The Bill of Rights

The hot, muggy, Philadelphia summer came to an end giving birth to the miracle of 1787—the Constitution of the United States. The delegates after laboring through the steamy summer came to a conclusion. Their hard work done, they were ready to go home. They had come to Philadelphia to amend or improve the Articles of Confederation but like all good committees they exceeded their authority and produced the Constitution instead. Edmund Randolph, leading the Virginia delegation, sounded the key note when he said we need a government with a strong executive and he fought hard to get the Presidency defined as such.

If any one man deserves credit for the Constitution it is Alexander Hamilton. Not that Hamilton is a principal author of the document as Jefferson was of the Declaration of Independence, but rather, it was he who was the inspiration and impetus for having the Convention in the first place and it was primarily he, along with James Madison and John Jay, who defended it in the ratification process. The Federalist papers they wrote under the pseudonym Publius, were, for decades, the final authority on the Constitution, having been surpassed only by actual judicial experience itself.

As wonderful as the Constitution was—it is a miracle of brevity—it fell short of accomplishing an important consideration, namely spelling out the legal safeguards of citizens. George Mason, the great proponent of free speech, refused to sign the finished document, as did Eldridge Clever and Edmund Randolph, the Virginia patrician who called for the sweeping changes that took place; because there was no "Bill of Rights"—no statement of citizens' right to be free of the oppressions of their own government.

The United States of America, with its Declaration of Independence and Constitution, is the major product of the centuries long, evolutionary development of the idea of progress in Western Civilization. The American Experiment is the living, physical embodiment of philosophical thought extending back into the late Middle Ages concerning the, concepts of freedom and liberty and the rights of humankind. Prior to the idea of progress the guiding thoughts were the Scriptures and Providential Nature. Freedom in the pre-progress era consisted of hegemonic freedom—the freedom that comes from the right to rule and to own private property. As we have seen from our own South, at the height of the quest for our national independence, hegemonic freedom of the Virginia cavaliers, among them George Mason, Edmund Randolph, Thomas Jefferson and George Washington meant freedom by the right to rule and own private property (including slaves). Only the rulers had freedom; all else were subject to restraining laws. When Jefferson expressed the sentiment "All men arer created equal...," he was rechoing Phillip Mazzei, the man who founded the Constitution Society of which Jefferson was a member, and who said "All men ought to be born free and equal." Slavery in the South and the rest of the world was an extension of slavery and serfdom of the Middle Ages, which in turn came from Antiquity. The nobility had it made in the Middle Ages. Slave owners the world over were in the catbird's seat from the end of the Middle Ages to the 19th century.

The Constitution without a Bill of Rights was unthinkable to the ardent proponents of freedom and it was agreed that the first action of the new Congress, which came into being after the ratification of the Constitution, would be to propose and adopt a Bill of Rights for the Constitution. More than ten amendments were proposed but only ten were adopted by the 1st Congress.

When Thomas Jefferson said, we are governed by our own consent, and when the drafters of the Constitution said, We the People do ordain this Constitution, they instantly transformed our entire society giving all of us hegemonic freedom—freedom by our right as the citizens sovereign to rule. It took a while for all the effects to transpire because there were a lot of people in bondage, and social evolution had not yet caught up with the rights of women. But it happened and it is still happening. Emancipation happened. Women's suffrage happened. The important characteristic of progress is that it is a "happening"—a process, not a thing. It is the driving force behind our self-generating, self-replicating technological decision. The great, compelling and overwhelming task of our government is to provide the environment where all the citizens sovereign can obtain their ecological equity in this self-generating, self-replicating ecosystem of abundance we call the United States of America.

The great transformation from orthodox (religious) to progressive thought hinged on two points, both explained by Rene Descartes. The first point is the infallibility of human reason and the second is the immutability of the laws of nature. These two grand proposals countered, first of all, the scriptures as the absolute source of wisdom and secondly Providential Nature as the moving force of the universe. Descartes himself was not progressive. He believed he was living at the end of the life span of the Earth. The proponents of progress, however, asserted that civilization was not degenerating from some Golden Age, and the end of the Earth was not at hand as numerous previous generations had supposed. Instead humankind was on a long voyage into the future and each generation was increasing its prosperity and well being over previous generations. Humankind had a glorious future rather than a glorious past and along with that notion came the idea of increasing the well being of humankind and the idea of individual freedom.

