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…
I confess, until quite recently I had not read these words—the preamble explaining Congress’s reasoning and motivation in drafting our Bill of Rights—in years. On a visit to the Hauenstein Center, an institution dedicated to “raising a community of ethical, engaged, and effective leaders,” directed by the estimable Gleaves Whitney, I was handed what I thought would be “the usual” copy of the Declaration of Independence and Constitution. But this copy was different. It included the Bill of Rights, along with all the other amendments, and also the preamble reproduced above.
The preamble is an extremely important element to the Bill of Rights, critical for understanding its importance. The language of the first ten amendments themselves should give most scholars and ordinary Americans pause before using them to redraft the Constitution. But the preamble emphasizes their role, which was not merely limited but explicitly aimed at limiting, rather than extending, the powers of the federal government
Misreadings of the Bill of Rights abound and even shape our political and constitutional culture. For example, many people, especially among academics and exotic dancers, seem to believe that the First Amendment is the be-all and end-all of constitutionalism in the United States. This is where they find the right to free speech which they believe extends to the act of taking one’s clothes off in public for money. But the limits of the First Amendment’s protection of free speech should be rather clear, at least in their broad outline. The amendment reads simply:
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; or to petition the government for a redress of grievances.
There is some language here that might be open to debate. For example, does the fact that “speech” is included in an amendment clearly concerned with limiting governmental powers and protecting the people’s rights to address that government, mean that it is only strictly political speech that is protected? The practices of the time tend to support this view. Then again, the definition of “political” speech itself is open to some question, given the connections between some forms of social commentary and various political positions. In an era of big government, political speech naturally seems a rather broad category.
Historically in the United States such issues would be argued over and the answers honed over time through cases dealing with specific facts and issues. Today, seemingly everything is swept up into a magical realm of “free expression” held off limits to direct regulation. It seems rather clear, however, that 1) the amendment is not seeking the protection of strippers (or “exotic dancers,” if you prefer) as some on the Supreme Court have decided, and 2) that the amendment is not intended to limit the powers of states and localities to decide for themselves the proper limits of free speech.
This last point is the most important and definitive for the Bill of Rights as a whole. For that First Amendment begins with the phrase “Congress shall make no law.” To be sure, not every amendment begins with this phrase. Indeed, only the first begins in this way. Yet this amendment concerns rights of religious free exercise, the prohibition on religious establishment, and crucial rights of free speech and the press. Recognizing the fact that these rights are being given further protection against specifically federal action would go a long way toward limiting federal interference in attempts by our states and our local communities to come to agreements among themselves on issues such as public prayer and responses to obscene acts and materials.
As for the rest of the first ten amendments, as is well known, the second relates to the right to bear arms, and most of the rest specifically address the rights of Americans in regard to the legal system. Whether they concern bail, cruel and unusual punishment, the use of warrants, or the right to jury trial, they aim to protect individuals against abuses from magistrates and legal officers and are listed without the “Congress shall make no law” language.
What should we make of the lack of such language? For almost two hundred years, no one doubted that each state might decide for itself how best to protect its citizens’ procedural rights and other elements included in the Bill of Rights. Why? Because it was understood, and written in the preamble to these amendments, that their purpose was to declare and restrict the powers of the federal government. The Ninth and Tenth Amendments, declaring that rights retained by the people need not be enumerated in the Constitution to limit federal powers and that “powers not delegated to the United States by the Constitution, nor prohibited by it to the states” are reserved to the states or the people, highlight the intent of these first amendments.
State conventions ratifying the Constitution had noted emphatically their desire for further protections against federal power, both to protect inherited rights and to prevent establishment of an overpowering central government. At the first Congress, James Madison in particular insisted that the new government must fulfill promises made to the people in gaining their approval for the Constitution. Additionally, Madison argued, for its own sake the new federal government must secure the people’s confidence by enacting further protections and, even more important, clearly indicating the limited nature of the federal government.
So much should be obvious. Unfortunately, decades of judicial abuse have blurred the lines of our Constitution and its Bill of Rights. Here the preamble to the Bill of Rights can and should serve to remind us of the very limited extent of judicial power to redraft provisions provided in these amendments in light of subsequent amendments. For it has been through a kind of backward rereading of our Constitution as a whole that it has been distorted and our constitutional order substantially weakened.
When confronted with the textual facts regarding the Bill of Rights, contemporary scholars obviously have not retreated from redrafting the Constitution. Instead, they have resorted to the myth of a “living constitution” encapsulated and put into effect by a few phrases in the Fourteenth Amendment. That amendment, passed after the Civil War in an attempt to protect the freed slaves, first declares that those born or naturalized in the United States and subject to its jurisdiction are citizens of the United States and also of the state wherein they reside. In this way the amendment, to be put into effect by congressional statute, gave power to Congress to protect freed slaves from state attempts to define them as political pariahs and so pass laws hostile to their very being.
In addition, the Fourteenth Amendment declared that no state should violate its citizens’ privileges or immunities (the most basic of rights of citizenship, including that of holding a job and entering into a binding contract) as well as their rights of due process (e.g., jury trials) and equal protection of the laws (that like cases be treated alike, for example, that a contract involving a freed slave would be upheld or disallowed only in the same ways and on the same grounds as that of one between two white people). Sadly, these provisions were not, in fact, put into effect through law for many decades.
In substantial measure because of this failure on the part of Congress, the fight spread to our judicial branch, which over time “incorporated” various provisions of the Bill of Rights into the mythical Living Constitution by claiming that they concern fundamental rights inherent in our conception of liberty. Because the Fourteenth Amendment forbids any state from depriving “any person of life, liberty, or property, without due process of law,” the theory goes, all we have to do is say that speech or religious free exercise or nonestablishment is part of “liberty” and we can use the courts (not just Congress) to strike down state actions we think infringe on the rights we like.
Among the many problems with this approach is that it reverses the manner in which—and purposes for which—amendments were added to the Constitution. To use a later amendment to redraft an earlier one is sometimes seen as a valid exercise, given that the later change must be incorporated into the entire document in a manner that makes sense, and a radically new provision may simply require changes to the structure of the old. But there are limits to this procedure (e.g., Prohibition overrode many rights but did not erase the due process rights of accused bootleggers). Moreover, there is no such radical content in the Fourteenth Amendment, and the first ten amendments, as spelled out in their preamble as well as their text, clearly were not aimed at establishing some vague, abstract “liberty” that might include whatever rights contemporary judges invent. Rather, the power would be left to Americans in their communities to define for themselves the limits of the rights of individuals and communities, the demands of virtue, and the requirements of ordered liberty.
The preamble to the Bill of Rights shows that it was not intended to establish any new rights but rather to make clear areas “off limits” to federal power. Given this fact of intent, purpose, and text, the use of a subsequent amendment extending federal (congressional) power in a specific area to recast the very purpose of the Bill of Rights clearly lacks legitimacy. Both the general tenor and the essential grounding and purpose of the Constitution is not to protect everyone from all wrongs but to grant specific, limited, and enumerated powers for specific, limited, and enumerated purposes to a central government. And this fact dictates a substantially different attitude of interpretation of that document and its amendments from that currently ruling in our courts and, through them, our nation as a whole.
I often hear it said that few Americans any longer think of themselves as citizens of anything other than the entire United States. Perhaps this is so. But it is so because we have allowed state citizenship and local participation in public life to lose any real meaning by allowing the very structure of our constitutional government to be transformed through judicial fiat.
Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.