Reply #9: Not just that, if you look at the various amendments, most of them talk about the government...

[originalpckelly]

not being able to do something:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

It doesn't say we have the right of free speech, it says the Congress may not pass a law outlawing free speech.

"A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."

It doesn't say we can keep and bear arms, it says the government may not keep us from doing that.

"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

It doesn't say we have the right to a house without soldiers, it says the government may not house soldiers in our dwellings outside of war or without a law describing it in war.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

It does partly say we have the right, but once again, we see that it is really about government action being prohibited.

This goes on and on for most of the amendments. The Bill of Rights prohibits certain powers, it does not extend rights.

It is because of the structure of this bill that the Federalists feared the Congress would assume more powers because a lack of prohibition of a power implies the power is given.

Well, as circumstances change, new powers present themselves, so it's nearly impossible to forbid every unjust power a government may claim.

That's why the structure of the original part of the US Constitution allows only certain powers.


Quite frankly, the 9th amendment has been set aside, and the federal government has assumed a whole mess of powers that were not forbidden expressly in the US Constitution. Wiretapping is one, the government simply doesn't have the ability to wiretap, if it is not granted that power in the US Constitution, however, FDR and earlier Presidents assumed the power on themselves without regard to the US Constitution. It went unchallenged until the 1960s when a man who used a pay phone, which had been previously bugged, appealed his case. The decision, often referred to as the Katz case, allowed the federal government to wiretap, but only with a warrant.

However, the ability to wiretap isn't actually in the US Constitution, and if we were following the US Constitution, it would be necessary to amend it to allow that power. Until that time, every wiretap is technically unconstitutional.