When our Founding Fathers were replacing the Articles of Confederation and Perpetual Union (aka the Articles of Confederation) with the new Constitution of the United States, there were some major issues revolving around the guaranteeing of individual rights as well as the constraining of the power of the federal government. In order to get the basic Constitution adopted, the various states' representative had to hash out a guarantee that, immediately upon the adoption of the Constitution in 1789, there would be a set of amendments that would guarantee those individual rights. This led to the first 10 Amendments which were authored between 1789 and 1791, when they were adopted.
The First Amendment states 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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." This is the Amendment that is used by many to protect their right to protest (no matter how profanely), harangue crowds, write articles (in newspapers, magazines, or even blogs), and otherwise "make their voices heard". It has also been used as the basis for removing any references to God or the Ten Commandments from public facilities and even to ban the Pledge of Allegiance in schools ... which sort of makes an interesting comment about the phrase "free exercise thereof". ;-)
Of course, there are some constraints that have been allowed on this right. For instance, courts have ruled that one can't shout "Fire!" in a crowded theater unless, of course, there is actually a fire. In other words, the government has the right to constrain the rights guaranteed by the Bill of Rights where it is "reasonable" to do so to prevent the rights of an individual from causing problems with the overall community's safety. The government's ability to constrain, though, are extremely limited because the government has the burden of proving the reasonableness and necessity of those constraints (e.g., in the case of yell "Fire!" in a crowded theater when there is no fire, the necessity is based upon the panic and subsequent dangers to innocent attendees who might get injured in the subsequent flight from the theater).
Another aspect to consider is the phrase the right of the people peaceably to assemble. This portion of the First Amendment has recently been used to excuse/justify the various protest marches around this nation. Cities around the nation have enacted ordinances that require those who would hold rallies and, especially, marches to submit requests for permits to do so, not because the protesters don't have the right to do so but, rather, because there is a need to provide for the safety of both the protesters and other citizens during the protest. When marches occupy city streets, those streets have to be blocked off in order to prevent drivers from accidentally driving into (or over) the crowds that are marching. Also, there is a need to contain the protest march so that it doesn't interfere with the functioning of society. This has, at least traditionally, been considered to be a "reasonable and prudent" constraint upon the rights of those who would gather to protest.
However, of late, there appears to be an assumption by those who would gather/assemble and march in protest that their right to protest supersedes the rights of everyone else to conduct the business of society and that any constraints on that right to march in protest is unreasonable. As a result, whether or not the marchers choose to submit requests for permits to march, these protesters consider it unreasonable to require them to limit their activity to certain streets, much less to not shut down highways, airports, or business activities. This is to say nothing of the peaceful constraint contained within the First Amendment. In general, many have extended their "personal rights" to not only supersede the rights of others but to also include the destruction or appropriation of the property of others as a form of "protest".
Traditionally, when a large group of individuals engages in unconstrained, especially unconstrained and violent, gathering and obstruction of the functioning of society, they have been termed a mob and when they have engaged in the destruction or "appropriation" (aka stealing and looting) of other peoples' property, the term "rioting" has been employed to describe their activities.
Tuesday, January 31, 2017
Friday, January 20, 2017
Does the Constitution, itself, guarantee any rights?
If the US Constitution and its Amendments doesn't guarantee your right to a free education, then do you have any rights that are guaranteed by the Constitution and its Amendments? Well, as a matter of fact, there are several rights that are guaranteed ... as you probably already know. So, let's look into them ... starting with the Constitution itself.
The U.S. Constitution was nicely divided into sections by the Founding Fathers. The first section is the Preamble. Interestingly enough, this bit of the Constitution outlines why the Constitution was written. While the purpose of the Constitution is outlined, there is absolutely no reference to rights, much less any sort of guarantees. So, that's one section down.
From there, the Constitution moves on to Article I in which outlines the Legislative branch of the new government. Section 1 declares the existence of of the Congress and that it is divided into the Senate and the House of Representatives. Section 2 goes on to define the nature of the House of Representatives. Section 3 defines the nature of the Senate. Section 4 outlines how the election processes for the Senators and Representatives as well as the fact that Congress "shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December". Section 5 explains that each House, basically, governs its own existence and rules of operations. Section 6 covers the compensation associated with serving in the Senate and House of Representatives. Article 7 outlines the basic process of generating bills and how they become laws. Section 8 declares many specific powers granted to Congress. Section 9 lists several things that are specifically disallowed to Congress. Section 10 lists a few powers specifically not allowed to the States. So, once again, Article I makes no mention of rights.
Article II addresses the Executive branch of the government. Section 1 explains the process by which the President is to be elected. Section 2 establishes the President as the Commander in Chief of the armed forces and his powers with regard to treaties, etc. Section 3 states that the President "shall from time to time give to the Congress Information of the State of the Union". Section 4 discusses impeachment. I realize it is getting boring but, yet again, there is no discussion of "rights".
Article III covers the Judicial branch of the government. Section 1 defines the basic structure of the federal court system. Section 2 covers the jurisdiction of the federal courts. Section 3 discusses treason and the federal courts. Guess what ... yup, still no mention of "rights".
