Posts tagged with: bill of rights

800px-Statue_in_Minute_Man_National_Historical_ParkSome politicians are calling for new regulation and restrictions on firearms, but why and how does the Second Amendment strengthen liberty? In a thoughtful post at the Carolina Journal today, Troy Kickler offers this historical assessment:

What did early jurists and constitutional commentators say regarding the Second Amendment? St. George Tucker in View of the Constitution of the United States (1803), the first systematic commentary on the Constitution after its ratification, describes the Second Amendment to be “the true palladium of liberty.”

As the preservation of the statue of Pallas in mythological Troy — the Palladium — needed to be protected for the ancient city’s preservation, so the Virginian believed that the amendment ensured liberty’s protection in the United States. If the nation had a “standing army” — Revolutionary era-Americans’ description for a full-time, professional army — while individual Americans were denied the “right to keep and bear arms,” then “liberty, if not already annihilated,” Tucker wrote, “is on the brink of destruction.”

To Tucker, the Second Amendment is the linchpin that ensures the existence of all the other liberties.

Tucker was not alone. Although U.S. Supreme Court Justice Joseph Story believed the national government should have more authority than did Tucker, both jurists interpreted the Second Amendment as liberty’s safeguard. In 1833, Story noted in his influential Commentaries of the Constitution: “The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of the republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

These jurists repeated a widespread interpretation that had been practiced by the states. The first state constitutions — which remained unaltered and in effect after the Constitution’s ratification — protected individual rights to possess and bear arms and allowed for a state militia.

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Blog author: jballor
posted by on Friday, August 10, 2012

Call for Papers: “Our Entrepreneurial Future: East, West, North, and South”

The Association of Private Enterprise Education Annual Conference, Maui, Hawaii, April 14 – 16, 2013. “Our Entrepreneurial Future: East, West, North, and South.” The Association of Private Enterprise Education (APEE) invites the submission of papers for its 38th International Conference in Maui, Hawaii, April 14-16, 2013. The Association is composed of scholars from economics, philosophy, political science, and other disciplines, as well as policy analysts, business executives, and other educators. APEE’s annual meeting explores topics related to private enterprise in an atmosphere that respects market approaches. Presentations reflect the latest research in fields such as regulation, public choice, microeconomics, and Austrian economics, as well as development of instructional techniques. The submission fee for the society’s journal, The Journal of Private Enterprise, is waived for papers presented at the conference.

Article: “What is the Philosophy of Law?”
John Finnis, SSRN

The philosophy of law is not separate from but dependent upon ethics and political philosophy, which it extends by that attention to the past (of sources, constitutions, contracts, acquired rights, etc.) which is characteristic of juridical thought for reasons articulated by the philosophy of law. Positivism is legitimate only as a thesis of, or topic within, natural law theory, which adequately incorporates it but remains transparently engaged with the ethical and political issues and challenges both perennial and peculiar to this age. The paper concludes by proposing a task for legal philosophy, in light of the fact that legal systems are not simply sets of norms.

Book Note: “Markets and Growth in Early Modern Europe”
Victoria N. Bateman, Markets and Growth in Early Modern Europe

This is the first study to analyze a wide spread of price data to determine whether market development led to economic growth in the early modern period. Bateman compares agricultural data with less abundant information on cloth, candles and olive oil from numerous European cities. Using a range of economic measures applied to a larger set of goods, she shows that market development occurred earlier than was previously believed.

Book Note: “Limited Government and the Bill of Rights”
Patrick M. Garry, Limited Government and the Bill of Rights

What was the intended purpose and function of the Bill of Rights? Is the modern understanding of the Bill of Rights the same as that which prevailed when the document was ratified? In Limited Government and the Bill of Rights, Patrick Garry addresses these questions. Under the popular modern view, the Bill of Rights focuses primarily on protecting individual autonomy interests, making it all about the individual. But in Garry’s novel approach, one that tries to address the criticisms of judicial activism that have resulted from the Supreme Court’s contemporary individual rights jurisprudence, the Bill of Rights is all about government—about limiting the power of government. In this respect, the Bill of Rights is consistent with the overall scheme of the original Constitution, insofar as it sought to define and limit the power of the newly created federal government.

Lectures: “Theology of Mission”
Edmund Clowney, Westminster Theological Seminary

These are 37 audio lectures from Edmund Clowney (1917-2005) of Westminster Theological Seminary from his course, “Theology of Mission,” within a broader biblical and historical study of mission and the “theology for the city.” This is one of the offerings from WTS made available via iTunesU.

