The Bill of Rights
The Bill of Rights
南郭点评：争信仰自由权是第一批英国人来到美国的主要原因,而争代表权与自治权则是美国独立战争的主要动因,争全体公民的自由权则是美国内战的主要原因. 美国1798年颁布实施的Alien and Sedition Act, 规定：用错误、令人反感及恶意（的方式）描述政府构成犯罪即所谓诽谤政府罪。但宪法之父迈迪逊和杰弗逊均强烈反对该法。最后该法于1801年杰弗逊任总统后即被废除，因违反该法被拘禁的十几名违法者则全部无罪释放。依美国现行刑法则煽动暴力推翻合法政府只有在符合明显而即刻的危险”准则的情况下才可能构成犯罪，因此除非诽谤政府的煽动言论己经濒暴力边缘，而且危机迫在眉睫，否则应尽可能充分地保障这类言论的自由。亦即煽动非暴力方式推翻合法政府无罪！而中国刑法第105条第2款规定以造谣、诽谤或者其他方式煽动颠覆国家政权、推翻社会主义制度的，构成煽动颠覆国家政权罪。亦即按照中共恶法，那怕煽动和平方式改变政府及所谓社会主义制度，均构成煽动颠覆国家政权罪！据此以观中国现行相关法律比美国至少落后了两百年！希特勒时代的德国法律规定：污蔑元首者得处两周以内的拘禁。而毛泽东时代则凡是公开喊出打倒毛泽东者甚至仅是在私人日记或书信中对毛不敬者即可能被枪决！而邓江胡时代以和平言论治重罪者成千上万！因此，中共是比法西斯残暴百倍甚至千倍的专制暴政！
The Bill of Rights is the common name for Amendments 1 through 9 (the 10th Amendment is usually included under the heading of "Bill of Rights," since it was ratified with the other nine, but it does not technically recognize any rights).
Americans have been concerned with their rights for hundreds of years. The right to practice religion however they wished was one of the primary reasons the first settlers came to America from England. The right of representation and self-determination was one of the primary reasons the Revolutionary War was fought. The right for all persons to be free was one of the reasons the Civil War was fought. American history is replete with bills of rights, from the most famous included in our Constitution, to the Declaration of Rights prompted by the Stamp Act to the Virginia Declaration of Rights written by George Mason for his state. Even today we speak of the apparently elusive Patient's Bill of Rights.
What is interesting to note is that when the Constitutional Convention finished its work, it did not find it necessary to include a bill of rights in the final version. Several members, notably George Mason, were very disappointed by this decision and refused to sign the document over the issue. The argument was that the Constitution did not give the new federal government the ability to restrict inherent rights, so no list of those rights was necessary. Others worried that if the rights were listed, they would invariably forget some and the list would ever be incomplete. Finally, the argument was that the states each had their own constitutions, too, and that rights were best protected at a state level.
Of all the issues that the Anti-Federalists gave for rejecting the new constitution, the lack of a bill of rights was the most compelling for many people. In the ratifying documents of five states, requests or demands for a bill of rights were included in the text, along with suggested lists (see the ratifying documents of Massachusetts, South Carolina, New Hampshire, Virginia, and New York. Rhode Island also included a list, but they ratified the Constitution after the first Congress approved the Bill of Rights).
The Federalists were opposed to adding a bill of rights, expounding on the reasons why in Alexander Hamilton's Federalist 84. Among the reasons listed was a list of the personal protections the new constitution did contain, such as the prohibition of ex post facto laws, the inviolate habeas corpus, and the restrictions on a conviction of treason. Federalist 85 addressed the subject, too, noting that amendment is always a possibility after ratification. It turns out, once the process of ratification was complete, that this was exactly the route taken.
The first Congress under the Constitution had a lot to accomplish. It had many new powers not available to the Congress under the Articles of Confederation, and every state had interests it wanted to protect. James Madison, seen by many as the father of the Constitution, had won a seat in the House of Representatives, running partly on a platform that included a fight for a bill of rights. This may seem odd since Madison was one of those who advocated the omission of such a list of rights, but he eventually became convinced of the necessity.
Madison tried to get the debate moving, but debate on tariffs and other pressing issues always pushed the debate on a bill of rights to the back burner. Madison finally had enough and on June 8, 1789, he presented his draft of a bill of rights to get the discussion moving.
From June to September, both houses of Congress debated Madison's list, along with the lists presented by the states. Rights were enumerated, removed, modified, tweaked. Eventually, both houses agreed on twelve articles of amendment and sent them to the states. Two years later, in 1791, the last ten of these original twelve were ratified by the states and they became a part of the Constitution. By custom, the amendments were added to the end of the original document, rather than inserted in the text, as Madison had envisioned. All ten of the original amendments are referred to as The Bill of Rights, though only the first nine pertain to the people (Amendment 10 pertains to the states, though it mentions the people in parallel).
Bar to Federal Action
The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government. Many people today find this to be an incredible fact. The fact is, prior to incorporation, discussed below, the Bill of Rights did not apply to the states. This is, however, quite in line with what the Constitution was originally designed to be: a framework for the federal government. In other words, though the federal government was banned from violating the freedom of the press, states were free to regulate the press. For the most part, this was not an issue, because the state constitutions all had bills of rights, and many of the rights protected by the states mirrored those in the federal Bill, and many went further than the federal Bill.
This point is best illustrated by one of the amendments that Madison proposed in his initial speech:
Fifthly, That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit:
No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.
The Senate in its final draft of the Bill rejected this clause, seemingly innocuous to us today,, and the concept that any part of the Bill of Rights would apply to the states was still 100 years away. Several cases that came before the Supreme Court in the 19th century attempted to have the Court establish that the Bill should apply to the states, to no avail:
In Barron v. Baltimore (32 U.S. 243 ), the Court ruled that the Takings Clause of the 5th Amendment did not apply to the City of Baltimore and the State of Maryland by extension. Succinctly, the Court wrote: "...the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states."
In Pervear v. Massachusetts (72 U.S. 475 ), the Court was asked to rule on fines imposed upon a liquor dealer by the state. Pervear was licensed by the United States under the current internal revenue code to keep and sell liquor. He was fined and sentenced to three months of hard labor for not maintaining a state license for his liquor business. Part to the defense attempted to invoke the 8th Amendment's Excessive Fines and Cruel and Unusual Punishment clauses. The Court, again quite succinctly, said: "Of this proposition it is enough to say that the article of the Constitution relied upon in support of it does not apply to State but to National legislation."
As to the Bill of Rights being a bar to federal acts, the Bill took some knocks in the first years of the new nation. The 1798 Alien and Sedition Act, for example, made nationals of countries the United States was at war with subject to summary arrest, and also made "false, scandalous and malicious" writings about the government a crime, with the burden of proof placed squarely on the shoulders of the defendant rather than the state. Madison and Thomas Jefferson were both adamantly opposed to the Act, and said that being unconstitutional, states were free to ignore (or nullify) the law. The Act, repealed in 1801, was never ruled unconstitutional.