The 221st Anniversary of the Bill of Rights Should Inspire States to Re-Assert Their Sovereignty

Bill of Rights-scroll

by Diane Rufino, December 30, 2012

December 15 was Bill of Rights Day.  It marks the 221st anniversary of the day when the first ten amendments – our Bill of Rights – were ratified in 1791.

The Bill of Rights is among those documents classified as “Charters of Freedom.”  It belongs with the list that includes the Magna Carta, the Habeas Corpus Act, the English Petition of Right, the English Bill of Rights, the Virginia Statute for Religious Freedom, and the Virginia Declaration of Rights.  We are reminded everyday of regimes all over the world where people enjoy no fundamental rights, no freedom of religion, no freedom of speech, no freedom of assembly. We read about abusive judicial systems that lack of guarantees of due process, jury trials, and protection against self-incrimination. And we hear about oppressive police states where unreasonable searches and seizures and cruel and unusual punishment are commonplace. All of these places lack the protection of basic human rights that make this country  the land of the free.

When our Constitution was first established, it was assumed that the description of specific powers granted to the government would leave no doubt as to what the government could and could not do, and that the absence of powers over the rights of the people would leave those rights protected.  But Thomas Jefferson and others were wary of leaving such important matters up to inference. They insisted on a Bill of Rights that would state in unmistakable terms those rights of the people that must be left inviolate. In 1787, Jefferson wrote to James Madison:  “A bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inferences.”  September 17, 1787, the delegates to the Constitutional Convention in Philadelphia signed the final draft of the Constitution and left to go back to their states.  When Jefferson learned that the draft did not contain a Bill of Rights, he noted that it was reckless. He commented that if the states even considered ratifying it, it would amount to “a degeneracy in the principles of liberty.”

As it turned out, the Madison should have listened to Jefferson because many of the states would not ratify it without a Bill of Rights.

When the delegates at the Convention finished their work in Philadelphia, the only thing they created was a “proposal.”  That proposal for a Union, held together by the scheme of federal government outlined in Articles I – III, would have to go to all the states for ratification. Nine of the 13 states would have to ratify it for the Constitution to become effective for those ratifying states. But quickly, a fierce debate broke out in the states – between the Federalists (who were the majority at the Convention) and the Anti-Federalists (who were suspicious of the power delegated to the proposed federal government).  The Federalists, of course, argued that the Constitution should be approved, but the Anti-Federalists urged the states not to ratify it.  They were aggressive in their criticisms, and soon essays written by several of the anti-Federalists appeared in publications in the several states.  They appeared under various assumed names, such as Brutus, Cato, Centinel, Aristocrotis, and the Federal Farmer.  George Clinton, the Governor of New York, Richard Henry Lee and James Mason of Virginia, Samuel Adams, John Hancock, Elbridge Gerry, Nathaniel Ames, and James Winthrop of Massachusetts, and even Patrick Henry were anti-Federalists.  Alexander Hamilton and John Jay of New York, and James Madison of Virginia, all representing key states that were siding with the anti-Federalists, got together to write a series of 85 essays that explained the Constitution in detail and addressed the criticisms outlined in the Anti-Federalist Papers. These would become known as The Federalist Papers.

For many states, the decision to support or oppose the new plan of government came down to one issue – whether their sovereign powers and the individual liberties of the People were jeopardized by its lack of a Bill of Rights. After all, they had rebelled against Britain because it had in their view ceased to respect their age-old liberties as Englishmen—liberties enshrined in the 1215 Magna Carta and the 1689 English Declaration of Rights.  Having fought a long war to protect these rights, were they then to sacrifice them to their own government?  Others countered that a bill of rights actually endangered their liberties…  that listing the rights a government could not violate implied that unlisted rights could be restricted or abolished.  After much discussion at the Philadelphia Convention, the majority of the delegates were of the latter opinion. But that decision cost the signatures of several high-profile delegates, such as George Mason and Edmund Randolph of Virginia and Elbridge Gerry of Massachusetts.  George Mason felt that the Constitution did not adequately provide protection for the states’ rights and interests, Elbridge Gerry was not happy with the commerce power delegated to the federal government or with the taxing power which he felt might be burdensome on the states, and Randolph, a lawyer, was not content with the looseness of some of the language, fearing that future generations, and particularly the government itself, would seek sweeping changes to the meaning and intent of the document. [Edmund Randolph was the author of the Virginia Plan which was presented at the Constitutional Convention and George Mason was the author of Virginia’s Bill of Rights].

Many of the state conventions ratified the Constitution, but called for amendments specifically protecting individual rights from abridgement by the federal government. The debate raged for months. By June of 1788, with assurances that a Bill of Rights would be proposed, nine states had ratified the Constitution, ensuring it would go into effect for those nine states.  However, key states including Virginia and New York had not ratified and it wasn’t sure that they would without an actual Bill of Rights. After all, the colonies had rebelled against Britain because it had in their view ceased to respect their age-old liberties as Englishmen – liberties enshrined in the Magna Carta (“Great Charter”) of 1215 and the English Bill of Rights of 1689. Having fought a long and bitter war to protect these rights, were the states willing to sacrifice them to their own government?

