Bill of Rights - Protected from Repeal/Change?

[Ironbarr]

... the Bill of Rights, as the first ten amendments are commonly known. The Constitution was ratified in 1788. Amendments 1-10 were adopted in 1791.

From http://www.usconstitution.net/constfaq_a1.html#Q5

telewinz's poll re scenario of 2nd A repeal, http://www.thehighroad.org/showthread.php?s=&threadid=41028 brought to me this thought:

As the BOR was adopted 3 years after the Constitution was ratified, is it considered part and parcel to the constitution? If so, since the first ten amendments are "bundled" as the "Bill of Rights", duly documented and passed as one act of the people's representatives - is it a legal possibility that the BOR is to remain inviolate - free from change or repeal?

The constitution affords amendments - as we know. But they are separated from the original effort by time, authors, debaters, ratifiers, etc. They are not of the original effort.

How about some knowledge, thought - input here. Could it be we can lock the BOR from those who'd mess with it?

-Andy

 

[Moparmike]

In my humble and semi-uninformed opinion, if the Prohibition Amendment can be repealed by way of another amendment, then anyother can to.

God help them if they do. No, wait. God help me if they do, because a good smiting will be called for.

 

[LawDog]

If I remember correctly, there was a problem in the ratifying of the Constitution in that a majority of the States argued that the Constitution lacked a significant enumeration of protected rights, not to mention an enumerated protection against a powerful centralized government, and were in the process of refusing to sign said document.

I seem to remember that a compromise was reached by which the Consitution would be signed on the condition that what we call the Bill of Rights would be added.

Now, if my above information is correct, it tends to follow that if the ratification of that document depended upon the adoption of the Bill of Rights, then if any or all of the Bill of Rights are removed from the document it could be argued that the ratification of the Constitution would thus be nullified.

I could be wrong, however.

LawDog

 

[Al Norris]

Lawdog, your recollections are pretty much correct.

Five of the original thirteen refused to ratify the Constitution unless it contained provisions for the rights of individuals (see the ratifying documents of Massachusetts, South Carolina, New Hampshire, Virginia, and New York). You will recall that it was to take nine of the states to make the new government valid. If those five did not ratify, the nation would never have existed. In addition to this, only 3 states ratified without submitting their own suggestions for this Bill of Rights.

Legal scholars have long argued that this secondary document cannot be changed or modified or revoked because of it's history of inclusion. And, lest we forget, there was a preamble to the Bill of Rights.

Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

 

[Standing Wolf]

As the BOR was adopted 3 years after the Constitution was ratified, is it considered part and parcel to the constitution?

An amendment becomes part of a document. Logically speaking, it ought to be considered an attachment to it, but an amendment is considered part of its parent document.

Yes, indeed, the Second Amendment could be repealed, and would have been declared null and void a long, long time ago if the leftist extremists had their way.

 

[BHPshooter]

Read the 9th amendment.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This means when changes are drafted into the Constitution (they knew it would happen), they may not infringe upon these rights, or even the rights that aren't listed.

In short: They can't repeal the Bill of Rights.

Unfortunately, the people running the country don't have a clue what the BoR is. After all, it is just a piece of paper when people don't honor it. It isn't the paper that matters, it is the ideology that is symbolized by that paper. What Moparmike said is called "case law," and in this day and age, holds much more weight than that pesky Constitution.

Wes

 

[C.R.Sam]

I am of the school that says the Constitution was not ratified untill the first ten were included. Then it gathered the required number of individual ratifications and became binding.

Politicians and other criminals aside, I believe the first ten are sacred as an integral part of the document.

Sam

 

[Geech]

As part of the document, there is absolutely nothing special about the Bill of Rights. Those amendments could be further modified or repealed just like any other part of the constitution. As someone else mentioned, though, repealing the second amendment would be irrelevent. The right to keep and bear arms is not a product of the Bill of Rights.

 

[BogBabe]

Geech has it right. Parts of the original Constitution have been amended over the years, and there is no legal impediment to amending any part of the Constitution, provided it's done according to the method prescribed by the Constitution itself. In fact, even the procedure for amending the Constitution could be modified by amendment (although that amendment would have to be obtained via the currently existing procedure).

However, given that the BoR doesn't "give" us rights but merely acknowledges pre-existing rights, my position is that amending away the 2nd would not eliminate our innate right to self-defense.

 

[Ironbarr]

I am of the school that says the Constitution was not ratified until the first ten were included. Then it gathered the required number of individual ratifications and became binding.

I am of same mind as C.R.Sam - and of course, I want that to be true. I can see - hear - feel, though, that in practice (these days), it isn't.

Today there are so many "groups" - whether clans, business, political, neighborhood, etc. - pushing agendas, and so many folks buried in their daily survival not paying attention, that those magnificent words lie decaying for lack of knowledge, one, and the power of money pushing them aside, second.

I've said this before - I truly shudder as to what I'm passing to my, and your, future generations. I wonder as to what it'll take to turn this around, to pump up those words in the hearts and minds of the citizenry - to breath new life in them.

