Constitutional Caucus on the Bill of Rights

CONSTITUTIONAL CAUCUS ON THE BILL OF RIGHTS -- (House of Representatives - January 16, 2008)

BREAK IN TRANSCRIPT

Mr. BISHOP of Utah. Mr. Speaker, I am pleased to be here and I am grateful to the gentleman from New Jersey for allowing me to have some time here.

You know, when we come into this Chamber and we look around, there are cameos of the great lawgivers of the world all around us. There is Moses to Hammurabi, even Napoleon over there in the corner. It is interesting, there are only two Americans in this pantheon of great lawgivers, Thomas Jefferson and George Mason, ironically neither of whom signed the Constitution.

Of those two, Mason is, as the gentleman from New Jersey said, clearly the most interesting. He is one of three people who was at the entire Constitutional Convention, and then at the end refused to give his assent to the actual document because it did not contain a Bill of Rights.

I would like to talk for just a second about the other members of that convention who did not agree to add this Bill of Rights, because one must ask why were great patriots like Washington, Franklin, Madison, Hamilton, Dickinson, Wilson, why did they refuse to join with a Bill of Rights? Were they opposed to civil liberties? It is pretty obvious they were not.

But what they said is a fear that the Bill of Rights, that actually if you start listing what those rights are, it may be a ceiling of what rights are allowed as opposed to a floor of what rights are going to be guaranteed. Actually, the Bill of Rights is misnamed. It should be called the ``Bill of Wrongs.'' It is a list of things that it is wrong for the Federal Government to do, no matter how many people actually want to do it.

In their concern though, they were still concerned about civil liberties. They had an additional plan to do that, which was a structural guarantee of the rights of citizens. We call it today federalism. It was a means to defend the individual liberties of Americans.

They realized that increasing the number of competitors to power was as effective as listing the things that would be prohibited for the government to do. As Madison said, ambition would counteract ambition.

They had two ways of looking at it. The horizontal separation of powers between the executive, legislative and judicial branches, which, unfortunately, is what we only spend our time teaching in schools today. But equally important to them was a vertical separation of powers between a national government and a State government.

The fear, obviously, was that the Federal Government would not check itself, so the 50 States would be the perfect counterbalance to a national government.

Justice Scalia in Mack v. The United States once said the Constitution protects us from our own best intentions. It divides power among sovereigns and among branches of government precisely so we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.

Power with no check historically resulted in tyranny, and no government was out of the potential of doing that; however, balance of power and limitations of governments would result in the support of individual civil liberties.

In Federalist 51, Madison said, ``Experience has taught mankind the necessity of auxiliary precautions.'' That was the structure he was talking about, separation of powers, federalism.

In Federalist 45, Madison again wrote, ``The powers delegated by the proposed Constitution are few and defined. Those which are to remain in the State governments are numerous and indefinite.'' That was the plan.

In Federalist 32, Hamilton continued to say that ``under the plan of the convention, States retained the authority in the most absolute and unqualified sense, and that attempt on the part of the national government to abridge any State power would be a violent assumption of power unwarranted by any article or clause of the Constitution.''

Unfortunately, today our national government has grown out of the bounds originally established. Often by good intent, often by misguided compassion for people, which eventually actually ends up hurting far more than it ever intended to help. As P.J. O'Rourke once wrote, the history of government is not how Washington works, but how to make it stop.

We understood in the Bill of Rights, when they were listed, a couple of unique concepts. The Bill of Rights always talked about how Congress may make no law to inhibit the rights of an individual. Other countries had bills of rights. The USSR Constitution did also have a bill of rights which contained guarantees of free speech. But, as they said, in order to produce a socialist state, citizens of the USSR are guaranteed freedom of speech, et cetera.

[Time: 18:30]

Now, there is a difference. In the USSR constitution, the freedom of speech was granted by the government and therefore could be taken back by the government, as opposed to the way we are looking at it as rights inherent in individuals.

Now, when the Bill of Rights was actually established, there were 10 Bills of Rights. I want you to know that when they did that, they did not forget this concept of a structural balance of power, both horizontally and vertically, as the foundation for ensuring the civil liberties. And that is why

[Page: H271]

they did the 10th amendment. The 10th amendment clearly says that the powers not delegated to the United States by the Constitution nor prohibited by its States are reserved to the States respectively or to the people.

Jefferson called this 10th amendment the bedrock of constitutional government. These are the words that are significant and important, and we must remind ourselves.

Congress passes laws almost on a weekly basis. Sometimes we make incorrect assumptions about the meaning the Founding Fathers had on the words, or we simply ignore those words as looking as if they were irrelevant to our time. Justice Scalia once again wrote about the Constitution, ``What it meant when it was adopted, it means today. And its meaning doesn't change just because we think that meaning is no longer adequate to our times.''

That also applies to the words in the Bill of Rights: What it meant at its time of adoption, it still means today, and it doesn't change in the period of time and simply because our assumptions may wish to change.

I was once in a conversation with another history teacher. She asked, how do we know what they originally thought when they were writing these words? And it was very simple: We study history.

It may be that I am an old history teacher and I am kind of biased about this; but when we fail to study the history of this country and, more importantly, when we fail to study the history of our government, the history of this document, we fail to understand what they meant by those words, and then we replace our own definition. We use our own wit to try and come up with what it should be and oftentimes we fail in understanding what made this country great or what we need to do to truly honor the Constitution and the Bill of Rights that are there.

One of the things we need to do most definitely in this country is take the time and effort to ensure that we read the documents, that we understand the documents, and we put them in their historical connotation. That is the way we preserve and secure them.

I would like to yield to the gentleman from Texas who has a unique approach here, one of the things we may do to try to remind us, even those of us who were elected to this body, that maybe it is time to review and know the history of this document and these documents so we understand what the words mean and how the words should be applied in our time.

BREAK IN TRANSCRIPT

Mr. BISHOP of Utah. I appreciate the gentlewoman from North Carolina expressing her comments about the Bill of Rights and the significance of the ninth and 10th amendments.

I would now like to concentrate on a couple of other bills that are in the Bill of Rights. Perhaps the second amendment. As we talked earlier, it is very important for us to understand and know the meaning of the words.

The preamble of the Constitution talks about a more perfect union, which is a terribly ungrammatical saying. You can be perfect, but you can't be more perfect. What we don't realize is that this is a term of art historically used. ``More perfect union'' was the concept of the union of England, Scotland and Wales, where all of a sudden their defense was based on a navy, not necessarily on armies.

It is interesting in our Constitution we prohibit an army from lasting any longer than 2 years, for specific reasons.

[Time: 19:00]

Armies, at that time, were mercenary units. When one thought of the army, they thought of mercenaries. When the British were fighting us in the Revolutionary War, they didn't send British over here. They sent German Hessians over here for us.

The concept was for an army, when it was not attacking foreign countries, a tyrant could use the army to attack his own people and there would be no remorse since they were not necessarily of the same nationality. The idea of a popular army does not come until the French Revolution, and that's still a couple of decades away.

So when we talk about the militia, at that particular period of time the militia meant the people. Army was a mercenary; militia was individuals who were, by definition, to be a balance in the power against the government.

When Madison wrote that all members, all Americans should be in the militia, and all Americans should be able to have a gun and know how to use a gun, he was making reference to that historical concept.

When one looks at the second amendment today, they have to realize that the word militia was a reference to the people.

With that, I would like to yield some time now to the gentleman from Georgia (Mr. Broun) who has a few comments specifically about the second amendment which I think is very apropos as we're talking about the Bill of Rights today.

BREAK IN TRANSCRIPT

Source