By Joshua Lyons
NOTE: Joshua Lyons will be a featured speaker at Nullify Now! Philadelphia. Get tickets here – http://www.nullifynow.com/philadelphia/ – or by calling 888-71-TICKETS
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What government does U.S. Bill Of Rights limit?
We must start on our quest by determining who ratified the U.S. Constitution; was it ratified by individuals or the States?
The first answer can be found in Article VII of the U.S. Constitution itself:
“The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.” [Emphasis added.]
The second answer can be found in the journal of the convention, which records only the votes of the States. Once more, it was the States (not individual delegates) that cast the votes in the convention. Additionally, each State specified what portion of its delegation needed to be present to act and cast the States’ vote.
If you’re asking yourself what this has to do with the applicability of the U.S. Bill of Rights, just stay with me…we’re getting there.
It is also critically important to understand the structure and construction of the U.S. Constitution before attempting to read and interpret it. So what was the purpose of drafting and ratifying the U.S. Constitution? Very simply, the purpose was to define and limit the authority of the Federal government; and as Madison specified in Federalist 45:
“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” [Emphasis added.]
Further, Article VI Section 2 of the U.S. Constitution specifies that the authority delegated to the Federal government is supreme:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” [Emphasis added]
But while the U.S. Constitution and laws made in pursuance thereof are the supreme law of the land, this is entirely different than the Federal government being supreme in everything it does.
To be sure that the federal government’s authority was limited to the powers enumerated within the U.S. Constitution, many states ratification was contingent upon amendments being passed including what became the 10th Amendment (which Jefferson considered the “foundation” of the Constitution):
“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“[Emphasis added.]
The ultimate check on Federal power by a State can be uncovered with a quick read of the State ratifying resolutions (e.g. Virginia, New York, Rhode Island). These resolutions illustrate the fundamental right of rescission (i.e. Powers delegated to the Federal government can be reassumed). Take the New York ratification resolution for example:
“That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same…” [Emphasis added.]
Let’s review:
The U.S. Constitution is a compact between the States.
The limited authority delegated to the Federal government is enumerated in the U.S. Constitution.
The States created the Federal government to be an agent of the States to carry out limited powers.
The States have the legal authority to reassume powers delegated to the Federal government.
After reflecting on all of these rather clear-cut facts, one must question why would the States create an agent (i.e. the Federal government) to limit the States power?
An objective person must come to the obvious conclusion that the States did no such a thing; especially after that same person reads the beginning of the almost-forgotten Preamble to the Bill of Rights:
“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.” [Emphasis added.]
Regardless if one thinks that it is a good measure to have the Federal government policing the States for any signs of them infringing on the states citizens’ inalienable rights (federalism anyone?), the fact remains that the Bill of Rights was drafted to further clarify limitations on the Federal government, not the States.
Wait…did I just hear someone ask about the “Incorporation Doctrine?”
Joshua Lyons is the co-host of The Forgotten Men radio show Saturdays at 12noon ET, on AM930 WFMD. The Forgotten Men focus on the current political and economic challenges through the lens of the Constitution and Federalism.
Spot on brother. Spot on. Too many people either think the BOR applies to both the states and the federal govt, or the states only. That misconception forms the basis for improper constitutional construction. We have a lot of work to do to educate the masses that have been indoctrinated through public schools, dishonorable elected officials, ideologues, tyrants, and the main stream media.
What About the Individual? What about the Person? Rather than “States Rights”, what about the rights of individuals? People got together and protested and help pass the Civil Rights Act. Not states, Individuals.
People who advocate “States Rights” Should understand that your arguement became null and void at Appromatox Court House!
I am elated to see the words “compact between the States” and “agent of the States” on the Tenth Amendment Center. When I made these points several years ago it triggered some heated discussions. Way to go Mr. Lyons!
That being said, I think Mr. Lyons could have sealed the deal if he had incorporated Article V into the “let’s review” part of his essay.
Pursuant to that Article, the Constitution can only be amended by a vote of the States. Neither Congress, nor a majority of the American people, as comprising one nation, can amend the Constitution. In fact, the American people, as comprising one nation, cannot propose changes to the Constitution. Likewise, neither the federal government, nor the whole people, can intercede and nullify a vote of the States on constitutional changes (Constitutional Convention). The amendment immediately becomes part of the Constitution irrespective of whether Congress approves or disapproves. That body is constitutionally bound by the actions of the States because the Constitution is a compact between the States and the federal government is simply their agent or representative.
Through the amendment process, the 38 (three-fourths) smallest States, with a minority of the population, can bind the remaining 12 States with a majority of the population. By way of the amendment process, the States have the authority to restrict or enlarge the powers of the federal government but that government lacks the authority restrict or enlarge the powers of the States. In fact, the States have the constitutional authority to abolish the powers of their federal government but that government lacks the constitutional authority to abolish the powers of the States.
This proves conclusively that the federal government exists at the pleasure of the States, not vice versa. It also confirms that the parties to the Constitution are the States because they are the only parties that can amend the document.
I agree with this article to the degree it supports all life within all states. Life being the unalienable or the reason for any of it.
Lets look at how we have arrived to this wealth of federal power, through corrupt states? As well through some corrupt in Federal Government.
It is not the symbols upon these doctrine that make them valid in any form, it is the activities the symbols represent showing us any such cause. When symbols dictate our lives and not our actions in support of ourselves as sovereign do we loose sight of the original intent.
