I was really disappointed that James Madison's address for the Bill of Rights didn't receive one comment from anyone. IMO, it's a vary important piece on the Bill of Rights and worth at least one read, if not several.
Rights are not favors granted by an authority, rights are those powers the authority cannot take away.
James Madison: In some instances they assert those rights which are exercised by the people in forming and establishing a plan of government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the preexistent rights of nature. In other instances, they lay down dogmatic maxims with respect to the construction of the government; declaring that the Legislative, Executive, and Judicial branches shall be kept separate and distinct. Perhaps the best way of securing this in practice is to provide such checks as will prevent the encroachment of the one upon the other.
An important thought, the idea of a "social compact" with respect to the Bill of Rights. One can ask what is the "social compact" for each amendment within the Bill of Rights. I think in all cases there is at least an implied one, if not a clearly stated one. In the case of the 1st, there is no unequivacle freedom of speech, you can't yell "fire" in a theatre, you can't threaten the President of the US, you can't use freedom of speech as a protection against libel and slander. The second has a clearly stated social compact, that certain groups are willing to overlook.
jttmab |
