James Madison, the author of the U. S. Constitution's Bill of Rights was not originally a fan of the idea of listing what, at the time, was considered to be a basic human right. He worried that, through the recording of specific rights, that he would miss a right that perhaps was not apparent to him at the time but became apparent at some future date. In this, he worried that the failure to have that right recorded could mean that the protection that would have otherwise been gained through its listing, would instead imply that that particular right could be subject to abuse. This, in itself, was a primary reason why Madison was not initially agreeable to having rights being listed on parchment. Madison, of course, was correct in his fears as we have seen with issues with privacy that have arisen concurrently with the rise of the internet. The right to privacy is not directly expressed within our constitution but, thanks to James Madison's caution and broad wording, our courts can find various protections of privacy within our First, Third, Fourth and Fifth Amendments. What this clearly shows is that, to James Madison, rights were serious business. On the same hand, he felt that the very populous nature of our form of government and its checks and balances would, in itself, protect human rights. Within this belief, Madison felt that a "parchment barrier" to protect human rights was unneeded for the nature of the government, itself, would provide those protections.
In a sense, Madison was correct. Time and time again when the question of human rights arises and the protections of the amendments have risen, it's not been due to any federal law that abuses one of these rights, but instead, the origination of the abuse of human rights has been within its people. Even at the time, Madison did not see the villains of rights abuse being necessarily the federal government but occurring within our state and local communities. In "The Question of a Bill of Rights", Madison wrote, "Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current." The Framers of our constitution were ever aware that majority factions of people could potentially result in the abuse of the respective minority.
Although Madison felt that the source of rights abuse would be a majority of people, he also acknowledged yet another possibility. On this subject, he wrote, "Altho it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter source; and on such, a bill of rights will be good ground for an appeal to the sense of the community." It is not I that am calling the danger of oppression by government evil. It is Madison's own words. When a government, be it federal, state or municipal, oppresses the rights of the people, it is, quite plainly, evil.
In the Supremacy Clause of the Constitution, it is written that " This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding." As such, the Supremacy Clause can be seen as the very backbone that protects our Bill of Rights from abuses by state or local municipalities. Our Constitution is the supreme Law of the Land. This does not mean that state or municipal governments cannot make laws such as "no sleeping in a park". The state or municipal government is completely within their own right to make such a law. However, should that regulation impose itself and be used to oppress the defined rights of the people living within this country, the state or local municipality is going against the Law of the Land.
It should be of no great surprise, especially in recent events, that the First Amendment is the amendment most likely to be subject to abuse. Our capital may be the frequent site of protesters but, just as frequently, protesters can be found outside of private businesses, places of convention, and at our city halls. The responsible management of the latter does not lie with our federal government but instead, with our state and municipal governments. The burden of any costs of a protest are also shouldered by our state and local governments as well. Is it any wonder why, with the Occupy Movement, it is not our military that we are seeing down on the streets of cities actively oppressing First Amendment rights, but, instead, is occurring through the actions of our mayors, governors, and police departments? They are the ones who shoulder the responsibility.
Even taking that into consideration, however, our state and municipal governments must always keep in mind that their local laws--state or municipal--do not trump our Constitutional laws. Our First Amendment expressly states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." What has traditionally occurred when a state or local law infringes upon a Constitutional right is that the injury to those rights occurs and the state or local government, then, gets to look forward to possibly multiple courtroom battles over the breach and the distinct probability that they will lose due to the Supremacy Clause. I find it ironic that mayors within the cities of these protests complain so much about the costs of replanting grass and the overtime hours paid for the police when the the costs of the latter is being utilized to breach the Law of the Land. Every protester that they arrest, process and shelter becomes a cost. This cost is not just the cost of paying for the associated services of their imprisonment but also the cost of the eventual courtroom battles ahead. Our state and local municipalities are fools if they think that these battles will not happen.
We, the people, do not take the infringement upon our Bill of Rights lightly and for just reason. Our Bill of Rights is the pride and joy of our nation. It is our insurance that our governments--whether local, state or federal--cannot abuse these stated rights. It is our protection from fascism and our protection when we must voice our discontent with the actions of our governments. If a protester throws a molotov, then he or she may be arrested. Violence is not protected free speech. If a protester attempts to incite a riot through dangerous wording, then he or she may be arrested for violence is not protected free speech. However, holding up a sign in a park in a sit in and demanding the redress of grievances from our governments, is precisely protected free speech as per James Madison, himself. Our governments should not forget this. Nor should they forget which law reigns supreme for it is not the law that prohibits sitting on a sidewalk, camping in park, or marching through the streets--it is our Constitutionals which reign supreme.
No comments:
Post a Comment