Article IV discusses "States Relations", i.e. the relationships between the various states and between the new government and the states. Section 1 starts out by clarifies the recognition of the fact that the "public Acts, Records, and judicial Proceedings" of each state will be recognized by the other states while also providing for the new government's power to define exactly how that recognition and "proof" shall occur. Section 2 goes on to to clarify the fact that the citizens of any one state will have all the protections and privileges of the citizen of any other, no matter whether they are in their home state or any other, as well as the fact that any person charged with a crime in one state who flees to another shall be extradited. Section 3 covers the means for admitting new states into the union and the creation of "territories". Section 4 closes this Article by establishing the responsibilities of the United States to every member state, i.e. to "guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and ... against domestic Violence." At this point, there has still been no mention of any rights of the individual citizens.
Article V defines the manner in which the Constitution can be amended. Interestingly enough, our Founding Fathers, while creating a truly fantastic new form of government and doing so through the creation of a written document, realized that they were not infallible and omniscient and that there would arise issues that would require adjustments to the document and government they were creating. Still, this Article also does not discuss any sort of guaranteed rights of citizens.
Article VI addresses "Prior Debts, National Supremacy, Oaths of Office". First and foremost, Section 1 commits the new government to honor the debts incurred by the preceding form of government ... which was unlike most "new governments" created before or, for that matter, after this one. Section 2 goes on to establish the supremacy of the Constitution, the laws, and any treaties made by the new government over those of the various states and to bind the judges of the various states to abide by the Constitution and those laws and treaties. Again, this Article addresses the states and the new government without discussing any individual rights.
Finally, Article VII declares the ratification of the Constitution by nine of the thirteen states to be sufficient for the Constitution to establish "this Constitution between the States". So, having reviewed the Constitution Article by Article, it is clear that there are NO individual rights guaranteed by this document as it was originally written.
I apologize for the length of this entry but it was, to a great extent, unavoidable in order to clarify my point regarding the rights guaranteed by the Constitution of the United States. I will next address the various Amendments, especially the first 10 (aka "The Bill of Rights").
The U.S. Constitution was nicely divided into sections by the Founding Fathers. The first section is the Preamble. Interestingly enough, this bit of the Constitution outlines why the Constitution was written. While the purpose of the Constitution is outlined, there is absolutely no reference to rights, much less any sort of guarantees. So, that's one section down.
From there, the Constitution moves on to Article I in which outlines the Legislative branch of the new government. Section 1 declares the existence of of the Congress and that it is divided into the Senate and the House of Representatives. Section 2 goes on to define the nature of the House of Representatives. Section 3 defines the nature of the Senate. Section 4 outlines how the election processes for the Senators and Representatives as well as the fact that Congress "shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December". Section 5 explains that each House, basically, governs its own existence and rules of operations. Section 6 covers the compensation associated with serving in the Senate and House of Representatives. Article 7 outlines the basic process of generating bills and how they become laws. Section 8 declares many specific powers granted to Congress. Section 9 lists several things that are specifically disallowed to Congress. Section 10 lists a few powers specifically not allowed to the States. So, once again, Article I makes no mention of rights.
Article II addresses the Executive branch of the government. Section 1 explains the process by which the President is to be elected. Section 2 establishes the President as the Commander in Chief of the armed forces and his powers with regard to treaties, etc. Section 3 states that the President "shall from time to time give to the Congress Information of the State of the Union". Section 4 discusses impeachment. I realize it is getting boring but, yet again, there is no discussion of "rights".
Article III covers the Judicial branch of the government. Section 1 defines the basic structure of the federal court system. Section 2 covers the jurisdiction of the federal courts. Section 3 discusses treason and the federal courts. Guess what ... yup, still no mention of "rights".
Article IV discusses "States Relations", i.e. the relationships between the various states and between the new government and the states. Section 1 starts out by clarifies the recognition of the fact that the "public Acts, Records, and judicial Proceedings" of each state will be recognized by the other states while also providing for the new government's power to define exactly how that recognition and "proof" shall occur. Section 2 goes on to to clarify the fact that the citizens of any one state will have all the protections and privileges of the citizen of any other, no matter whether they are in their home state or any other, as well as the fact that any person charged with a crime in one state who flees to another shall be extradited. Section 3 covers the means for admitting new states into the union and the creation of "territories". Section 4 closes this Article by establishing the responsibilities of the United States to every member state, i.e. to "guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and ... against domestic Violence." At this point, there has still been no mention of any rights of the individual citizens.
Article V defines the manner in which the Constitution can be amended. Interestingly enough, our Founding Fathers, while creating a truly fantastic new form of government and doing so through the creation of a written document, realized that they were not infallible and omniscient and that there would arise issues that would require adjustments to the document and government they were creating. Still, this Article also does not discuss any sort of guaranteed rights of citizens.
Article VI addresses "Prior Debts, National Supremacy, Oaths of Office". First and foremost, Section 1 commits the new government to honor the debts incurred by the preceding form of government ... which was unlike most "new governments" created before or, for that matter, after this one. Section 2 goes on to establish the supremacy of the Constitution, the laws, and any treaties made by the new government over those of the various states and to bind the judges of the various states to abide by the Constitution and those laws and treaties. Again, this Article addresses the states and the new government without discussing any individual rights.
Finally, Article VII declares the ratification of the Constitution by nine of the thirteen states to be sufficient for the Constitution to establish "this Constitution between the States". So, having reviewed the Constitution Article by Article, it is clear that there are NO individual rights guaranteed by this document as it was originally written.
I apologize for the length of this entry but it was, to a great extent, unavoidable in order to clarify my point regarding the rights guaranteed by the Constitution of the United States. I will next address the various Amendments, especially the first 10 (aka "The Bill of Rights").
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