THE PEOPLE’S ARTICLE
By Ed Gluck, President of NOBORGWe the People
begins our Constitution of the United States of America. It is a statement that power resides in the people. What we now call the “Declaration of Independence” declares that when government becomes corrupt the people have the power and duty to abolish it. The Constitution structured governments. (Article I the Congress, Article II the Executive, Article III the Judiciary, Article IV the States, Article V Amendments, Article VI Debts, Scope, and Support of Constitution, Article VII Ratification.) Then the first Congress added the Bill of Rights, the first ten amendments now called by many the People’s Article. It was so named because it affirms the people as masters of their fate and their country. Original thoughts of the founders can be seen in the seventeen amendments approved by the U.S. House on August 24, 1789. These will be listed here with some comments for further clarification on selected Articles. This will be followed by the ten amendments first edited by the Senate then approved by three-fourths of the States. The Bill of Rights was demanded by some States to ratify the U.S. Constitution. Most agreed nothing new was introduced in the Amendments but they declared preexisting natural rights. Quietly ratified on December 15, 1791, the Bill of Rights has gone through periods of being ignored but today stands as one of history’s most important documents.
RESOLVED, BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, two thirds of both Houses deeming it necessary, That the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes as part of the said Constitution – Viz.
Article the First
After the first enumeration, required by the first Article of the Constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor less than one representative for every fifty thousand persons.
Article the Second
No law varying the compensation to members of Congress, shall take effect, until an election of representatives shall have intervened.
Comment: Approved in 1992 as Amendment XXVII (The Rip Van Winkle Amendment): No law, varying the compensation for services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
Article the Third
Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.
Article the Fourth
The freedom of speech, and of the press, and the right of the people peaceably to assemble, and consult for their common good, and to apply to the government for a redress of grievances, shall not be infringed.
Article the Fifth
A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.
Comment: The militia was Citizens exercising their duty to protect their homes and country. The army, composed of poor and ignorant, who sold their freedom to the government, was not honored, as is the army of today. Fear of an overreaching army invading property and other rights created the need for the militia. (The militia purpose was to make the army not a standing or permanent one in times of peace and war.)
The right to bear arms is tied to the need of the militia but the individual right is seen when we look at the anti-draft section. The first problem was (as it is today) that a person might understand religiously scrupulous as conscientious or compelled by his religion. That argument was never answered because founders thought this might deny a Citizen his right to self-defense or to hunt and this part was dropped.
Later gun banners used the militia clause to pass unconstitutional gun laws. Sometime after the War Between the States courts have incorrectly found conscription constitutional. (Lincoln’s draft was unconstitutional according to the U.S. supreme Court.) Rights of conscience were very important and although those words did not make it into the U.S. Constitution or the Bill of Rights, their essence are interwoven throughout.
Article the Sixth
No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
Article the Seventh
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article the Eighth
No person shall be subject, except in case of impeachment, to more than one trial, or one punishment for the same offence, nor shall be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.
Comment: This has been the meaning of double-jeopardy in our current Article V but “of life or limb” may soon be misconstrued to mean unless one is facing the loss of life or an arm or leg, then he can be tried more than once if all he has to lose is his liberty. This would be putting new meaning to old words and would disturb the symmetry because government does not allow defendants to continue having trials when they lose.
In the “takings clause” public use has recently been defined as public benefit. This is an Orwellian change.
Article the Ninth
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence.
Article the Tenth
The trial of all crimes (except in cases of impeachment, and in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger) shall be by an impartial jury of the vicinage, with the requisite of unanimity for conviction, the right of challenge, and other accustomed requisites; and no person shall be held to answer for a capital, or otherways infamous crime, unless on a presentment or indictment of a grand jury; but if a crime be committed in a place in the possession of an enemy, or in which an insurrection may prevail, the indictment and trial may by law be authorized in some other place within the same state.
Comment: Jury trials were very important in that they taught the people about their system of government. The role of juries has been much weakened in the last two hundred years (yet public court trials remain great improvements over secret chamber trials). Judge-created immunity from damages given to government officials has hurt the traditional suing by injured parties. The judge-created and judge-enforced exclusionary rule has replaced the trial for damage. This encroachment of power from the people highlights the importance of the House Article the Sixteenth (see below) which was omitted because it looked like it came from the “Department of Redundancy Department.”1
Article the Eleventh
No appeal to the Supreme Court of the United States, shall be allowed, where the value in controversy shall not amount to one thousand dollars, nor shall any fact, triable by jury according to the course of the common law, be otherwise re-examinable, than according to the rules of common law.
Article the Twelfth
In suits of common law, the right of trial by jury shall be preserved.
Comment: Most State constitutions have some form of trial by jury for civil cases. By Article IV section 2 of the U.S. Constitution, all should. (See Article the Fourteenth) States’ courts adhering to their Constitutions are separate questions.
Article the Thirteenth
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Article the Fourteenth
No state shall infringe the right of trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.
Comment: Madison called this amendment “the most valuable amendment on the whole list.” Although the Senate editing job was not well documented, the reason given for omitting this Article is that it was unnecessary because of Article IV section 2.
Article IV section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
If used correctly, Article IV section 2 would force a State to comply with all Privileges and Immunities or face being expelled from the Union. Privileges and Immunities were considered more important than rights. These were natural rights or given from the people rather than rights granted by some king.
Article the Fifteenth
The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.
Article the Sixteenth
The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the legislative shall never exercise the powers vested in the executive or judicial, nor the executive the powers vested in the legislative or judicial, nor the judicial the powers vested in the legislative or executive.
Article the Seventeenth
The powers not delegated by the Constitution, nor prohibited by it to the states, are reserved to the states respectively.2
The First 10 Amendments to theConstitution as Ratified by the States
December 15, 1791
Congress OF THE United Statesbegun and held at the City of New York, on Wednesdaythe Fourth of March, one thousand seven hundred and eighty nine.
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 restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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.
1. Judge-created section from Page 98 of “The Bill of Rights Creation and Reconstruction” by Akhil Reed Amar. Yale University Press New Haven & London. 1998
2. House Resolution of August 24, 1789 from pages 156 to 159 of “From Parchment to Power How James Madison Used the Bill of Rights to Save the Constitution. By Robert A. Goldwin. The AEI Press Publisher for the American Enterprise Institute Washington, D.C. 1997
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Written for Display in December 2005.