[I]f the committee were governed by that general principle, they might have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper; but he would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to be infringed.
July 12, 2014
What the framers of the First Amendment had to say about hats.
On August 15, 1789, in the House of Representatives, the subject was "the right of the people peaceably to assemble and consult for their common good," which ultimately became "the right of the people peaceably to assemble," and Theodore Sedgwick, a Federalist from Massachusetts, expressed concern about getting too specific in enumerating rights. The text had "freedom of speech," which already implies the right to assemble to exercise that right, and he rejected the assertion that it should be listed among the rights simply because it is a right:
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Which explains the strange wording of the second amendment. I can't imagine that any of the founders foresaw that one day the natural and unalienable right of self-defense would come under attack (not to mention the right of those living in rural areas to hunt for food).
I can well imagine that when hats are banned for some climate-change-related reason we will be reading sanctimonious NYT editorials about how there is no constitutional right to your hat.
The old Federalist was right. Surely the aurae and penumbrae already included in the Constitution and Bill of Rights should cover any conceivable claimed right or liberty...
As if you needed proof, behold what a society comprised of Men Without Hats would be like: The Horror!
Safety Dance
Say, we can act if we want to
If we don't nobody will
And you can act real rude and totally removed
And I can act like an imbecile
I don't remember Hamilton speaking about hats but didn't he oppose the Bill of Rights on similar grounds?
That the Constitution, by it's plan language, granted citizens all the right enumerated in the BOR. Thus the BOR was redundant.
I can see his point and can forgive him for not realizing that govt would become what it has.
Thank God and the Founding Fathers that wiser heads prevailed.
On the other hand, if we did start enumerating all those rights such as the way you wear your hat, the way you sip your tea and so on where would it end? We would wind up with a 300 word Constitution like the EU. So long as to be meaningless.
And then the argument about "Well, it does say that you have the right to wear your hat as you like but it doesn't say anything about caps. Thus we can regulate how you wear your cap. Bills front or go to jail."
John Henry
Mr. Sedgwick would be further alarmed if he were able to see today how the constitution has been stretched all out of shape by hucksters, control freaks, and the Wicked. things that aren't in the constitution are magically revealed (emanations and penumbras) while the plain text is tortured to mean what it plainly does not (2nd Amendment, Commerce Clause) the old chestnut that we are a nation of laws and not men is just that. What we really are is a nation of laws interpreted BY men, who are subject to the same pressures of their times and prejudices of their hearts. Look at the Dred Scott decision. Chief justice Roger Taney held for the court that "Persons of African descent cannot be, nor were ever intended to be, citizens under the U.S. Const. Plaintiff is without standing to file a suit."
Gee that sounds familiar. We have had a rash of suits against the current administration's policies dismissed for that same "Lack of standing"
I think that is the greatest cop-out that our judicial system has ever devised to maintain the status quo. Due to ACA regulations my insurance policy has been forcibly changed to provide a lower proportion of payment for medical expenses than it did prior to the act. I am harmed but see no recourse in the courts.
This is a very dangerous situation in our country as the People must believe that they have a system that allows for fair adjudication of grievances, or the entire system becomes illegitimate.
Look at how the losing side reacted to Dred Scott. They too saw the decision as illegitimate. They redoubled their efforts to end slavery and used the decision as a rally point for the influencers of their generation. That effort culminated in the election of Abraham Lincoln and commenced a civil war that was actually started by the winners of the decision.
Sedgwick no doubt agrees with me that the Bill of Rights was a major mistake.
The government he and the other Founders created was one based on enumerated powers: these are the things the government may do. Because the government was not given the power to prevent free assembly, the right to free assembly was protected.
The Anti-Federalists however forced through a Bill of Rights. This was a listing of limitations on governmet power. However it changed the whole meaning of the Constitution, because now the Courts and even most of the people take the attitude that if the Constitution doesn't ban government from doing something, it may do it. Under this current interpretation, if the Constitution did not protect free assembly, then the government could indeed prevent free assembly.
Sedgwick would be dismayed (if perhaps not surprised) to see our current status quo, where it is entirely feasible that the government would ban the wearing of hats.
Hence the Ninth Amendment!
Under the current regime, the Bill of Rights is scarcely more than a wish list for anything that does not serve the totalitarian, leftist agenda. I have given up on the notion that there can be a course correction in our country between those who favor smaller, limited government and those who favor the eternal expansion of regulation for all purposes without terrible bloodshed. The impulse of Obama and his brownshirts toward autocratic rule steers us ever closer to the precipice. For my part, I would simply sail for more promising shores. For my children, I am ready for a 21st century version of Lexington and Concord. Tyranny must be opposed.
Yet, they included a "shall not be infringes" clause as to the "right to keep an bear arms".
I have yet to find any rational for judges and other officials so exactly avoiding that prohibition as is uniquely absolute in the Bill Of Rights and only approached, in emphasis, by those limits as to Treason in Article-III, Section-3 of the Constitution.
That the Constitution, by it's plan language, granted citizens all the right enumerated in the BOR. Thus the BOR was redundant.
the creator granted the rights. the constitution granted limited, specifically enumerated powers to the government. unfortunately it seems this is frequently forgotten today.
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.
So...how's that Tenth Ammendment worked out for us?
For my part, I would simply sail for more promising shores
Me too...but there is no where else to go. (yet..c'mon Elon!)