In Virginia, Patrick Henry was accusing the proposed government of ‘tending or squinting toward the monarchy’ and being a ‘national’ rather than a ‘federal’ one, with no effective checks and balances against a majority or against a government determined to usurp power and no Bill of Rights to curb government power.  He warned: “This proposal of altering our Federal Government is of a most alarming nature.  You ought to be extremely cautious, watchful, jealous of your liberty, for instead of securing your rights you may lose them forever. If a wrong step be now made, the republic may be lost forever. If this new Government will not come up to the expectation of the people, and they should be disappointed – their liberty will be lost, and tyranny must and will arise. I repeat it again, and I beg Gentlemen to consider, that a wrong step made now will plunge us into misery, and our Republic will be lost.”  He continued: “Liberty, the greatest of all earthly blessings, gave us that precious jewel, and you may take everything else! … The Confederation, this same despised government, merits, in my opinion, the highest encomium; it carried us through a long and dangerous war; it rendered us victorious in that bloody conflict with a powerful nation; it has secured us a territory greater than any European monarch possesses; and shall a government which has been thus strong and vigorous, be accused of imbecility, and abandoned for want of energy? Consider what you are about to do before you part with the government … We are cautioned by the honorable gentleman who presides against faction and turbulence. I acknowledge also the new form of government may effectually prevent it; yet there is another thing it will as effectually do: it will oppress and ruin the people. … This Constitution is said to have beautiful features, but when I come to examine these features, sir, they appear to me horribly frightful; among other deformities, it has an awful squinting-it squints towards monarchy; and does not this raise indignation in the breast of every true American? Your President may easily become king; your senate is so imperfectly constructed that your dearest rights may be sacrificed by what may be a small minority; and a very small minority may continue forever unchangeably this government, although horribly defective: where are your checks in this government?”

James Madison, the principal author of the Constitution, knew that grave doubts would be cast on the Constitution if Virginia and New York (the home states of several of its chief architects, including Madison himself, and the authors of the Federalist Papers) did not adopt it.  Perhaps he got that impression after Patrick Henry addressed the Virginia Ratification Convention on June 16, 1788 and spoke the following words:

“Mr. Chairman, the necessity of a Bill of Rights appears to me to be greater in this government than ever it was in any government before.  Let us consider the sentiments which have been entertained by the people of America on this subject. At the revolution, it must be admitted that it was their sense to set down those great rights which ought, in all countries, to be held inviolable and sacred. Virginia did so, we all remember. She made a compact to reserve, expressly, certain rights.

When fortified with full, adequate, and abundant representation, was she satisfied with that representation?  No.  She most cautiously and guardedly reserved and secured those invaluable, inestimable rights and privileges, which no people, inspired with the least glow of patriotic liberty, ever did, or ever can, abandon.



Your own example furnishes an argument against it. If you give up these powers, without a Bill of Rights, you will exhibit the most absurd thing to mankind that ever the world saw – a government that has abandoned all its powers…. the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a Bill of Rights, without check, limitation, or control. And still you have checks and guards; still you keep barriers – pointed where?  Pointed against your weakened, prostrated, enervated state government! You have a Bill of Rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power! You arm yourselves against the weak and defenseless, and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity? What barriers have you to oppose to this most strong, energetic government? To that government you have nothing to oppose. All your defense is given up. This is a real, actual defect. It must strike the mind of every gentleman.

When our government was first instituted in Virginia, we declared the common law of England to be in force.  By this (federal) Constitution, some of the best barriers of human rights are thrown away. That system of law which has been admired and which has protected us and our ancestors, has been excluded.  Is this not enough of a reason to have a Bill of Rights?”

It was during this Ratification Convention in Virginia that Madison promised that a Bill of Rights would be drafted and submitted to the States. His promise reassured the convention delegates and the Constitution was approved in that state by the narrowest margin, 89-87. New York soon followed, but submitted proposed amendments. Two states, Rhode Island and North Carolina, refused to ratify without a Bill of Rights. North Carolina refused to ratify in July 1788, and Rhode Island rejected it by popular referendum in March 1788 and North Carolina refused to ratify it in their convention in July.

A year later, on June 8, 1789, referring to Virginia’s Declaration of Rights and the recommendations of the several state ratifying conventions, Madison proposed a series of 20 amendments to the first Congress. He had kept his promise and did so with utmost urgency, for the First US Congress only convened three months earlier, on March 4 (and George Washington had only been inaugurated as the nation’s first US President on April 31st).  In the speech he gave to Congress to propose the amendments, he said:

“It appears to me that this house is bound by every motive of prudence, not to let the first session pass over without proposing to the state legislatures some things (amendments) to be incorporated into the Constitution, as will render it as acceptable to the whole people of the United States…. It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled.




I am convinced of the absolute necessity (of these amendments).  I think we should obtain the confidence of our fellow citizens, in proportion as we fortify the rights of the people against the encroachments of the government.”

In his speech, Madison emphasized the great concern of the states –  How to prevent the encroachments of government?  As he explained, the ten amendments to the Constitution – the Bill of Rights – were crafted to “limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode.”  It was not individual freedom that the states wanted.  After all, under the American system, all men were created with inalienable rights that come from our Creator and not government.  No, our Founders and state leaders wanted freedom from government. The Bill of Rights doesn’t grant rights. Rather, it recognizes rights. It requires that the government not interfere with those rights. In other words, our Founders and state leaders wanted constitutional liberty. “If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.”  It was a hopeful plan.

In fact is that the plan was not the brainchild of the Federalists, who won the day at the Constitutional Convention in Philadelphia. It wasn’t the brainchild of James Madison, initially an avowed Nationalist. The Constitution was amended by the States because of the influence of the anti-Federalists. While it was the Federalists (in the true sense of their name) who rejected the Virginia Plan and supported state representation in the legislature (giving the government itself a “federal” nature),  it wasn’t enough for those who wanted more protection and security for the rights of the States and individuals.

