I will show you that they are wrong through the use of analysis and interpretation of the intent of our Constitutional Founders as they were writing the Constitution. This is the job that judges face all the time in the Judicial Branch of government. They must try to come up with decisions based upon intent of the Constitution, which sometimes is not explicit. It is a tough job, but somebody has to do it.
I am able to decipher intent by reading the House of Representative notes on whether or not they should amend the Constitution to include a Bill of Rights. (Yes, some people were opposed to a Bill of Rights).
The House began these debates on June 8, 1789 when James Madison rose in front of the House and declared that “this was the day that he had heretofore named for bringing forward amendments to the Constitution.”
Mr. Madison’s most vocal opponent was James Jackson from Georgia. He suggested that the debate on constitutional amendments should not move forward. Mr. Jackson was against the very essence of the proposal. He asked, “What experience have we had of the good or bad qualities of this Constitution?” Mr. Jackson continued, “Our Constitution, sir, is like a vessel just launched, and lying at the wharf; she is untried, you can hardly discover any one of her properties.” Mr. Jackson did not want to even hear Mr. Madison’s proposals because he believed that the ink was not even dry on the Constitution. The people of the United States had no experience with the document and he wanted to wait until we had the proper experience to know what is and is not working. Mr. Jackson noted that, “When the propriety of making amendments shall be obvious from experience, I trust there will be virtue enough in my country to make them.” Mr. Jackson was more than happy to look at amending the Constitution when the United States had more experience in dealing with the Constitution. I can see where Mr. Jackson is coming from; I believe he is making a good point because at that time our leaders had no idea how or if the Constitution was going to work in principle, so I agree that you need experience with the document to see what is working and what is not. I also believe Mr. Jackson makes a good argument for how our modern society should view the Constitution. The Constitution has been in existence for more than 200 years. Times, technology, attitudes, and modes of travel have changed. This is why I believe that there is no harm in having a Constitutional Convention (the process that must take place to make changes to the Constitution). I know many people who believe the Constitution is hanging by a thread and we need to protect it. However, if it is not working and we could revise it and make it better, why would someone be against that? I really believe that we should have a Constitutional Convention every so often (every 10 to 20 years) so we can see if we got some things wrong. We may find that it needs no revisions but I believe that it does not hurt to have a debate on whether there are items in the Constitution that need to be revised or thrown out altogether.
Mr. Madison re-affirmed his position for amending the Constitution. He made the argument that he had a duty to his constituents to make sure that the House did not “disregard their wishes.” Madison believed that his constituents were apprehensive about signing on to the Constitution because there were “countrymen who wish to deprive them of liberty.” Mr. Madison was looking to calm the fears of his constituents because he believed that all power is subject to abuse within the government and that “the powers of the General Government may be guarded against in a more secure manner than is now done.” Mr. Madison continued on and began to lay out his proposed amendments. A few of his proposals are as follows: “First, that there be prefixed to the Constitution a declaration, that all power is originally vested in, and consequently derived from the people.” He also proposes, “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.” Mr. Madison lays out his proposals at length on keeping and bearing arms, the criminal justice system, freedom of speech, freedom of the press, and so forth. He declares that, “The first of these amendments relates to what may be called a bill of rights.”
Madison continued and explained why a bill of rights is necessary. He stated that some states already have declaration of rights incorporated into their constitutions and that the establishment of the United States government had not repealed those rights. However, some states did not have bills of rights and others that did were defective and some are “absolutely improper.” He also made the argument that having a bill of rights would help protect against abuse of power. Madison believed if a bill of rights is incorporated into the Constitution that, “they (the Executive and Legislative branches) will be naturally led to resist the encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.”
Mr. Jackson then argued: "There is a maxim in law, and it will apply to bills of rights, that when you enumerate exceptions, the exceptions operate to exclusion of all circumstances that are omitted; consequently unless you except every right from the grant of power, omitted are inferred to be resigned to the discretion of the Government."
Mr. Jackson was worried that if you incorporate a bill of rights into the Constitution, that will lead the government to assume that if there are rights not written in the Bill of Rights, that it will have the power to assume that it can restrict the rights that are not listed. He has a good point because there is nothing in the Constitution that guarantees our right to privacy in the United States. You will hear arguments that government has no business placing cameras out in public or that the government should not be tapping phone calls in the name of security, that it is against our right to privacy. However, there is no guarantee to the right of privacy in the Constitution. So the government assumes that it can encroach upon our privacy. However, with that said, I agree with Madison on this subject. I would rather there be some expressed rights in the Constitution because that has protected us from more government intrusion, in my opinion. Take the example of privacy rights and how the government can record and spy on us if they feel like we are a threat and imagine that there was no freedom of speech in the Constitution. I believe it is probable that the government would curtail our speech in times of crisis. The government may not want newspapers or individual citizens from posting or publishing political cartoons of the Muslim prophet Muhammad. We have seen that this causes rioting, violence, anti-Western, and anti-American sentiment in the Middle East. I believe the government may try to restrict people and news organizations from publishing pictures out of threat of violence towards Americans and American interests. This is a hypothetical argument but we have seen how the government acts towards us when it comes to privacy and protecting us in this age of terrorism.
From this debate, I think we can deduce that there were some rights our founders wanted written down and agreed upon. They did not want the government to infringe on some of our basic rights. That is why debate on the Bill of Rights continued but was agreed upon. From that point it was sent through the process of ratification by two-thirds of both houses of Congress and three-fourths of the states. Virginia being the last state needed for ratification, which took place on December 15, 1791.
However, we can also see that they knew they could not identify every inalienable right and write it down in the Constitution. Just because they could not identify every right it doesn't mean that those other rights do not exist. Never let anyone try to persuade you about certain rights just because they are not literally written within the Constitution. Besides, in most cases, other rights can be inferred from amendments that are in the Constitution. This means that freedom of religion allows a church to practice their beliefs. That means if they think same-sex marriage is sinful, the Constitution protects them from being forced to perform same-sex weddings. Also, the Equal Protection and Due Process clause will most likely apply to same-sex marriage. Equal protection protects citizens by making sure all federal and state laws apply equally to all of its citizens. In other words, states may be able to regulate marriage, but marriage laws must be executed without any bias or discrimination.
If anyone ever argues that a right (same-sex marriage, religions being forced to perform same-sex marriages) is not guaranteed because those rights are not mentioned within the Constitution, remind them that our ideals and founding documents are a little more complex and nuanced. It is not black and white. That is why we have such fierce debates over rights and perceived rights. The Constitution is not clear on a lot of things and that is why our government has checks and balances built within it. Issues need to be sorted out as carefully as possible so we do not violate the Constitution. More importantly, so we do not violate a person’s rights.
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