This is the second in a series of articles exploring the contours of our original charters of liberty, the Declaration of Independence, Constitution, and Bill of Rights. The inaugural article was titled “The Bill of Rights: Preventing Misconstruction, Abuse of Power,” and began with this text of the Preamble to the original twelve “Articles” of the Bill of Rights proposed by Congress on September 25, 1789:
“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.”
Fun Facts: “Article the first” of the original Bill of Rights proposed by Congress in 1789 would have regulated the number of members of the House of Representatives, initially "one Representative for every thirty thousand," and ultimately “not . . . less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.” It was never ratified.
“Article the second” of the original Bill of Rights provided, “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”
Although like the first article, the second was not ratified in 1791 along with the first Ten Amendments, two centuries later this second article was ratified as the 27th Amendment by the vote of the Legislature of Michigan on May 7, 1992.
One would think that the above-quoted Preamble to the 1789 Bill of Rights, providing original textual context for the first constitutional amendments “proposed by two thirds of both Houses” of Congress pursuant to Article V of the Constitution, 10 of which were “ratified by the Legislatures of three fourths of the several States” pursuant to the same Article, would be taught in every law school and included in every codification and constitutional law treatise. Not so.
The preamble to the Bill of Rights appears to have been forgotten along with its first article, which never mustered the necessary three-fourths ratification by the respective States.
Both the United States Code Annotated and the Congressional Research Service's “The Constitution of the United States of America: Analysis and Interpretation” include the preamble to the Constitution but not to the Bill of Rights.
Likewise, this author searched in vain through three constitutional law treatises for even a passing reference to the introductory words each person involved in the 18th century constitutional amendment process presumably read before voting on ratification of the first 12 proposed articles (amendments).
Each treatise, of course, does include the preamble to the Constitution. It is as if the preamble to the Bill of Rights, like the first article, never existed.
Rediscovery of the Preamble of the Bill of Rights should be enough to convince any judge, whether judicial or administrative, that the Bill of Rights was designed as practical constraints within the Constitution itself, including its first Ten Amendments, “in order to prevent misconstruction or abuse of its powers."
When I explore the Tenth Amendment in another article, I will show how that final provision of the Bill of Rights is integral to the design to prevent “misconstruction or abuse of its powers.” In this regard, it can hardly have been mere coincidence that the first sentence of the preamble and the final article of the Bill of Rights both address federal usurpations of state "powers."
In the meantime, for the purposes of this article, suffice to say that the 1789 Preamble of the Bill of Rights frames the problem as "misconstruction or abuse."
The Tenth Amendment — and the other 10 Articles of the original Bill of Rights that have been “ratified by the Legislatures of three fourths of the several States” — should be viewed in the context of this original explanation of the fundamental purpose of our Bill of Rights: “to prevent misconstruction or abuse of its power,” i.e., to prevent misconstructions of laws or abuse of powers that the People have conferred, through their Constitution, on their national government.
Viewed in this historical context, each of the 11 articles of our Bill of Rights, “ratified by the Legislatures of three fourths of the several States” as amendments to our Constitution, should be used by courts and administrative agencies adjudicating the rights of “We the People,” to quote the Preamble, better to "insure the beneficent ends of its institution."
Joseph E. Schmitz served as a foreign policy and national security adviser to Donald Trump during the 2016 presidential campaign. The opinions expressed in this article are his personal opinions. Schmitz served as Inspector General of the Department of Defense from 2002-2005 and is now Chief Legal Officer of Pacem Solutions International. He graduated with distinction from the U.S. Naval Academy, earned his J.D. degree from Stanford Law School, and is author of "The Inspector General Handbook: Fraud, Waste, Abuse, and Other Constitutional 'Enemies, Foreign and Domestic.'" Read Joseph E. Schmitz's Reports
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