Trampled Underfoot

Benjamin Martin: May I sit with you?
Charlotte Selton: It's a free country. Or at least it will be.
--The Patriot

The intent behind the Constitution was to enumerate those powers that the federal government would possess. The implication was all other powers not specified were in the hands of individuals and the states. Thus the scope of central government would be explicitly limited.

During the ratification process, however, some states felt uncomfortable signing off due to the lack of specificity about individual rights. The only way to get states like Virginia to sign off was to amend the Constitution with a more explicit enumeration of individual rights. Thus, the first ten amendments were born. Today they are commonly known as the Bill of Rights.

The preamble of the Bill of Rights defines their purpose:

"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 and restrictive clauses should be added: And as extended the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

Unlike the Constitution, which was designed to confine federal government power, the Bill of Rights is not meant to be limiting in nature. We know this not only because of the preamble above, but because of the final two amendments. The ninth and tenth amendments read as follows:

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

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to States respectively, or to the people.

The Bill of Rights must therefore be construed as capturing some of the more more significant individuals rights as perceived by the authors but not as an all encompassing list. The rights of the federal government were meant to be carefully constrained while the rights of the people were 'open ended'--wholly consistent with the notion of individual pursuit of happiness.

I cannot think of a Constitutional concept that has been trampled more than this one. Today the federal government constantly looks for ways to extend its power, which by definition robs power from the individual.

The working standard today seems to be: unlimited government power, limited individual rights.

Precisely the opposite of original intent.