I have been looking with both appalled horror, and admiration at the resolution of the Georgia Senate, and considering the nature of law, and the constitution. The resolution itself, in large is correct, however, they have forgotten many things that are far more important.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
The first question this raises is what a republican form of government is... the Constitutional Republic is a system in which the powers of government are limited by constitutional contract, as well as limited by separation of powers into numerous branches. As a representational republic, the United States required several things.... not only to bind the branches of government against each other, but to bind the people themselves down from mischief which, well-meaning, would destroy their liberty and bind them over into tyranny for the emotions of a moment.
How do I support this? The Federalist papers, the very documents that 'sold' the republic, and the Constitution from which it was created, talk of the intent, the purpose, and the ultimate bounds of government.
The Federalist 51 (The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments , Alexander Hamilton or James Madison, February 8, 1788.) speaks of the necessity for balancing the departments, and having them capable of checking each other, but also speaks of something else... the necessity to bind the people themselves from voting away the rights of each other.
Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.
We are bound against tyranny, against our own impulses, our own fears, and more, our own best intentions. We are free in our liberties, our rights, our immunities. The first nine 'bill of rights' amendments were never all there were, they were simply the most likely to preserve that liberty which was at the forefront of the founding contract.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
A grave argument against that original bill of rights was within the Federalist 84:
“
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.and more:
There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions.
Within the body of the constitution itself, there are only two sections of restraint, one from the Federal government, and one from the states. If those powers were prohibited from the federal government, by noninclusion, and prohibition, where would this be?
Article 1, section 9.
No Bill of Attainder or ex post facto Law shall be passed.
And the states? Their prohibitions go further.
Article 1, section 10
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
If the former binds down the Federal government from all of the things written in the bill of rights... should not the latter do so far more securely?
Attainder is any deprivation of rights without the work of a court and jury process, created by excuse of a taint on an individual or group, including the group of the whole. When we engage in attainder, from writs of criminal registration to writs requiring identification to writs requiring giving up money or property on suspicion of future crimes, we are no longer a Constitutional Representative Republic. We have then become something far more dangerous and insidious, a tyranny. Does it matter that said tyranny is invoked in the realm of the constitution? If any class lacks the whole benefit, as well as the penalties of law, then the law itself is fallen.
If we can be imprisoned, not for crimes we commit, but for crimes we might commit, fined and numbered not for things which we do, but things we might do, we are already at the point of slavery. If we, as a people, can be taxed, not for our benefit, but for the benefit of others, and the benefit of extranationals that pay no taxes whatsoever, then we are slaves. If any human, from poorest to richest, must apply for permission to walk down the road, for permission to use their own property, their own funds, their own lives, for permission to marry, to have a family, to live, to travel, and even to leave and must apply for the permission to protect their property, family, home, and are denied the right to protection by the police corps... we are far, far worse than even slaves. We are things.. numbers in a database, statistics soon forgotten.
The greatest rights of all are the rights to express, to think, to assemble peaceably without a requirement for license, and to protect what is ours against all takers, including the Federal Government, and the State Government.
If the state government proposes to take those rights away, for any reason, for any person outside of a prison cell and the sentence of the court, then they, themselves are fallen. If they propose to use the army to enforce law... the union has already fallen.
Schemes to subvert the liberties of a great community REQUIRE TIME to mature them for execution. An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose, not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. Is it probable that such a combination would exist at all? Is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? Is it presumable, that every man, the instant he took his seat in the national Senate or House of Representatives, would commence a traitor to his constituents and to his country? Can it be supposed that there would not be found one man, discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? If such presumptions can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person.
The states at this point have NO existence outside the union itself. By secession, they have voided the entirety of their contract, and a new contract must be made with the people. A house divided against itself cannot stand... but a house where the rafters seek to crush the foundation cannot stand either. If the few seek to control the many, or the many the few via deprivation of rights... all will fall.
To make war against one's own government is treason... and higher treason by far when done by one's own legislature, or executive, including the federal government's legislature and executive. Tearing down the rights that were designed to protect against the incursions of that federal government, or the state government is an act of war, war against reason, war against liberty, and war against the people themselves.
If men, through fear, fraud, or mistake, should in terms renounce or give up any natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of Almighty God, it is not in the power of man to alienate this gift and voluntarily become a slave.– Samuel Adams
Among the natural rights of the colonists are these: first, a right to life; secondly, to liberty; thirdly to property; together with the right to support and defend them in the best manner they can.– Samuel Adams.
Any single man must judge for himself whether circumstances warrant obedience or resistance to the commands of the civil magistrate; we are all qualified, entitled, and morally obliged to evaluate the conduct of our rulers. This political judgment, moreover, is not simply or primarily a right, but like self-preservation, a duty to God. As such it is a judgment that men cannot part with according to the God of Nature. It is the first and foremost of our inalienable rights without which we can preserve no other.
– John Locke
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