[Note that our Founders, as early as the Constitutional Convention in 1787, came to appreciate state representation in government. They referred to it as providing a state ‘negative’ (a veto power) in government, in order to safeguard the rights, powers, and interests of the states. The same sentiment was emphasized in the state ratifying conventions, only in stronger language.  For those who question the legitimacy of nullification, we can see its very origins in the states’ representation in government. It is clear that the doctrine was part of the dialogue in our nation’s very founding and was implicit in the very design of government].

It was Thomas Jefferson who impressed upon Madison the need for a Bill of Rights. He urged him to heed the concerns of the anti-Federalists, which now became the concern of the various states.  The over-arching concern was the rise of national power at the expense of state power. For example, the Federal Farmer (authored most likely by Richard Henry Lee, of Virginia), in stressing the necessity of a Bill of Rights and protections against a consolidation of power in government, wrote: “Our object has been all along to reform our federal system and to strengthen our governments… However, the plan of government is evidently calculated totally to change, in time, our condition as a people.  Instead of being thirteen republics under a federal head, it is clearly designed to make us one consolidated government.”  George Mason, a delegate to the Philadelphia Convention who refused to support the Constitution, explained that the plan was “totally subversive of every principle which has hitherto governed us. This power is calculated to annihilate totally the state governments.” Brutus, another anti-Federalist, wrote: “The best government for America is a confederation of independent states for the conducting of certain general concerns, in which they have a common interest, leaving the management of their internal and local affairs to their separate governments.  How far shall the powers of the states extend is the question.”

Centinel, yet another Anti-Federalist, reminded readers of the nature of republics. Agreeing with Montesquieu (one of the philosophers our Founders relied heavily on), that a republic government could only survive in a small territory, the anti-Federalists came to the conclusion that America would have to be a federal republic and a union of states (and NOT the states united!).  As small republics themselves, the states would provide the foundation for republican and limited government in our new Union. “From the nature of things, from the opinions of the greatest writers and from the peculiar circumstances of the United States, it is not practical to establish and maintain one government on the principles of freedom in so extensive a territory. The only plausible system by which so extensive a country can be governed consistent with freedom is a confederation of republics, possessing all the powers of internal government and united in the management of their general and foreign concerns….”  [from Centinel]

Brutus agreed. “Neither the general government nor the state governments ought to be vested with all the powers to be exercised for promoting the ends of government. The powers are divided between them – certain ends are to be attained by the one and other certain ends by the other, and these, taken together, include all the ends of good government.”  [articulating our system of dual sovereignty].

Nathaniel Ames, of Massachusetts, wrote: “The state governments represent the wishes and feelings of the people. They are the safeguards and ornament of our liberties – they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights.”  Patrick Henry of Virginia agreed. He referred to the proposed government under the new Constitution a “consolidated and a dangerous” one, and added: “The States are the character and soul of a confederation.  If the states be not the agents of this compact, it must be one great consolidated national government, of the people of all the states…   The people sent delegates, but the states did.”


The US House debated and discussed the proposed amendments, and eventually edited, re-worked, and consolidated them down into 17 amendments. The Senate took up the amendments and made their own edits and alterations, and in September, the two houses got together and reached a compromise. Twelve amendments were approved on September 25 and then sent to the States for ratification.  All in all, it has been said that only two major provisions among the proposed 19-20 original amendments were eliminated by the House and Senate.

The amendments were designed to protect the basic freedoms of US citizens from the reaches of government, namely the freedoms of speech, press, assembly, and exercise of religion, the right to bear arms for self protection, the right to be secure in one’s person, home, and privacy against government searches and seizures, the right not to be denied Life, Liberty, or Property without due process, the right of habeas corpus, the right to fair criminal and civil legal proceedings and proper procedural safeguards,  and the right to be spared cruel and unusual punishment. Additionally, one amendment (the 9th Amendment) was included to memorialize the notion that sovereign power originates in the individual and another (the 10th Amendment) was included to memorialize the federal nation of our government system (“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”).

Influenced by the English Bill of Rights of 1689, the Bill of Rights was also drawn, as mentioned above, from Virginia’s Declaration of Rights, drafted by George Mason in 1776.  While Mason refused to sign the Constitution drafted in Philadelphia, in the ratification struggle that followed, Mason and other critics agreed to support the Constitution in exchange for the assurance that amendments would be passed immediately. While our Bill of Rights was indeed strongly influenced by the plight of the British to limit the “divine” power of the King in their lives and the many charters of freedom they extracted from their rulers, James Madison saw one very important difference between those documents and the Constitution: “In Europe, charters of liberty have been granted by power. America has set the example of charters of power granted by liberty.”

On December 15, 1791, Virginia became the 10th of 14 states to approve 10 of the 12 amendments, thus giving the Bill of Rights the two-thirds majority required by Article V of the Constitution to go into effect.  Finally, the rights held most dearly by free men would not merely “rest on inference.”

In the end, the anti-Federalists won the day.

Of the two amendments not ratified, the first concerned the population system of representation, while the second prohibited laws varying the payment of congressional members from taking effect until an election intervened. The first of these two amendments was never ratified, while the second was finally ratified more than 200 years later, in 1992.

In 1789, the new Union of States was established under the US Constitution.  Its enumeration of limited powers was intended to provide a basis for unity but the flexibility the states sought to remain the sovereigns they wanted to be.  As Thomas Jefferson explained to Joseph Cabell in 1816: “The way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to everyone exactly the function he is competent to.  Let the National Government be entrusted with the defense of the nation and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself.  It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself; by placing under everyone what his own eye may superintend, that all will be done for the best.”

