Ignored Facts, Unfounded Assertions, and the Professional Historians' Heller Amicus Brief
Updated February 2, 2013
The English Bill of Rights was never intended to limit legislative authority, a point exhaustively discussed at the beginning of the Heller amicus brief from fifteen professional historians. The historians compared the English Bill of Rights to American state declarations of rights, arguing that the American versions were also not intended to limit legislative authority. After noting that Britain's Parliament claimed power over the colonists “in all cases whatsoever” and that Americans rejected the claim, the historians assert:
Assertion #3“But in doing so they did not repudiate the general conception of legislative supremacy, which remained the leading principle of the new state constitutions adopted with independence, and that principle embraced a robust conception of the reach of legislative authority.” [p.9]
Fact Checking of Assertion #3
The historians would have readers of their brief believe that Americans rejected the claim of unlimited power by a British Parliament wielding its legislative supremacy and revolted only to adopted in its place a slew of new state governments in which they wanted the law making branch to possess legislative supremacy. Consistency is not a strong point of these fifteen historians, and their assertion is factually incorrect.
As in their first two erroneous assertions, these professional historians have overlooked directly conflicting information from the very person, James Madison, who not only helped develop and adopt Virginia's 1776 Declaration of Rights, but who also relied on its provisions as re-adopted by state ratifying conventions in 1788 to form the proposals for the U.S. Bill of Rights. Madison's understanding, directly at odds with the academic historians' assertion, was presented to Congress in his speech introducing the proposed U.S. Bill of Rights amendments - a source professional historians disputing the intent of a U.S. Bill of Rights provision should be aware of and rely upon as authoritative. Madison stated that: “whatever may be the form which the several States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.” [OSA p.657]
Conclusion - Assertion #3 is erroneousLegislative supremacy of the type exhibited by Parliament was not a leading principle of the new American constitutions as stated in the historians' Heller brief because, unlike the English Bill of Rights that was never intended to limit Parliament's legislative power, it was the great object of American declarations of rights, according to James Madison, to limit and qualify the powers of government. The fact is that every new state constitution formed between Virginia's in 1776 and New Hampshire's in 1784 had specific limits on legislative authority stated within it. Such limits not only appeared in declarations of rights, they also appeared within the frame of government in those states without bills of rights, and additional limiting provisions were found in some that contained bills of rights. [OSA pp.747-780]
In this and the previous two posts, three completely unfounded assertions found in the Heller amicus filed by fifteen professional academic historians have been identified and proven to be erroneous. Three strikes and you're out. It should be clear to any unbiased person that there is something fundamentally wrong with the professional historians' Heller brief.