The Constitution, even with the Bill of Rights, did not make the benefits it contained available to all. It was a compromise document fashioned by men with disparate vested interests including slavery. The post emancipation black community did not set any store by the Constitution; after all it condoned slavery, the condition they were escaping. They did put their hope in the Declaration of Independence, because it was here that the idea of progress was stated most clearly and forthrightly, "All men are created equal..."

Any consideration of human rights, in the light of our national history, would be of little value without including the Declaration of Independence as well as the Constitution with its Bill of Rights. Taken singly or together these documents must be considered approximations of the truth...in the case of the Constitution the first or second iteration of a continuing process. These documents are seeds, not full grown plants. Those who would like to see the Constitution carved in stone and the Declaration disregarded, identify themselves as antiprogressive, orthodox more at home in a Providential Universe than in the modern, changing and evolving, world.

Considering the times (18th Century) and the circumstances (post Revolutionary America), the addition of the Bill of Rights represented compromise and expediency. For the most part the Bill of Rights addresses the problems of the accused in the criminal justice system. One has only to read the full text of the Declaration of Independence to see why. The Founders were obsessed with the oppressions of the British Crown and the abusive use of the British criminal justice system to accomplish its ends. The Bill of Rights addresses most of these problems, by saying for the most part what the government could not do in certain situations. The Bill is a negative statements of rights. It does not address the positive rights, those that humans have by right of being human—the positive unalienable rights. The Declaration is our only source of such thought, and we have to nurture and water it to see what can grow there.

The worth of the Bill of Rights can not be underestimated. Our large impersonal government has every bit the capability of being as oppressive as the British Crown. Our judicial system and our criminal justice system can be just as arbitrary and capricious as any dictatorship. The factor that reduces this tendency, to somewhat manageable proportions, is the Bill of Rights. After all our rights in the judicial and criminal justice system are satisfied, we still have the unaddressed problem of what rights do we have in the economic system, the educational system, the environmental system, the free enterprise system et al. These rights are the unalienable rights that derive from the Declaration of Independence. The unalienable rights are paramount and the Bill of Rights, as part of the Constitution, is contained in them in the form of the Constitutional Guarantees of Citizenship. That is to say, the Bill of Rights contained within the Constitution is just one of the unalienable rights government is obliged to provide in exchange fore the consent to be governed....

It could happen that the Constitution of the United States could be supplanted either by a new Constitutional Convention or by some other legitimate means. The Bill of Rights is part and parcel of the Constitution and as such is alienable. The unalienable rights are associated with the Declaration, which is unalienable except perhaps by conquest. In a world tending to democracy it is safe to assume the Declaration is unalienable. The same cannot be said of the Constitution in the same circumstances. It is important to understand the difference between Constitutional rights (the second iteration after the Articles of the Confederation and one that could be supplanted by a third iteration) and the unalienable rights of the immutable Declaration of Independence. As the Bill of Rights amply demonstrates, the Constitution is amendable. We have had numerous proposals to amend the Constitution in recent decades—some positive some negative, but all more or less unpredictable, some that would even limit the Bill of Rights, (e.g the flag burning issue).

Burns and Burns in their treatment of American social history, A People's Charter, Burns, James MacGregor and Stewart Burns, Alfred A. Knopf, Inc. 1991, state categorically that the Declaration of Independence is the source of our freedom and that the Constitution provides order. We must look within this context to understand the role of the Bill of Rights.

Human beings left to their own devices are not always charitable, humanitarian, compassionate, loving, individuals. Humans exhibit the emotions of compassion and tolerance in one set of circumstances and then show contempt, bigotry, racism, and hate in others. This, Jekyll-and-Hyde schizophrenia is rooted in evolution—the biochemical evolution of humans. Long before humans had speech and technological, humans developed a biochemically dependent reaction system that enabled them to survive in a world populated with many predators. Biologically, humans are prey in the predator-prey relationship. Without language-based technology, humans are only moderately skilled runners, jumpers, climbers, swimmers with only moderate strength, certainly not the match for a full grown chimpanzee. The biochemical, physiological, neurological sensory and motor reaction system of humans developed under predatory pressure. Humans, with language-based technology, are several levels down on the food pyramid. This developmental physiology and biochemistry has had profound effects on human behavior. Biological humans—the prey—came into language-based technology that gave them power exceeding that of all other predators. The human brain and nervous system that evolved under predation pressure, full blown with prey paranoia, fear, and anxiety now confronts the world with power greater than the predators—prey mentality with super predator power. Excepting isolated cases of individual courage why are we afraid of little dogs, bats, snakes, insects, spiders, not to say wolves, coyotes, cougars et al? There are animals somewhere that eat all the things we are afraid of. It's because mentally we are prey—not predators. Had humans been top predators, would language based technology ever have developed? Probably not. Fear, anxiety, and paranoia are the price we continue to pay for language.

