Temecula Constitution Class: Bill of Rights/First Amendment

Join us Thursday Night at 6:30 pm, Faith Armory, 41669 Winchester Road, Temecula, CA Constitution Class Handout Instructor: Douglas V. Gibbs   www.politicalpistachio.com www.douglasvgibbs.com www.constitutionassociation.com     Lesson 12 Bill of Rights: Introduction to, and Incorporation of   Introduction to the Bill of Rights The Bill of Rights does not guarantee your rights, nor was it designed to allow the federal government to protect your rights.  The language used in the first ten amendments is clear.  The 1st Amendment begins, "Congress shall make no law..."  The 2nd Amendment ends with the words, "...shall not be infringed."  The 3rd Amendment begins, "No Soldier shall..."  The key phrase in the 4th Amendment is "shall not be violated."  The entire Bill of Rights was designed to confirm what the first seven articles had already established.  The federal government was granted only certain authorities, and for the purpose of clarity, the Bill of Rights was written to reinforce the concept that the federal government has no business infringing upon the rights of the people.  The federal government is not charged with protecting those rights, or guaranteeing those rights, anywhere in the Bill of Rights.  The first ten amendments were written to tell the federal government, "Hands off, do not touch, thou shalt not."   The concept that the federal government exists to guarantee our rights, or protect our rights, emerged after the ratification of the 14th Amendment.  The Civil War Amendment tasked the federal government with ensuring the newly emancipated slaves were treated fairly, and that their rights were protected - even at the State level.  In an effort to capitalize on that idea, the courts got involved to ensure that the former slave States behaved.  The southern States, the North was convinced, could not be trusted, and often the South confirmed the lack of confidence the Union States harbored with laws designed to get around the new restrictions placed upon them.   After the American Civil War, the three amendments proposed and ratified to protect the emancipated slaves were specifically designed for the purpose of ensuring the newly freed slaves were treated equally in the eyes of the law.  Statism, however, seized upon the ideas planted by Congressman John Bingham, and through the courts worked to weave an intricate tapestry that would change the culture of the United States from a union of voluntary members, to a nation of states joined in an unbreakable union.  The country no longer resembled the union of sovereign states it had once been, and instead became a nation held together by the statist consequences of the ravages of war.   The federal government telling States what they can and can't do regarding our rights opens a Pandora's Box the framers of the Constitution never intended to be breached.  By allowing the federal government to dictate to the States what they can and can't do regarding rights, even with the best of intentions, the precedent is established allowing federal control.  A federal government that can force a State to behave in an acceptable manner can later dictate to a State to follow a federal mandate designed to reduce your access to your rights.   As President Gerald Ford once wisely said, "A government big enough to give you everything you want is a government big enough to take from you everything you have."   A significant segment of the Founding Fathers believed the Bill of Rights to be unnecessary.  The first seven articles of the U.S. Constitution were written in such a way that the concerns of the Anti-Federalists had been addressed, but they still feared that the federal government would compromise the natural rights of the citizens if a Bill of Rights was not included in the Constitution.   The Constitution was written in a manner that allowed the new federal government only the authorities granted to it by the Law of the Land.  Regarding arms, for example, the possession of guns was never an issue granted to the federal government in the first seven articles of the U.S. Constitution, therefore the federal government had no authority to restrict guns in any way, shape, or form.  The Anti-Federalists, however, did not believe the federal government would abide by the limitation of authorities placed on the United States Government, and demanded that a Bill of Rights be written.  Failure to provide a Bill of Rights, indicated the Anti-Federalists, would result in a failure of those States dominated by Anti-Federalists to ratify the new Constitution.   The Framers of the Constitution, understanding that without the critical approval of the Anti-Federalists, the new Constitution would never be ratified, agreed to include a Bill of Rights.  James Madison was asked to gather the amendments to be proposed and potentially ratified by the States, and use them to write a Bill of Rights.   Originally, there were a large number of amendments proposed, but the final proposal that went to the States for ratification was narrowed down to twelve amendments.  