Our Dysfunctional Republic Part 11

The Bill of Rights


Before I begin my coverage of the individual amendments that comprise the Bill of Rights, I would like to refresh your memory with a quote by Alexander Hamilton that I used in an earlier segment, "I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"

When it comes to rights and individual liberties, I like to compare it to the age old question, 'What came first, the chicken or the egg', or in this case, which came first liberties or government? I think it is fair to say that the question has been answered already. If you recall, the Declaration of Independence states, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed..."

Whether or not you believe in God is irrelevant. It is clear that our founders did and they believed that our Creator endowed us with certain unalienable rights. If you look up unalienable you will see that it means, 1) not able to be transferred or taken away, 2) incapable of being alienated, surrendered or transferred. Pick your definition, the fact of the matter is that these rights are yours from birth and they cannot be taken away from you. Since that is the case, governments were instituted among men to secure these rights, not to grant them, and certainly not to take them away from us for that matter.

Although Hamilton believed that a bill of rights would "...contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted." the bill of rights was in fact included in our Constitution. Therefore the rights as contained in those first ten amendments are unalienable and cannot be taken away from us by a government, especially a government that is supposed to be representative of the will of the people. I would like to give you three quick quotes by our founders regarding the guarding of our rights and liberties.

Daniel Webster said, "Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions."

Benjamin Franklin said, "Any society that would give up a little liberty to gain a little security will deserve neither and lose both."
James Madison said, "We are right to take alarm at the first experiment upon our liberties."

Now that I have established that these rights are unalienable, and should not be thought of as something granted us by our government, I would like to get started by discussing the first amendment.

The 1rst amendment states, "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."

There are only 45 words in the first amendment, but so much has been written and said about them that volumes could be filled. I do not claim to be any smarter than the next guy. I only want to take these words at face value, supported by quotes from the founders as to their true intent.

In regards to the entire first amendment, Thomas Jefferson had this to say, "One of the amendments to the Constitution... expressly declares that '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,' thereby guarding in the same sentence and under the same words, the freedom of religion, of speech, and of the press; insomuch that whatever violates either throws down the sanctuary which covers the others."

If I were to paraphrase Jefferson, you can't have you cake and eat it too. You cannot have the open usage of profanity, distasteful images and many other things that are covered under the umbrella of freedom of speech, then have open religious discussion in public places denied because it is a violation of the courts interpretation of the separation of church and state. The phrase separation of church and state is nowhere to be found in the first amendment, so where did it come from?

In 1802 there was a religious minority known as the Danbury Baptists. They were concerned about the majority position of the Congregationalist church in Connecticut. Thomas Jefferson wrote the Danbury Baptists a letter assuring them that their rights would be protected from interference by the federal government. A portion of Jefferson's letter states, "Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties."

There have been numerous court cases, and civil suits by such groups as the ACLU that have attempted to ban all public display of religion outside the church and the sanctity of your home. School football teams have been told they cannot pray before a football game, prayers have been banned at commencement ceremonies, and almost everyone knows of Michael Newdows crusade to have all mention of God removed from public display.

People like Michael Newdow, who is a renowned atheist, claim that the open discussion of religion is a violation of the first amendment, and is offensive to him and others who choose not to believe in any God. To them I would like to quote Jefferson once again, “The legitimate powers of government extend to such acts as are only injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg.”

Again to paraphrase Jefferson, ‘sticks and stones may break my bones, but words will never harm me.’ No one is asking Mr. Newdow, or any atheist for that matter, to believe in God. However to ban all such talk by those who do is a violation of their freedom of speech. Remember what Jefferson said about that, “whatever violates either throws down the sanctuary which covers the others”

Yet the Supreme Court has upheld many instances in which the separation clause has been argued in preventing the public display or discussion of religion. However in 1971 in Lemon v. Kurtzman, (91 S. Ct 2105), the court established a three part test to determine if an action of the government violates the separation clause of the first amendment. In their ruling they determined that to violate the first amendment 1) the government action must have a secular purpose; 2) its primary purpose must not be to inhibit or to advance religion; 3) there must be no excessive entanglement between government and religion.

If we were to take the case of prayer being banned for the players on a football team prior to a game, I find no secular government purpose, especially when the prayer was mutually agreed upon by all the team members. There is no proof that these players were trying to advance their religious beliefs upon anyone, although the banning of their right to prayer sure seems like it inhibits that right. Finally there is not one shred of evidence that there is any entanglement between government and religion when the action was, again, of mutual consent among the players, and not endorsed or forced upon them by the school.

There are far too many instances where the separation clause of the first amendment has been misinterpreted that I could write for hours on this subject alone. However I would like to provide you with the thoughts of James Madison as to why there should be a separation between the government and the church, “The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe with blood for centuries.”

Our founders did not want to push religion, or a particular sect of religion upon anyone. They knew that this had led to far too much bloodshed in the past. Yet they did not want to prohibit anyone from freely practicing their own personal beliefs. This is only one instance in which the first amendment has been violated.

The next section of the first amendment regards the freedom of speech. Aside from the freedom of religious speech, our government is now proposing hate speech legislation whereby hateful speech against groups or persons will become illegal and punishable by fines and jail time. If this is not a violation of freedom of speech I do not know what is. I feel that the guarantee of freedom of speech has been abused by many to cover things that are morally reprehensible, such as the lyrics to much of the music, and the things that are considered art, they are still protected under the first amendment. These issues are due to a breakdown in the moral fabric of society, where respect for others, and decency have all but disappeared. Yet to propose legislation prohibiting them is still a violation of the first amendment.

The next section of the first amendment covers the freedom of the press. While much of the media, and that includes network and cable news, as well as talk radio and print news, may have a biased slant on the issues, either liberal or conservative, there is still a good amount of freedom of the press in our society. Witness the fact that my articles, and those written by many others are finding their way into print either via smaller news papers, or the internet. It might be harder for people to find the truth concerning the issues that concern them, but the truth is still out there to be found if people are willing to take the time to look for it.

The final portion of the first amendment deals with the right of the people to peaceably assemble, and to petition the government for a redress of grievances. Our right to assemble still exists, but it is no longer as easy as gathering together to protest an issue. We now are required to obtain permits to do so. I don’t believe that our founders would have needed a permit to gather together to hold a convention for the drafting of the Declaration of Independence, or the Boston Tea Party. It would have been unthinkable for them to ask the British permission to protest against them.

The redress of grievances is an area where I find that our first amendment rights have been infringed upon to a great extent. I write numerous letters to my elected officials, and I keep all their responses. I can show you examples of how on many separate occasions I have received the very same reply from a particular senator or congressman, sometimes two and three times.

A more disturbing disregard for the right of the people to redress their government for perceived grievances is this. A complaint was lodged against the IRS asking that the they provide the statute and clause that clearly states that the average American worker is required to pay an income tax. On August 31, 2005, federal judge Emmit Sullivan ruled that the government does not have to answer the American people’s questions, even though it is guaranteed in the first amendment. This is a federal judge who is sworn to uphold the law, and remember, the Constitution, which included the bill of rights at the time it was ratified, is the supreme law of the land. He is openly ruling that our government does not have to answer our redress of grievances. Tell me, with a straight face if you can, that our government respects your right to petition them.

As you can see, by the coverage of the first amendment alone, we have allowed our government to infringe upon many of those unalienable rights. John Adams once said, “The jaws of power are always open to devour, and her arm is always stretched out, if possible, to destroy the freedom of thinking, speaking, and writing.”

There are many more instances of violations of the first amendment. I hope I have caused enough of you to begin to question whether or not the rights contained in the first amendment are still as unalienable as you thought.