While many Americans are familiar with the Bill of Rights and especially the ones that we hear often in the news and on pop culture law enforcement shows, no one mentions the preamble to the set of ten amendments ratified on December 15, 1791.  The Preamble to the Bill of Rights reads: “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”  We see that the first ten amendments are intended to be “declaratory and restrictive clauses.”  This means they supersede all other parts of our Constitution and restrict the powers of our Constitution. The Bill of Rights is a declaration of restrictions to the powers delegated to the federal government.  While amendments one through eight (1-8) have some historical context and many are direct and almost verbatim texts from British compacts/charters, the Ninth and Tenth Amendments are uniquely American.

Why is it that we never hear anyone refer to this phrase when looking for support of states’ rights?  This is probably the clearest expression of intent by the States to have the government respect their bulk of reserved sovereign powers.

The Bill of Rights was meant to prevent a repeat of the abuses that compelled our forefathers to take up arms.   It was meant as a shield to protect the people against tyranny, so that the sacrifices and bloodshed by our forefathers would not be in vain. History is repeating itself, and once again, a free people is engaged in the endless struggle between good and evil, between liberty and tyranny. Just like colonial times when a group of liberty-minded folks – the Sons of Liberty – emerged from the People to remind them of this struggle, the modern-day TEA party and other Liberty-minded groups have emerged to do the same thing. And like the Sons of Liberty, which started out as a small group of “agitators” in the several colonies, the Tea Party and other Liberty-minded groups are growing in number as well.  The problem in confronting the steady consolidation of power by the federal government has been the reluctance of states to stand up to their one-time “agent” (now their “master”).  Too many state leaders ignore their oaths of allegiance to the US Constitution and ignore the Ninth and Tenth Amendments – the very amendments they fought so hard in convention for. They question their right to second-guess the decisions of the federal government.  That’s like a 12-year-old bossing his parents around and the parents capitulating because they don’t feel they have the right to second-guess his actions or constrain his conduct.  When we have leaders who are supposed to be “on our side” – on the side of limited government and maximum liberty – but don’t fundamentally believe in our core conservative and government principles, then we have a problem.  We have this problem in my home state of  North Carolina.

North Carolina has a proud history of standing up against government oppression. It was the first state to push for a Declaration of Independence from Britain, it was the first state to authorize its delegates to vote such a Declaration, and it refused to sign the Constitution unless it was amended (to make sure power could not be concentrated in a federal government). And while Virginia (the home of Thomas Jefferson, James Madison, George Washington, and Patrick Henry) proposed twenty alterations to the Constitution and a separate Bill of Rights consisting of twenty items (modeled on George Mason’s 1776 Virginia Declaration of Rights), North Carolina said they still weren’t good enough and wanted an additional six amendments.  North Carolina didn’t want to secede from the Union in 1861, but given the choice between being forced by President Lincoln to take up arms and use them on its southern neighbors (who had seceded peacefully and established a new nation), it chose to respect the freedoms laid out in the Declaration of Independence and Constitution and sever its political bonds with the federal government. With a history so rich and distinguished, it is a sad state of affairs when state leaders announce that they are powerless to question the actions of the federal government even when they know full well that the actions of our current administration are equally egregious to those committed by King George back in the 1770’s.

Other states have a similar history of freedom and have contributed greatly to our shared values and principles. What’s more, some of these states are beginning to re-assert their sovereignty under the 10th Amendment, as well as their “express desire” to “restrict the misconstruction” and “abuse” of federal powers, as they did when they adopted the Preamble and the Bill of Rights in 1791.  For example, the Montana state house passed a State Sovereignty resolution (House Joint Resolution H.J. 26) to assert state rights and define the “line in the sand” which separates the “numerous and indefinite” sovereign powers of the state from the “limited and defined”  sovereign powers of the federal government. [“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”   James Madison, Federalist Papers No. 45]   The Resolution declared that Montana would jealously guard certain rights and would not tolerate the government intruding in them.

In a time when the government is more concerned with its own existence and power than with protecting the rights and interests of a free and sovereign people, I would suggest that more states need to adopt resolutions like the one Montana endorsed (although the state senate did not pass) and draw that “line in the sand” and reverse the injustice that has been done to the American people over the last 145 years or so.  That line in the sand is necessary to re-establish the proper balance of power between the government and the states that the Constitution, and the Bill of Rights, established in order that individual freedom is most firmly secured. It is necessary, as James Madison himself came to understand and appreciate, to maintain the strength of the individual states to “obtain the confidence of our fellow citizens, in proportion as we fortify the rights of the people against the encroachments of the government.”

Thomas Jefferson probably said it the best: “When injustice becomes law, rebellion becomes a duty.”

A State Sovereignty Bill that my state of North Carolina should consider is as follows:



The government of the great State of North Carolina re-acknowledges and re-asserts the following:

(1).   The Constitution of the State of North Carolina declares that all political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole, and that the people of North Carolina have the inherent, sole, and exclusive right of regulating the internal government and police thereof, and of altering or abolishing their Constitution and form of government whenever it may be necessary to their safety and happiness; but every such right shall be exercised in pursuance of law and consistently with the Constitution of the United States.

(2).  The aforementioned “inherent and exclusive right” may never be expressly delegated to the United States Congress.

