"The Constitution is not a rule of the people."
- Jesse Phillips
As society moves forward we begin to face issues that never existed or which were overshadowed by more fundamental needs. The United States of America has gone from concern about the rule of their mother country to slavery, global warming, and even gay marriage. Politics and the role of the Constitution are still major parts of our system. I have concern. Concern that the Constitution has been, is, and will be used in a manner I view as Unconstitutional.
Looking at the conditions which formed the Constitution and what has been written in it we can identify what the purpose is. At the time thirteen colonies had recently declared their independence from a government that tried to control and tax these people to help not the colonists, but a land many miles away. The colonies viewed themselves as independent, they were of the understanding that they would need to work together to maintain this independence. And the only way they knew to achieve this was to form a federal government.
And what they did was form a government through their experience and history that has been. A government in no other nation. One that was intended to limit the power of the government. This restriction was put into place because the colonies wanted rule to be local, but to function as a nation they needed an agreement of defence and trade. The Founding Fathers set out to create a government that was regulated by the people, not a government that regulated the people. This hatred for the government can be heard in almost ever written speech and has a very different tone than seen today.
"... God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty.... And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure."
- Thomas Jefferson Papers, 334 (C.J. Boyd, Ed., 1950)
His statement comes in a form not seen today. Resistance to the government must exist, but even more so it is one where life will be lost on both sides. This was a time where blood was at everyone's door, a time where people had lived through a period of government that came with the intent to kill those that spoke out against. It may not have been direct orders from the King, but such is not the point of what it is this time had caused. Through this the Founding Fathers were conditioned to always be ready to fight government. The states they establish were to be united but independent, and the people were free to be their own government. Times have changed and it's hard to find a place where fighting against the government in such a manner would work.
"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive."
- Noah Webster, An Examination of the Leading Principles of the Federal Constitution (Philadelphia 1787)
Here our country has a problem! To ask if the second amendment has been upheld, is a question that can only be answered with no. The second amendment is written to allow for the right to carry fire arms. It makes no statement to the type of arms. I answer that this particular right is stated as the second in a list of ten for the purpose of defending ourselves against crime and the government. Regulations have been put into place that keep "dangerous" weapons out of the hands of the citizens, but no such regulation exists for the government. This situation goes against everything the Founding Fathers put in place. How can the people rule the government, when the government has been given more power than the people that rule it? We are as good as an unarmed nation when it comes to our ability to overthrow/reestablish our government. The second amendment has already failed and the constitution is already a mess of improper use.
This isn't what concerns me the most. The history of the Constitution and the internal fighting to bring it into existence had one major flaw that has been a savior of our freedoms. The Bill of Rights is the marvelous mistake that had to be made.
"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."
- James Madison
The forethought that has gone into our government is impressive. The Bill of Rights is not a granting of rights to the people, it is an enumeration of rights the government can never think to touch. The ninth amendment was written to clarify this very point. The Constitution defines what the government can do, not what it can't! If the role is not specified within the Constitution, it is unconstitutional.
But again, this is not what concerns me the most. What I am concerned about is talk of defining marriage as being between a man and a women, within the constitution itself. Just as much as I would be concerned that the Constitution would be used to define marriage at all. The Constitution isn't a rule over the people, it is a granting of power to the government. This mistake has been made in the past. Amendment XVIII which was corrected by Amendment XXI had prohibited the sale of alcohol. This is a famous miss use, but still there are more. The thirteenth amendment had started this downward trend. I do not believe any restriction of the citizens of The United States of America is constitutionally valid. But don't take my word for it.
"The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government."
- Patrick Henry
But sadly a belief I hold, and a position stated by a Founder does no good. The constitution did not put any provision to prevent the government from restraining the people. We need an amendment to the Constitution which invalidates all amendments that place restrictions on the people. We need to bring the Constitution back to its roots which is statements of the role of government and what power it is given.
Important to understanding the role of the Constitution, is understanding what government it governs. And for the United States of America, it is a document for the federal government, not the States.
There are provisions to allow the federal government to regulate the states, especially related to interstate trade and travel. And because of that states are allowed to take rights from the people, even those which were listed in the Bill of Rights. Now I don't believe the state should take these rights away, but I do not see it as unconstitutional.
The next obvious question that follows is, why would they grant states the powers to take away what were considered inalienable rights? Well, in truth they didn't and at that time it made sense. The colonies already had individual rule and as such these states already had protection for these. Remember, the Founding Fathers believed that a government must be fought and they wanted that fight to be local. So while the state could say, no guns, it was up to the people to fight for it. And at that time, everyone had a gun so it was an unthinkable that their state would ever remove that right.
The Amendment XIV was instated and allowed the federal government to regulate the states if the such that, "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." In 08-1521 Amicus Clement 2009-11-23 a stance was taken that the fourteenth amendment was intended to protect the second amendment right of the people against state regulation.
While I think this interpretation is correct, important, and should be made, it does conflict with the idea that states are free to regulate and should not be seen as applying to the entire Bill of Rights. It is important for amendments to the constitution to grant roles of the federal government, this is a good example and maybe needs its own amendment to clear up what are "privileges and immunities of citizens," considering the Constitution isn't intended to enumerate such things.
What I ask is, remember that the law is their for a reason. And if that law is being used unjustly, fight it in every way you can. If you are on a jury and you believe the law to be unjust, DO NOT let the law dictate what is or is not just.