Does the Bill of Rights CONFER rights to American Citizens?

[cherokeeprogressive]

Or does it PROHIBIT the Federal Government from violating rights believed to already exist?

First Amendment: "shall make no law, or prohibiting the free exercise thereof, or abridging the freedom of speech.

Second Amendment: " A well regulated Militia, being necessary to the security of a free State (my interpretation of this is "state of being&quot , the right of the people to keep and bear Arms, shall not be infringed.

Third Amendment: "No Soldier shall"

Fourth Amendment: "shall not be violated"

Fifth Amendment: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment: "shall enjoy the right"... This was later adjudicated to mean the right already existed.

Seventh Amendment: "...no fact tried by a jury, shall be otherwise re-examined in any court of the United States..."

Eighth Amendment: "shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Tenth 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." HATE this one... this one empowers the state governments over the FEDERAL government.

[linuxman]

1. Rights are natural and preexisting...

The FFs didn't create these rights. They simply put them to paper and highlighted the fact that those rights were not to be stepped on by governments.

The BORs specifies rights which exist for the people. The idea that the government created or granted those rights is false. I actually find it quite interesting that so many of our amendments which were written into law after the constitution's initial phase DON'T deal with individual, personal rights.

[cherokeeprogressive]

3. I'll get in trouble for agreeing with a "low post" DUer... but my point is that The Bill of Rights

is misinterpreted. It's not a "statement of rights" at ALL.

That's why I believe the Second Amendment ISN'T a statement that says "IF you satisfy a requirement... YOU CAN EXERCISE THIS RIGHT".

[linuxman]

6. That's kind of my point.

No rights were created. Rights were enumerated in a "Government cannot" list, not a "Citizens can" list.

[pinto]

2. They help define the relationships. And it is a relationship we're all invested in.

On all levels.

[NutmegYankee]

4. Codification of pre-existing rights.

As for the tenth, it merely restates the limit on the Federal government to those powers granted to it by the Constitution. Certain powers have been left to states as they were not one of the 18 powers of congress. It doesn't elevate them over the federal government.

[cherokeeprogressive]

5. And that's why the THIRTEENTH AMENDMENT ended slavery NATIONWIDE... FOREVER

Because it states: Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.Section 2. Congress shall have power to enforce this article by appropriate legislation.

[NutmegYankee]

7. I guess I don't understand where you are going.

The 13th amendment was a change to the Constitution to make that document clearly state that Slavery shall not exist and clearly added the power to enforce it to Congress. It basically deletes Article 4, Section 2, clause 3.

[MFrohike]

8. Confers

It's pointless quibbling to talk about rights in a vacuum. They don't exist, as a practical matter, without the means, and political will, to enforce them.

As for the word shall, it's a bit silly to read that much into it. Shall and shall not were likely borrowed from the Ten Commandments and would not have been thought to signal some pre-existing status of rights. They were used because shall and shall not are strong words of action in English. They're still used in legal drafting to signal imperative duties and limits in statutes, regulations, etc.

[last1standing]

9. I believe the founding fathers believed the rights were inalienable and always existed.

Of course later legislatures and courts saw things differently and so now we're stuck fighting to try and retain or recapture rights we were supposed to have had from the beginning.

My favorite example of this is freedom of speech. The Supreme Court has ruled that while political speech gets deference, non-political speech is reviewed far less stringently. In other words, in order to retain non-political free speech, it must be shown that there is no rational basis for curtailing that speech. My personal belief is that it should be the other way around in all cases. There should only be limits to speech in which there is a narrowly tailored rule encompassing an overwhelming need, instituted only as a last resort.