Stewart Rhodes' Articles:

THE FIRST FUNDAMENTAL PRINCIPLE OF CONSTITUTIONAL INTERPRETATION: YOUR RIGHTS DON’T COME FROM GOVERNMENT

By
Stewart Rhodes

Ben Franklin reportedly remarked that the Constitution formed “a Republic … if you can keep it.”  Well, you can’t keep it if you don’t know what it is. 

So, what is it?   As George Mason said, “no free government, nor the blessings of liberty, can be preserved to any people, but by frequent recurrence to fundamental principles.”   What are the fundamental principles of our Republic?  Should we look first to Supreme Court decisions for such guidance?  Hardly.  As Jefferson said:

They [the judges] are … in fact the corps of sappers and miners, steadily working to undermine the independent rights of the States and to consolidate all power in the hands of that government in which they have so important a freehold estate."

And that was when the ideas of the Enlightenment still reigned supreme, long before the infestation of Marxism among legal elites.  No, the Court has long ago gone astray.  Let us begin with our Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness ….

There, at the heart of our Republic, are not just the concepts of equality and consent of the people, but also natural rights.  The Declaration of Independence is fundamentally a natural law document and the “long train of abuses” that made revolt necessary were not only deprivations of representation (as we were taught in school), but also of natural rights, such as life, liberty, and property, and the abuse of all of the ancient, hard won procedural protections of those rights, such as habeas corpus and jury trial in a civilian court, rather than a court of admiralty.  They finally shot back when the government attempted to strip them of the means of resisting the already ongoing abuse of their other natural rights.

Rights come first, and then government is created to protect them, not the other way round.  This is something modern political and legal elites want us to forget.  They don’t believe in inalienable, natural rights that are ours by virtue of ‘nature and nature’s God.”  Instead, they share the view of Karl Marx, that such “rights” are merely artificial political/legal constructs, that man is just an infinitely malleable animal (to be shaped by social engineers), with no inherit rights whatsoever, and your only “rights” are whatever society wants to “give” you.  Black’s law dictionary defines this as “positive law” – man made law - as opposed to natural law.

Thus, Janet Reno once told a group of federal law enforcement officers “You are part of a government that has given its people more freedom … than any other government in the history of the world”(emphasis added).

Under this view, which flips the Declaration on its head, on what grounds can you ever rebel?   Since your rights are “gifts” from government, and merely whatever the government courts say, with no higher power or law, it is never legitimate for a people to rebel, no matter how ridiculous the government’s “interpretation” of its own powers or how arbitrary and murderous it becomes once its servants in black robes “make it legal” by interpreting your so-called rights out of existence.   Without natural rights there is no right to revolt, which is precisely why these elites think it totally illegitimate for you to have effective means of resistance.

Remember that all of the Crown’s actions were upheld by the English courts as legal and “constitutional.”  However, for the Founding generation, that was not the end of the argument because they knew their rights were not just whatever the government robed lawyers said. 

In harmony with that timeless, self evident truth, the Bill of Rights does not grant any rights.  It is really more a bill of protections of rights.  The First Amendment does not say “the people are hereby granted a right to free speech, freedom of the press, free practice of religion, and assembly.”  Instead, it says “Congress shall make no law respecting … [those rights].”  It is a prohibition on Congress, to protect pre-existing natural rights. 

The same is true of the Second Amendment.  It does not say “the people are hereby granted the right to bear arms.”  No.  It says “… the right of the people to keep and bear arms shall not be infringed.”  It is a prohibition on government action, meant to protect a pre-existing right. 

Likewise, the Fourth Amendment does not grant us a right to be secure in our persons, houses, papers and effects from unreasonable searches and seizures.   It declares that our right to that security “shall not be violated” and then it sets forth procedural requirements to protect that preexisting right.  Nor does the Fifth Amendment grant us a right to life, liberty, or property.  It merely prohibits the government from depriving us of those pre-existing rights without due process of law, and spells out specific procedural protections for those natural rights.  The same holds true for jury trial.

Thus, whenever you hear a judge, politician, lawyer, or talking head in the media speak of what rights you do or don’t have under the Constitution, you are hearing at best an ignorant statement, and at worst, a lie.   And whenever you find yourself running to look in the Bill of Rights to see whether you have a right to do something, you are making a fundamental error.    Your rights are inherently yours by nature and by nature’s God.

With that fundamental principle as our background, I will next delve more directly into constitutional interpretation, showing how the Bill of Rights mandates how we must interpret what the people consented to as the means “to secure these rights.”

