Liberty, Prudence, Imperfection, and Law

“The ‘Bill of Rights’ is not the Constitution,” By Bruce Frohnen

Former Anti-Federalist, George Mason, was an influential advocate for the Bill of Rights.

This essay was authored by Bruce P. Frohnen for Nomocracy in Politics. Professor Frohnen is a Nomocracy in Politics Contributor. 

The title of this essay may seem unnecessarily obvious.  After all, the Bill of Rights consists of ten amendments added to the longer, more inclusive, and more fundamental Constitution.  Yet, anyone observing public debates in America over the constitutional implications of various public policy issues—from policing, to healthcare, to education—might be forgiven for believing that our Constitution consists of a Bill of Rights, to which are added a few, vague guidelines concerning which public servants are invested with what particular powers.  This impression would be doubly powerful for any law school student, who typically would see in the course catalog two Constitutional Law classes, the first on the structure of government and the second, every bit as complex and valued as the first, solely devoted to “Constitutional Rights.”  And, whatever the course, the law student would learn from early on that his or her clients’ “rights” are what courts are, or at least should be, centrally concerned to protect.

The destructive effects of “rights talk” on public debate have been noted many times.  Whether coming from the left, the right, or the political center, numerous scholars have noted, in recent years, that Americans’ fixation on individual rights often prevents the kinds of compromises necessary for a people to govern itself in a reasonable manner.  This is especially true in our pervasive administrative and welfare state.  Big, intrusive government necessarily serves conflicting rights.  Thus, in the United States today, the right to life is seen as contradicting the right of a mother to “control her own body,” the right of an employer to run his or her business contradicts the right of employees to “a living wage,” the right to use one’s property as one wishes contradicts the public’s right to be free from nuisances (and, perhaps, the rights of various forms of wildlife), and so on.

Americans seemingly have no choice but to enter into these hopeless debates over which right shall “trump” the other, or how the courts shall “balance” them against one another because rights, we are told, are at the center of American conceptions of freedom and limited, constitutional government.  Indeed, we are told, by including the Bill of Rights, the Constitution enshrined rights as the central, operating conception of American government.

Such a view goes against the explicitly stated purpose of the first ten amendments to the Constitution (which their framers pointedly refused to term a “bill of rights”).  These amendments were not intended to structure our government, let alone restructure our society into some individualist paradise.  The highly limited, instrumental purposes of the first constitutional amendments are spelled out in the preamble attached to them by Congress when it forwarded them to the states for ratification: “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.” Congress offers amendments for possible ratification by the states.

Nothing in this short statement should surprise anyone knowledgeable about the debates that took place in the states considering ratification of the new United States Constitution.  The Anti-Federalists were concerned that the new, central government would use its control over the courts, the militia, electoral rules and, especially, the taxing power to gather all state powers to itself.  The result, they feared, would be the destruction of customary rights protected in state constitutions and (especially) by the common law of the various states.  Thus, Anti-Federalists and their allies demanded that the new Constitution be amended to protect against such a possibility.  The most important changes demanded in these conventions were structural.  Proponents of states’ rights and self-government sought critical changes in the document that would have returned control over the taxing power to the states, along with control over their respective militia and electoral rules.  Such amendments would have reclaimed for the states important elements of their political sovereignty and power, rendering the new, central government less dangerous to their ways of life and to the accustomed rights of their citizens.

But the Anti-Federalists had lost their fight to defeat the new Constitution and therefore, not surprisingly, did not have sufficient numbers and influence in the new, federal Congress to win such structural amendments.  Instead, James Madison, a leader in the new House of Representatives, sought to gain popular support for the new government by proposing a series of amendments, predominantly aimed at protecting common American customary rights from federal interference.  As the Preamble to these amendments makes clear, they constituted a confidence building measure intended to secure practical support from people concerned that the new government would become too powerful and oppressive by allaying their particular fears regarding the reach and the implications of the new central power.

Thus, the approved amendments began by (the First Amendment) declaring that “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.”  Much has been made over the years of the fact that the rights in the first amendment are specifically aimed at the federal government, whereas succeeding rights are not so pointedly aimed.  Does this mean that, whereas rights of conscience, speech, and so on, are merely statutory, hence liable to modification at the state level, the others are natural, meaning absolute, universal, and unchanging?  Of course not.  The point of “Congress shall make no law” is structural.  While succeeding rights are largely procedural, for use in court, those of the first two amendments (the second protecting “the right of the people to keep and bear arms”) concern substantive practices historically protected by common and statute law within the states.  Massachusetts might have an established church, as it did, and also might have rules regarding militia musters different from those in another state; the federal government was forbidden from interfering with any of them (save, in some instances, in time of war).  The Third Amendment, forbidding the quartering of soldiers in people’s homes save in a manner prescribed by law, also clearly intends to prevent a specific, dangerous practice by the federal government.

