The Bill of Rights—Mallet or Shield

The Sacred Rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the Hand of the Divinity itself, and can never be erased or obscured by mortal power. Alexander Hamilton

Individual rights were not a significant issue during the Constitutional Convention, but a Bill of Rights certainly became a major issue during ratification. Those who fought for a Bill of Rights weren’t looking for a government guarantee of an itemized list of rights. Even the anti-Federalists believed that rights came from God, not the government. These Constitutional dissenters were demanding that government be restricted from interfering with their rights. In other words, they wanted it made crystal clear where the government dare not tread.

Despite the clamor for a Bill of Rights, the Federalists continued to insist that one was not needed because the national government’s powers were restricted, and most state constitutions already possessed declarations of rights. As Hamilton explained in Federalist 84, “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’s support for a bill of rights became crucial. At first he objected, then became unsure, and finally became a forceful advocate. He came to believe that a Bill of Rights had become a political necessity. In his speech on June 8, 1789, when he first proposed a Bill of Rights, he said, “It may be thought all paper barriers against the power of the community are too weak to be worthy of attention … yet, as they have a tendency to impress some … it may be one mean to control the majority from those acts to which they might be otherwise inclined.” Politically, Madison became a strong advocate for these amendments, but as these words reflect, he remained ambivalent philosophically.

On September 25, 1789, the First Congress of the United States sent the proposed amendments to the states. Seventeen amendments were approved by the House, the Senate trimmed the list to twelve, and ten ended up being ratified by the states. With Virginia’s ratification on December 15, 1791, articles III through XII became our revered Bill of Rights.

Because the Founders feared that a Bill of Rights might impede liberty due to sins of omission, the 9th Amendment provided that, “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage other rights retained by the people.” The 10th Amendment further stated that “The 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.”

These simple fifty words encapsulated the political philosophy of the Founders. Rights are not bestowed by the government, they are “endowed by their Creator” and reside with the people, and liberty depends on government operating within the restriction of enumerated powers delegated by a sovereign people.

This effective philosophy has been diminished. Americans seem to turn to their government to validate and protect real and presumed rights, and increasingly rely on government to guarantee the substance of life. The Founders feared overly powerful government, while today, many Americans embrace national authority and fight to enlarge governmental powers.

Constitutional devotees generally fall into two categories: those who focus primarily on the basic document with its checks and balances, and those who see the Constitution as vehicle to carry a Bill of Rights. This split in emphasis is similar to the struggle between Federalists and anti-Federalists, but either perspective would disappoint the Founders. The Founders had fought, argued, and spent a good deal of their wealth to make the Constitution and the first ten amendments the supreme law of the land. If called on, they would fight again to preserve the ideas embraced by the entire document.

Today, some want to use the Bill of Rights to restrict other people’s freedom of action. These activists start by getting something widely perceived as a right, then they harangue the Supreme Court until their pet project is declared a right—generally one that has been loitering for several hundred years in the shadow of an existing right. Over the years, the Supreme Court has succeeded in setting itself up as the arbiter of rights. So much so, many people have come to view government—specifically the Supreme Court—as the grantor and guarantor of rights. As the 9^th Amendment states, rights exist that are not included in the first eight amendments, but the proper way to secure these rights from government interference is through laws at the state or national level or through the amendment process.

The Founders anticipated minority factions using the Constitution as a bludgeon. Hamilton wrote in Federalist 1, “a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidding appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people, commencing demagogues and ending tyrants.”

Rights granted by a government, can be taken away by government. For example, for a good period of time before June of 2010, restrictions on gun rights were ignored or actively supported by the judiciary. When the Supreme Court ruled in McDonald v. Chicago, it reinstated a basic American right called out in the 2nd Amendment. In fact, the history of the 2nd Amendment demonstrates conclusively that rights supposedly granted by government are sustained at the will of government. Many people don’t like guns, so they saw no problem with the infringement of this right. The problem with an attitude like this is that today it might be a right you abhor, but tomorrow it will be a right you embrace.

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention. Look for his forthcoming book, Principled Action, Lessons from the Origins of the American Republic.