Only ten were ratified.  Of the remaining two, one regarding apportionment remains unratified, and the other became the Twenty-Seventh Amendment in 1992.   The debates over the adoption of the Constitution found the Anti-Federalists fearful that as drafted, the Constitution created a central government that may have the opportunity to become a tyranny.  These fears were based on the memory of the British violation of basic civil rights before and during the American Revolution.  With past British tyranny as a frame of reference, the Anti-Federalists demanded that a "bill of rights" be written that would clarify without question the immunities of individual citizens.  Though the amendments of the Bill of Rights were not proposed until 1789, several state conventions during their ratification conventions ratified the Constitution with the understanding that the amendments would be offered.   One of the fears regarding the proposal of the Bill of Rights was that by trying to protect specific rights, it might imply that any unmentioned rights would not be protected.  It was believed by many that as a result, the Bill of Rights was actually unnecessary, for in the British system of common law natural rights were not defined, nor quantified.  Adding a Bill of Rights to the Constitution may actually limit the rights of the people to those listed in the Constitution.  As a result of this argument, included in the Bill of Rights is the Ninth Amendment, which indicates that rights not enumerated would also be protected.   Another argument against the Bill of Rights is that the ten amendments muddy the waters of the Constitution, because the first seven articles were designed to grant authorities to the federal government, and if an authority is not granted, the federal government does not have that power.  The Bill of Rights tells the federal government what it cannot do.  This enables those who oppose the Constitution to claim that the Constitution does not only grant express powers.  By focusing on the Bill of Rights, the opposition responds to constitutional challenges with the question, "Where in the Constitution does it say the federal government can't do that?"  Considering the Bill of Rights was not even necessary, this provides unnecessary ammunition to those that oppose the Constitution. Terms: Anti-Federalists - Opposed to formation of a federal government, particularly by adoption of the Constitution of the United States.   Arms - Weapons, firearms; a gun that may be used for protection of property or as part of a militia.   Bill of Rights - The first ten amendments of the U.S. Constitution; a formal summary of those rights and liberties considered essential to a people or group of people.   Common Law - The part of English law that is derived from custom and judicial precedent rather than statutes, able to be changed by the whims of the governed, or their representatives.   Enumerated - Counted or told, number by number; reckoned or mentioned by distinct particulars.   Questions for Discussion: Why does the Constitution offer the opportunity for both oaths, and affirmations? Why did some of the Founding Fathers consider the Bill of Rights unnecessary? What did the Anti-Federalists think of the creation of the federal government?  Why? Why were the Founding Fathers willing to add the Bill of Rights even though they believed the amendments to be unnecessary? Resources: Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).   Philip B. Kurland and Ralph Lerner, The Founder's Constitution - Volume Five - Amendments 1-12; Indianapolis: Liberty Fund (1987)   The Charters of Freedom: The Bill of Rights, National Archives and Records Administration: http://archives.gov/exhibits/charters/bill_of_rights.html   Incorporation of the Bill of Rights The Bill of Rights was originally intended to be applied only to the federal government.  Even the most ardent opponent to the originalist view of the Constitution concedes that it is commonly understood that originally the Bill of Rights was not intended to apply to the States whatsoever.  The text of the U.S. Constitution does not necessarily clearly exhibit that the Bill of Rights was only intended to apply to the federal government, but a deep study of the text of the first ten amendments, and the various writings of the Founding Fathers on the topic, reveals without a doubt that the Bill of Rights was indeed originally intended to only apply to the federal government.   Though even the most ardent opponent of the United States Constitution will admit that the Bill of Rights was originally intended to only apply to the federal government, the rule of inapplicability to the States was abandoned by statists after 1868, when it became argued that the 14th Amendment changed this rule, and served to extend most of the Bill of Rights to the States.   The section of the 14th Amendment that has been interpreted to extend the Bill of Rights to the States comes from the second sentence of Section 1 of the 14th Amendment, which reads:   "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."   