(3).  The Constitution that is legitimately recognized by the State of North Carolina is the one interpreted according to the intent of its creation, defined by Federalist Papers, limited by the understanding of the states and assurances given them when they signed the document in their Ratification Conventions, limited by the express language included in the Preamble of the Bill of Rights, limited by the full scope of each amendment comprising the Bill of Rights (including the Ninth and Tenth Amendments), limited by the essence of the Supremacy Clause (only those laws pursuant to a valid constitutional exercise of authority are supreme; all others are not), amended strictly and legitimately according to Article V,  and spirited by the federal design of our government system (which is our most critical of checks and balances).

(4).  The People of North Carolina together form a free, sovereign, and independent body politic (ie, a state) by the name of “The State of North Carolina.”

(5).  The People of North Carolina agree that all powers not expressly delegated to the federal government in the United States Constitution and Bill of Rights must be reserved and exercised by individual states or by themselves.

(6).  Although North Carolina became an independent and completely sovereign state on December 18, 1776, it freely entered into the federal Union on July 21, 1778 when it adopted the Articles of Confederation for mutual benefit and security (“Join or Die”) and re-committed itself to the Union on November 21, 1789 when it became the twelfth state to ratify the US Constitution.

(7).  When North Carolina agreed to join the Union, it did so by social compact.  In signing the Constitution, it established a social compact (or contract) with its fellow states, to delegate certain common functions to a common, federal government in order to act like a Union of states instead of 13 independent states.

(8).  A social compact must be implemented consistent with the terms and understandings in place at the time it is entered into.

(9).  Legally, a compact, like a contract, is valid only when the terms defining the responsibilities, burdens, and benefits of that agreement are still in place.  Once the terms are materially altered, the contract no longer legally binds the parties.

(10).  One important term of the contact is the protection of states’ rights, as reflected in the 10th Amendment (“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”).

The government of the great State of North Carolina, on behalf of its People and for their protection and liberty interests, declares the following political posturing with respect to the federal government:

(1).  That the federal government was created and vested with specified powers that are “limited and defined” for the general management of the independent states but not for the internal regulation of their people and their affairs; the latter are matters rightfully left to the states themselves. To assume otherwise would be to define the government as a national one; yet that scheme was roundly rejected by the states.

(2).  That the several states of the United States, and particularly the State of North Carolina, are not united on the principle of unlimited submission to general government; rather, by ratifying the federal Constitution and Bill of Rights, they designed, created, and constituted a general government for special purposes and delegated to that government certain definite powers, while reserving to themselves all other rights.

(3).  That when the general government assumes undelegated powers, its acts are void and of no force; they are unenforceable by the states

(4).  That the government created by the federal Constitution and the Bill of Rights was not granted the right to determine the extent of the powers delegated to itself, since that would have made its discretion, and not the federal Constitution and Bill of Rights, the measure of its powers.

(5).  There are various examples of constitutional over-reach and abuse by the federal government which have already burdened the sovereign rights and interests of the State of North Carolina, as well as its People, including:

(a)  the federal power to punish crimes, under the Constitution, is limited to treason, counterfeiting of the securities and current coin of the United States, piracies, felonies committed on the high seas, offenses against the law of nations, and slavery.  The government is not authorized to punish any other crimes, and the Constitution been amended to include others.  Therefore, all acts of Congress that assume to create, define, or punish crimes, other than those enumerated in the federal Constitution, exceed the scope of the federal compact and are void and of no force.  The power to create, define, and punish other crimes is reserved by the states.

(b)  the individual rights of freedom of religion and conscience, freedom of speech, and freedom of the press are beyond the reach of the federal government and therefore reserved to the states or the people, allowing states the power to judge the appropriate scope of each right. All acts of Congress and decisions of the federal courts that abridge freedom of religion, freedom of speech, or freedom of the press violate the federal compact and are not law and are void.  [Furthermore, the Supreme Court introduced a legal fiction – the “Wall of Separation” doctrine – into First Amendment jurisprudence to abridge the right of religion and thereby frustrate the states in their ability to legislate morality, which is a legitimate state police power].

(c)  the power over the freedom of the right to keep and bear arms was reserved to the states and to the people, allowing states the right to judge how far infringements on the right to bear arms should be tolerated, rather than allowing that exercise to be defined by Congress. All acts of Congress and decisions of the federal government that attempt to abridge this freedom will violate the federal compact and will be deemed null and void and unenforceable.

(d)  that Congress has usurped the meaning of certain phrases of the federal Constitution, such as those phrases that delegate to Congress a power “to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States” and “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof,” in order to unilaterally concentrate its powers and destroy the limits placed on its authority.

(e)  that Congress and the President have usurped the Constitution’s war powers.  The Constitution divides war powers between the Congress and the President.  This division was intended by the framers to ensure that wars would not be entered into easily or unnecessarily send our citizens into battle. The Constitution’s division of powers leaves the President with some exclusive powers as Commander-in-Chief (such as decisions on the field of battle) and Congress with certain other exclusive powers (such as the ability to declare war and appropriate dollars to support the war effort).  The federal government has committed US forces without formal declarations of war.  With such laws as the Military Authorization Act and National Defense Authorization Acts, the government has done an end run on the Constitution by declaring an undefined “war on terrorism” (where “terrorism” is not a defined enemy or country, but a “tactic”) and extending the battlefield to our very United States. By defining the US as a battlefield, the government is claiming it has the power to apply the laws of war over the protections of the Bill of Rights.

(f)  that the federal government has created a new power for itself – the power to declare American citizens as “enemy combatants” in order to detain them indefinitely and suspend the protections protected for them in the Bill of Rights.  “Enemy combatants” are defined by the government as those who fight or engage in hostilities against the United States.  What constitutes conduct that justifies “enemy combatant” status is not clear. It appears that the US Constitution already addresses the situation where an American engages in hostilities against the United States or gives aid and support to an enemy. It is called “treason” and is addressed in Article III, Section 3. The government is already given the power to deal with treason and is given precise guidelines to prosecute traitors. The National Defense Authorization Act (NDAA) relies on this “new” (and unconstitutional) power in order to expand the government’s defense power.

