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Bill of Rights: the Last Seduction

MONDAY, June 16, 1788

Mr. HENRY thought it necessary and proper that they should take a collective view of this whole section, and revert again to the first clause. He adverted to the clause which gives Congress the power of raising armies, and proceeded as follows: To me this appears a very alarming power, when unlimited. They are not only to raise, but to support, armies; and this support is to go to the utmost abilities of the United States. If Congress shall say that the general welfare requires it, they may keep armies continually on foot. There is no control on Congress in raising or stationing them. They may billet them on the people at pleasure. This unlimited authority is a most dangerous power: its principles are despotic. If it be unbounded, it must lead to despotism; for the power of a people in a free government is supposed to be paramount to the existing power. (Bold is Henry’s speech)

Patrick Henry’s objection to the Constitution is given in the above passage. He, and Richard Henry Lee were anti-Federalists, and thought the substitution of the Constitution for the Articles of Confederation as big a revolution as that of 1776. The United States’s unrestrained power of raising taxes and an army outweighs any structural controls within the document. The speech above and the letters below were written between the ratification of the Constitution and the passing of the amendments called the Bill of Rights. Henry and Lee, above all others, championed the Bill of Rights on the grounds that the Constitution not only did not protect rights, but is an instrument of despotism. They hoped, expressly, to limit the powers of the new government. Henry’s surprising opinion of the Bill of Rights is here:

Patrick Henry to Richard Henry Lee (August 28, 1789)

As to my opinion of the Amendments, I think they will tend to injure rather than to serve the Cause of Liberty—provided they go no further than is proposed as Ideas—For what good End can be answered by [page torn] Rights, the Tenure of which must be during Pleasure—For Right without her Power & Might is but a Shadow—Now it seems that it is not proposed to add this Force to the Right by any Amendment—It can therefore answer no purpose but to lull Suspicion totally on the Subject.

Henry supported the Bill of Rights, but not the Bill of Rights we have. Rights without “power and Might” are merely “Ideas.” Henry and Lee objected to the Bill of Rights being administered by the Federal Government, for once under the institutions of the Constitution it couldn’t, obviously, offer protection against them. They had hoped that the states would have the power of protecting rights, that is, protecting their citizens from The United States of America encroaching upon those rights.

Richard Henry Lee to Patrick Henry (September 27, 1789)

My third letter to you on the 14th. inst. will satisfy you how little is to be expected from Congress that shall be any ways satisfactory on the subject of Amendments. Your observation is perfectly just, that right without power to protect it, is of little avail. Yet small as it is, how wonderfully scrupulous have they been in stating Rights? The English language has been carefully culled to find words feeble in their Nature or doubtful in their meaning!

He refers above to this letter:

Richard Henry Lee to Patrick Henry (September 14, 1789)

The preamble to the Amendments is really curious-A careless reader would be apt to suppose that the amendments desired by the States had been graciously granted. But when the thing done is compared with that desired, nothing can be more unlike…3 By comparing the Senate amendments with {those} from below by carefully attending to the m{atter} the former will appear well calculated to enfeeble {and} produce ambiguity-for instance-Rights res{erved} to the States of the People-The people here is evidently designed fo{r the} People of the United States, not of the Individual States {page torn} the former is the Constitutional idea of the people-We the People &c. It was affirmed the rights reserved by the States bills of rights did not belong to the States-I observed that then they belonged to the people of the States, but that this mode of expressing was evidently calculated to give the Residuum to the people of the U. States, which was the Constitutional language, and to deny it to the people of the Indiv. State-At least that it left room for cavil & false construction-They would not insert after people thereof—altho it was moved.

Lee refers to the expression “We the people” that, Henry had asserted, turned the Federal government unfederal and therefore into a despotism. Of course “The people,” a mythical creature, had nothing to do with writing or passing the Constitution. Henry’s objection was that with that expression it bypassed the states. Obviously, the fatal change allowed the Federal Government to neuter the Bill of Rights, for “The people,” in practice, is the government. Lee died in 1794, Henry in 1799. In 1803 the Supreme Court decision, Marbury vs Madison, completed the job by establishing the principle of “judicial review.” Marshall’s decision in Marbury vs Madison is held up as a gem of legal reasoning, the work of a brilliant legal mind, and so it is. John Adams, on his last day in office, appointed Marbury to a judgeship. Jefferson instructed Madison, his secretary of state, to refuse to give Marbury his credentials. Marbury sued. Chief Justice Marshall’s decision was that Marbury had right on his side, but the Court could not offer him justice because the Constitution prevented it from interfering with the executive branch. Since Marshall’s decision involved a “review” of the constitution it established the principle of “judicial review.”

