Back to Basics IV - reviewing amendments and Bill of Rights

The Right Stuff

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 This week we will cover the final three amendments to the Constitution: the eighth, ninth, and tenth, and final item of the Bill of Rights.

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

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

Amendment 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.

Let’s start with Amendment eight. Think of all the fights that have been held over the phrasing “cruel and unusual punishments.” When we think about the life and times of the writers of the Constitution, it is hard to believe they would have thought capital punishment was “cruel and unusual.” I think they might well have said normal and necessary!

In Amendment nine, James Madison wanted to make it clear that just because only these rights were enumerated in the Bill of Rights that did not mean citizens of the United States did not have other rights as well. He did not want government to say only those right enumerated in the Bill of Rights are protected by the federal government.

In Amendment 10, we find one of the most contested issues of all. Amendment 10 says that rights not specifically laid out as government control type issues are reserved to the states and to the people. Do you think that is true? For instance, there is no elementary through high school education mentioned as being a federal right. Yet, Tennessee, just in the last week ,declared that Critical Race Theory, or as I call it, The White Devils Theory, states that whites are BORN racist. And why is the federal government even involved in education considering the 10th amendment?

On Oct. 17, 1979, Jimmy Carter created the federal Department of Education. Some of you may remember that President Ronald Reagan said the Department of Education was not constitutional and sent a man to dismantle it and block grant its funding to the states. The problem was that he sent Lamar Alexander to do the job, and he promptly grew the Department of Education, instead. Somehow, I feel the readers of this column understand what a mistaken personnel choice I think that was.

The way the federal government gets involved unconstitutionally in overreaches of their power is by buying off the state governments. With a little money here and a little money there, state entities quickly grow and become dependent on the federal government for their funding. Once they reach critical mass, refusing the unconstitutional encroachment would mean canceling popular programs. So “abracadabra alakazam” - and just like magic, the federal government expands its power.

Now, I hope we all realize the reason the federal government was not interested in following President Reagan’s lead and block granting those education moneys to the states directly was power and control.

Let us just take a moment here at the end of our series on the Bill of Rights and think about what we have discovered. Surely, we know and understand by now the literalist viewpoint of conservative federal judges. Keep in mind that the Constitution and the Bill of Rights were published and read widely throughout the United States. No one voted for some “pie in the sky” elastic document whose meaning could be discerned by mind reading. Rather, the citizens of the 13 colonies voted for a Constitution that meant exactly what it said - understanding that any change in what the provisions were in the original document is only to come about through a constitutional amendment. There is no provision in the document that federal or Supreme Court judges can guess what the framers of the Constitution might have done if modern issues had been presented to them. To change the meanings and/or applications of the provisions of the Constitution requires a constitutional amendment. Period!

The only one of the 10 amendments called the Bill of Rights that we covered that hasn’t been ignored, trampled, and disregarded is the one on putting soldiers in private homes. These are not some esoteric issues that we will never face personally. When the president of the United States is denied due process under law, what do you think your chances are of getting a fair shake?

The election laws of this country according to the United States Constitution, can only be changed by the state legislatures: Art. 1, § 4, cl. 1, of the United States Constitution reads as follows:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time make or alter such Regulations, except as to the Place of chusing [choosing] Senators.”

Now, the purpose for requiring the legislature to be the rulemaking body is twofold. First, this places the rule makers within reach of the voters. Two, the legislators will have to run for their own election, based on these laws, hopefully giving them plenty of good reasons to make sure the laws are fair.

So, the states and various appointed persons therein changed the rules for voting: mail-in voting and many other rules. You just read the Constitution, and it requires that only the state legislature be allowed that power. And, don’t let some lawyer type try to confuse this issue. Remember this Constitution was widely read before being passed by our forefathers and was written in common terms for the times so that it would be understood.

Let me ask you a question. When the state courts refuse to uphold their own state constitutions regarding election laws, and the United States Supreme Court refuses to uphold the Constitutional requirements for election law changes, and arguably a dozen other illegal over-reaches by the executive branch, what is the law of the land? Whatever powerful Democrats say it is? Whatever powerful minority leaders say it is? Our forefathers did not sweat, bleed, and die for the kind of government we are currently experiencing. And every baby boomer reading this had best understand it is our generation that has let the country down. So, what are we willing to do as we exit stage left at the end of our lives to try and make amends? Until next week…       

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