Hornberger's Blog


Bill of Prohibitions Day


Bill of Rights Day was yesterday. Undoubtedly, American statists celebrated the fact that the Constitution and the federal government give them their rights and that the troops in Iraq and Afghanistan are fighting to protect their politically granted rights.

Actually, however, neither the government nor the Constitution gives rights to anyone. Rights are natural and God-given and pre-exist government. As Jefferson pointed out in the Declaration, the principal reason that governments are instituted is to protect the exercise of these preexisting rights.

Protect from whom? From that small segment of society that consists of the violent people, such as murderers, rapists, thieves, burglars, invaders, and the like.

The Framers understood that most of these acts of violence would be handled at the state and local level. The federal government wouldn’t have jurisdiction over, say, a murder committed in Kansas. Only state officials could prosecute a suspect for that crime.

When the Constitution called into existence the federal government, the Framers limited its powers to those few powers enumerated in the Constitution. Thus, the Constitution didn’t give rights to people, and neither did the government that the Constitution called into existence. Natural and God-given rights already adhered in people by virtue of their humanity, before the Constitution was written and before the federal government was called into existence by the Constitution.

The Bill of Rights was actually misnamed. It should have been called the Bill of Prohibitions. It doesn’t give people any rights whatsoever. The people who crafted the Bill of Rights were careful to make certain that the language prohibited the federal government from infringing upon preexisting rights.

Consider, for example the First Amendment. It doesn’t give people the right of freedom of speech. It prohibits the government from infringing on the preexisting right of freedom of speech. The same goes for the Second Amendment. It doesn’t give people the right to keep and bear arms. Instead it prohibits the government from infringing on this fundamental, preexisting right.

In other words, if the Bill of Rights had never been enacted, people would still have the fundamental rights of freedom of speech, the right to keep and bear arms, and all other natural, God-given rights.

The Fourth, Fifth, Sixth, and Eighth Amendments fall into a different category. Those amendments consist of procedural protections relating to government efforts to take people into custody and punish them. Those rights were carved out from centuries of resistance to English tyranny by the English citizenry.

Thus, to prevent government from arbitrarily picking up somebody, jailing him, torturing him, and even executing him, the people who crafted the Bill of Rights expressly enunciated the procedural prerequisites that federal officials would have to follow before doing those things. Such protections included trial by jury, right to counsel, due process of law, protection from cruel and unusual punishments, right to bail, right to confront witnesses, and others.

Why did our American ancestors deem it necessary to have a bill of prohibitions, which expressly protected the people from the federal government? Because our ancestors were certain that in the absence of those express prohibitions, federal officials, including those in Congress and the military, would do the things that were being prohibited.

Our ancestors had no doubts that if the Framers had established a federal government of unlimited powers, with no Bill of Rights, the government would end up doing such things as punishing people for criticizing the government, disarming people, jailing people without trial, torturing them, and even executing them.

How would the federal government operate today without the Bill of Rights? All we have to do is look at Iraq and Afghanistan for the answer. Operating without any restrictions on power, U.S. officials, including the military, have targeted people for criticizing the government, disarmed people, incarcerated people indefinitely without trial, tortured people, arbitrarily searched people’s homes and personal effects, and even executed people.

How the federal government has operated in Iraq and Afghanistan with no Bill of Rights is a constant reminder of why our ancestors demanded the enactment of the Bill of Rights. They knew that without it, federal officials would be doing to Americans what they’ve been doing to Iraqis and Afghans. That’s the best reason to celebrate Bill of Rights Day.

P.S. Jim Bovard’s great op-ed on Bill of Rights Day was reprinted in today’sWashington Times. Read it here

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