by Donald Ray Burger
Attorney at Law
This webpage is my tribute to the Bill of Rights. I consider the Bill of Rights one of the most effective restrictions against governmental tyranny ever conceived. In its ten short articles it sets forth a blueprint for keeping the government off the backs of the people, at least in certain fundamental areas.
In a sense, the Bill of Rights is misnamed. It is not a listing of rights, nor a granting of such rights. It is a prohibition on the power of government. It says what the government shall not do, however well intentioned the politician and however critical the crisis. It is not a limit on the people of the United States. It does not give them freedom or liberty. It is a barrier to the government. It sets boundaries beyond which the government cannot go, no matter what the size of the vote or how widespread the consensus. These areas are out of reach. Period. Period. Period.
I am an absolutist on the Bill of Rights. That means that when the founders said "no laws" they meant no laws. Not "no unreasonable laws." Not "no laws except when we need them." And not "no laws except for a few exceptions no one could object to and a few restrictions that don't hurt anyone who has nothing to hide."
As a lawyer, I have to tell you that the courts of our land are not absolutist. Judges, from your local Justice of the Peace all the way to the US Supreme Court, have tolerated numerous erosions of the Bill of Rights. And although some judges have been famous as absolutists for one amendment or another, few, if any, have been absolutist for all ten. But that doesn't mean they were right when they trampled on our liberties, or that I have to agree with them. It does mean that much work remains to be done to restore the Bill of Rights to its rightful place as a bulwark against tyranny.
The history of the passage of the Bill of Rights is interesting. When the people of the United States were considering adopting the US Constitution and ditching the Articles of Confederation ( the original set of national governmental rules for the US), a fierce debate took place over the power of the central government. A war had just been fought against a central government, and people had not forgotten their first-hand experience with the abuse of liberty of which a strong central government is capable. The checks and balances that are built into the US Constitution were designed to keep the new central government from becoming too powerful. However, to many who had lived through the War for Independence that was not enough. As people voted in each state on whether or not to adopt the Constitution, several states gave a conditional approval. The condition: That a Bill of Rights be added to insure that the rights of the individual were not trampled by the central government.
But even this idea met resistance. Not the kind you might think. Not from those who did not want those rights. No, the resistance was from individuals who were afraid that listing certain rights in a Bill of Rights might embolden bureaucrats and power mongers to take the position that if a right wasn't listed in the Bill of Rights it was waived, and fair game for government regulation. The fear was that a listing of certain prohibitions on government conduct could be interpreted to mean anything not listed was up for grabs. A well-founded fear, as it turned out.
The Bill of Rights advocates discounted this concern. They were creating a limited government. Of limited powers. The Constitution set out what the central government could do, and if something wasn't mentioned, it was out of bounds. Everybody knew that. But, just to be absolutely sure, the Bill of Rights was added. And, to end the argument that by listing certain rights the universe of rights would be restricted to those listed, the Ninth Amendment was added.
You may never have read the Ninth Amendment. But go take a look. It is hardly ever cited by courts. But it is the Amendment that guarantees that the liberties in the Bill of Rights are not the sum total of rights of Americans. It is the Amendment that guarantees that the Bill of Rights is a listing of prohibitions on the Power of Government, not a restriction on the rights of individuals.
And how did the founders decide what to include in the Bill of Rights? They included fundamental rights. What they meant by "fundamental" was those rights that all men have, regardless of the approval of their governments. These are the rights men have by virtue of being men. In other words, these are not privileges from government, that can be taken away when circumstances change. These are the rights of free men anywhere. And that is why I said earlier that the Bill of Rights is not a granting of rights. The founders were saying that all men have these rights. That they exist before government exists and that governments cannot restrict these rights.
A heady concept. But one the individual who adopted the Constitution demanded be protected. These individuals did not take their rights lightly. They had bled for them. They had killed for them. They were real to them. Not just words on paper.
I think it fitting that we honor their efforts by treating these rights as more than words on paper, too. So the next time someone proposes a restriction on one of these fundamental rights, think of the history of the Bill of Rights, and the efforts over the centuries of this Country's existence that have gone into the protection of those rights. And don't give in. Don't let them restrict the Bill of Rights. Because without your effort they are just words on paper.