The Bill of Rights Was Meant to Limit Federal Power The Vision of the Founders: Dead and Gone

In 2008, the Supreme Court of the United States decided Kennedy v. Louisiana. In that decision, the Court created a new categorical right to rape a child without receiving the death penalty.

Although the majority made mention of the Eighth Amendment's prohibition of "cruel and unusual punishment," no one really believed that this new right had any basis in the Constitution. The Court majority claimed that its decision reflected a new societal consensus, despite the fact that six states and, as it turned out, Congress recently had adopted legislation providing capital punishment for certain child rapists. The dissenting justices said that the actual basis of the Kennedy decision was "the Court's 'own judgment' regarding 'the acceptability of the death penalty,'" but the majority opinion made clear that the Court simply differed with the people's representatives on the question how significant rape of a child is.

In other words, the justices substituted their legislative will for that of elected legislators. Alas, there was nothing unusual about this. Kennedy v. Louisiana illustrates what has come of the Bill of Rights in our day.

The Bill of Rights should be mourned, not celebrated. It is defunct. Intended as the bulwark of the right of decentralized self-government, it now serves mainly as an excuse for the opposite: a roving judicial veto of state policies that federal judges dislike.

So, if the people of virtually every state ban flag burning or regulate abortion, provide capital punishment or support prayer in school, that does not settle the matter. Unlike 200 or 100 years ago, today the federal judiciary is apt to step in to stop state legislatures from adopting policies like this.

The people never consented to have the federal judges behave this way.

The purpose of the first ten amendments was laid out clearly by their Preamble. "Preamble?" You might ask. "What preamble?" Although the main body of the Constitution is never published without its Preamble, one could study American history for a lifetime without ever encountering the Preamble to the Bill of Rights.

That Preamble says that Congress is recommending amendments to the states because a number of states in ratifying the Constitution "expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added." Since the people were afraid of the new Federal Government, that is, the Bill of Rights was being added to hedge in the powers of the Federal Government more carefully.

So, for example, the Tenth Amendment stated what Thomas Jefferson called the underlying principle of the entire Constitution: "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 other words, the Constitution gave the Federal Government a few enumerated powers, and those were all.

That is why the First Amendment begins by saying that, "Congress shall make no law." Congress, not government generally. The point was to leave such questions in the hands of elected state legislators.

America's Revolution was fought and won in the name of self-government via elections to state legislatures. King George III and Parliament insisted that those legislatures could legislate only when and as far-off officials essentially unaccountable to American colonists said they could. The Americans rejected that idea. In fact, rejecting that idea was what made Britain's North American colonists into Americans.

No surprise, then, that six years after the Revolution ended, in the First Congress, the people insisted that the principle of local self-government -- of federalism -- be made explicit through the Tenth Amendment and the other nine. They wanted explicit statements that the distant new Congress could not violate Americans' most cherished rights -- rights the king and Parliament had repeatedly infringed.

This was an uncontroversial understanding of things in the Constitution's first century and more. The Supreme Court unanimously said in 1833 and thereafter that the Bill of Rights was a limitation solely on the Federal Government.

But the 20th century saw a great change. The Progressives of the early part of the century opposed constitutional limitations on government power generally, and the New Deal of the 1930s stood for the elimination of the Tenth Amendment from constitutional law. Congress's power is essentially unlimited today, and federal courts have come to supervise virtually all state policies -- essentially on the basis of federal judges' policy preferences.

No one today even pretends that the Bill of Rights serves its intended purpose of restraining the Federal Government. Quite the opposite. And the death of decentralized, election-based government is entirely lamentable.


Kevin R. C. Gutzman, J.D., Ph.D., Associate Professor of History at Western Connecticut State University, is the author of Virginia’s American Revolution: From Dominion to Republic, 1776—1840 and The Politically Incorrect Guide to the Constitution.

He is also the co-author, with Thomas E. Woods, Jr., of Who Killed the Constitution? The Fate of American Liberty from Worl.... His upcoming book, James Madison and the Making of America, will be published by St. Martin’s early in 2011.


Copyright © 2009 Tenth Amendment Center. Reprinted with permission.

Views: 46

Comment

You need to be a member of 12160 Social Network to add comments!

Join 12160 Social Network

Comment by I811st on December 17, 2009 at 6:48pm
The U.S. Constitution's 14th Amendment was not ratified in accordance to the provisions of the Constitution for the United States of America and as such, it does not exist. It survives as a matter of fraud and deception.
http://snardfarker.ning.com/profiles/blogs/non-ratification-14th

"Destroying the New World Order"

TOP CONTENT THIS WEEK

THANK YOU FOR SUPPORTING THE SITE!

mobile page

12160.info/m

12160 Administrators

 

Latest Activity

cheeki kea posted a photo
Wednesday
Burbia posted a video

Strange Videos That Expose Something Massive

#disturbing #video #strange #scary #scaryvideos #strangevideos This is a compilation of the most disturbing videos on the internet, not only...
Wednesday
Doc Vega posted blog posts
Tuesday
Burbia commented on Burbia's video
Tuesday
Burbia posted a video

SUPEROLA & THE LOST BURGERS

This Game is RUBBISH !
Tuesday
pohonemas33 team commented on tjdavis's photo
Thumbnail

DejaVu

"nice very goodjob, i wish you can visit official situs pohonemas33"
Jul 26
Sandy posted a photo
Jul 26
Doc Vega posted a blog post
Jul 25
Saint Quinn favorited Burbia's video
Jul 24
Doc Vega posted blog posts
Jul 24
Burbia commented on tjdavis's blog post The Jewish Couple That Taught Bob Dylan Hebrew and Introduced Him to Zionism
"Haaretz put this story behind a pay wall. Sali Ariel and Terry Noble were the names of the couple…"
Jul 23
William Heckman is now a member of 12160 Social Network
Jul 23
cheeki kea commented on tjdavis's photo
Jul 23
cheeki kea commented on cheeki kea's video
Thumbnail

This Woman DESTROYED Harley-Davidson's Future Forever

"It's a sad day on the highway. But I guess the show must go on. Watch out for the ruination of…"
Jul 23
cheeki kea posted a video

This Woman DESTROYED Harley-Davidson's Future Forever

This Woman DESTROYED Harley-Davidson's Future ForeverWelcome to Ride Radar – Your Frontline Source for Motorcycle Deals, Trends & Market Mayhem.Looking for t...
Jul 23
tjdavis posted a photo
Jul 23
Burbia posted a status
"Who knew releasing the MLK files and literally deflecting, it ends up implicating himself with the Epstein Files."
Jul 21
Burbia posted a video

Dan Bilzerian DEMOLISHES MAGA Nutjob Patrick Bet-David on His Own Show

Watch as two powerhouse personalities collide in this no-holds-barred debate on one of the world’s most contentious issues. Patrick Bet-David, known for his ...
Jul 21
Doc Vega's 7 blog posts were featured
Jul 20
tjdavis's 2 blog posts were featured
Jul 20

© 2025   Created by truth.   Powered by

Badges  |  Report an Issue  |  Terms of Service

content and site copyright 12160.info 2007-2019 - all rights reserved. unless otherwise noted