Was the Bill of Rights Necessary?

It seems that these days people tend to think that the Constitution consists of the Bill of Rights and nothing more. In many ways, they’re right, since the main body of the text has been perverted to such an extent that Professor Seidman’s recent suggestion has already come to pass. I’m of the belief that our current mess is directly proporti…

  1. Eeyore
    Illiniguy:  [W]ould Jefferson’s observation that “(t)he natural progress of things is for liberty to yield and government to gain ground” have overwhelmed us years before?

    This.

    Only a virtuous people are capable of freedom.” – Ben

    Perhaps Hamilton assumed the inherent(?) virtue of the citizenry. Even though the Bill might provide “pretext” for claims of powers unassigned, think of the constant fights that have been ongoing over 1,2,4,5 and to a lesser degree 10.  Wilson allegedly had gangs of thugs do beat-downs on some of his opposition. What if he hadn’t had to mess at all with the messy 1st and 4th? I think tyranny would have long swept the Constitution into irrelevancy without the Bill.

  2. The King Prawn

    Those in government will always seek power not granted in the charter. If we had no explicit limitations in the charter we could rely only on the courts and the common sense of Obama voters to restrain government encroachments on liberty. It’s been all down hill since Washington swallowed the swill Hamilton served him on the 1st Bank of the U.S. Specifically, he wrote:

    That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.

    So if they can dream it up, connect it some way to a granted power, and it’s not specifically forbidden, then government can do it. We’ve been operating like that almost from the founding because Washington caved on this first test.

  3. Crow
    The King Prawn: Those in government will always seek power not granted in the charter. If we had no explicit limitations in the charter we could rely only on the courts and the common sense of Obama voters….

    The logic of Hamilton’s position in Federalist 84 is that there is a limitation granted in the charter regardless of amendments–and that limitation is that the Federal government is confined to doing what is within its enumerated powers.

    Once the government viewed itself as able to operate outside of the bounds of enumerated powers, of course, this would become a paper barrier. One might argue that was as early as Jefferson’s Louisiana Purchase, but I would say that large portions of voters and the Federal government itself didn’t accept bureaucratic administration (un-enumerated and minute regulation) until the Progressives came to power in the early 20th century.

    So, you might view Hamilton’s point as naive, just as you might view the Founder’s view of the Court’s as naive: although it too largely stayed within its proper bounds through the 19th century.

    In the long run, Madison et al. may have proved wiser on this issue.

  4. RightinChicago

    I wad taught that the Bill of Rights was necessary to get the Constitution ratified, so in that sense it was necessary. Also, almost immediately, Adams got the Alien and Sedition Act through, which I’d call overreach. So yes, I’d say the Bill was necessary since governments always try to exceed their enumerated powers.

  5. Vance Richards

    “For why declare that things shall not be done which there is no power to do?”

    Sounds logical, but politicians limiting themselves to the powers given under the constitution? Really? I’m glad more cynical heads prevailed.

  6. Mark

    Most of the members of the Constitutional Convention, not just Hamilton, felt a Bill of Rights was unneeded since the Constitution provided only a limited, enumerated grant of authority to the Federal government.  However, so many of the state ratifying conventions demanded a Bill of Rights in return for voting for ratification that the first Congress proposed the amendments.

    While they were theoretically right I think as a practical matter it was good to add the BoR.  Without it liberal justices would be riding even more roughshod over our liberties.  They’ve already eviscerated key parts of the original articles (Commerce Clause, Separation of Powers) and in the BoR turned the Taking Clause in the 5th Amendment on its head and have attempted to make the Second Amendment a stillbirth.

    Our best chance to recoup the situation was the Privileges and Immunities Clause of the 14th Amendment but that was strictly limited by the Supreme Court in an 1873 case.  Unfortunately, both traditional liberals and Borkian-style conservatives are scared of reviving the P&I clause because it is too liberty enhancing.  Currently, only Justice Thomas supports reviving it.

  7. KC Mulville

    The Constitution is about defining the federal government, but the Bill of Rights sounds like it’s about defining the people. You can read the Bill of Rights and assume that it’s declaring which rights the people possess. You can be lured into that assumption very easily.

    That’s the key: the Bill of Rights shouldn’t be read that way. The Bill of Rights doesn’t define the people. It’s still about defining what power the government has, and more importantly, what power it doesn’t have. 

    It’s not an abstract or pedantic point. It’s at the heart of the abortion battle, for instance. From a purely Constitutional perspective (leaving morality aside), one legal question is whether the federal government (i.e., the Court) has the power to strike down laws based on their own definition of whether or not the fetus is a person, versus the mother’s right to privacy. Blackmun’s tortured argument results in giving the courts the power to strike down laws; Scalia (correctly) objects that the Constitution says nothing to grant that power. 

  8. BlueAnt

    As a purely practical matter, the Bill of Rights was necessary, because it was a pre-condition by several states to get the Constitution itself ratified.  

    For why declare that things shall not be done which there is no power to do?

    That’s a great theoretical point, but it’s a bit too naive about the willingness of human rulers to corrupt, mis-interpret, or otherwise ignore the restrictions put on them.  And this was always Hamilton’s blind spot, as he advocated for more centralization and a stronger executive (in the European mold) than the rest of the Founders.

    Put another way, we all agree that modern politicians now “claim more [powers] than were granted”, exactly as Hamilton worried.  But it took 150+ years, a Civil War, a Great Depression, and two World Wars to get there.  

    In an alternate universe where we did not have the Bill of Rights, how much quicker would the USA have reached the same point of political overreach?  And how much further along the slide into tyranny (or merely European style socialist decline) would we be in 2013?

  9. Fake John Galt

    Is the constitution necessary?  It seems that many of our political masters feels that it is inconvenient at times and we would be better off with it.

