Did Madison Plant the Seed of Dissolution With the Bill of Rights?

In his Pulitzer Prize-winning book, Origins of the Fifth Amendment: the Right Against Self-Incrimination, Leonard Levy quotes a US Supreme Court justice. The justice, Abe Fortas, as a statist, contradicts himself in the middle of the quote, but raises a very interesting point at the end. I've read it before, but missed the full import of the last sentence. Here is Levy quoting Fortas,

As Abe Fortas observed, "The principle that a man is not obliged to furnish the state with ammunition to use against him is basic to this conception." The state, he acknowledged, must defend itself and "within the limits of accepted procedure," punish lawbreakers. "But, it has no right to compel the sovereign individual to surrender or impair his right of self-defense." The fundamental value reflected by the Fifth Amendment "is intangible, is it true; but so is liberty, and so is man's immortal soul. A man may be punished, even put to death by the state; but...he not be made to prostrate himself before its majesty. Mea culpa belongs to a man and his God. It is a plea that cannot be exacted from free men by human authority. To require it is to insist that the state is the superior of the individuals who compose it, instead of their instrument."

Re-read that last sentence. To require a free man to incriminate himself is to insist that the state is superior to the individuals who compose it. Notice Fortas' earlier use of the term sovereign individual (sovereign = no higher authority). Notice that word individual. The individual is sovereign, not the collection of individuals referred to as a community or society. He did not say sovereign citizens, as in a collection of people. He said individual. The sovereignty exists with the individual; sovereignty does not come into existence after individuals aggregate into a society. Sovereignty does not come into existence at the time a majority forms. The individual is sovereign.

Question. If the state has no human authority to compel self-incrimination because doing so would make the state superior to the sovereign individuals who compose it, how can the state have authority to compel anything of its sovereign individuals? Even if a million sovereign individuals banded together and formed a state, how can they have human authority to compel anything of even one more disagreeing sovereign individual?

I hold they may not compel--they lack the authority. For if they compel even one sovereign individual against his consent, then he is no longer a sovereign individual--and if he isn't a sovereign individual, neither are they.

Abe Fortas resigned from the Supreme Court under a cloud. But, I think that last sentence of his outdoes any corruption he might have been involved in. Maybe he didn't realize what he was revealing. Nonetheless, it is a wonderful contribution that illuminates the lie contained in the first sentence of the preamble: we the people. No, it wasn't the people. Lots and lots of people were opposed to the constitution during the ratification period--they did not consent.

Very intriguing indeed. Thanks fro the heads up on this thread. I really have to get that book sounds like a good read.

I am currently working my way through Gutzman's Madison, Who didn't want a Bill a Rights insisting over and over again, that the enumeration of powers was enough and that a Bill of Rights could not be complete and would leave government open to twist the words if it was written in law. Personally I am glad Henry and others insisted on one, not trusting these Federalist.

Seems like this Judge has come to many of the same conclusions Lysander Spooner came to in his writings especially no treason #1, where if it was fine for a group of colonists to not recognize the sovereignty of a Nation 3000 miles away, it was equally good for a farmer in his own state.

It goes to show that the 4th and 5th have nothing to do with having anything to hide. It can simply be an exercise of one's sovereignty.

Nightmare said:

I don't believe that Fortas was ever a judge. Is Spooner the ource of the line from the movie The Patriot?

Ah, seek, search, and ye shall find.

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Lysander Spooner wrote No Treason #1 in 1867, I wasn't quoting it word for word by any means just explaining a point he made.....the milage number was my addition...here's the actual statement

All this, or nothing, was necessarily implied in the Declaration made in 1776. If the necessity for consent, then announced, was a sound principle in favor of three millions of men, it was an equally sound one in favor of three men, or of one man. If the principle was a sound one in behalf of men living on a separate continent, it was an equally sound one in behalf of a man living on a separate farm, or in a separate house.

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Fortas was an associate supreme court justice from '65-'69...

Nightmare said:

A great and thought provoking post, and use of the word dissolution.

I would answer that the state and society have only the power that each sovereign individual suffers over himself alone. I answer mea culpa only to my Sovereign that is not the state. I answer μολὼν λαβέ molṑn labé to the state. The Buddhist monks' self-immolation taught this point well. Take my sovereign individuality then I am not and am dead.

The Bitter Clingers are Blessed by their Sovereign.

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I think I got that from one of Thomas Jefferson's writings. Seems to me there was agitation for secession or abolishing the union for some reason back in his day, and he was commenting on it.

sudden valley gunner said:

Very intriguing indeed. Thanks fro the heads up on this thread. I really have to get that book sounds like a good read.