The bulk of the restrictions promulgated in amendments four through eight are specifically procedural—they go to police and judicial practices, aiming to protect in federal investigations and courts the customary rights of litigants and/or defendants.  These amendments clearly are intended to protect procedural rights (e.g. against unreasonable searches and seizures and against being forced to testify against oneself) rooted in colonial practice and deemed necessary for the protection of individuals against any overreaching federal government.  Not guaranteed within all states in the precise form listed in the amendments, these rights (for they often are specifically so termed) were seen as necessary in holding the federal government in check.

The final two amendments—the ninth and tenth—generally have been dismissed as redundant by courts, particularly in recent decades.  They also have been looked to by some libertarians as a possible source for “unenumerated rights” that might be used to limit the reach and power of the federal government.  Both these programmatic readings do violence to the clearly stated intentions of the amendments.  The Ninth Amendment states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The Tenth Amendment states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  Read together, these amendments show a clear intent to reinforce the Constitution’s character as a limited grant of enumerated powers that leaves the customary relations and rights within the various states intact, and leaves to the people, in their states, the power to alter those arrangements as they see fit, within the rather minimal limits established by the Constitution.  Thus, they provide neither the kind of open-ended source of penumbral rights envisioned by libertarians, nor the mere verbiage insisted upon by contemporary liberals, but rather a structural barrier to federal action aimed at preserving pre-existing, sub-national relationships.  These last amendments were of particular importance as a countermeasure limiting the impact of the Constitution’s provision in Article I, Section 8, granting Congress the power to make “all laws which shall be necessary and proper for carrying into execution” the other powers of Congress and of the federal government.  Looked upon as an “elastic clause” by those determined to expand the scope of the national government, this clause was to be kept within strict bounds in its logic and reach by the Ninth and Tenth Amendments.

What we have, then, in our first ten amendments is not a program of action for the application of the Constitution and the powers of the national government to restructure society in an individualist mode, but rather an attempt to protect states and individuals in their relations with the federal government from overreaching and from violating customary rights.  These amendments were an attempt to cabin the power of a potentially overbearing federal government.  That they were used, instead, to empower the national government to overpower, not just the states, but the people in all their public and private capacities in the name of a program of political transformation, seems clear.  That such a program actually increases the freedom and happiness of actual human beings seems far less than clear.

7 Responses to ““The ‘Bill of Rights’ is not the Constitution,” By Bruce Frohnen”

  1. gabe

    Peter / Bruce:

    Absolutely Excellent concise piece and good exposition of the concern that many of us have with the ‘rights deluge” of the last 50+ years.
    I remember as a young man growing up in the late 50’s and 60’s hearing people talking about “my constitutional rights”, etc etc. I, too, fell victim to this line of thinking only to be corrected by my father as to the role of duties and responsibilities attendant upon citizenship. Sounds corny, but he was right when he said, “We never talked about rights when I was a boy going through the depression. We were happy to eat and work.”

    Yet, over the years, Americans have come to think only in terms of “my rights” and not a sense of order or duty. The schools promulgated this at all levels of instruction until today where this is the preferred zeitgeist. Rather distressing, don’t you think.

    BTW: Is there some reading you could recommended on the history or meanings (structural or otherwise) associated with the B.O.R? Hopefully something shorter than a large book as i have not yet gotten to Maiers’ book you recommended.

    Anyway,
    take care
    gabe

    Reply
  2. Bruce Frohnen

    As a firm believer in the importance of primary materials–reading those who wrote on a topic at the time it was being debated–I would most recommend reading various of the antifederalist writings. All the editions of the Antifederalist Papers provide good materials. I humbly suggest the one I edited for Regnery as the most comprehensive one volume collection. Simply dipping into these papers will give you a flavor of the concerns and arguments that produced the amendments. Happy reading.

    Reply
    • gabe

      Bruce:

      Thanks for the recommendation. I had been considering the anit-fed papers – you have now convinced me to get to amazon and buy it!

      take care
      gabe

      Reply
  3. zealousneophyte

    Reblogged this on Aquilon's Eyrie and commented:
    Today there is far too much talk about “Rights”, real and imagined, and not nearly enough talk about law, duty, responsibility, and the reasonable limits both of government and of self-government.

    Reply

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