(g)  that the federal government was created to perform common functions for all states and not to use its powers to spy on American citizens, such as patrolling the skies with drones, monitoring speech, evaluating the extent of property, and establishing political profiles.

(h)  that the US Supreme Court exceeded its power under Article III of the Constitution in the healthcare decision of June 28, 2012 (National Federation of Independent Business v. Sibelius) by expanding Congress’ taxing power rather than confining it within the scope of Article I, according to the intent of the provision (James Madison believed that the true meaning of the Constitution was to be found in the state ratifying conventions, for it was there that the people, assembled in convention, were instructed with regard to what the new document meant. Thomas Jefferson agreed as well.  He said: “Should you wish to know the meaning of the Constitution, consult the words of its friends.”).  With the decision, the Supreme Court re-characterized the Individual Mandate as a tax and not a “penalty” (as Congress itself defined) and said Congress is within its power “to impose a tax on those who have a certain amount of income but choose to go without health insurance.” The decision seems to disregard the fairness notion of “equal application of the laws.”  While the government does not have the power to order people to buy health insurance, the Court says it has the power to impose a tax to force people to do so.  In other words, the decision says that the government has unlimited power to use its taxing power to coerce Americans into conduct it desires; it has unlimited power to control every economic decision that every individual makes. This is a grave violation of the Liberty guarantee outlined in the Declaration of Independence. [There is another constitutional violation. Article I, Section 7, clause 1 of the Constitution say that all bills that raise revenue must originate in the House. The healthcare bill, which includes at least 21 embedded taxes to raise revenue to fund the healthcare scheme, originated in the Senate, as H.R. 3590.  Reminded of the offensiveness of the Stamp Act of 1765, imposed by King George, the Founders drafted the Constitution to require that taxes and tax increases originate in the House of Representatives. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off.  In  Federalist No. 58, James Madison defended the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.  The Supreme Court, as part of the system of checks and balances, was supposed to “check” the legislative branch on this violation of the Constitution]

(i)  that the federal government has used its taxing power to control and coerce states, and in general, to undermine the powers of the States to regulate under the Tenth Amendment.  If the federal government has the ability to provide funding to the States for projects and policies that it wants to promote (federal grants which are “conditioned”), then it is taxing Americans too heavily. Under concepts of federalism, the government should reduce its federal income tax rate and allow the states the ability to increase its state taxation rate in order to raise the funding for its own projects. This way, states can spend money the way it sees fit for its own people and circumstances and not as the federal government demands.

(j)  That the Executive is using Executive Orders to usurp the legislative powers of Congress when its constitutional powers are limited to those of executing the laws.  As such, many Executive Orders violate the Separation of Powers and blatantly violate the Constitution.

(k)  that the federal government used the events of the secession of the southern states and the Civil War to illegally and unconstitutionally erode the sovereign powers of the individual States. The events leading up to the Civil War and then Reconstruction were so marred with unconstitutional violations that it can be argued that the government and its actions during that time were illegitimate in many respects and therefore not binding on the respective parties (ie, the States).   [For example, President Lincoln took extraordinary liberties with the office of the Presidency in initiating the Civil War and suppressing opposition, in violation of the Constitution – such as ordering actions to initiate hostilities and suspending habeas corpus and having Americans put to death for exercising freedom of speech.  Congress, after the fact, sought to affirm those violations on July 11, 1861 with a Joint Resolution in which it declared Lincoln’s “extraordinary acts, proclamations, and orders” to be “legal and valid” and “necessary for the preservation of the government.” The preservation of government was what was at stake with the signing of the Constitution. Restraining government on the States and the People was. The government cannot violate the Constitution in order to claim to uphold it. The government itself cannot use the Constitution to seek its own immortality.

(l)  that there are numerous other examples of government constitutional over-reach.

(6).  That if North Carolina accepts or continues to accept these violations and inappropriate interpretations, and continues to allow all three branches of the federal government to exercise unbridled authority, it would be surrendering its own form of government.

(7).  That the people of this state will not submit to undelegated and consequently unlimited powers.

(8).  That every state has a right to nullify all assumptions of power by others within their limits, and that without this right, states would be under the dominion and power of anyone who might try to exercise that power.

(9).  That the rights and liberties of North Carolina, and its fellow states, must be protected from any dangers by declaring that Congress is limited by the federal Constitution and Bill of Rights.

(10).  That any act by the Congress of the United States, Executive Order of the President of the United States, or decision/judicial order by a federal court that assumes a power not delegated by the federal Constitution diminishes the liberty of this State and its citizens and violates the federal contract established by the signing of the Constitution.  The State of North Carolina, on behalf of its own sovereignty and the sovereignty of it People, declares that certain reserved state powers will be guarded jealously and aggressively. Acts by the federal government that would be seen as violations of the limited nature of the US Constitution, would be subject to nullification and interposition by the State, and would result in a legitimate breach of the federal compact which ties North Carolina politically to the federal government include, but are not limited to:







(11).  That if any act of Congress becomes law or if an Executive Order or judicial decision/judicial order is put into force related to the reservations expressed in this resolution, North Carolina’s political bond to the federal government under the federal compact (the signing of the Constitution) would be considered breached and all powers previously delegated to the United States by the federal Constitution would revert to the State and the people, respectively.

