The Bill Of Rights: Its Intent & Application
Nancy Salvato, Director of Constitutional Studies
Alexander Hamilton is addressing miscellaneous objections to the Constitution. He reminds those who criticize it for lacking a Bill of Rights that many of the state constitutions also do not have one. However, the body of the constitution contains various provisions in favor of particular privileges and rights including the power to impeach, writ of habeas corpus, the allowance for no bill of attainder or ex post facto law, no granting of title of nobility, trial shall be by jury in the state the crime was committed within, and punishment for treason will not extend to family members of the person convicted of that crime.

He explains that common and statute laws can be altered or repealed, as well as created, because they are not sanctioned by the constitution.

He chastises his critics about wanting a Bill of Rights because it is not applicable to the constitution. He feels that a Bill of Rights is only necessary between a Monarch and his/her subjects since the authority to rule doesn’t come from the people in a situation like that. The Constitution is executed by the representatives of the people.

He goes so far as to say that a Bill of Rights would be dangerous because “they would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.” Hamilton uses freedom of the press as an example of how a Bill of Rights might be misused because it implies “that a power to prescribe proper regulations concerning it was intended to be vested in the national government.” He believes that the federal and state constitutions are a Bill of Rights.

Many objectors feared that the distance to the nation’s capital would make it difficult to monitor the conduct of the representatives. He allays these fears by reminding them that, “The executive and legislative bodies of each state will be so many sentinels over the persons employed in every department of the national administration (and)…citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary.”

He also makes it clear that by changing the form of their civil government, there will be no allowance for the states to relinquish their debts to the federal government.

Finally, with regard to the cost of the new form of government, he actually runs through each department and shows where the expenses are derived, and points out how in many cases it is no more money than is currently costing the people, and that in many instances it will save the states money. But in any case, any additional cost, for instance to pay the tenured judges, is worth the cost of keeping the union running efficiently. He concludes that, “…the sources of additional expense from the establishment of the proposed constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while its questionable on which side the scale will preponderate it is certain that a government less expensive would be incompetent to the purposes of the Union."

The Bill of Rights was ratified together with the Constitution in 1791. It is meant to limit the power of the federal government so to protect the civil liberties and rights of individuals. These rights include the freedom of speech, protection against unwarranted searches and seizures, and provision of due process and other rights for people accused of criminal behavior. It became, in effect, the check and balance for the people, rather than having this come from the authority for the Constitution being derived from the people.

The Federal Bill of Rights turned out to be impotent with regard to the states because they had their own Constitutions. These federal rights were not necessarily guaranteed to those who were residing in certain states. Federal legislative powers, such as the control of commerce, had to be manipulated so that the federal government could force the state governments to provide for or make available the same freedoms and opportunities for specific factions of people residing in various states within our country. I wonder, if there had not been a federal Bill of Rights, would it not have been interpreted that these are rights that could only be enforced under federal jurisdiction?

Recently the Federal Communications Commission voted to give companies more power to own media outlets such as television stations and newspapers. The vote was split down party lines, three Republicans voted in favor, two Democrats voted against it. Critics fear that large companies could eventually have total control over the ways people get information. The media companies will be able to expand their audience to reach 45 % of the country, from a previous 35%. Newspapers will be able to own television stations in the same market and one company will be allowed to control two stations in the same region. FCC Commissioner Michael Copps feels that these companies will have an unacceptable level of influence over the ideas and information upon which our society and our democracy depend.

Another recent development is that U.S. District Judge Stanwood Duval ruled that Louisiana’s system for specialty plates violates the First Amendment because it allows the anti-abortion “Choose Life” plates but does not offer one for the opposing view. The state argued unsuccessfully that the law for issuing specialty plates was a protected state right and not covered by free-speech protections. Attorney General Richard Leyoub said the state will appeal. “It seems like a weird decision to take away the free speech rights of everybody else who has a specialty plate,” said Steven Johnston, spokesman for Gov. Mike Foster. However, the ruling doesn’t ban specialty plates, but merely the way the state now authorizes them. The state could pass a law similar to other states that allow specialty plates to be issued if a certain number of people request them.

By allowing the media companies the ability to reach 45% of the country, it cannot be deduced that they will be able to influence even half of the people in our society. People have the freedom to choose their information sources, and if there are 100 sources out there with the ability to reach a little under half the people and only 1% tunes into one source, then who cares how many people that source has the potential to reach? If I am wrong, or if the legislators who allowed this law are wrong, it must be remembered that Congress has the power to amend the new media rules if lawmakers decide that changes are necessary. As Hamilton pointed out, laws can be created and repealed. Only the fundamental law of the Constitution will persist. The second example seems in line with the Rehnquist court, which says the government should not favor one particular religious institution or religion over non-religion. However, if people should choose to practice one viewpoint, it should not be disallowed. By only offering one specialty plate for choosing life, the state is choosing to endorse a particular idea. If the state were to offer a plate for abortion rights, then it would be in line with the Rehnquist courts’ thoughts on government and religion.