Through a series of court rulings, the Supreme Court has changed the Constitution by applying parts of the Bill of Rights to the States.  The process over the time period since the ratification of the 14th Amendment which works to apply the Bill of Rights to the States through court rulings and written opinions is called "The Incorporation of the Bill of Rights."   The Bill of Rights was originally not meant to be a guarantee of individual freedoms at all, but a limitation of federal authority against our God given rights.  In other words, the Bill of Rights was not written for the people, but for the federal government as a means of telling the federal government what it cannot do in regards to our unalienable rights.   Why not apply these amendments to the States as well?   The States already had a Bill of Rights in their own State Constitutions (and those that did not have a constitution yet, did include a Bill of Rights later).  The Founding Fathers were confident that the people of the States could control their own State officials, and would be involved in their local governments.  The people did not fear their local governments acting in a tyrannical manner similar to the potential of a centralized government system.  Their fears were of the new and distant central government.   Originally, parts of the first amendments proposed by James Madison did in fact address the States, seeking to limit the State governments with provisions such as, "No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases."  The parts of the Bill of Rights that sought to be applied to the powers of the States, however, were not approved by Congress, and therefore were not a part of the proposed amendments to the States.   The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government.  Prior to the incorporation of the Bill of Rights to the States by the courts as based on their interpretation of the 14th Amendment, the Bill of Rights did not apply to the States, and was never intended to be fully applied to the States. The argument used, despite original intent, that the Bill of Rights must also apply to the States is based more on philosophy, than historical evidence.  One of the philosophical standpoints used is that if the specific rights given in the Bill of Rights are based on the more general rights to life, liberty, and property which in turn are considered to be God-given and unalienable, then State governments do not have the authority to infringe on those rights any more than can the federal government.   The argument, however, simply suggests that the Bill of Rights ought to apply at the State level, not that it originally did.   If the Bill of Rights originally only applied to the Federal Government, and over time has changed to be something that was applicable on the State level through court decisions, the reality is that the Constitution itself has never allowed the Bill of Rights to be applied to the States.  The change was done by judicial means, meaning that the Constitution has been changed by judicial activism.  The problem, however, is that according to the Constitution, the only way to change the Constitution is through an amendment process.  Therefore, the incorporation of the Bill of Rights to the States occurred unconstitutionally.   This returns us to the argument that the 14th Amendment is the source and authority of the incorporation of the Bill of Rights to the States.  The Supreme Court's first ruling regarding the scope of the 14th Amendment, and if the amendment enables the Bill of Rights to be applied to the States, was rendered in the Slaughterhouse Cases just five years after the ratification of the 14th Amendment in 1868.  A five to four vote by the high court interpreted the Privileges and Immunities Clause to be the authority they needed to enforce The Bill of Rights against the States.  Subsequent cases also used the 14th Amendment as an authority for incorporation.  During the early twentieth century a number of court cases, using the arguments referencing the 14th Amendment, began selectively incorporating some of the specific provisions of the Bill of Rights while rejecting the incorporation of others.   The courts, through this process of incorporating The Bill of Rights to the States, have changed the Constitution through unconstitutional means, and against original intent.  As originally intended, all provisions in the U.S. Constitution apply to the federal government, unless otherwise noted.  The Bill of Rights was originally intended to apply only to the federal government, and if we are to remain in line with the original intent of the Founding Fathers, State sovereignty must remain protected by that original intent.   Congressman John A. Bingham of Ohio was the primary author of the first section of the 14th amendment, and it was his personal intention the Bill of Rights be applied to the States as well.  His argument was that it was necessary in order to secure the civil rights of the newly appointed slaves.  