Altruism, derived from mother's love, is the counterbalance to the fear, anxiety, and paranoia of being prey. Our good attributes, human rights, compassion, tolerance, all are associated with altruism. Our bad traits—greed, selfishness, sadism, blood thirst—are associated with the paranoia, anxiety, and fear stemming from our evolutionary prey status and are overcompensation for the same. We cannot depend upon good will, understanding, tolerance, and compassion to rule the day in human interrelations. We need rules and regulations to govern our interactions. Before the advent of progress, the law simply sanctified man's brutality to man. The scriptures and the law—organized religion and organized government—colluded to favor power for the few and exploitation for the many. The rights of humans evolving out of the idea of progress changed the starting conditions and instead of orthodox entrenched privilege, the notion of equality and a shared abundance has been moving into the sphere of human interactions.

Our government, our Declaration of Independence, our Constitution with its Bill of Rights, is the grand experiment in this evolutionary process. The United States of America is the living proof of the idea of progress. We are the embodiment of millennia of philosophical thought and practice. Compare the United States with its Revolutionary War or even its Civil War to the French: revolution. We accomplished with relatively peaceful means what it took a blood-bath of colossal proportions to accomplish in France. The year 1789 can emphatically be said to be the end of the system of serfdom in Europe. The path of France to democracy was delayed, since they were not going from a clean slate as we were, but it came nonetheless at great cost all around. Why was the French nobility so intransigent? Human nature. Why was Jefferson and the founding fathers, even though they did own slaves, or Abraham Lincoln so understanding? Human nature.

We experience a fair amount of intolerance, bigotry, and injustice in the United States even with the Constitution and the Bill of Rights. Think of what it would be like without them. No people, not even Americans, are spontaneously "humans for all seasons." We have our good moments and our bad moments. Our bad moments are almost always associated with paranoia as with the Japanese, in the World War II resettlement of Americans of Japanese descent in concentration camps or our various Red scares.

To get the maximum benefit from our Declaration of Independence and the Constitution we have to look at those documents and our government in a new way. To read the Bill of Rights is to get the sense of we and they. If we don't have our rights they are going to get us. Who is we and who are they? A new reading of these bedrock documents is in order. When the Declaration was written the we were the American colonists and the they were the King of England and his minions. A very clear separation of power, authority, and even identity. The King was (and thee present Queen now is) the sovereign and everyone else had (and has) a considerably lower status. The present British throne has made a great many accommodations to common people of Great Britain, but the sovereign still owns the government, it is her government, it is her armed forces, it is even her majesty's stationer (what we call the Government Printing Office). The British have a stern Official Secrets Act because the secrets belong to the Queen, They are not the people's secrets.

When the Framers established the ground rules for our present government, they didn't know what our government was or would become. There was little experience with republics and the leading political scientists of the day considered that republics were okay for small countries but large countries needed monarchies There were some republics, Venice being one, but they served as no example. With no one in the Convention having had hands on experience with the type of government they were establishing, the Framers plunged the American republic, by itself, into the experiment of a large country republic.

The proponents of the Bill of Rights may not have fully appreciated what the Framers had created in the Constitution, but they were absolutely sure of what they wanted to avoid. They wanted to avoid the oppressions of the British Crown and the British government. The Bill of Rights reflects that avoidance. The proponents of the Bill of Rights insisted we be protected from a government we had just created and had yet to see work. The proponents of the Bill of Rights assumed any government, left to its own devices, our own government included, would become oppressive of the rights of individuals, particularly dissenting individuals; hence the Bill of Rights. In the absence of any clear example, the proponents of the Bill of Rights assumed that the Federal Government could exercise the oppressive acts of the sovereign. In so doing they confused the question of who the sovereign was and is and what authority the sovereign has.

We speak of the Federal government as having sovereign immunity in suits at law. How can the Federal government have sovereign immunity when it is not the sovereign? Not the President, not the House of Representatives, non the Senate nor all together are the sovereign. As long as we confuse the fact of sovereignty, we will never be able to state clearly what the privileges and immunities of the sovereign are, They are sovereign privileges and immunities not subject to the oversight on permission of the government. Our Government does not give us our privileges and immunities and our unalienable rights. We established the government to assist, us to obtain them. The Bill of Rights then does not spell out our rights as the citizens sovereign of this great republic, they spell out ways in which we will not allow our government to oppress us when the government acts oppressively, as did the British sovereign. Our Bill of Rights could more properly be called a "Bill of Restraints." Our government is not the sovereign. What rights we have as the citizens sovereign is quite another matter and that's where the unalienable rights and the Declaration of Independence come in.

