The Bill of Rights: Good, Bad, or Indifferent?

I brought up this topic months ago and had the opportunity to lead a discussion about it at the Arizona chapter of the Republican Jewish Coalition. Please join the conversation in the comments sections below.

Anti-Federalists demanded a bill of rights, BUT…

There was disagreement about what a bill of rights should contain. James Madison in Federalist No. 28 wrote about the Anti-Federalists opposition to the Constitution:

A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced…

Some Anti-Federalists opposed the Constitution even after a bill of rights was promised. For them, a bill of rights was just a way to oppose ratification.

The Articles of Confederation had no bill of rights.

Four state constitutions, including that of New York, lacked bills of rights even though the states had been acting as independent republics for years.

Hamilton opposed a bill of rights

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?

Madison had a mixed opinion regarding bills of rights

There are many who think such addition unnecessary, and not a few who think it misplaced in such a Constitution… My own opinion has always been in favor of a bill of rights… At the same time I have never thought the omission a material defect… I have not viewed it in an important light.

In a letter to Jefferson, Madison lists four reasons a bill of rights was not needed:

because I conceive that in a certain degree… the rights in question are reserved by the manner in which the federal powers are granted.

because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition, would be narrowed much more than they are ever likely to be by an assumed power.

because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other.

because experience proves the inefficiency of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State… Wherever the real power in a government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.

Upon introducing the Bill of Rights, Madison said:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it.

Madison attempted this with the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Discussion:

Did Madison succeed with the Ninth Amendment?

Were the arguments against a bill of rights valid then?

Are they valid today?

Have our rights been effected positively, negatively, or not at all by the Bill of Rights?

Should we focus the debate on protecting our individual rights or on limiting the government’s powers?

– Michael E. Newton is the author of the highly acclaimed The Path to Tyranny: A History of Free Society’s Descent into Tyranny. His newest book, Angry Mobs and Founding Fathers: The Fight for Control of the American Revolution, was released by Eleftheria Publishing in July.

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10 responses to “The Bill of Rights: Good, Bad, or Indifferent?

  1. I don’t think this argument has ever been completely resolved. Perhaps, though, the bigger question is, did the BoR actually birth the tyranny they it was trying to prevent?

    • That is what I am asking. By focusing on rights, have we let the government abuse its power?

      • I think Lou (below) made my point. The problem with listing the specific limits of the government has grown to be the opposite, Congress and activist courts have instead turned the intent on its head. Which is what I think Madison was warning us about…he was’t afraid of it happening (much) in his lifetime, rather way after it. I do believe that our Founders foresaw many of the problems we now face and tried to head them off.

        “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government — lest it come to dominate our lives and interests.”
        Patrick Henry

        “I know no safe depository of the ultimate powers of the society but the people themselves, (A)nd if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”
        Thomas Jefferson

  2. The Bill of Rights, it’s self, by intent has always been a positive beam of hope, yet the “system” on which it is governed, is a quagmire. It’s eternally strong by intent and meaning. It is callous and differential in action.

  3. Wouldn’t you have to lump the evolution of the interpretation of religious protection by the courts and atheist groups (the ACLU) into freedom “from” religion into a negative that has come from the BoR. This has been a terrificly successful (unfortunately) hijacking that has taken place. Of course, the true intent of the ammendment is clear to many people, but anti-religious people have twisted the meaning into a form that would remove religion as far as possible. They will continue to develop this line of thinking in the future with new legal innovations on how to close religion into a smaller and smaller box in our society. I guess the question would be how would the atheists have fared in their efforts without the language “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” or should we all just recongize by now that that clause was poorly and too vaguely written?

    • Again, the whole debate has shifted from one about the powers of government to the rights of the people. We now argue about what religious freedom we have instead of focusing on the fact that the government has no power whatsoever to intervene in religion.

      The Constitution gives the government no power to stop me from practicing my religion in a public place (as long as nobody else is harmed). By focusing on rights, the government can say we can’t practice our religion in public yet we still have religious freedom because we can do so in private. They have narrowed the focus of our rights, just as the Founding Fathers feared government would do.

  4. Pingback: How to Build a Firm Law « Jeff Oakes

  5. It is so obvious the Anti-Federalists were right in the long run. The 14th Amendment and the bastardization of the interstate commerce clause meant that, but for the BOR, the Federal Constitution would be meaningless in preventing a real dictatorial leviathan.

    • I will agree that the Anti-Federalists were right about the problem. I’m not so sure they were right about the solution.

      I always return to this Madison quote: “Experience proves the inefficiency of a bill of rights on those occasions when its controul is most needed.”

      As Jefferson said, “The people are the ultimate guardians of their own liberty.”

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