Here is a brief comment left to me by Hans in comments on another thread. It deserves a full post:
Sir, you make the claim: "The first ten Amendments are not open to the Amendment process of the Constitution."
I believe that statement is incorrect. The body of the Constitution and all subsequent amendments are subject to modification by the amendment process.
I did, in fact, claim that the first ten amendments are inviolate, excluded from the Amendment process.
Let's consider it for a moment. We all consider the BoR to be a list of Natural Rights - Rights that may never be restricted or infringed by Government, correct? Indeed, during ratification of the Constitution, some Framers demanded that the BoR be added so that absolutely no clever games could be played with the topics at hand. Other Framers took the position that the Natural Rights enumerated in the proposed BoR were so obvious and innately within the Constitution, to add the BoR would be redundant. Many States made it clear - add the BoR or we do not ratify the Constitution.
With me so far?
One of the most closely held open secrets regarding the US Constitution, more guarded than nullification, more guarded than the right to secede, and even more obvious because it exists in black and white, is the Preamble to the Bill of Rights.
You won't find the Preamble to the BoR in most history books, even in many law schools. I am friends with an 82 year old attorney who practiced for 60 years, and he lost an embarassing bet. He claimed I was an idiot, that there was no Preamble to the Bill of Rights. Indeed, in the government issued image at the head of this post of the BoR, the Preamble is omitted.
Here's the text:
Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.
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.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
~~
Study the highlighted and bolded text. ...further declaratory and restrictive clauses...
That means you may not screw with the BoR in the Amendment process. That means every single infringement of 2A is a blatant act of Treason. That means Hans' cited 14th Amendment that changed the 10th Amendment is void and without the force of law, for it is unlawful.
Please note my language: These things MAY NOT be done. I did not say they CAN NOT be done - obviously, Bad People did the Bad Things. But that doesn't make it lawful.
One may no more amend 2A than one may strike 9A and 10A and change the republic to a Monarchy.
Before you get hung up on the last sentence of the Preamble ...ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution... keep it in perspective. The Framers needed to use the lawful mechanism of Amendment to add the BoR, but declatory and restrictive prevent Fifth Article reversal.
Some of you may disagree with me, especially some of you lawyers, because you went to law school, afterall, and they never told you about it. They also probably told you nullification was unlawful and they definitely told you they derived the power (the Judiciary) of Judicial Review of all cases as part of Article Three, when the fact is the Judiciary usurped the power of Judicial Review in Marbury.
So, my friends, BoR may NOT be touched. They CAN do it, but they are wrong, and deserve a Traitors death for doing it.
Kerodin
III