However, most of the representatives during the five months of debate on the floor of Congress argued against incorporating the Bill of Rights to the States, and so when the amendment was agreed upon for proposal, the majority of those involved intended for the 14th Amendment to not influence how the Bill of Rights was applied.  In the beginning, the courts ruled that the Amendment did not extend the Bill of Rights to the States.  It was after the realization that Black Codes were emerging in the South that the courts decided for the purpose of protecting the civil rights of the emancipated slaves, they would begin to apply parts of the Bill of Rights to the States. Terms: Black Codes - Laws put in place in the United States after the Civil War with the effect of limiting the basic human rights and civil liberties of blacks.   Incorporation of the Bill of Rights - The process through court rulings based on the interpretation of the 14th Amendment to apply the Bill of Rights to the States.   Judicial Activism - When judges violate the Separation of Powers through their rulings; when a judge rules legislatively by modifying or striking down a law using the unconstitutional authority of judicial review.   Original Intent - Original meaning of the United States Constitution as intended by the framers during the Federal Convention of 1787, and the subsequent State Ratification Conventions.   Originalist view of the Constitution - View that the Constitution as written should be interpreted in a manner consistent with what was meant by those who drafted and            ratified it.   Questions for Discussion:   1.   Why is the originalist view of the Constitution so important?   2.   How have Statists changed the Constitution through the courts over the last two hundred years?   3.   What is the only legal way to change the Constitution?   4.   Why is the Bill of Rights not a guarantee of individual freedoms?   5.   From where do our rights come from?   6.   How did the Black Codes play a part in the incorporation of the Bill of Rights?   Resources:   14th Amendment to the U.S. Constitution: Civil Rights (1868), Our Documents dot gov: http://www.ourdocuments.gov/doc.php?flash=true&doc=43   Intent of the Fourteenth Amendment was to Protect All Rights (argument supporting incorporation of the Bill of Rights to the States), Constitution dot org (2000): http://www.constitution.org/col/intent_14th.htm   Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).   Philip B. Kurland and Ralph Lerner, The Founder's Constitution - Volume Five - Amendments 1-12; Indianapolis: Liberty Fund (1987)   Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment (1993): http://www.constitution.org/lrev/aynes_14th.htm   The Fourteenth Amendment and Incorporation, The Tenth Amendment Center (2010): http://newyork.tenthamendmentcenter.com/2010/05/the-14th-amendment-and-incorporation/   To Whom Does The Bill Of Rights Apply?, Lew Rockwell dot com (2005): http://www.lewrockwell.com/browne/browne27.html   What is the Bill of Rights?, About dot com Civil Liberties (argument supporting incorporation of Bill of Rights to the States: http://civilliberty.about.com/od/historyprofiles/f/what_is_bill.htm Copyright 2015 Douglas V. Gibbs

Constitution Class Handout Instructor: Douglas V. Gibbs   www.politicalpistachio.com www.douglasvgibbs.com www.constitutionassociation.com     Lesson 13 The First Amendment   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.               Freedom of Religion   The first part of the 1st Amendment addresses religion.  The frame of reference of the Founding Fathers was Europe, and more specifically, England.  In Europe, a movement to reform the Church began in 1517, influenced by Martin Luther's critiques of the Roman Catholic Church.  The movement led to the Protestant Reformation.  After the Pope denied the King of England the permission to divorce his wife, the English king created the Church of England, and established himself as head of the church, so that he may grant to himself the allowance to seek a divorce.  In England the Church of England greatly influenced the centralized governmental system, and the politicians greatly influenced The Church.  There was no separation between powers of the king and the church, a problem that revealed itself with the 1559 Act of Uniformity.  According to the Act of Uniformity, it was illegal to not attend Church of England services.  A fine was imposed for each missed Sunday and holy day.  Penalties also existed if one decided to have church services not approved by the government, which included arrest, and larger fines.  The problem, the Founding Fathers reasoned, was not faith in God, but the establishment of a State Church.  Therefore, to protect the governmental system from the influence of religion, while also protecting the various religious sects from a government that may give preferential treatment to an established religion, the Founders determined that the federal government must not establish a state religion (Establishment Clause).   The second part of that clause, however, was clearly designed to protect the various religious exercises by Americans from the government by instructing government to not prohibit the free exercise of religion.   