Blog author: rnothstine
posted by on Friday, February 3, 2012

James Madison has rightfully been forever identified as father of the U.S. Constitution, author of the Bill of Rights and coauthor of the Federalist Papers. In his new biography of America’s fourth president, Richard Brookhiser introduces us to Madison the politician. In many ways, Madison is the father of modern American politics, with all its partisanship, wheeling and dealing, vote getting, partisan media, and popular opinion polling.

Brookhiser helps us to see the early framers as they were, brilliant men, who more often than not, waded into petty partisan squabbling. They were not afraid to roll up their sleeves and unleash a sharp pen to advance power and their party’s ideas. Madison, who was quick to understand that political contention would reign in the new Republic, organized political coalitions and allies for the purpose of power.

Madison is also the architect of hyper partisan newspapers like the National Gazette in New York City. A publication that soon begins to slam Federalists like Alexander Hamilton and even Madison’s fellow Virginian George Washington. Like Jefferson, he was a Francophile to the extreme. Hamilton would counter that Jefferson and Madison “had a womanly attachment to France.” Jefferson and Madison would often write letters to their revolutionary heroes in France, and by the time those letters crossed the Atlantic, the intended recipients were already victims of the guillotine.

Over his political life, Madison could also be quick to change course, especially when it benefited him and his presidential administration. Long an opponent of many Federalist policies, when the nation needed sound fiscal policy and a strong military because of war, he simply reversed course, and implemented ideas he had once fervently opposed. At times, he favored a strong centralized government, and especially when Federalists were in power, he favored strong state governments.

Because of poor health, Madison had a premonition that he would die as a young man, but he outlived almost all of his contemporaries (1751-1836). Madison as elder statesmen spoke out strongly against nullification, an issue that has been resurrected today because of ObamaCare and other federal power grabs. He did not believe a single state could nullify a federal law. At the same time, he also made strong arguments for strict constructionist views of constitutional interpretation. He vetoed a transportation bill that would have funded roads and canals because it was not specifically enumerated and did not fall under the commerce clause. The U.S. Supreme Court would later declare that it did fall under the clause within Madison’s lifetime. Madison believed such legislation “would have the effect of giving to Congress a general power of legislation.”

Later in life he also worried that political parties were becoming too regional. “Parties . . . must always be expected in a government as free as ours. When the individuals belonging to them are intermingled in every part of the whole country, they strengthen the union of the whole, while they divide every part,” said Madison. He easily foresaw that the Missouri Compromise was spiraling toward dangerous disunion. Madison owned over 100 slaves and Brookhiser points out that unlike Jefferson, he did not offer lofty rhetoric concerning the evils of slavery. And unlike Washington, he did not free his slaves upon death. Later in life, Madison declared the whole bible to be against slavery and toyed with the idea of moving slaves to Liberia or out West, but offered no real feasible solutions on the issue.

His strict interpretive views of the Constitution made him an early opponent of the need for a Bill of Rights. Madison feared that listing rights in the Constitution might ultimately void the rights that were not specifically mentioned. Ultimately, he would be a champion of the Bill of Rights and had already heavily influenced them in his previous work in drafting the Virginia Declaration of Rights. Madison challenged George Mason who wanted a clause about tolerating religion. Brookhiser wonderfully explains Madison’s contribution to religious liberty:

Madison, half Mason’s age, improved his language, proposing a crucial change to the clause on religious liberty. Mason’s draft, reflecting a hundred years of liberal thought going back to John Locke, called for “the fullest toleration in the exercise of religion.” Yet this did not seem liberal enough for Madison. Toleration implies those who tolerate: superiors who grant freedom to others. But who can be trusted to pass judgments, even if the judgment is to live and let live? Judges may change their minds. The Anglican establishment of Virginia, compared with established churches in other colonies, had been fairly tolerant – except when it hadn’t, and then it made water in Baptists’ faces. So Madison prepared an amendment. “All men are equally entitled to the full and free exercise” of religion. No one could be said to allow men to worship as they wished; they worshipped as they wished because it was their right as men. Madison’s language shifted the ground of religious liberty from a tolerant society or state, to human nature, and lifted the Declaration of Rights from an event in Virginia history to a landmark of world intellectual history (23, 24).

