because on that date, the Virginia Convention, which among other things had directed its delegats to Philadelphia to declare the colonies free of Britain and which had drafted a constitution for what would be the newly independent state, adopted the Virginia Declaration of Rights, largely drafted by George Mason, who later as a delegate to the Constitutional Convention would refuse to sign the document because it lacked a bill of rights protecting the people.
One can read the entire text of the document in several places, including HERE.
There are 16 "sections" listing the rights to be protected. Below the fold I will examine doue, one of which explains to me why the the Supreme Court was wrong in the Heller decision, the other three of which are specifically relevant to the immediate times in which we find ourselves.
It is worth noting that many of the rights can clearly be traced back to other documents, perhaps as far back as the Magna Carta in the case of the right of trial by a jury of one's peers found in Section 8, and in many cases either in the Petition of Right of 1628 and/or the English Bill of Rights. In other words, these were assumed - not only before Jefferson but well before the disputes with England stemming from what we call the French and Indian War - to be the rights of all Englishmen.
Let me first note the beginning of the document:
A declaration of rights made by the representatives of the good people of Virginia, assembled in full and free convention; which rights do pertain to them and their posterity, as the basis and foundation of government.
Jefferson did not write in a vacuum that the purpose of government was to preserve rights. Nor was this original to Mason, who could easily find the notion in the work of John Locke. This idea of the purpose of government is also relevant in the times in which we find ourselves, and I will return to it in time.
I said that one of the sections undercuts the reasoning of the Supreme Court in Heller. That is Section 13, which reads
That a well-regulated militia, or composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
Remembering that the Bill of Rights as we have it was essentially drafted by a Virginian, James Madison, it is impossible for me to read the 2nd Amendment in isolation from this section of a document written 13 years earlier. This makes clear that the focus of that Amendment MUST be with the portion that deals with the well-regulated militia, which is in fact how previous Supreme Courts had interpreted it and why the Court in Heller is simply wrong to read it as giving an independent right to keep and bear arms independent of the militia. One can argue that such a right can be found in the 9th Amendment, but I think it fair to say there is, absent service in a militia, no right to arms for an individual in the 2nd, as is made clear here.
We are in a time when there is a dispute between protecting rights and protecting the people/nation. i think Mason was rather clear on a number of relevant points, with some of what he drafted eventually making it into our own Bill of Rights. It is worth reading his words to gain greater understanding of what the 1st Congress intended in passing the package of proposed amendments that became our Bill of Rights.
Thus we read in Section 7
That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.
I do not think I am stretching the meaning of this section to say that interpretations of laws made in secret without the consent of the Congress are violative of its intent. I would further argue that attempting to parse without the clear interpretation of the Court when rights guaranteed not by statute but constitutionally is also a clear violation of the intent of this section and the understanding of the nature of constitutional protections.
Section 2 reads as follows:
That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.
For the magistrates and representatives of the people to be "amenable to them" they must be answerable; to be answerable the people must know what they are doing. This of necessity demands transparency with few if any exceptions possible. Clearly the movement of troops does not require prior disclosure. Identities of those acting covertly on behalf of the nation probably do not need to be disclosed, although one could argue that at a minimum there should be some oversight by the legislative branch as to how such actors are used - we do, after all, have committees in both chambers of Congress intended to serve that function, but when they are restricted from even raising the issue with their peers, one might argue that the people are thereby denied their right to oversight on their behalf. It would seem to me that the executive should NOT have an ability to hold in a classified status that which some level of super majority of each of those committees deems to be needed to be shared, either with the entire body of which that committee is a part (and that can occur in executive session) or with the people as a whole. Perhaps Congress should rewrite the appropriate statutes accordingly.
Finally, and perhaps most directly relevant to the likes of what Snowden has disclosed, is Section 10:
That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.
It seems to me that the requiring of Verizon to provide meta-data on all customers is clearly something that Mason and the Virginia Convention of 1776 would have strongly opposed. That is clearly an example of a general warrant, "without evidence of a fact committed" as the Declaration phrases it. In short, it is a fishing expedition, and is precisely the kind of thing that when done by agents of the King so infuriate the colonists that it was one reason they insisted they needed to be free of the authority of that monarchy.
Few Americans read the documents leading up to the words of the Declaration of independence. As noted, not only did Jefferson rely to some degree upon Mason, but Mason relied upon early documents in British history. In that sense the idea of government having as a prime purpose the protection of rights and liberties was an essential understanding of the Founders, one often noted in the words of Franklin. Thus recent statements by President Obama on his responsibility for security perhaps outweighing protecting the rights of the people should be considered unacceptable, especially for one who used to present himself as a teacher and scholar and supporter of the Constitution.
June 12, 1776.
In Virginia, the richest and most populous of what would soon be the independent states.
A state that produced four of the first 6 presidents, or if you prefer, the men who serve as president for 32 of this nations first 40 years under the Constitution - these four were each reelected, both Presidents Adams were defeated.
A clear statement of the notion that rights of the people were essential to the laying of a new government.
Perhaps if more people had learned what happened on this day in 1776, we would have less problems with accrual of unrestrained power in the hands of executives?
But then, not everyone had me to teach them government :-)
Peace.