Freedom of religion was a big deal with those early Americans.  The importance of religious freedom during that time period is common knowledge.  Even the textbooks in today's public school system reveals the Pilgrims first came to the New World in search of religious freedom.   Through the passage of time secular forces in our society have worked to undermine the first clause of the 1st Amendment.  Americans have been conditioned to believe in a concept known as the Separation of Church and State.  The concept has determined the church is to have no influence, no matter how subtle, on government for any reason.  Therefore, reason the secularists who support the modern concept of the separation of church and state, any mention of God in the same breath with the federal government is in direct violation of the 1st Amendment.   To understand the error of the concept of Separation of Church and State in today's society, we must go back and discover the origination of the idea.  The truth demands we recognize the language used in the writings of the Founders, as well as grasp the history of the colonies - including a series of letters between the federal government and the Danbury Baptists of Connecticut, culminating in the letters to Thomas Jefferson after he became President of the United States after the Election of 1800.   Each of the colonies began as a collection of like-minded religious folk who wanted freedom for their religion (not necessarily freedom of all religions).  In Jamestown, in 1610, Dales Law mandated the Jamestown colonists to attend Anglican worship.  The law went so far as to have provisions against criticism of the church.  Violation of Dales Law could even lead to death.  The Puritan Colonies to the north had similar laws, even setting up their governments in accordance with Puritan Law.  Connecticut was one of those Puritan Colonies, and in 1639 the colony enacted "The Fundamental Orders of Connecticut."  The law set Connecticut up as a theocracy, disallowing non-Puritans from holding office.  The government was the church, and the church was the government.   The practice of religious preference was not limited to Connecticut.  All of the States enforced established religions, except Pennsylvania and Rhode Island.   Though Pennsylvania was largely a Quaker dominated State, William Penn believed that religion should be free from state control, so Pennsylvania did not persecute non-Quakers.  However, in Pennsylvania, in order to hold office, you still had to be a Christian.   Rhode Island, founded in 1636 as a colony, was based on the principle of true religious liberty, and took in folks who were trying to escape the religious persecution of the other colonies.   Connecticut's Puritan dominated landscape included a group of Baptists in Danbury, Connecticut who were tired of being treated like second class citizens.   Thomas Jefferson drafted the Virginia Act For Establishing Religious Freedom in Virginia, and with James Madison's assistance, finally got it enacted into law in 1786.  After many letters to President Adams that resulted in no assistance, the Danbury Baptists were excited about Jefferson winning the presidential election in 1800.  Finally, they would have someone in office who would help them in their fight for religious freedoms in Connecticut.   The Danbury Baptists wrote to Jefferson to congratulate him for his win, and to appeal to him for help.  Thomas Jefferson responded with a letter that carries the line, "a wall of separation between church and state," which has become the source from which the infamous concept of Separation of Church and State was eventually derived.   The Founding Fathers desired that Americans be free to worship as they wished, without being compelled by government through an established religion.  The key, however, is that they not only did not want the federal government compelling a person through laws regarding religion, but the government shall not "prohibit the free exercise thereof."   Thomas Jefferson, as indicated in his letter to the Danbury Baptists, and his other writings, was against the government establishing a "State Church."  However, he also believed that men should be free to exercise their religion as they deem fit, and not be forced to follow a government mandate that may prohibit religion.   The Danbury Baptists were concerned over local religious freedoms, but Jefferson was clear, the federal government could not mandate anything in regards to religion.  It is a State issue, and the Danbury Baptists needed to address the issue themselves through their State government.  Jefferson's reference to a wall of separation was an explanation that the federal government cannot prohibit the free exercise of religion for any reason, including on public grounds, but if a State was to prohibit the free exercise of religion, or establish a state church, it was an issue that must be resolved at the State level.               Freedom of Speech and Freedom of the Press   The point of including in the Bill of Rights the freedom of speech, and of the press, was specifically designed to protect political speech, though other speech is protected by this clause as well.  