Seems like every discussion on the Bill of Rights leaves out one very important part of the Bill of Rights, the Preamble. In truth, many people have no idea that there even is a Preamble or what it means. I would even venture to guess, that among those that do know there is a Preamble to the Bill of Rights, there are very few that know why there is a Bill of Rights.
During the writing of the Constitution of the
between May and September of 1787 many of those in attendance believed that the Constitution should start with a Declaration of Rights similar to what the Virginia Constitution contains, others believed this to be unnecessary as those rights were inherent to every man. During the ratification process for the Constitution, United States and Virginia held fast to the belief that the Constitution had not gone far enough to restrict the powers of a central Government. Originally twelve Amendments were proposed to Congress in 1789 to become a Bill of Rights, of the two not included in the Bill of Rights one, concerning compensation for Congress, became the 27th Amendment 201 years later, the other, concerning number of representatives, was never ratified. The remaining proposed Amendments were to become the Bill of Rights as we know them today. Following the writing of the Bill of Rights North Carolina and Rhode Island finally ratified the Constitution to become the 12th and 13th States respectively in 1789 and 1790, the Bill of Rights were not ratified until 1791. Now that we have the Readers Digest version of the development of the Bill of Rights let’s get back on subject, the misinterpretation and misunderstanding of the Bill of Rights. New York
The Preamble is a very simple straight forward statement;“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 ensure the beneficent ends of its institution.”
Note the use of the words “to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added”. While the framers of the Constitution believed the rights that are stated in the Bill of Rights were inherent to every man, they knew the prevailing opinion was that without putting restrictions on the Government in writing, those rights would be infringed. With that in mind one must read the Bill of Rights as less of a statement of rights and more as a statement of restrictions on the Federal Government. Again notice that I used the phrase Federal Government, not just Government in general. A State is a sovereign Nation; the United States are a group of sovereign Nations joined together for common defense and interests. The Federal Government of the United States does not have total dominion over the States, only over those enumerated powers in the Constitution that are in the common interest of all the sovereign States. The Bill of Rights does not apply to the States, plain and simple, the individual States have their own Constitutions that apply to only their respective States, not to their neighboring States, many, if not all, of those Constitutions include a Declaration or Rights but not all include the same rights.
The omission of the Preamble at the beginning of any discussion about the Bill of Rights ultimately leads to the misinterpretation and misuse of the Bill of Rights; it leads to what is commonly referred to as incorporation. Incorporation is when the Bill of Rights is used against the States; the best example of this is the 1st Amendment as it applies to religion.
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.
It seems like this Amendment is very clear, yet when it is used the very first word of the Amendment is left out, “Congress”. It does not say the States or any Government; it says Congress shall make no law. There was to be no National Religion, this does not mean the individual sovereign States could not have a State religion if the citizens desired to have one, it simply meant that the Federal Government would not impose one on every State.
The same is true with all of the first ten Amendments of the Constitution. The Bill of Rights is not a Bill to be used by the People of the
to further personal agendas; it is a restriction on the Federal Government only. The 9th and 10th Amendments go hand in hand with the Preamble, unfortunately they are seldom even thought about. United States
Amendment IXThe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The 9th Amendment is very straight forward, the People retain inherent rights, and the enumerated powers of the Constitution do not deny these rights. The 10th Amendment sums it all up, powers not enumerated in the Constitution are reserved for the States or the People, the People are to keep the States in check and the States are to keep the Federal Government in check.
The sad truth is that the American People and the States within the