THE BILL OF RIGHTS:  THE CONSTITUTION’S BUILT-IN, MANDATORY MANUAL OF CONSTITUTIONAL INTERPRETATION
By
Stewart Rhodes
So great was the Founding generation’s distrust of powerful national governments that, when they rebelled against the Crown, they created a loose league of sovereign States under the Articles of Confederation.  And even when some of the leading men of the time pushed for a national government with more power, the people would never have consented to such a leviathan as we now see, de-facto, in Washington D.C.  They had just thrown off a government that claimed a power to legislate over them in all matters whatsoever and were not about to replace it with another. 
Instead, what they consented to by ratifying the Constitution of 1787 was a dual sovereignty system, granting the new national government only certain, enumerated, and limited powers, with no general police power (a general law-making power to pass laws for the health, safety, and welfare of the people).  Only the States had such a general power, which they retained, as the debates over ratification make clear:
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 …The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberty, and property of the people; and the internal order, improvement and prosperity of the State. - James Madison, Federalist 45
Despite such reassurances, the Constitution would never have been ratified without the promise of a Bill of Rights, which the ratifying conventions of several States insisted on because they still feared misconstruction and usurpation of powers never granted. 

The Federalists argued that no Bill of Rights was needed since the federal government lacked the power to infringe on any of the people’s rights and listing certain rights and protections could dangerously lead to the inference that the government otherwise had powers not granted, and to the inference that the people’s rights were somehow limited to those listed.

Fortunately, the people did not buy those arguments (imagine where we’d be now, without a Bill of Rights!) but they did address those “concerns” in their proposed amendments, to be doubly-damn sure the Constitution would not be misinterpreted as the Federalists warned.  Thus the Bill of Rights itself tells us how we must interpret the Constitution.   

First, the Preamble to the Bill of Rights clearly states that its purpose was to prevent misconstruction:

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 …. (emphasis added).
As discussed last time, some of those “declaratory and restrictive clauses” are written protections for certain preexisting rights of the people (such as the right to bear arms) and guarantees of ancient procedural protections, such as jury trial.  But two others give commands on interpretation “to prevent misconstruction”:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. – Ninth 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. – Tenth Amendment.  (emphasis added)

These are no mere suggestions.  The Ninth Amendment uses the command language “shall not” and is as much a command as “the right of the people to keep and bear arms shall not be infringed.”    It also speaks of the enumeration (the listing) in the Constitution of certain rights, not the “creation by the Constitution of certain rights.”  This is no accident.  As noted previously, the Bill of Rights does not create rights, but merely provides protection for rights that already exist. 

And no, the Tenth Amendment is not merely a “truism.” It is a vital command on interpretation, just like the Ninth.  The People meant it to have teeth.

There you go.  The Constitution’s built-in manual for constitutional interpretation:

1. You shall not interpret the Constitution as creating rights, and you shall not interpret it as meaning that the people have only those rights listed.  We the people have natural rights, and those rights go far beyond those explicitly protected by the Bill of Rights. 
2. The national government does not have a general police power to legislate on anything it wants (despite the modern lies of the Supreme Court regarding the Commerce Clause to the contrary).  It is a government of particular, enumerated powers, and you shall construe its powers narrowly, as the people intended.  There are other powers, which we the people have not granted, and we reserve all of those other powers to our sovereign State governments, or to ourselves.

From all of this, St. George Tucker, in his 1803 commentaries on the Constitution, derived the principle that all of the Constitution’s rights protecting provisions should be read very broadly, while the power granting provisions should be read very narrowly.   Tucker was correct, but you don’t need to be a legal scholar to figure it out. 

The people who ratified the Constitution did not leave the vital question of its interpretation open to be manipulated by some smart-alecky modern law professor out for tenure and a book deal, or by some future federal judge playing God – they gave us their commands for how it shall and “shall not be construed.” 

And it is their understanding and intent that matters, not the preferences of the Nine Nazgul on the Court.  Any “interpretive methods” that are contrary to those commands are not only inaccurate, but are themselves violations of the Constitution.   Think about that the next time you hear some smooth talking lawyer, judge, professor, or politician prattling on about his own pet “modality” of constitutional interpretation.  Look past the smoke and mirrors, and ask yourself if what you are hearing squares with the commands of the Ninth and Tenth Amendments. 

When you use the powerful interpretive lenses the Bill of Rights provides, you will see “Them” for what they are, and you will no longer be fooled.