The proponents of the Bill of Rights did not misplace their distrust. Our government, wonderful and benevolent as it is, has to be held in check because it, too, is quite capable of oppressing people and depriving them of their life, liberty, and property, not to mention their happiness. The legal literature on the Bill of Rights is heavy leaden with such examples. Two easy introductions to the Bill of Rights are (1) In Our Defense, The Bill of Rights in Action, Alderman, Ellen and Caroline Kennedy William Morrow and Company, New York, 1991 and Bill of Rights, Life Magazine, Special Fall Edition, 1991. The sovereign, in our case the citizens sovereign, have rights, privileges, and immunities that have accrued from time immemorial. The nights of the sovereign have the same properties as the phrases; according to law, or due process, or natural law. The sovereigns rights are older than the common law. The rights of the sovereign have accreted through the millennia of the natural law. What is the origin of the rights of the Queen of England? We know what the limitations of her rights are, they are in the Magna Carta and we trace the origins of our modern, democratic government to such limitations on the sovereign. What then are the rights of We the People, the American sovereign and where did they come from? They came from the historical concept of sovereignty and therefore are just as ancient and just as valid as those of the Queen of England. The Bill of Rights does not represent limitations placed on the sovereign such as were the terms of the Magna Carta. The Bill of Rights is the limitations the citizens sovereign have placed upon its elected officials who comprise the government. Our Constitution has provision for impeachment for high government officials who stray from the designated path and regular elections to keep them on their toes, their powers are limited and their terms are limited and when push comes to shove the President (who is not the sovereign) must bow to the will of a group of the citizens sovereign comprising a grand jury, as President Richard M. Nixon did in the Watergate scandal.

There is strong evidence that our government was experimental, many final decisions having been left for later generations. Certainly the problem of slavery was. But even in the matter of the Presidency, there were real difference of opinion which ended in compromise. One faction wanted the popular election of the President. Others wanted the President elected by the House of Representatives—the People's House. The compromise was the electoral college. Why was the compromise possible, even though there was unease? Because of George Washington. The man was so respected, the delegates had such great faith in him, they all knew he would be elected President and his character eased their minds. After the Presidencies of Nixon, Reagan, and Bush the American people may want to revisit the issue of the election of the President and to whom the President is responsible. Should he float free as his own man, an independent part of government responsible only to himself? The President is not the sovereign. The President is not a king or queen. Or should the President be accountable to We the People through the people's House? The House can now impeach the President. Short of impeachment, it would be nice if it could call him to the well of the House of Representatives, like other representatives of the sovereign in Great Britain and Australia, to explain himself and his actions to the people. The President's power, unlike the power of the citizens sovereign, does not come from time immemorial, but from the Constitution—an amendable document.

The Queen is not a subject; she is the sovereign. The law does not apply to her unless she allows it to.

Our sovereignty does not admit of subjects but of citizens and in our case we live the duality. This is the case of true democracy where we are, at one and the same time, the citizen and the sovereign. As the citizens sovereign we are entitled to the guarantees set out in the Constitution as one of our unalienable rights; the Constitution has meaning only because the citizens sovereign give it meaning.

In subsequent issues of We The People I will discuss each of the ten amendments separately and then go on to the Civil War Amendments. The ten amendments comprising the Bill of Rights follows:

1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.

2. A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

4. The right of persons to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the reasons of things to be seized.

5. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in causes arising in the land or naval forces, or in the Militia when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

6. 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 wherein 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 defence.

7. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to common law.

8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

9. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

10. 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 founding documents of our democracy cleanly establish the source of authority for the establishment of our government as the people. The people are the sovereign. The sovereign power of the people is exercised as a collectivity. As a collectivity the citizens sovereign has the right to:

• Disestablish the present government and establish a new one, or amend the present one. All that is needed is a Constitutional Convention. The last one threw out the Articles and gave us the Constitution, an altogether different form of government.

• Elect government officials

• Recall elected officials

• Petition the government. The government can be petitioned by single individuals but is much more effectively petitioned by altruistic voluntary associations.

As individuals the citizens sovereign is obligated to:

• Vote

• Pay taxes

• Exercise and live by their un alienable rights.