THE BILL OF RIGHTS IS SEPARATE AND
A basic precept to remember is that the Bill of Rights is separate
from and supreme over the Constitution and is the final check over the
Constitution and its officers. This Bill of Rights check is administered
directly by people on Grand and Trial Juries. The following are examples
why the Bill of Rights is supreme.
Article 1 of the Bill of Rights places a limitation (or check) on
the law making power of Congress. "Congress shall make no law... abridging
the freedom of speech, or the press..."
Article 4 of the Bill of Rights places a limitation (or check) on
the executive power commanded by the President and those who assist him.
"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures shall not be violated."
Article 7 of the Bill of Rights places a limitation (or check) on
the judicial power in that "... no fact tried by a jury shall be otherwise
re-examined in any court of the United States."
The Bill of Rights places direct checks on the members of the
legislative, executive and judicial departments of government. The
legislative, executive and judicial departments are without the authority
to place checks on the people's Bill of Rights. At the Constitutional
Convention a motion was made and seconded that a Bill of Rights be adopted.
The lawyers unanimously rejected the Bill of Rights. At the ratification
conventions, the people insisted that the Constitution be rejected unless a
Bill of Rights was delivered.
The lawyers at the Convention placed the supremacy provision in
Clause 2 of Article VI: "This Constitution and the laws of the United
States which shall be made in pursuance thereof... shall be the supreme law
of the land." The Constitution and the laws of the United States can not be
"the supreme law of the land" if they can be set aside by the people on
Grand and Trial Juries for not being in conformity with the people's Bill
In using this power over the federal government the people can
easily negate the authenticity of the claim made in Clause 2 of Article VI.
A law enacted by Congress cannot "be the supreme law of the land" if the
people on a Bill of Rights Jury refuse to convict the person who was
charged with breaking that law. Under the Bill of Rights, twelve people
have more power than the Congress and the President who enacted and signed
the law. A law enacted by Congress must be taken off the books if the
people on a Jury repeatedly nullify it. "The senators and
representatives... and the members of the several State legislatures, and
all executive and judicial officers, both of the United States and of the
several States" should have been challenged to stop them from taking an
oath to support the Constitution as "the supreme law of the land," once the
Bill of Rights became the people's direct and independent check on the
Constitution. Both the Constitution and the laws of the United States "made
in pursuance thereof" could no longer be claimed to "be the supreme law of
the land." That is why Madison and his fellow lawyers, who dominated the
Philadelphia Convention, unanimously rejected the proposition that the
Constitution be prefaced with a Bill of Rights.
The Bill of Rights did not amend the Constitution. The Bill of
Rights should have been listed and returned to the recalled state ratifying
conventions for their immediate approval as a separate document. The people
who had attended the ratifying conventions were not sure they would enjoy
life, liberty, and property without a written guarantee to protect them
from encroachments of the federal government. To this end, one hundred
twenty-four amendments were proposed by the seven conventions which
demanded protections from abuses that might arise under the Constitution.
The Bill of Rights should have been prefaced to the Constitution with a
message somewhat like Virginia's Bill of Rights, and should have been
stated as follows:
A Declaration of Rights made by the people [of the United States] in the
exercise of their sovereign powers, which rights are inherent and
inalienable and pertain to the people and their posterity, as the basis and
foundation of government.
The people in the state conventions would have been more familiar
with the Bill of Rights they had previously sent to the First Congress and
could have re-examined it along with any proposed amendments. The people
would have responded quickly. However, James Madison in the House along
with Oliver Ellsworth in the Senate and their fellow lawyers did not want
an immediate response. They needed time. So they sent the Bill of Rights to
the state legislatures for ratification. In those state legislatures there
were many Federalists who delayed action on the Bill of Rights for more
than twenty-seven months before granting approval. This gave President
Washington ample time to appoint justices to the Supreme and inferior
Courts as well as an Attorney General, clerks, marshals and attorneys for
the United States whom the Senate could quickly approve. During this time
the First Congress hastily established the salaries of the various
officials who would then draw Grand and Trial Juries into their judicial
When the Bill of Rights was finally ratified on December 15, 1791,
the federal courts had already taken the first step in reducing the Bill of
Rights from being an effective independent check on all three departments
of government. This was accomplished because the people were not aware of
the fact that when the Bill of Rights was ratified, the people on Grand and
Trial Juries were empowered to check the laws of Congress or acts of the
President and his underlings that infringe on the basic rights of the
people and decisions of the Supreme and inferior Courts that infringe on
the proceedings and actions of Grand and Trial Juries.
SUPREME LAW OF THE LAND: THE CONSTITUTION OR THE BILL OF RIGHTS?
The founding fathers left provisions in the Constitution that were
in direct conflict with the Bill of Rights because they planned to use the
courts to get decisions favorable to themselves. The judges could do this
only by upholding the claim that the Constitution was "the supreme law of
the land," and of course that any questions coming before the courts would
be decided by them. To make sure that the people on Grand and Trial Juries
would not have the final say and that the Constitution would rule, the
lawyers wrote in Article III Section 2 Clause 2 that "... the Supreme Court
shall have appellate jurisdiction, both as to law and to fact" (my
emphasis). However, the inherent power to judge both the law and fact was
established by the Trial Jury which rescued John Peter Zenger in 1735 from
unlawful persecution by the courts fifty-two years before the
Constitutional Convention met in Philadelphia. That jury's decision was
fundamental in establishing freedom of the press in America. Without a free
press the colonists would never have been able to publish the Declaration
of Independence or to keep the people aroused until they won their war for
The people are sovereign and so are their Juries. Judges are
granted limited powers in dealing with the Constitution. The courts cannot
second guess the Jury's decision on the law with its "appellate
jurisdiction," because Juries can refuse to honor laws that are unjust or
infringe upon basic rights. The public needs to know more on Jury
It is claimed that Madison wanted to incorporate the Bill of Rights
into the text of the Constitution but the House decided to propose it as
supplementary. It could be neither. The Bill of Rights had to be ratified
as a separate document because it directly contradicts many provisions of
the Constitution. How then could these two contradictory documents be as
For example, the Constitution in Article III section 1 states: "The
judicial power of the United States shall be vested in one supreme
court..." Section 2 clause 1 of the same article states: "The judicial
power shall extend to all cases in law and equity arising under this
Constitution, the laws of the United States and treaties made..." Section 2
clause 2 of the same article states, "... the supreme court shall have
appellate jurisdiction, both as to law and to fact." However, Article 6 of
the Bill of Rights states: "In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury..." The
judicial power therefore is vested in a jury of people that judges both the
law and fact. Article 7 of the Bill of Rights states that in civil cases
"...the right of trial by jury shall be preserved, and no fact tried by a
jury shall be otherwise re-examined in any court of the United States..."
In September 1787, the delegates to the Convention unanimously
voted down a motion that a Bill of Rights be adopted. They knew that if a
Bill of Rights was adopted the Constitution would also have to be amended,
for the judicial power would have to be recognized as belonging to juries.
The judicial power would have to be shared. The courts could judge only
cases "arising under this Constitution and the laws made in pursuance
thereof." The court could not sit in judgment of Bill of Rights matters or
laws conflicting with it. This was reserved to the judgment of the people
serving on juries.
For further information on this and many other topics of interest
to American citizens, write for the book, 'The Constitution That Never Was'
by Ralph Boryszewski. Send check or money order for $20 + $3 s/h. (New
York State residents include sales tax.) to Foundation for Rights, PO Box
17699, Rochester, New York 14617.
The Anti-Federalist Society