Editor’s Note: The people are sovereigns and retain all rights (as long as these rights have not been waived voluntarily when a “people” agrees to be a “citizen” or other artificial entity. Any right not enumerated in the first 8 amendments was placed beyond the purview of federal authority by the Ninth Amendment. Every power not granted to the federal government was reserved to the States or to the people by the Tenth Amendment.
The Price of Liberty The political establishment, with the aid of so-called educators, has been extremely successful in convincing the American people that the source of their individual rights are the first ten amendments to the Constitution for the United States commonly known as the Bill of Rights.
Many believe that freedom of religion, freedom of the press, freedom of assembly, and freedom of speech are rights created by the First Amendment. This has resulted in these rights being called “constitutional rights.” The purpose of this commentary is to dispel this misconception.
None of the rights enumerated in the First Amendment are “constitutional rights.” The sole purpose of the so-called Bill of Rights was to expand the system of limited government established by the Constitution by placing additional restraints on the powers of the federal government.
The Federal [Constitutional] Convention;
No Bill of Rights
During the debates in the Federal Convention, there was only one proposal to add a bill of rights to the proposed constitution. On September 12, 1787, five days before the Convention adjourned, George Mason of Virginia proposed that the Constitution be prefaced with a bill of rights. His proposal was overwhelmingly rejected.
Two days later, on September 14, Charles Pinkney and Elbridge Gerry moved the Convention to insert a declaration “that the liberty of the Press should be inviolably observed.” Roger Sherman spoke in opposition calling the provision “unnecessary.” He stated: “[t]he power of Congress does not extend to the Press.” This proposal was also rejected. When the Constitution was signed on September 17, 1787, it did not contain a bill of rights.
Federalists and Anti-Federalists
Debate the Need for a Bill of Rights
After the close of the Convention, the proposed constitution was submitted to the several States for ratification. During this process there was a heated debate between those who supported the proposed constitution, the Federalists, and those opposed, the Anti-Federalists. Part of the debate focused on the lack of a bill of rights. The Federalists claimed a bill of rights was unnecessary. They based this assertion on the principle of limited government. The proposed constitution, if adopted, would create a federal government of limited enumerated powers. Under this system of government, every power not granted would be denied irrespective of whether the document contained a bill of rights. Since the federal government was not being granted any power to legislate concerning individual rights, including those enumerated in the First Amendment, the Federalists considered a bill of rights superfluous and even dangerous.
The Anti-Federalists, on the other hand, feared that the federal government would attempt to usurp this system of government and exercise powers not granted. They argued that a formal declaration was essential to secure the individual rights of the people.
On October 27, 1787, the second of five Anti-Federalist essays appeared in the Boston American Herald. Written under the pseudonym John Dewitt, the author expressed concern for the lack of a bill of rights:
[T]he want of a Bill of Rights to accompany this proposed system, is a solid objection against it…
Three weeks earlier in a speech at Independence Hall, James Wilson, a Federalist from Pennsylvania, explained the proposed constitution and answered some of the criticisms being leveled against it. In his speech, Wilson succinctly stated why a bill of rights had been omitted from the proposed constitution:
It will be proper…to mark the leading discrimination between the State constitutions and the Constitution of the United States. When the people established the powers of legislation under their separate [state] governments, they invested their representatives with every right and authority which they did not in explicit terms reserve;…if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything that is not reserved is given; but in the latter the reverse of the proposition prevails, and everything that is not given is reserved.
This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence. For instance, the liberty of the press…what control can proceed from the Federal government to shackle or destroy that sacred palladium of national freedom? [T]he proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subjectnay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.
As explained by Wilson, there was no need for a bill of rights because the system of limited government established by the Constitution, standing alone, was sufficient to secure the rights of the people. This principle was made crystal clear by John Jay in the New York Ratifying Convention when he stated that individual rights were not affected by the absence of a bill of rights because “[s]ilence and blank paper neither grant nor take away anything.”
ORIGIN OF THE FIRST AMENDMENT
During the state ratification process, Massachusetts, New Hampshire, Virginia, New York, and Rhode Island all ratified the Constitution with a stipulation that their delegates in Congress “exert all their influence & use all reasonable & legal methods” to obtain amendments. These States were afraid that the proposed constitution did not sufficiently restrain the federal government from exercising powers not granted. Virginia, New York, Rhode Island and North Carolina all requested amendments concerning freedom of religion, freedom of the press, freedom of assembly and freedom of speech. The Virginia Convention stated:
That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable Rights of the People in some manner such as the following;
First, That there are natural rights of which men, when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life and liberty with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.
That the people have a right peaceably to assemble together to consult for their common good, or to instruct their Representatives; and that every freeman has a right to petition or apply to the legislature for redress of grievances.
That the people have a right to freedom of speech, and of writing and publishing their sentiments; that freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.
That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favoured or established by Law in preference of others.
The Virginia Convention did not refer to any of these rights as “constitutional rights.” It referred to them as “unalienable” or “natural rights,” meaning they transcend government or a written constitution.
The Anti-Federalists Prevail
In the end, the Anti-Federalists prevailed in the debate over the addition of a so-called bill of rights. By September of 1789, Congress had reduced 210 separate amendments proposed by the States to 12. The amendments were inserted into a congressional resolution and submitted to the States for consideration. Of these, numbers 2-12 were adopted and became the “Bill of Rights.”
Many of the misconceptions surrounding the intent of the First Amendment can be traced to little known fact concerning the resolution prepared by Congress. When the resolution was submitted to the States for consideration, it contained a preamble declaring the purpose of the proposed amendments. The original preamble contained three paragraphs, but most modern editions of the Constitution only include the third paragraph. The complete preamble, which is still part of the Bill of Rights, is printed below as it appeared in the 1789 resolution:
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.t
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.
Analyzing the Preamble
The key to understanding the purpose of the Bill of Rights is contained in the first paragraph of the preamble. This provision states that the amendments were being proposed to prevent the federal government from “misconstruing or abusing its powers.” To accomplish this, “further declaratory and restrictive clauses” were being recommended. The amendments, if adopted, would not grant or create any so-called “constitutional rights.” The sole purpose of the amendments was to place additional restraints or limitations on the powers of the federal government.
Understanding the Bill of Rights
The Bill of Rights would be easier to understand if it had been titled the “Bill of Prohibitions” because it places restraints on the exercise of power by the federal government. Any right not enumerated in the first 8 amendments was placed beyond the purview of federal authority by the Ninth Amendment. Every power not granted to the federal government was reserved to the States or the people by the Tenth Amendment. The Bill of Rights is simply an expansion of the system of limited government established by the Constitution in a declaratory form.
The term “constitutional right” implies that the right was either created by the Constitution or depends on that document for its existence. Since the stated purpose of the so-called Bill of Rights was to prevent the federal government from “misconstruing or abusing its powers,” none of the rights enumerated in the First Amendment can be construed as constitutional rights.