The Founding Fathers believed that freedom hinged on the freedoms of political speech and the press.  Benjamin Franklin wrote in the Pennsylvania Gazette, April 8, 1736, regarding the American doctrine behind freedom of speech and of the press:   "Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates."   James Madison in 1799 wrote, "In every State, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men of every description which has not been confined to the strict limits of the common law."               Freedom of the Right of the People To Peaceably Assemble, and to Petition the Government for a Redress of Grievances   The right to peaceably assemble means that citizens may peacefully parade and gather, and demonstrate support or opposition of public policy.  This part of the 1st Amendment is closely tied to Freedom of Speech, guaranteeing one's ability to express one's views by freedom of speech and the right to peaceably assemble.   The need to protect the right to peaceably assemble was not a new concept during the Constitutional Convention.  Before the Bill of Rights, the Declaration and Resolves of the First Continental Congress declared on October 14, 1774:   The inhabitants of the English colonies in North-America, by the immutable laws of nature, the principals of the English constitution, and the several charters or compacts, have the following rights: They have a right peaceably to assemble, consider their grievances, and petition the king: and that all prosecutions, prohibitory proclamations, and commitments for the same are illegal.   In 1776, Pennsylvania's declaration of rights guaranteed peaceable assembly.  Pennsylvania was the first State to recognize this right.   Originally, the right to assemble was considered less important than the right to petition. Now, many historians consider the two to be equally important, and to actually complement each other.   The Founding Fathers felt that the right to assemble, and petition the government for a redress of grievances, were important keys to protecting States' Rights, and the rights of the people, from the federal government.  The need to assemble, to come together and share common beliefs and act upon those beliefs, is what began the drive for independence, and ultimately what led to the American Revolution.  The right to assemble and petition the government for a redress of grievances, the Founding Fathers believed, was one of the primary tools available to the citizens in their drive to stop tyrannies before they could take hold.   The right to peaceable assembly provides the opportunity for all citizens to participate in America's political life and in the electoral process.  A recent example of this inalienable right in action is the Tea Party Movement.  The Tea Party rallies are peaceful assemblies.  These rallies are protected by the Constitution when they are for a lawful purpose, are conducted in an orderly manner, and publicize some type of grievance.  Many groups and organizations use assembly as a way to show support for an idea, or dispute, as characterized by the Tea Party. Terms:   1559 Act of Uniformity - In Britain it was illegal not to attend Church of England services, with a fine imposed for each missed Sunday and holy day.  Penalties for having unofficial services included arrest and larger fines.   Protestant Reformation - Movement of the Church Reform begun in 1517 that was influenced by Martin Luther's critiques of the Roman Catholic Church.  The movement led to the formation of the Protestant Christian groups.   Separation of Church and State - Distance in the relationship between organized religion and the nation state.   Theocracy - Form of government in which a state is as governed by religion, or by clergy who believes they are under immediate divine guidance.   Questions for Discussion:   1.  How does today's definition of the separation between church and state differ from the attitude towards religion by the Founding Fathers?   2.  Why did the Danbury Baptists appeal to Thomas Jefferson for help?   3.  Why do you think that the Founding Fathers believed that our freedoms hinged on the freedoms of political speech and the press?   4.  What are examples of the people peaceably assembling in protest?   Resources:   Danbury Baptist Association's letter to Thomas Jefferson, October 7, 1801: http://www.stephenjaygould.org/ctrl/dba_jefferson.html   Jefferson's Final Letter to the Danbury Baptists, January 1, 1802: http://www.loc.gov/loc/lcib/9806/danpre.html   Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).   Philip B. Kurland and Ralph Lerner, The Founder's Constitution - Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).   The Declaration and Resolves of the First Continental Congress declared on October 14, 1774, U.S. History dot org: http://www.ushistory.org/Declaration/related/decres.htm   Thomas Jefferson, The Virginia Act For Establishing Religious Freedom, 1786: http://religiousfreedom.lib.virginia.edu/sacred/vaact.html   Copyright 2015 Douglas V. Gibbs