Without anything more needing to be said, cases involving the protections of the Bill of Rights became part of the Supreme Court docket. But this was really, so to speak, the coup de gras. After that the Bill of Rights could no longer, if it ever could, limit the power of the central government. Marshall’s brilliance was that through his declaration of impotence in this case, he gained immense power for himself and even more for the Federal-in-name-only Government. If the strict-constructionist justices of the Supreme Court were honest they would declare that the intention of the signers was to neuter the Bill of Rights and so simply have done with it.

It is too late to remove cases involving the Bill of Rights from the docket of the Supreme Court and return them to the State courts, but perhaps not too late to examine this legal concept “judicial review.” For “review” is review of what? It is purposely left undetermined. The assumed category, the Constitution, has two items, one of which it makes perfect sense to have there, the other not. The plausibility of this claim for power comes from the first item, the Constitution as originally written. For cases that involve it involve the Federal Government itself and how it runs. Surely, the Supreme Court should handle those. Marbury vs Madison was one of these cases. The second item is the Bill of Rights. It is slipped in almost unnoticed. With the term “judicial review” comes its sophistic inclusion within a category where it doesn’t belong. For the Bill of Rights should not be “reviewed” by an institution created by the Constitution. The Bill of Rights was written to protect against the dangerous powers the Constitution created. With this inclusion, The Bill of Rights is neutered without anyone noticing.

Two other venerable legal concepts, both absurd, nestle within this decision. These are the concepts of “precedence” and “lack of jurisdiction.” A lawyer argues from precedence when he argues, citing some earlier case whose circumstances, he claims, are the same as the present one, that the court’s decision should be the same as that in the earlier case. In the earlier case a lawyer presented an argument for the proposed precedent and it was accepted. Therefore we should accept it now. But, clearly, just because someone earlier accepted an argument is no reason to accept it now. The argument must present itself again and we must judge it again in light of the circumstances at hand. And since the quality of the argument itself must bear the burden, that it was accepted earlier is irrelevant. All the concept of precedent does is allow a large body of private knowledge to play a role in deciding cases at law, and so provide a livelihood for lawyers good at burrowing back through these cases while excluding the possibility of those without legal training, that is knowledge of these cases, from defending themselves..

The argument for “precedence” on the grounds that the law must be consistent is spurious, for it is never the case that something that happened then and there is automatically in the same category as something that happens here and now. Indeed, if the argument that provided the precedent no longer seems cogent, that would be prima facie evidence that they weren’t. Since two actual events must differ, only an argument can yoke them together, and that argument can be applied directly to the case at hand if it is part of the accepted argument in the earlier case. The requirement for consistency does not serve the cause of justice, but rather creates restrictions on the population, who have to worry about not committing various “crimes” rigidly defined and often of trivial consequence. At the same time it offers loopholes for those who can afford to pay the bookworms of the law.

“Lack of jurisdiction,” is a justification for the court to be unable to give redress in a case because it falls outside its purview. It has some merit in preventing overburdening the court, but once a case has been presented to the only court which could render a verdict such an abdication of responsibility is absurd. When the court determines where justice lies it must be able to provide a remedy. Justice rendered must come ahead of such considerations as “jurisdiction.” Otherwise you end up with a legal system in which justice can legally be denied, as in this case. In Marbury the President, as President, carrying out his duties, is declared above the law. But if the President denying a man what is lawfully his is acting as President, what isn’t? When Nixon said, “When the President does it that means it is not illegal,” he was merely restating Marshall’s brilliant argument in the case of Marbury vs Madison. Is there any better definition of despotism?

But the despotism is not the despotism of a particular man, for of course there is still impeachment and elections every four years. The office of the president, and temporarily the man who fills it, is the despot. The government created by the Constitution is a new being, a parasite upon the person who is President, upon the other office-holding pols, and of course upon the entire population. It has its own “agenda,” war and expansion. The military is its raison d’être. The Bill of Rights “can therefore answer no purpose but to lull Suspicion totally on the Subject [rights].”


Michael Doliner studied with Hannah Arendt at the University of Chicago and has taught at Valparaiso University and Ithaca College. He can be reached at: planeofexistence@gmail.com.