March 9: Bill Of Rights: Placing Limits On Congressional Governing – Guest Essayist: Andrew Langer

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“Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.” – Thomas Jefferson, in a letter to James Madison, December 20, 1787

It was not America’s victory over England in 1781 that was a revolutionary miracle—for following the surrender at Yorktown any one of a number of things could have gone (and in some cases did do) wrong in the creation of our new nation.  No, it was the creation of our Constitution and the adoption of the first ten amendments as a “Bill of Rights” that was the true miracle—since both, taken together, were based on a premise that had been unheard-of until that point.

The U.S. Constitution is an enumeration of powers, originally conceived as narrow and exacting.  But because men like Jefferson and Madison foresaw the possibility of that careful cession of power to a federal government being expanded over time, both saw it as necessary to further constrain those powers through a “Bill of Rights”.

In his December 20, 1787 letter to Madison, Jefferson laid out some of his concerns for the Constitution that had been drafted over the course of the previous summer’s convention in Philadelphia.  One of his most-serious concerns, and one of the deep concerns of the “Anti-Federalists” (a term now turned on its head—since Anti-Federalists in the late-18th Century were those who were high suspicious of concentrated federal power, while we now consider such advocates for diffused federal power to be aptly described as “federalists”), was that no further explanation of how government ought to be constrained vis-à-vis the rights of individuals was laid out.

In this letter, Jefferson went on to talk about the importance of ensuring that the citizenry was well-aware that their individual rights to such things as freedom of the press and freedom of religion were being explicitly guaranteed—and Madison took these concerns, working with his Anti-Federalist colleagues, to develop and propose the Bill of Rights as the Constitution was being debated among the several states in preparation for its ratification.

There is no small amount of irony in Madison’s advocacy of a Bill of Rights, since Madison was fairly unique amongst his Virginia colleagues (like Patrick Henry and George Wythe) for being initially opposed to such an enumeration.  It was correspondence with his friend and mentor, Jefferson, as well as the debate during and after the Constitutional Convention of 1787 that swayed him to the cause of a Bill of Rights.

One of the primary concerns of men like Madison was that enumerating rights might imply, absent some explicit declaration, that an individual’s natural rights began and ended with such an enumeration—and thus underscoring the importance of the 9th Amendment in the Bill of Rights itself.

As important as the first five amendments in the Bill of Rights are (guaranteeing, as they do, things like the right to speech, to practice religion, to keep and bear arms, to hold and enjoy property, etc.), the final two amendments are, to the opinion of many, of even greater import.  The 10th Amendment ensures that those powers not given to the federal government can, in turn, be given to state governments or held by the people themselves (all that is not surrendered is retained, as the Supreme Court has said).

But the 9th Amendment is equally as important (if not more so), since it underscores that the mere enumeration of rights in the Bill of Rights is not meant to deny the existence of other rights.

Such a concept is especially important given some of our nation’s modern political debates.  With some calling for sidestepping, limiting, redefining, or out-and-out eliminating the 2nd Amendment (guaranteeing an American’s right to keep and bear arms), it is important to point out that even absent the 2nd’s explicit language, the 9th Amendment makes it clear that one retains a right to defend one’s self, one’s property, and those people who are important to an individual, since those rights are not surrendered to the government in any federal or state constitution.

These debates continue to underscore just how forward-thinking proponents of an explicit Bill of Rights were.  By drawing a clear line between the Constitution, which lays out the powers of the government, and the Bill of Rights, which lays out a series of further restraints on government power, the founders completely changed the posture of the individual versus his government, making the individual paramount and forcing that government to have to overcome that individual’s rights in order to expand or exercise that government’s power (in theory, anyway).

Thus, when calls come to expand that government’s power in the wake of a crisis, this explicit line becomes a “look before you leap” exercise.  As the Supreme Court said in 1992’s New York v United States decision,

“The Constitution protects us from our own best intentions.  It divides power among sovereigns and among branches of government precisely, so that we might resist the temptation to concentrate power in one branch as the expedient solution to the crisis of the day.”

The Bill of Rights ensures this protection.  It ensures the concept that power is divided and flows from the people to the government, not the other way around.  Thomas Jefferson understood this, which is why he advocated so strongly for its inclusion.  Thankfully, it was his advocacy and the wise counsel of others which swayed James Madison to his position.  Absent the Bill of Rights, one wonders if our republic could have endured as long as it has.

Andrew Langer is President of the Institute for Liberty, a Senior Fellow with Constituting America, and host of The Andrew Langer Show on WBAL NewsRadio 1090. 

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3 replies
  1. Ron Meier
    Ron Meier says:

    Thanks for including a discussion on the relevance of the 9th and 10th Amendments. Seldom do we hear about these Amendments in political discourse today. Yet our nation was founded on the principle that the individual and his community were the focal point of American Republicanism. Our founding documents were based on the assumption that we are a nation of individual innovators, not a nation of individual subjects. Over the decades we seem to have lost that idea; it’s as if we’ve become the Israelites of the Exodus, who got tired of the personal sacrifices required to be free and suggested to Moses that they return to slavery in Egypt, where at least they had a roof, a rack, and three squares a day, even if they were no longer free.

    Reply
  2. Ralph Howarth
    Ralph Howarth says:

    Deference to local control became known as “subsidiary” and would become a conservative plank later in politics on the virtue of local governments know local matters best.

    Also, the Bill of Rights was written in the context that other states already had a bill of rights and it was not necessary to make a long list of rights when the states already had their protections. Other than the 2nd amendment, the BOR was upon the federal government and not the states. The BOR had draft amendments that were struck down in the Senate for making provisions applicable as well to the states but such senators were opined as “too patriotic to their state” to apply things like free press, free assembly, free speech, and conscience protections on state governments.

    Reply
  3. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you for noting that Madison was originally opposed to the BoRs and that he was open to being influenced by sound arguments. I am glad he heeded his mentor, took note of Henry’s & Wythe’s concerns as he then became an unstoppable force in the 1st congress to pursue the BoRs when most of his colleagues wanted to take it up after other business was concluded.

    I agree the discussion on the 9th & 10th is refreshing.

    PSD

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