testament to their utility and indispensability.
Critics point out (as those opposed to the Bill of Rights did at the Constitutional Convention) that an enumeration of rights would imply that any not listed were not retained by the people. The Federalists drew on Locke’s belief that a civil society was entered into by sovereign citizens, retaining the rights, if not the powers, that they had in the state of nature:
…though men, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society, …the power of the society, or legislative constituted by them, can never be supposed to extend farther, than the common good; but is obliged to secure every one's property, … (Locke Sec.131).
With the word “property” defined by James Madison as “every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage” (Madison “Property”), meaning both physical property and what we now call civil liberties, government was instituted to do that which men in the state of nature could not consistently do for themselves; that is, protect their rights. As such, a government is created by these sovereign individuals and granted certain powers. This government possess only those powers granted it, with the rest retained by the people. Alexander Hamilton stated in Federalist 84 that “the people surrender nothing; and as they retain every thing they have no need of particular reservations.”
In other words, no reservation of rights to the people was necessary, since if they hadn’t granted a power to the government they retained it for themselves.
A further danger of the Bill of Rights, the Federalists believed, was that it would imply that more power rested in the hands of the government than actually did. “For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed. I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power” (Federalist 84). They saw a government elected by the people as a relatively benign force, which would be held in check by the people and perform only those actions it was allowed to perform. In that they could not imagine that a government controlled by the people could ever need to be restrained with such devices, the Federalists were wrong. In that they understood the nature of government and its propensity for expansion of power, they were absolutely right.
To determine the utility of the Bill of Rights, one must first examine the abuses it was designed to prevent, and determine whether or not these abuses would occur in the absence of those protections.
The First Amendment guarantees freedom from government intervention in the practice of religion,

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Just six and a half pages to go, minimum. (That's about 1.75 there.)

I hate minimum lengths.

[RealGun]

Whatever the Founders had in mind was not in the context of a Federal income tax. Follow the money and you will find the power.