March 13: Bill Of Rights: Placing Limits On Congressional Governing – Part Three – Guest Essayist: Patrick Garry

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The Bill of Rights comprises the first ten amendment to the U.S. Constitution.  These amendments — containing provisions addressing such matters as freedom of speech and religion, and freedoms from search and seizure and compelled self-incrimination – are often seen as concerned with individual liberties and hence reflecting a different focus than that of the U.S. Constitution, which primarily addresses government structure and powers.  Under this view, the Constitution and the Bill of Rights are seen as separate documents with separate aims.  However, both the Constitution and the Bill of Rights focus on limiting the power of the federal government, although in somewhat different ways.

The debate over ratification of the U.S. Constitution occurred primarily between two groups, known as the Federalists and the Antifederalists.  The former supported passage of the Constitution, with its creation of a strong federal government, while the latter opposed the Constitution, on the grounds that it gave too much power to a potentially abusive central government.  To secure passage of the Constitution, and to address the concerns of the Antifederalists, the Federalists promised that a Bill of Rights would be adopted once the Constitution was ratified.  Thus, the Bill of Rights came into existence through a compromise reached between the Federalists and Antifederalists over the issue of constitutional limits on federal power.

The limitations on government power imposed by the Bill of Rights differ from the limits imposed by the original Constitution.  Provisions on freedom of speech and religion, for instance, as contained in the First Amendment, place substantive restraints on the federal government.  These provisions restrict the federal government from acting in certain substantive areas – e.g., individual speech and religious exercise.  On the other hand, the limitations contained in the original Constitution tended not to deal with substantive areas or issues, but instead created structural limitations that restricted the exercise of government power in general.

Structural limits on government power consisted of the checks and balances imposed by the Constitution’s separation of powers, in which each branch of government could check the power exercised by the other branches, preventing those branches from overstepping their bounds.  Federalism also amounted to a structural limitation, since it allowed the various levels of government – e.g., state, local and federal – to serve as checks and balances on the other levels.

The Bill of Rights provided substantive limits that existed in addition to the structural limits provided in the original Constitution.  For instance, even if the federal government possessed the power to act in a certain way, it could not, pursuant to the First Amendment, use that power to infringe on the freedom of speech or religious exercise.  Consequently, as demanded by the Antifederalists, the Bill of Rights provided yet another level of control and restraint on the use of federal government power under the U.S. Constitution.

Although the Antifederalist concern about limiting the power of the federal government provided the initial impetus for the Bill of Rights, the Bill does more than simply provide a restraint on government action.  It seeks to preserve liberty by protecting particular areas traditionally considered essential to individual freedom and dignity.

In preserving these areas of individual freedom and autonomy, the Bill of Rights also helps to strengthen the democratic fabric of the American political system.  It does so by maintaining the foundations of a democratic society, which in turn sustains a democratic political order.  Individuals can hardly participate in the political process if they do not possess the freedom to speak out on public matters and to hear the viewpoints of others who possess a similar freedom.  Likewise, a political system can hardly be healthy and vibrant if the society underlying it does not reflect the full concerns and values of the individuals living in it.  A society in which individuals are unable to exercise their religious beliefs, for instance, cannot be a free and vibrant society that will produce a healthy democratic governance.

By restricting government’s power to encroach on various areas of liberty, the Bill of Rights attempts to preserve the freedom of individuals to shape and influence the democratic society to which they belong, which in turn shapes and influences the political culture of society, which in turn shapes and influences the actions of the government and the content of the law.  Thus, through the operation of the Bill of Rights, citizens possess greater opportunity to exercise the sovereign and democratic powers envisioned by the U.S. Constitution.

Patrick M. Garry is Professor of Law at the University of South Dakota.

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March 8: Articles Of Confederation – What The Founders Thought Of The Articles Of Confederation And Why They Did Not Last – Guest Essayist: Patrick Garry

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The Articles of Confederation provided America’s first form of government structure, in effect during the years immediately following independence from Britain and ending with the adoption of the U.S. Constitution in 1789.  The Articles created a very weak national governing structure, which resembled more of a loose confederation of the different states than a single, unified sovereign entity.

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