David, I appreciate your time and effort in support of 2nd Amendment.It's an interesting perspective, and I'm not trying to be stiff-necked, but I don't believe I'm wrong in this. The Sixth Amendment is not granting a right, it is acknowledging one codified in English Common Law and predating the Constitution, as do discussions of judicial powers and jury trials in the Federalist Papers. I guess we could also bring up differences between civil/legal rights and natural ones, and the dangerous blurring of what "rights" are, particularly with politicians bandying about terms like "Patients' Bill of Rights", etc., in an attempt to pander for votes and defraud people out of real ones...
However, you make a statement in the article that I believe is incorrect and I thought I'd bring it to your attention. 4th para. into the article, "The Bill of Rights grants no rights. To believe that it does reverses the proper role...."
Please read the Sixth Amendment below:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Also, the Ninth Amendment states:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Anyway, my red flag goes up when I hear or read sweeping general statements like that. The Bill of Rights does include the granting of certain rights, at least one is clearly stated in the 6th Amendment.
Be well,
ER
But I'm starting to digress. I will cede that a right to trial by jury is meaningless in the absence of government, and that at one point, a body of men decided that a jury trial was a right to which government would yield. But that decision was also made about everything else we consider "unalienable" as well, and we see them being alienated all the time.
As for the Ninth Amendment, I believe the fact that it states rights are "retained by the people" speaks for itself as predating the article, and goes to the core of why some warned against including a Bill of Rights in the first place--so that what was enumerated wouldn't be construed as all that there was.
It's an interesting question, and I'd be interested in hearing more thoughts on this.
13 comments:
"the accused shall enjoy the right to a speedy and public trial"
Stating that you shall enjoy something does not state that the "something" does not exist already.
"Also, the Ninth Amendment states:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
This does not state that these rights are being created and/or granted by the constitution, only that they are enumerated. It does, however, indicate that all rights are not enumerated in the constitution.
What do I know? I went to a public school.
I think the whole debate over whether the Bill of Rights grants or merely codifies rights is pointless.
I tend to agree with ER that there's a difference between types of rights, but the fact of the matter is that the Bill of Rights states that we have rights (whatever their source) and that the government will not impinge on them in various ways. The arguments about rights pre-existing may be useful in a debate over whether they should be included in the Bill of Rights, but once enumerated, the source seems immaterial to me.
Boyd,
I must disagree. If we concede that the Bill of Rights (or the Constitution) grant us rights rather than simply acknowledge previously existing rights, then we open the door for the rights to be taken away. After all, the Constitution is a document that can be changed. What is to stop an amendment that revokes the right to a speedy and fair trial? Nothing, in theory, regardless of whether or not the Constitution only recognizes preexisting rights or actually grants them. The document can be changed regardless.
The difference is that if such an amendment were to be passed (believing firmly that I have a right to a speedy and fair trial because I am a human being) I have a moral right to take up arms against my oppressor. On the other hand, if you take the stance that the government gives us rights, then you can have no absolute moral argument against that same government taking away those rights and we end up being no better than slaves to the will of the majority.
The "Bill of Rights" has a purpose, and that purpose is/was not to grant (give/create) rights.
The purpose of the "Bill of Rights" was/is to place further restrictions upon the government created by the "Constitution for the United States of America".
The head matter/preamble to the "Bill of Rights" explicitly explains the purpose of the first ten amendments.
{begin}
"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 insure 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.:
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.
{end}
I received this reply from "ER":
David, that was very thoughtful of you. Thanks for the response. However.... I have to chime in again :-)
Your statement is: "The Sixth Amendment is not granting a right, it is acknowledging one codified in English Common Law and predating the Constitution, as do discussions of judicial powers and jury trials in the Federalist Papers."
