Editor’s Note: Since peoples’ rights have existed prior to and independently of govt., either federal or state, and the people are recognized in our founding documents as the authors of the law, the people are the ultimate sovereigns in America. The Constitution united the States for the limited purposes enumerated in the Constitution. It did not unite all of the people within the several States under one common government. The states authority to control the Federal govt. remains unchanged.
The Price of Liberty In an attempt to gain some insight into the political mindset of the American people, I regularly listen to talk radio. Not only are many of these shows interesting and thought provoking but they cover a wide range of issues that never reach the editorial page of my local newspaper.
But what intrigues me most are the assertions made by hosts and their callers concerning the Constitution because these comments reflect the general level of knowledge among the American people concerning our system of government.
“As this government stands, I despise and abhor it …” Henry said during his effort to amend the Constitution. “If I am asked what is to be done when a people feel themselves intolerably oppressed, my answer is … ‘overturn the government.” Patrick Henry
During discussions on the Constitution, it is continually asserted, by host and caller alike, that the document was adopted to protect the individual rights of the American people and the federal government was entrusted with duty of securing these rights. This belief is repeated over and over and appears to be commonplace among the American people. In reality, under the structure of government established by the Constitution, it is the duty of the States, not the federal government, to protect the individual rights of the people.
As stated by James Madison, the powers of government flow from the people to their individual State and from the States to the federal government. In other words, the individual States are the people’s government and the federal government is the States’ government.
In order to help explain this constitutional principle, I reluctantly decided to reference a United States Supreme Court case from 1875. Normally, I would not cite a court case to support a constitutional principle because too many opinions do not reflect the true intent of the Framers. However, I decided to make an exception because this decision states this constitutional principle clearly and concisely and this case has never been overturned.
In the case of United States v Cruikshank, the United States Supreme Court held that the rights enumerated in the Bill of Rights were not granted by the Amendments and are not dependent upon the Constitution for their existence. The Court also ruled that the Amendments were restraints on the powers of the federal government and it is the duty of States to secure the individual rights of the American people.
The case involved alleged violations of Section 6 of the Enforcement Act of 1870. The defendants had been convicted on the sixteen-count indictment of violating the rights of two individuals whose rights were “granted or secured by the Constitution or laws of the United States.” In discussing the case, the Court stated:
“To bring this case under the operation of the statute…it must appear that the right, the enjoyment of which the conspirators intended to hinder or prevent, was one granted or secured by the Constitution or laws of the United States. If it does not so appear, the criminal matter has not been made indictable by any Act of Congress.”
The Court then distinguished the powers of the federal government from those reserved to the States. In discussing federal powers, the Court said:
“The Government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people. No rights can be acquired under the Constitution or laws of the United States, except as the Government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States.”
The Court defined the legal question before it as follows:
“We now proceed to an examination of the indictment to ascertain whether the several rights which it is alleged the defendants intended to interfere with are such as had been in law and in fact granted or secured by the Constitution or laws of the United States.”
Two of the counts against the defendants, as charged, involved violations of the right of citizens to peaceably assemble as “secured” by the First Amendment. The Court, in finding both counts defective, held:
“The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is and always has been one of the attributes of citizenship under a free government… It is found wherever civilization exists. It is not, therefore, a right granted to the people by the constitution. The Government of the United States, when established, found it in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains…subject to state jurisdiction.”
“The First Amendment to the Constitution prohibits Congress from abridging ‘the right of the people to assemble and to petition the Government for a redress of grievances.’ This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State Governments in respect to their own citizens, but to operate upon the National Government alone.”
“It is now too late to question the correctness of this construction. As stated … in Twitchell v Com. … ‘The scope and application of these amendments are no longer subjects of discussion here.’ They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States.”
“The particular Amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the Amendment; neither was its continuance guarantied, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.”
One of the most definitive and succinct interpretations of the Second Amendment is found in the Court’s second holding:
“The second and tenth counts are equally defective. The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed: but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National Government…”
The Court’s third holding refers to individual rights as “natural rights” and declares that it is the duty of the States to protect these rights.
“The third and eleventh counts are even more objectionable. …The rights of life and personal property are natural rights of man. ‘To secure these rights,’ says the Declaration of Independence, ‘governments are instituted among men, deriving their just powers from the consent of the governed.’ The highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these ‘unalienable rights with which they were endowed by their Creator.’ Sovereignty, for this purpose, rests alone with the States.”
The Court provided a clear and concise explanation of the intent and scope of the Bill of Rights.
— First, the rights enumerated were not created by the Constitution or the Amendments.
— Second, the individual rights of the people exist independent of the Constitution or the Amendments.
— Third, the federal government was not any general power to guarantee or protect the rights enumerated in the Amendments.
— Fourth, for the protection of their individual rights, the people must look to the States.
— Fifth, the States have never surrendered the power of securing the individual rights of their people to the federal government.
— Sixth, the Amendments added nothing to the existing powers of the federal government.
— Seventh, the Amendments are restraints on the powers of the federal government and prohibit that government from encroaching any right specifically enumerated therein.
— Eighth, the unalienable rights of the people come from a higher source than government or a written constitution.
This raises a question. If the Amendments contained in the Bill of Rights did not grant any rights or vest the federal government with the power to secure individual rights in 1875, and the Constitution has not been amended to grant that government any new power concerning the people’s rights, then where is the federal government getting the power to establish and enforce so-called federal civil rights laws today? The answer is—the federal judiciary unconstitutionally re-defined a provision in the Constitution and expanded federal power from the bench.
Under the “new Constitution,” as written by the 9 member Constitutional Convention commonly known as the United States Supreme Court, Congress has the power to enact and enforce so-called federal civil rights statutes within the several States because deprivation of these “rights” has an adverse effect on interstate commerce. This “new power,” according to the Court, is separate from and in addition to Congress’ power under the Fourteenth Amendment.
A recent example of this “new power” can be seen in a bill introduced in the House of Representatives in February of 2005. This legislation [HR 714] would:
“[P]rotect the civil rights of victims of gender-motivated violence and to promote public safety, health, and regulate activities affecting interstate commerce by creating employer liability for negligent conduct that results in an individual’s committing a gender-motivated crime of violence against another individual on premises controlled by the employer.”
The federal government was never granted any general authority over employers within the several States. It was the duty of the States to protect the rights of employees in the work place. Congress, with the help of the federal judiciary, is systematically dismantling the Constitution through the Commerce Clause and supplanting State power with federal power. While the system of government established by the Constitution burns to the ground, members of the State legislatures continue to engage in politically correct drivel instead of seizing control of their federal government and correcting these usurpations of power.
In the New York Ratifying Convention of 1788, Alexander Hamilton warned of the consequences if the States ever allowed the federal government to commandeer their powers:
“The states can never lose their powers till the whole people of America are robbed of their liberties. These must go together; they must support each other, or meet one common fate.”
The federal government’s use of the Commerce Clause to sweep away the role of the States and empower itself concerning the individual rights of the people is just one more step in this process. As bureaucrats continue to expand federal power through the Commerce Clause and sell the American people on the concept of so-called federal civil rights, the Bill of Rights will eventually be transformed from restraints on the powers of government into privileges bestowed by the grace of government. When this happens, the powers of the federal government will be absolute and individual rights, as we know them, will cease to exist.
If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I’ve found on this subject. Bob
Reprint of the 1868 edition. ”Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.” This review of Judge Story’s Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the consitution. Mr Madison dwelt with great force upon the fact that ”a delegated is not a surrendered power.” The states surrendered no powers to the federal government — they only delegated them. 160 pages.