Power to the People

Q: Do the Bill of Rights apply to Congress and Congress alone?

A: This is a difficult question to answer in 500 or 600 words. The short version of the answer is “yes” and “yes,” but maybe not for the reasons you are thinking.

To explain a bit further, let us dip into some governmental philosophy. Governments, much like corporations, are non-entities. That is, they are the creations of legal documents and the coalescence of ideas, as proposed (of course) by humans. In the creation of a government, like our Democratic Republic, we as citizens effectively say, “Look, we recognize that we are, by birth and nature, free and ought to be permitted to live as such. But, we recognize that there is a need for some parameters to be set in our society. We recognize that even nature has rules that are so deep, so pervasive, so ingrained in we the created that we must codify them. Therefore, we will place that freedom in the stewardship of something we will call government.”

That is a simplistic summary, indeed, but the main point is very important: citizens possess the rights and freedoms as – coining the words of the Declaration of Independence – inalienably endowed to them by their Creator. Whatever power our government has, therefore, is subject to approval or disapproval by we the governed. Thus, the Constitution establishes the form necessary to govern the collective whole.

Are you with me still? Good. Back to the question.

The Bill of Rights applies to all citizens. That is, it secures the inalienable rights our Declaration of Independence suggests we posses in written form. Hence, we the citizenry can invoke any one of the provisions of the constitution and subsequent amendments. For instance, the Second Amendment permits us to possess and bear arms – even, in extraordinary circumstances, against the government itself. Essentially, the Bill of Rights functions to say to government, “We the people say this far you may go and no farther.”

Yet, what of the Bill of Rights as it concerns Congress? As originally designed, the Bill of Rights is the written consent of the governed; it is the margin to government. It works to say that government – as Thomas Paine once suggested, “In its best state, is but a necessary evil; in its worst, an intolerable one” – must be restrained.

And this makes sense. Why would we the governed allow a non-entity, of our own creation and management, to go beyond our inalienable rights? While there is a need to provide for an ordered society, that ordering must be subject to those it governs and, borrowing again, “to the Laws of Nature and Nature’s God.”

If this all sounds vaguely familiar, pull out your pocket Constitution and turn with me to the Ninth Amendment where it states, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” And, as if to underscore the point, the Founding Fathers added the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In answer to the question, yes, the whole of the Constitution applies against Congress as a boundary, guaranteeing the application of the freedoms secured therein to the people. Where government overreaches, the Bill of Rights freely applies to the people as a shield against an invasive government, guaranteeing the survival of the freedoms inalienably endowed to them by their Creator.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

On Government and the Tenth Amendment

In explaining the virtues of the U.S. Constitution, Patrick Henry once said, “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government – lest it come to dominate our lives and interests.”

Henry lived in an age where what the king proclaimed was law. The king was the sovereign and, befitting of such a title, his rule was not to be questioned. Thus, the government conducted at the hands of the king often followed the whims and fancy of the monarch. His rule was not unlike the dictatorial styles of many tyrants today. Few typified this more than King George III, the monarch from whom we as Americans declared our independence in 1776.

Throwing over a despot may be rather simple. The devil is in the details of providing sufficient freedom through accountability. As the patriots of old threw off the chains of a monarchy, a government needed to be installed, lest anarchy become the rule of the day. Our founding fathers chose to install a democracy within a republic, by means of a Constitution.

A constitution is simply a founding document for an organization. Within its words are laid the rights and responsibilities of the institution and its members. With the U.S. Constitution, we see express powers given to the Executive, Legislative, and Judicial branches of our government. But not every power is expressly surrendered to our government.

In fact, the Tenth Amendment recognizes that fact when it says, “The powers not delegated to the United States . . .are reserved . . . to the people.” Thus, Henry’s explanation comes into focus.

Our freedom is at its greatest when government is most restrained. Our government, unique among a variety of forms, does not act upon the whim and fancy of a sovereign. Ours is a government instituted by its people. Our citizenry determines how far the government will reach. Our government is one of accountability.

One of Patrick Henry’s contemporaries, Thomas Paine, made the observation, “Government at its best is a necessary evil, and at its worst, an intolerable one.” We need government to maintain order, to provide for the common defense; however, only in a limited, accountable fashion do we provide for a government to use some of those rights corporately to do that which we cannot do individually. The rights remain our own. Government is not the panacea for a world of trouble.

The more we relinquish our rights to government – expressly or by silent inaction – the more it will come to “dominate our lives and interests.” Exercise your freedom. Restrain your government.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.