Maybe, like the addict, we have to hit bottom before we can see the light.

If so, the bottom seems closer than ever before.

-Andy

 

[El Tejon]

If the Fifth Amendment were repealed, could the government summarily execute people on the street.

I have lived in two cities where the RKBA was a dead letter, that does not mean they could do it or that I did as they said.

 

[Sam Adams]

IMHO...

The BOR were necessary for the ratification of the Constitution. Had the BOR not been passed, I believe that several states would have pulled out of the Union in the early 1790's, and the USA would be (at most) an interesting historical footnote.

However, now the 1st 10 amendments are part of the Constitution. As such, they are just as subject to repeal by the passage of another amendment as was the amendment that allowed for Prohibition. So, yes, the 2nd could be repealed - in theory. I, for one, don't believe that this will ever happen. How could anyone hoping for repeal possibly get 38 state legislatures to ratify this? And if it were done, you would have Civil War II.

Of course, repealed or not, the rights protected by the 2nd Amendment can never cease to exist. They might be illegally infringed upon (and they have been, massively, since at least 1934), but they cannot be repealed. You can't repeal a law of nature, and surely not the most basic one - the right to defend one's self against a threat to your life or freedom.

 

[Sam Adams]

El Tejon

If the Fifth Amendment were repealed, could the government summarily execute people on the street.

You make a great point that can be used to ridicule and defeat the anti-gun zealots. It brazenly illustrates the point that certain rights are, in fact, inalienable no matter what laws may be passed on paper. Government ceases to be a useful tool for the betterment of the people if the (quite mortal ) people at its head cease to obey the rules upon which government was adopted in ANY society.

If that sounds revolutionary or threatening to any of you fed.gov lurkers, then you had better check out the Declaration of Independence.

Basically, the question we are discussing is "Are there any limits on the power of Government in our society?" IF the answer is no, then the Declaration of Independence very eloquently spells out the case for revolution. If the answer is yes, then the BOR should remain intact.

 

[tyme]

[blockquote]As part of the document, there is absolutely nothing special about the Bill of Rights. Those amendments could be further modified or repealed just like any other part of the constitution. As someone else mentioned, though, repealing the second amendment would be irrelevent. The right to keep and bear arms is not a product of the Bill of Rights.[/blockquote]
It's irrelevant, but for a different reason, I think. Just because the right to keep and bear arms exists independently of any constitution or government doesn't mean that some government pragmatically has to respect that right. History is full of governments that have not. And anyway, the Government has been acting for quite a while as if the 2nd amendment, and the right it protects, don't exist. I'm not sure there would be any changes if the 2nd amendment were repealed.

 

[hammer4nc]

Why bother with formal repeal of the amendment (2/3 majority of states' ratification, etc.); when the same effect has been accomplished with simply redefining the underlying words, sufficiently referenced in case law?

I'm always struck by the contrast between the first and second amendments:

As written, the 1st amendment clause "congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof", is much harder to violate than the operative clause in the 2nd amendment "shall not be infringed". In other words, an "infringement" would take place long before "a congressional establishment" would be argued to have taken place.

Yet, in accepted practice quite the opposite situation has evolved. With respect to the first amendment, any minor religious display is taken to violate the establishment clause, while at the same time any one of the myriad gun bans and restrictions do not constitute an "infringement".

As long as .gov can redefine words to mean what they want, they won't be bound by constitutions, or anything else for that matter.

 

[Mike Irwin]

The Bill of Rights can be amended or deleted.

It's definitely part of the Constitution, just as the rest of the amendments are.

 

[tyme]

There's also clear precedent for how to construct something that's unamendable. No amendments contain language similar to that present in article V.

I wonder if the ability to include language to prevent amendment is perpetual or whether only the original constitution could do so.

 

[geekWithA.45]

I'm Gonna Be Blunt:

There is probably no Constitutional reason that the Bof R can't be Amended.

Amending the Constitution is difficult, and ignoring it is easy, and in some parts of the country, ignoring the Constitution is normal operating procedure.

The Bill of Rights does not Create rights, it protects them, and these rights exist whether they are enumerated or not, whether they are respected or not by those wielding power, and even whether the People as a whole want them or not.

They exist as earthly fact so long as one human being recognizes their existence.

Our founding documents protect this last lonely, brave human being against all of the rest.

And even if this last, lonely human should fall before the howling horde, they continue to exist as theory, to be rediscovered by the children of these deranged hypothetical people.


If any one of the Bill of Rights is deleted or diminished in any way through an act of Congress, and ratified by the States, this will mean that the US of A has abandoned even the pretense of its founding principles of Life, Liberty, and the Pursuit of Happiness, and the validity of the entire contract, would thus be rendered doubtful, and therefore void.


On that day, America will no longer be it's own worthy heir.

On the next day, there will be blood.

 

[Matthew Courtney]

The only provision of the Constitution that cannot be changed by amendment is that no state shall be deprived of equal suffrage in the Senate without its consent.