On today’s date, 15 December 1791, the Bill of Rights was added to the US Constitution and for a specific good reason. The very purpose this country was afforded the Bill of Rights was due to the demands of the Anti-Federalists, who viewed this newly created federal government with a predictable mistrust. By now, it should be evident that the skepticism of these men was more than well-founded. They insisted these guarantees should be written out in black ink on white parchment paper for both sides of the political factions to see, not only in order to prevent any misunderstandings among themselves, but to clarify for future generations as well. It all came down to the men on the Federalist side, who broadly assumed that the federal government would be vastly limited in scope, while the Anti-Federalists correctly envisioned the mischief that could be born from this document without written guarantees.
George Mason of Virginia was the only delegate who attended the Constitutional Convention in Philadelphia who refused to sign this Constitution because the document did not guarantee the powers reserved to the sovereign States. He and other Anti-Federalists such as Patrick Henry and Richard Henry Lee were very vociferous about this and warned their fellow Virginians that what was needed was a Bill of Rights. Mason had already authored all sixteen of Virginia’s Declaration of Rights, nine of which would go on to be incorporated into the federal Constitution.
Patrick Henry of Virginia refused to attend the convention in Philadelphia and expressed his distrust by saying “he smelt a rat”…justifiably so. After reading the Constitution and hearing the oral arguments during his State’s ratification convention, he specifically demanded these reserved powers be written out. This is the essence of the Tenth Amendment, which was the brainchild of Anti-Federalist Richard Henry Lee, who of course spelled out verbatim the delegated powers of the federal government and the reserved powers of the sovereign States. Every delegate of every state completely understood this amendment, which was the final link in the chain that prevented the federal government from acting outside its delegated powers.
The common error of the average modern American mind is the fact that he/she believes the Bill of Rights applies to both the federal and State governments. It does not! Close attention should be given to an 1833 US Supreme Court decision in Barron v. City of Baltimore. Chief Justice John Marshall gave this opinion by reaffirming the Bill of Rights applied to the federal government and NOT the States. He stated:
“Had the framers of the amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the constitutions of the several States, by affording the people additional protection from the exercise of power by their own governments, in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.”
John Marshall, the fourth Chief Justice of the Supreme Court, who was also a Federalist from Virginia, didn’t mince words as he explained that the Bill of Rights placed strict limitations on the federal government. They start with “Congress shall make no law” (Amendment I) and end with “The powers not delegated to the United States by the Constitution” (Amendment X), which makes the inferior nature of the federal government crystal clear.
By now you should be wondering why this isn’t so in today’s America. The reason is that in 1861, US President Abraham Lincoln not only unconstitutionally warred with the sovereign States, he also warred with the federal Constitution and Bill of Rights as well. The whole purpose of this war was to make the once sovereign States subjugated to the entity they created (the federal government) which would then allow the industrial Northern States to govern at will without constitutional interference. In order to achieve this, the South had to be annihilated and crushed, for you see, the Confederate States were fighting to perpetuate and preserve constitutional government, certainly not for its destruction, since all three of America’s founding documents were written by Southerners. To place this in a better perspective, the South was fighting for the Tenth Amendment which was authored by Richard Henry Lee who was also the great uncle of Robert E. Lee.
In today’s America, the once sovereign States can no longer govern themselves as guaranteed in Article IV, Section 4 and further enunciated in the Tenth Amendment. Think about this the next time religious rights, gun rights, abortion, marriage, immigration, etc. are mentioned in the press, debated in Congress, or argued in courts of law. Originally, these issues were forbidden fruit to the federal government per the Bill of Rights.
Loy Mauch
December 15, 2015
The Anti-Federalist 