Many if not most all the thoughts surrounding our revolution and codifying rules and limitations of government from Jefferson, Madison, Lee in Virginia, etc. derive from Locke and other enlightened thinkers, and even from the Magna Carta. So, you and I would be digressing if we choose to talk about how the Sixth Amendment was predated by being included in English Common Law. That's interesting, just like laws in Louisiana are based on French laws, but it is written as rights that are conferred on our people... pure and simple. Please compare that statement to the decades of debate about the Second Amendment, whether meaning changes because of lack of a comma, what is intended by "People", and so on.
However, the simple fact, and we really are unable to disagree on this or debate it, is that the language of the Sixth Amendment clearly confers upon the American people very specific rights not afforded to many populations across the globe then, and unfortunately, still not today. That's the rule... it's clear... the concept came from many sources, including English Common Law... but it's a right in our Bill of Rights that's given, rather than other amendments that prohibit natural rights of man from being hindered and "shall not be infringed".
If the government comes to take me away because of a suspicion of a crime, I am comforted by the Sixth Amendment's rights afforded to me that I can quickly know what I am being charged with and quickly (if I so choose) go before an impartial jury and present my case.
I find it interesting that ER mentions Locke and the Founders, and then continues with his assertion that the Sixth Amendment “confers” the right to a speedy trial by a jury of one’s peers. I think ER, you are missing the point. It really would not matter how they worded the first nine amendments to the Constitution because the Tenth is worded thusly:
“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.”
The first key phrase, “The powers not delegated” clearly show that the Constitution has a source for its power and its authority. The second key phrase, “are reserved to the States respectively, or to the people.” plainly show the source of all power and authority. All one has to do to determine the ultimate source of that power is read a state constitution from the original thirteen states. However, the source is plain as Arkansas’ Constitution of 1874 copies the very thoughts of both Locke and the Founders in that it states plainly:
PREAMBLE
We, the people of the State of Arkansas, grateful to Almighty God for the privilege of choosing our own form of government, for our civil and religious liberty, and desiring to perpetuate its blessings and secure the same to ourselves and posterity, do ordain and establish this Constitution.
And again:
ARTICLE II
Declaration of Rights
Section 1. All political power is inherent in the people, and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same in such manner as they may think proper.
Therefore, all rights and consequent power inherently belong to the individuals in the several states.
Apparently, what needs to happen is a re-education the American public. We should have been holding school all along due to the fact that the vast majority of the American citizenry (ER, you are included) thinks in a way that is entirely opposite to the way of thinking of the Founders. The Founders viewed the flow of power to be from Almighty God, to the individual, to the government the society of individuals formed. Modern America doesn't think that way at all. If they consider it at all, they think power flows from government, and the individual possesses whatever power the government says is okay to have by our Constitution (conferred rights).
ER, I repeat, when you read Locke, you missed the point.
Again, A-men Mr. Davis! I love your blog as well!!
The sixth amendment if read in the context of the history of our constitution it becomes obvious that it is intended as a fetter on governmental power.
In other words, an accused is innocent and cannot be convicted or punished for any crime until and unless the people of the republic have participated in any action against him and that such action against him cannot be taken without the guaranteed safeguards against governmental overreach are observed.
A king, a president, a governor, a senator, nor any other official may move against an accused until such guarantees of a speedy, fair, and impartial trial by a jury of his peers is met, and further that he cannot be denied a defense in the legal arena.
Therefore, the amendment is a fetter and/or a binding restriction against the state which defines the conditions that must be observed by the state in order to protect the citizens' rights of presumption of innocence with which he was endowed upon his birth.
So as we see it is not a granting of rights to the citizen, but rather, a restriction of the state's power denying the citizen the facility to abrogate his already existent rights.
In combination with the fourth and fifth amendments the state is enjoined from falacious and unwarranted malicious prosecutions. But, if the requirements of the fourth and fifth are met and prosecution proceeds the state is then enjoined from using any power not derived from the people and with their cooperation via a jury of one's peers and guaranteeing the accused rights to legal representation.
The rights are unalienable and we all are born with them. Ours is the only country that enumerated those rights in its founding documents, but it does not grant them. It only recognizes them and holds government to strict observance of the restrictions against abuse of them by the state.