(12).  That any future government of the United States shall require ratification of three-fourths of the States seeking to form a government and shall not be binding upon any state not seeking to form a government.

(13).  That the Secretary of State send a copy of this law to the President of the United States and to each member of the United States Congress in order that they be put on notice of North Carolina’s position with respect to the Constitution, the government, and the respective rights and responsibilities of each sovereign.

[This proposed State Sovereignty Bill is of course, a bit long-winded…..]

As we celebrate 221 years with the Bill of Rights to protect our fundamental rights from government oppression, we have reason to  221st anniversary of the Bill of Rights, for there can be no better proof of the wisdom of the Framers than the endurance of the Constitution.  We appreciate their brilliance as we witness the oppressive and tyrannical consequences of a government that continually and increasingly abuses the constitutional limits and guarantees that they provided for us.

As we enter into 2013 (our 222nd year with the Bill of Rights), let us realize what the government will force us to do by the end of the year – enroll in a healthcare insurance program or be punished for it.  The government is already forcing millions of Americans to submit to repeated, egregious, and humiliating violations of their fourth amendment rights every time they fly on an airplane or visit a federal facility, forcing religious institutions to violate its own religious tenets, detaining Americans for promoting opposition to government policies, shoring up the indefinite detention provisions for American citizens in the National Defense Authorization Act (NDAA), and looking for ways to limit our second amendment rights. These policies of the federal government are no less serious than the policies of King George against the colonies.

In August 2012, a 26-year-old former marine and citizen of the state of Virginia, Brandon Raub, wrote the following posts on facebook: “The idea that men can govern themselves is the basis for every just form of government.” “The bill of rights is being systematically dismantled.” “You elected an aristocracy. They are beholden to special interests. They were brainwashed through the Council on Foreign Relations. Your leaders are planning to merge the United States into a one world banking system. They want to put computer chips in you. These men have evil hearts. They have tricked you into supporting corporate fascism. We gave them the keys to our country. We were not vigilant with our republic….  But there is hope. BUT WE MUST TAKE OUR REPUBLIC BACK.”  For those words, the government showed up at his home, arrested him, committed him involuntarily to a mental hospital, and planned to detain him indefinitely. The government made the decision to take his rights away. (Luckily, his mother and a sharp lawyer were able to fight the unlawful arrest). This happened in Virginia, the state that gave us Thomas Jefferson, James Madison, George Washington, Patrick Henry, the Virginia Declaration of Rights, and the Virginia Resolutions of 1798. This is the state that gave us such fiery speeches as “Give Me Liberty or Give Me Death!”  This famous speech in 1775 motivated the Virginia Provincial Convention to bear arms against England and then to vote for independence from England. This was a state that would not ratify the Constitution until Madison gave the delegates assurances that he would draft a Bill of Rights and the First US Congress would propose them and then send them to the states.

Fortunately, the world didn’t end on December 21st.  And so, on this 221st anniversary, let us  reflect on what we, as citizens, can do to keep the spirit of the Bill of Rights alive.  As I discussed earlier, one option is to demand that our state legislatures re-assert the sovereignty that our Founders acknowledged in the Ninth and Tenth Amendments.  If power is not carefully shared among the states and the federal government and if the states are not willing to stand up to the federal government, then this most powerful of checks and balances is useless and individual liberty is destined to suffer.  We already see it happening before our eyes.

When the federal government takes on functions not permitted to it by the Constitution, in violation of the Tenth Amendment, it is only a matter of time before it will usurp the unenumerated rights of the people, in violation of the Ninth Amendment. When the government can misappropriate the unenumerated rights of the people, it is only a matter of time before it will trample upon their enumerated rights – those most fundamental rights which are explicitly spelled out in the rest of the Bill of Rights.

The Bill of Rights still stands for liberty, even though our government won’t.

A few weeks ago, on December 15, Karen Kwiatkowski gave a speech and said: “I believe the Bill of Rights is the natural companion to the Declaration of Independence. May both of these documents inspire us all to seize the day, and live free. May the Bill of Rights guide us in our lives and work, focus our prayers, broaden our dreams, and lead us to end the tyranny, and restore our badly damaged Republic.”

Let’s hope the government doesn’t arrest and detain her for speaking those words.  And let’s hope that the Bill of Rights, the companion to the Declaration of Independence, continues to inspire us to want to live free.

1791: US Bill of Rights. [With information from James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.); Indianapolis: Liberty Fund, 2000.

Edward Drake, “The Men Who Didn’t Sign the Constitution.”’t+sign+the+Constitution+in+1787?&source=bl&ots=vcQKEJZ_DU&sig=HW_gI_YRM5PRvasqb9ZFKWuXEGc&hl=en&sa=X&ei=liHQUNCILY-08ASk0YG4Cw&ved=0CG0Q6AEwCQ#v=onepage&q=Who%20didn’t%20sign%20the%20Constitution%20in%201787%3F&f=false

Stewart Rhodes, “Oath Keepers Bill of Rights Day Message: Prepare to Fight for Bill of Rights,” December 15, 2012.  Referenced at:

Montana House Joint Resolution No. 26 Affirming States Rights –

The Bill of Rights and annotations –

Patrick Henry’s Opening Remarks at the Virginia Ratification Convention, June 4, 1788 –

James Madison’s Speech to Congress, June 8, 1789, in which he proposed 20 amendments to the new Constitution –

The revision history of Madison’s proposed Bill of Rights (amendments):

(a)  The amendments as James Madison proposed them on June 8, 1789:

(b)  The proposed amendments consolidated by the House down to 17 in number and then passed on August 24, 1798:

(c)  The Senate product:  On September 21, 1789, a House/Senate conference was called, and the differences between the versions of the two houses were worked out. Madison was one of the House managers in the committee. Several points were agreed upon, and the House was informed of the Senate’s acceptance of the compromise bill on September 25, 1789, the official date of submission of the Bill of Rights to the states.