For much of Madison’s political career he plotted behind the scenes with his friend and mentor Thomas Jefferson to destroy their political rivals. Madison often carried out the dirtier work of politics so Jefferson could appear above the fray as a man of the people. He was instrumental in creating a young republic that was ruled by Virginians in Jefferson, Madison, and James Monroe. Republicans accused Federalists of trying to create a ruling faction, but the Virginian statesmen were even more adept in creating a political dynasty. But Brookhiser also helps to bring to life a snippet of the beautiful correspondence between two lifelong friends and Virginians in Jefferson and Madison. Jefferson also entrusted Madison as the guardian of his legacy in America and as an overseer of the continued flourishing of the University of Virginia.

While this book is a good introduction to Madison, it is perhaps woefully short at 250 pages for a complete study of the fourth president and founding statesmen. Brookhiser’s strength lies in deconstructing Madison and unveiling his flaws and partisanship, and his political genius as well.

Some on the political right or some classical liberals say we need to go back to the Founding period or we need to follow America’s Founders as if they were all of one accord. They forget even the Founders trampled on the constitution with measures like the Alien and Sedition Acts or the Louisiana Purchase when it suited them. Brookhiser concludes that while politics has changed, it has not to the degree that “would make it unrecognizable” to Madison.

“His intelligence and his knowledge of history showed him how this tension between different political spheres could be built into the Constitution as a bulwark of liberty, though he came to believe that appealing to popular opinion through the arts of argument and politics was a bulwark at least as strong.” says Brookhiser. “If men were angels, no government would be necessary,” said Madison. That we do have a government that has lasted for 225 years is a testament to this great man. And he would be the first to say it could be improved and fight for that improvement.

A brilliant assessment of where we are. (HT: American Orthodox Institute Observer).

Subject to the governor of the universe: The American experience and global religious liberty

March 1, 2011 – Most Rev. Charles J. Chaput, O.F.M. Cap., Archbishop of Denver, addressed the Berkley Center for Religion, Peace and World Affairs at Georgetown University.


A friend once said – I think shrewdly — that if people want to understand the United States, they need to read two documents.  Neither one is the Declaration of Independence.  Neither one is the Constitution.  In fact, neither one has anything obviously to do with politics.  The first document is John Bunyan’s The Pilgrim’s Progress.  The second is Nathaniel Hawthorne’s The Celestial Railroad

John Bunyan

Bunyan’s book is one of history’s great religious allegories.  It’s also deeply Christian.  It embodies the Puritan, Protestant hunger for God that drove America’s first colonists and shaped the roots of our country. 

Hawthorne’s short story, of course, is a very different piece.  It’s one of the great satires of American literature.  A descendant of Puritans himself, Hawthorne takes Bunyan’s allegory – man’s difficult journey toward heaven – and retells it through the lens of American hypocrisy: our appetite for comfort, easy answers, quick fixes, material success and phony religious piety.

Bunyan and Hawthorne lived on different continents 200 years apart.  But the two men did share one thing.  Both men – the believer and the skeptic — lived in a world profoundly shaped by Christian thought, faith and language; the same moral space that incubated the United States.  And that has implications for our discussion today.

In his World Day of Peace message earlier this year, Pope Benedict XVI voiced his concern over the worldwide prevalence of “persecution, discrimination, terrible acts of violence and religious intolerance.”i   In reality, we now face a global crisis in religious liberty. As a Catholic bishop, I have a natural concern that Christian minorities in Africa and Asia bear the brunt of today’s religious discrimination and violence.  Benedict noted this same fact in his own remarks.

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Blog author: jballor
posted by on Wednesday, March 1, 2006

“The First Amendment does not cover burping.” (from episode 2F22)


One of my favorite websites to check out on occasion is Professor Plum’s EducatioNation, and the first quote on the homepage is this from Thomas Jefferson: “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.” [Thomas Jefferson to Charles Yancey, 1816]

To underscore the relevancy of Jefferson’s point, a recently released study by the new McCormick Tribune Freedom Museum “found that 22 percent of Americans could name all five Simpson family members, compared with just one in 1,000 people who could name all five First Amendment freedoms.”

In addition, “Only one in four Americans can name more than one of the five freedoms guaranteed by the First Amendment (freedom of speech, religion, press, assembly and petition for redress of grievances.) But more than half can name at least two members of the cartoon family, according to a survey.”

According to the AP, “About one in five people thought the right to own a pet was protected, and 38 percent said they believed the right against self-incrimination contained in the Fifth Amendment was a First Amendment right, the survey found.”

More available at the Freedom Museum and the First Amendment Center.