ER may be well intentioned but he is wrong and needs more grounding in history, humanities, social science, and the rights of free men.
An ability to debate does not trump fact.
I receieved the following from David Hardy:
dc filed its brief today--no time to talk much. But idea of whether rights in general pre-exist ... well, the framers believed that. "The right of the people" shall not be infringed supposes that there is indeed a right of the people to begin with.
Modern legal thinking, tho, I believe it's called Positivism, thinks that all concepts of right derive from human decisions, social compact, hence a right doesn't exist until people agree that it does.
David,
Here is how I interpret our "rights" and what I understand from my research of the subject.
Section I of the 14th Amendment reads:
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Unless I am interpreting this incorrectly the states cannot make any law that takes away rights from any citizen. So, the 2nd Amendment applies to citizens no matter what state they live in. When the Federal Constitution was amended by the Bill of Rights, they became part of the Constitution which is the Supreme Law of the Land (Article 6, Para 2). You have always had the Right to Keep and Bear arms and state constitutions, laws and ordinances are all superseded by the Federal Constitution and the 2nd Amendment.
Remember, NO Amendment is the source of a right. Rights are INHERENT. The Second Amendment is there to help assure that a right we already have isn't taken away.
Which in turn means, the Bill of Rights is a specific list of things that the Federal Government can NOT do. The restriction is on the Government.
Well, I had to go look it up. The following link on legal positivism seems to cover it sufficiently, though I’m certain there are many more articles and books written on the subject. However, based on what I read and skimmed, David Hardy’s brief synopsis seems adequate enough.
So, according to modern legal theory, the law is whatever “society” deems it to be. Moreover, everything precious to my person (liberty of the conscience, right to own property, right to enter into contract, etc.) is entirely dependent upon what everyone else in “society” thinks. Hmmm, this sounds just like the democracy the Founders considered unstable and dangerous.
I noted in the article the absence of any mention of any higher authority than “society” and whatever “government” a society happens to have. This is in direct opposition to Locke and the Founders. Whereas Locke proceeded from the following basis:
The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for our's. (The Second Treatise of Government, para. 6)
To which the Founders agreed by the following statements from the Declaration of Independence:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, . . .
And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
Thus, to Locke and the Founders, the source and authority of all law is the LORD God of the Bible. Moreover, that is the testimony of the history of English law, which is the heritage of our law.
Plainly, rights come directly to the individual from God. Thus, since it is God who grants the individual their rights, no man may deprive any other person of the free exercise of their rights without just and lawful cause, and due process of law. The following is how the LORD puts it in His word:
Behold, all souls are mine; as the soul of the father, so also the soul of the son is mine: the soul that sinneth, it shall die. (Ezekiel 18:4)
Ye shall not therefore oppress one another; but thou shalt fear thy God: for I am the LORD your God. (Leviticus 25:17)
And the word of the LORD came unto Zechariah, saying, Thus speaketh the LORD of hosts, saying, Execute true judgment, and shew mercy and compassions every man to his brother: And oppress not the widow, nor the fatherless, the stranger, nor the poor; and let none of you imagine evil against his brother in your heart. (Zechariah 7:8-10)
For this, Thou shalt not commit adultery, Thou shalt not kill, Thou shalt not steal, Thou shalt not bear false witness, Thou shalt not covet; and if there be any other commandment, it is briefly comprehended in this saying, namely, Thou shalt love thy neighbour as thyself. Love worketh no ill to his neighbour: therefore love is the fulfilling of the law. (Romans 13:9-10)
From what I see, legal positivism is very much like driving off the road into the swamp and getting stuck; then instead of trying to get back on the road, plunging ever deeper into the morass. No wonder judges cannot seem to make a right decision, and we are as a nation, devoid of understanding our rights and how precious they are.
I note the absence of the phrase "is hereby granted" in the constitutional examples provided.
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