Ratification of the Constitution by North Carolina, November 21, 1788 –

Federalist Papers No. 45 –

Federalist Papers No. 58  –


Jack Balkin, “The Right Strikes Back: A New Legal Challenge for Obamacare,” The Atlantic, September 17, 2012. Referenced at:

Allah Pundit, “Say, Doesn’t the Constitution Require Tax Bills to Originate in the House?”, Hot Air, June 28, 2012.  Referenced at:

Joint Resolution – “To Approve and Affirm Certain Acts of the President of the United States for Suppressing Rebellion and Insurrection” –

Jane Kwiatkowski, “Bill of Rights, RIP?” Lew Rockwell, December 15, 2012. Referenced at:

June 16, 1788 (Virginia Ratification Convention): Patrick Henry Demands and Gets a Bill of Rights,” Free Republic, October 17, 2003. Referenced at:

“The 14th Amendment: Equal Protection of the Laws or Tool of Usurpation?,” US Congressional Record – House, June 13, 1967; page 15641.

W. Kirk Wood, A Constitutional History: 1776-1833, University Press of America, Maryland (2009).


(A) THE BILL OF RIGHTS (with explanation)













The Second Amendment: The Right to Bear Arms —




The Third Amendment: Quartering Troops —


The Fourth Amendment: Search and Seizure —



The Fifth Amendment: Rights of Persons —





The Sixth Amendment: Rights of the Accused —




The Seventh Amendment: Trial by Jury in Civil Cases —


The Eighth Amendment: Bail and Cruel and Unusual Punishments —




The Ninth Amendment: Rights Retained by the People —






The Tenth Amendment: Rights Retained by the States —





During much of our history, the Tenth Amendment was interpreted as a limitation of the delegated powers of Congress. Since 1937, however, the Supreme Court has largely rejected this view, and the Amendment no longer has the same operative meaning or effect that it once had. [My Note: But the question is this: What right does the Supreme Court, a branch of the federal government, to decide the scope of that government’s powers? The explanation given in the Federalist Papers of Article III’s judicial branch powers is that the Supreme Court had the power to advise and to offer an opinion as to constitutionality.

Rights Versus Duties  —














November 21, 1789.

In Convention, August 1, 1788.



















































Reference: Ratification of the Constitution by North Carolina, November 21, 1788 –

About forloveofgodandcountry


1 Response to The 221st Anniversary of the Bill of Rights Should Inspire States to Re-Assert Their Sovereignty

  1. I love your description of the Federalist and Anti-Federalist arguments in the “Bill of Rights”! What it shows us is that: 1) North Carolina should secede from the Union as model for the other 49 states, and 2) do not use the current, 1788, US Constitution as a model for North Carolina. Our current Constitution is a failure, the major reason we rank dead last in “societal satisfaction” among our eight European peers.

    Perhaps we ought to reconsider the consequences of what happened during the American Revolutionary War and soon after. At the end of the War, the New Hampshire Assembly declared an “official” inflation rate of 7,500%. Trades people in Pennsylvania insisted on a 8,000% inflation rate. It was the War, not the Articles of Confederation, that made a mess of the US Economy.

    John Adams suggest that one-third of the colonist were loyalist. The colonial governments confiscated their property and then sold this property to pay colonial operating expenses. To secure a treaty of peace with Great Briton, John Jay agreed to pay pay back the loyalist (Article 5, Treaty of Paris, 1783). Then, in 1796, John Jay, as Chief Justice of the Supreme Court, said that we did not have to repay the loyalist (Ware v. Hylton (3 Dallas 199). In 1814 the British burned Washington, DC.

    Alexander Hamilton would have made a good lecturer at Harvard University. But he left a little to be desired as a political thinker. In Federalist Papers Numbers 16, 49 and 70 he cited political concepts from 2,000 years before his time to support his modern philosophy. But Hamilton ignored Bodin, The Six Bookes of a Commonweale, 1606; Hobbes, Leviathan, 1651; Locke, Second Treatise of Government, 1690; and Hume, A Treatise of Human Nature: Being an Attempt to introduce the experimental Method of Reasoning into Moral Subjects, 1739. These ideas were available to Hamilton but he ignored them because they did not support his quest for power.

    Thomas Jefferson said, “Every constitution, …naturally expires at the end of thirty-four years.” (Thomas Jefferson in a letter to James Madison. Paris, September 6, 1789. From the Papers of Thomas Jefferson. Volume 3. Page 106.) So we are behind six new constitutions. Switzerland, which figured in both the Federalist and Anti-Federalist arguments, believed in Jefferson – they write a new constitution every thirty-five years or so.

    As a last point, lets consider the question of small versus large when it comes to nation building. The 20th Century Czech political philosopher, Ernest Gellner expounded on the benefits of a “small” nation. For a quick overview, I suggest, Campbell & Hall, “Defending the Gellnerian premise: Denmark in historical and comparative context.” Nations and Nationalism 16 (1), 2010, 89–107. (Available at:​DefGelnerianPremise.pdf.)

    Thanks again for your fine work!

Leave a Reply


You are commenting using your account. Log Out /  Change )

Google photo


Twitter picture


Facebook photo


Connecting to %s