Lets be real here, the Declaration of Independence is directly tied at the hip and one document must support the other or neither hold value in supporting activities. The activities showing and verifying any such concept.
Let us not become entirely stuck on the symbols and decide based upon the activity and the results now described by such symbols. Yes some scholarly did put these words together based on findings of activities but some had opposing intent to corrupt or we would have never arrived at interpretation. This only comes about when we refuse the actions and pride ourselves on the symbol as all mighty which they are not.
The ideal concept is to support life and to do this Liberty must be in place to allow life to pursue its ideas and dreams. To stop governments from intruding into this activity and allow it. People keep forgetting why we have a constitution at all. It only becomes clear when you become independent (free of the corrupt) Same as LIberty only not as well constructed as it is in the constitution as a clear form or clear line of distinction. The clarity is LIMITED Governments especially Federal but many states adopted this in their own constitutions because Republics do not survive by big Government period. This answer does not need to be located more than once but has many times over throughout all histories.
It is time we stop the arguing and stick to the points that truly matter, are the activities these symbols describe taking place or aren’t they? NO! what is the correction to make this possible? the review and clarity of activities and the symbols that support this activity by representation.
The action is to Limit both Federal Government as well state Government because both have gone rogue do to the intrusiveness of banking cartels who have corrupted previous Governments as was documented in the Declaration of Independence, leaving it out is like leaving out the heart of the body.
Remember in this land there has been a large emphasis on words themselves and not activities and the results of these. All successes seem to be measured in dollars and cents which does not constitute success in governing does it?
The word achievement needs a closer consideration in that we do actions to be successful at Republics where Life is allowed to roam and test ideas. To create exchanges for these ideas and to have this ability Governments must be limited because they produce no good ideas, they are asked to support our ideas which in essence shall be in the support of life, not limited to only a few lives but for all life within these republics and beyond without limit. Because Life by activity has no such limits, we are capable of generating limitless ideas, we are able to test these, verify these and display these. We are all able to decide on the usefulness as well of the support of us and in these activities no limits exists because all limits are ideas to only limit by some who THINK they should control what life does. This activity has been repeated more times than I can count. These are all lessons to LEARN from not to be BOUND by.
Lessons are brought on by experiences not by symbols period. Let us use our capabilities over our own ignorances.
There is no such thing as I am right and you are wrong, there is actions that show support for life or there is activity showing no support what so ever. These viewed are the results of such activities, now take some symbols and represent these actions and results. Do these sound familiar? If you do not believe me I request you go to a Library and browse some good unabridged dictionaries and prove to me without question you have completely got all these ideas passed on to you, what, to mammoth is it? Let us stop pretending we are the masters of symbolization and become the masters of our own activities by our own choices in support of documents meant to support us as life by such activities and stop playing the scholarly word game to no where because it too has history should you dare take that walk.
WE are to be A Republic which by the original definition meant to be life, people, public in communities providing each other with ideas and activities that support us, sustain us and allow us to grow without limits placed upon us by others. These Republics are empowered by a clear Constitution which clearly states those put in the governing bodies are limited to what we give and allow them. That Financial institutions have no place in our Governing bodies in any form for reasons beyond verification or without question. That we are supposed to be allowed to experience ideas here across this land because as life this is what we do BY SUCH ACTIVITIES. That we be allowed to review all and make our own determinations and decisions in all such communities and that these be regulated by rule of law which is in support of life and not the control of it, the destruction of it or any other stupid idea of history to decline life itself. Let us stop acting like we are not the deciding force of what goes on in this life, because as sure as I sit here we are this capable should we DECIDE to be period.
The Bill of Rights is expressly limited to the Federal government: “Congress shall make no law.” Nothing in binds the States or People, or limits their powers in any way. If a State wanted to declare itself officially “Catholic” (Maryland, for example), it was within the right and power of the People and State to do so. The power to decide issues of religion, like so many other issues of uniquely local moment, was reserved to the People and States by the 10th Amendment.
Ok – I need a bit more convincing. I wish the FF’s had written Congress shall make no law: the amendments 1-10. But they only added Congress shall…for the 1st. So, then, the FF’s who believed in inalienable rights granted by God, given to you at birth CAN be denied to you by your State. Your state can deny your free speech, right to own a gun, right to a jury trial, etc? Answer – vigilance, vote the bums out, move to a better state? Possible. Opinions please. Help my education!
@Brian Barrett The Bill of Rights does not apply to the States. The People, acting through their respective State governments, can make laws respecting an establishment of religion, etc. The Supreme Court has turned the Bill of Rights against the States via the 14th Amendment, by finding something called ‘substantive due process” which allows them to review the substance of the local acts and legislation. The history of the Bill of Rights until after the Civil War ALWAYS ruled that it they applied only against the Feds.
@Brian Barrett Brian, Prior to the U.S. Constitution states each had their own constitutions. The BOR did not apply to the states. Most states had their own version of a BOR (in Maryland its called the Declaration of Rights). In fact, several states had their own declared religion. The last was removed in the mid 1800s. When the proposed amendments were consolidated by Madison and presented to the 1st Congress he took about 200 amendments and narrowed it down to about 20 amendments. Of those 20, 12 were sent to the states for ratification. What most people do not know is that some of the other 8 were restrictions on the state. And those amendments started with “No State Shall”. Now, go read the 14th amendment. Notice the language? It says “No state shall” in several parts of the 14th amendment. Also, the 14th amendment has been turned upside down via incorporation doctrine to apply selectively parts of the BOR on the states. That was not the purpose or intent of the 14th amendment.