Oso says;
"For my part, I would simply sail for more promising shores. For my children, I am ready for a 21st century version of Lexington and Concord. Tyranny must be opposed."
The difficulty is that the tyranny is whole-heartedly endorsed by a majority of our fellow citizens. Rare is the man, rarer the woman, who does not favor the forcible plundering of his neighbor.
"Hey, the 2nd Amendment doesn't even day anything about personal firearm protection!" No shit.
Also, does the 10th still count anymore? Or has that been repealed through the overwhelming flood if administrative law?
The problem, as so often is the case, lies with the Supreme Court. Despite the constitution's explicit grant of rights to the government and its explicit declination of a grant of rights to the citizen, the court insists on reading it as though it were a grant of rights to the citizen such that, if the right is not in there, the citizen does not have it.
Quite right, Chaney. I mis-spoke. I apologize.
The Constitution does not "grant" rights. It recognizes that the rights exist. It recognizes that the rights exist independently of govt.
The BOR protects those rights.
Thus the language is not "The govt grants the right to keep and bear arms..." Or "We hereby grant the right to free speech..." Instead of "The right to keep and bear arms shall not be infringed..." of "Congress shall make no law..." and so on.
I really do know better and should never have used the word "granted" in my note.
Mea culpa, mea culpa, mea maxima culpa.
John Henry
Gahrie said...
Sedgwick would be dismayed (if perhaps not surprised) to see our current status quo, where it is entirely feasible that the government would ban the wearing of hats.
School boards in Wisconsin have been doing that for twenty years or more, that I know of.
Our Constitution has two features that make it more or less unique and powerful:
1) It is written down. We hear a lot about the English Constitution and how old it is. In my opinion, sine it is not written down anywhere, it doesn't really exist. As Bagehot says in his history of the English Constitution, it is hard to write a book like that because the Constitution constantly changes from one day to another. It is whatever the crown, parliament and the courts say it is on any given day. It basically says to the English people "Trust us, we know what is best for you."
A number of people have complained that our Constitution gets twisted out of shape but at least we have a written document. Being written limits the twisting that can be done. Not enough in my opinion but quite a bit more than nothing.
2) Our written Constitution is a relatively brief document and fairly simply written. Anyone with an 8th grade reading skill can read and understand it. At least generally.
Compare this to the EU Constitution which runs about 250 pages and is written in dense incomprehensible legalese.
John Henry
"Anyone with an 8th grade reading skill can read and understand it."
Perhaps. But it still amazes and saddens me the number of people who think, for instance, that "Congress shall make no law ... abridging the freedom of ... the press" applies only to 'journalists'.
Michael McConnell loves to share this anecdote to explain his views on the Ninth Amendment and the lost art of equitable constitutional interpretation.
Sedgwick is referring to the Quaker William Penn.
School boards in Wisconsin have been doing that for twenty years or more, that I know of.
Children, especially in school,do not have full Constitutional protections.
Dress codes in schools are similar to uniform requirements in the military.
"Perhaps. But it still amazes and saddens me the number of people who think, for instance, that "Congress shall make no law ... abridging the freedom of ... the press" applies only to 'journalists'."
Well of course. You need that journalistic license I keep hearing about.
it still amazes and saddens me the number of people who think, for instance, that "Congress shall make no law ... abridging the freedom of ... the press" applies only to 'journalists'
Unsurprising, regrettably, since they're taught this in J-school. "The press is the only profession mentioned by name in the Constitution!" (Er, no. The journalism professor who talked about telling his students that refused to believe it wasn't so, too. It was part and parcel of the "journalism is special, it's a profession" curriculum, it seemed.)
And that is why the framers didn't bother saying marriage was between a man and a women, it was so self evident that they didn't feel it necessary
During my time in the Army there was one thing that most contrasted the difference between Special Forces and regular army units. Special Forces units would do anything unless the regulations or policies expressly forbade it. Regular Army units would only do things if the regulations or policies expressly permitted it. I served 12 years in Special Forces or special operations units. I always thought this was so interesting in the mentality and philosophy of various units' operations.
Isn't the First Amendment binding upon Congress, while the Second Amendment is binding upon everybody? The difference being, "Congress shall make no law..." as opposed to "...shall not be infringed," period, full stop, end of discussion. Shall not be infringed by any person or party, anywhere in the United States.
Happily, when the government doesn't like the way I wear my hat, or the way I sing off key, freedom of speech ensures me the right to say "you can't take that away from me".
> I can well imagine that when hats are banned for some climate-change-related reason
Hats and "unapproved" eyeglasses as part of the war on terror becaust they interfere with the surveillance state, specificallly automated face recognition.
I don't remember Hamilton speaking about hats but didn't he oppose the Bill of Rights on similar grounds?
James Madison opposed the Bill of Rights on similar grounds. In regard to the 1st amendment, he questioned the need to forbid Congress from passing laws it had no authority to pass in the first place.
So...how's that Tenth Ammendment worked out for us?
The Tenth Amendment was essentially repealed by the Civil War.
Can you even imagine what would have happened to our liberties had not the people -- regular people -- demanded a Bill of Rights before they'd agree to ratify the Constitution?
How many court cases have hinged on the Bill of Rights vs the body of the Constitution?
@Andy Freeman 5:10 PM
I love Big Brother.
Winston Smith
I can see the NYT editorial now: Jesus never said a man had a right to wear a hat.
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