  10. Cold Friday Warrior

    Sisyphus and Mollie,

    Yes, some of their decisions were laughed at by the executive branch and lay impotent. It sure helps when the executive branch respects the decision. After Brown V. Board of Ed, the executive branch had to step in to enforce the decision. When they ruled against Nixon, he coughed up the tapes with no physical enforcement required. And at least Al Gore FINALLY conceded after the Court ruled in late 2000.

    I am glad there are Supreme Court police to protect their persons and the Court grounds. Imagine, though, if they sent their Supreme Court police out to enforce their decisions! That could be a hoot. At least when the executive branch does it and someone replies, “yeah, you and what army?” the executive branch can say, ‘um, THIS army.” (although it is probably an army of regulators, which should bring more chills down ones’ spine than the military army we have in uniform does).

  11. Neolibertarian

    Ouch. Mollie’s comments caused me to look up the background of the US Capitol Police, the Supreme Court Police, etc.,  and I ran across this at Wiki.

    The Department of Agriculture Police? The Department of Transportation Police? The Department of Education Police?

    I guess it shouldn’t have been so surprising when reports came out about how the EPA recently purchased hundreds of thousands of rounds of hollow point ammunition.

    At Treasury, where the Secret Service, Alcohol, Tobacco and Firearms Bureau and the F.B.I. are housed, there’s also a Bureau of Engraving and Printing Police, Federal Crimes Enforcement Network, IRS Criminal Investigation Division, United States Mint Police, and even a Special Inspector General for TARP.

    And here I thought it was bad enough that Timothy Geithner gets to sit in on NSA meetings!

    It turns out that he has enough armed police under his command to mount a successful coup in half the nations on earth.

  12. Nathaniel Wright

    The Bill of Rights gave the sense that Rights are granted by the Constitution, it is a legacy that we have been dealing with ever since.  It is the Bill of Rights that gave government the excuse that they could expand power, after all they weren’t violating our “Constitutional Rights.” 

    Once we accepted that the Rights of individual citizens could be enumerated, rather than the powers of government being specifically enumerated, we began the path to progressivism.

    Without the Bill of Rights people might have better understood that Rights pre-exist any document and that the Constitution is a document of explicitly enumerated powers.

  13. Nathaniel Wright

    I cannot tell you how many conversations — even here — where a discussion of Rights has been responded to with a “where in the Constitution does it grant that right” sound byte.  The better response is to ask “where in the Constitution is government allowed to do x.”

  14. Illiniguy
    Vance Richards:”For why declare that things shall not be done which there is no power to do?”

    Sounds logical, but politicians limiting themselves to the powers given under the constitution? Really? I’m glad more cynical heads prevailed. · 21 hours ago

    At the end of the day, you’re most likely correct.

  15. Illiniguy
    Mark:

    Our best chance to recoup the situation was the Privileges and Immunities Clause of the 14th Amendment but that was strictly limited by the Supreme Court in an 1873 case.  Unfortunately, both traditional liberals and Borkian-style conservatives are scared of reviving the P&I clause because it is too liberty enhancing.  Currently, only Justice Thomas supports reviving it. · 21 hours ago

    Adam Freedman’s latest podcast on property rights has a good discussion of the Privileges & Immunities clause, the effect of the Slaughterhouse cases and how it would have affected the Heller decision.

  16. LowcountryJoe

    The Founder’s original intent was the Articles of Confederation and Perpetual Union. The more I re-read it the more I wish we hadn’t replaced it

  17. Dudley

    Is the Bill of Rights necessary? It was certainly thought necessary at the time. Just read the preamble:

    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.

    While brilliant Hamilton was, in my opinion, more a nationalist than a federalist, necessitated by the fact a monarchy in the US was and remains impossible.  Were he alive today I have every confidence he’d be one of Barack Obama’s greatest supporters.  And he’d LOVE executive orders!

  18. Cold Friday Warrior

    Nathaniel,While I agree with you when you write “Once we accepted that the Rights of individual citizens could be enumerated, rather than the powers of government being specifically enumerated, we began the path to progressivism,” the Founders believed they had addressed that with the 9th and 10th Amendments saying in essence, this Bill is it not all inclusive and anything we left out still rests with the states or with the people. The fault lies with subsequent generations that have ignored those provisions. We see what has happened to the people’s rights that are reservd to the people but not enumerated. Imagine if we just had to rely on the unenumerated understanding of the 9th and 10th amendments without even those in writing. The Bill was an additional check on the government lest it ever needed reminding. As we have seen, it presently needs reminding ever single day. As Madison said, if men were angels and all that. Since they are not, we needed the Bill of Rights, even with the risk you so well identified from practice.

  19. raycon and lindacon

    The guys with the guns make the rules.  What part of the course on civilization did you miss?

  20. Sisyphus

    If we had not replaced the Articles of Confederation, the War of 1812 would have ended very differently, the Republic of Texas would control the south western and Pacific states and perhaps Florida, and likely the Louisiana Territory, secession would never have been contested, the Axis would have won WWII, and the light of the West would already have fallen into obscurity. 

    I am open to correction, but my meager studies of Texan history does not reveal a strong abolitionist sentiment, nor the kind of 19th Century industrial fervor to compete with the north eastern seaboard, though under other circumstances a competitive spirit might have prevailed.

    But the most important point I want to make is that the fault is not in our Constitution but in ourselves. Washington, DC, is not broken because of the Constitution, but in spite of it. Most complaints against the Constitution are rooted in bad Supreme Court dictates dressed up as law (ex: Maggot Roberts’ legislation of a tax where Congress legislated a mandate, the Constitution expressly forbids any branch but the House from originating a tax), or bad regulation or executive orders. We have seen a lot of these lately.

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