I am currently working my way through Gutzman's Madison, Who didn't want a Bill a Rights insisting over and over again, that the enumeration of powers was enough and that a Bill of Rights could not be complete and would leave government open to twist the words if it was written in law. Personally I am glad Henry and others insisted on one, not trusting these Federalist.

Seems like this Judge has come to many of the same conclusions Lysander Spooner came to in his writings especially no treason #1, where if it was fine for a group of colonists to not recognize the sovereignty of a Nation 3000 miles away, it was equally good for a farmer in his own state.

It goes to show that the 4th and 5th have nothing to do with having anything to hide. It can simply be an exercise of one's sovereignty.

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While writing the OP, it occurred to me that we are all inculcated with a false premise from childhood. I'm commenting more on its perniciousness and how well its hidden than its falsity: that the majority wins. That this is somehow proper and right. Boy, once you accept that from your social studies teacher, you're almost sunk. You can spend the next who-knows how many years trying to sort your way through mountains of attendant garbage trying to establish cohesive, consistent view on rights.

Think about it for a second. This majority-wins stuff is how we end up with skewed ideas like the Bill of Rights protects the rights of the minority because the rights of the majority don't need protecting. You know. As in: so the majority can't abolish the rights of the minority. Huh!?! How can the majority abolish the rights of the minority in the first place, Bill of Rights or no Bill of Rights? They can't. They can only pull off such an abolition if you first accept the majority-wins premise. See what I mean? And, once you accept the majority-wins premise, now you can abolish minority rights even in the presence of a Bill of Rights, as pro-gunners have discovered over the last seventy years.

Oh, I can't wait til someone next says to me, "will of the majority" or some such similar rot. The majority can do whatever it wants. Just cause they're the majority doesn't mean I have to go along with it, or that they have some authority to compel me to go along with it.

Citizen said:

While writing the OP, it occurred to me that we are all inculcated with a false premise from childhood. I'm commenting more on its perniciousness and how well its hidden than its falsity: that the majority wins. That this is somehow proper and right. Boy, once you accept that from your social studies teacher, you're almost sunk. You can spend the next who-knows how many years trying to sort your way through mountains of attendant garbage trying to establish cohesive, consistent view on rights.

Think about it for a second. This majority-wins stuff is how we end up with skewed ideas like the Bill of Rights protects the rights of the minority because the rights of the majority don't need protecting. You know. As in: so the majority can't abolish the rights of the minority. Huh!?! How can the majority abolish the rights of the minority in the first place, Bill of Rights or no Bill of Rights? They can't. They can only pull off such an abolition if you first accept the majority-wins premise. See what I mean? And, once you accept the majority-wins premise, now you can abolish minority rights even in the presence of a Bill of Rights, as pro-gunners have discovered over the last seventy years.

Oh, I can't wait til someone next says to me, "will of the majority" or some such similar rot. The majority can do whatever it wants. Just cause they're the majority doesn't mean I have to go along with it, or that they have some authority to compel me to go along with it.

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+1

Far too many people just accept it without question the morality of it.

sudden valley gunner said:

+1

Far too many people just accept it without question the morality of it.

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Thanks.

Fortas' quote aligned something for me on the subject of rights. I knew about initiation of force and consent and so forth from reading Spooner, but Fortas jiggled something and more pieces started falling into place.

For example, something dawned on me.

There are various comments and views about the Bill of Rights. Some say the Bill of Rights is, like the constitution, just the outline of rights. Others wonder why the rights are not more explicit. Scholars debate whether this or that provision of the BoR means what it says, or whether the Framers said what they meant.

It finally dawned on me why. Honest to god, its been right there in plain view since 1791: the Framers did not give us a Bill of Rights in order to protect rights. They gave a Bill of Rights in order to shut people up. They were throwing a bone to critics.

Think about it for a minute. The constitutional convention ended in Sept 1787. The BoR was submitted to the states in 1789. Two friggin' years! The Framers, and all their Federalist supporters, had two friggin' years to dig up all the common law on rights and codify it into very explicit restrictions on government. I know this is possible because our own forum member User dug up all the VA common law on self-defense, and codified it into a proposal for a statute. If the Framers were serious about protecting rights, they had time to spare to work up a comprehensive and explicit Bill of Rights.

But, they didn't really provide a Bill of Rights to protect rights. They provided a Bill of Rights to shut people up--those who were agitating against the constitution because they correctly foresaw the fedgov growing into a huge tyrannical monstrosity. There was never any intention to protect rights. The whole reason for the Bill of Rights was to mollify critics of the constitution so enough of them would shut up long enough for the constitution to be ratified.