When the average American thinks about the United States Constitution (assuming they do so at all), he or she likely pictures the Bill of Rights. After all, that’s what we hear about the most. Stories pertaining to all but one of the 10 amendments making up the Bill of Rights can be found in the news every day. The only exception is the Third Amendment, which prohibits the quartering of soldiers in civilian homes without the owner’s consent. It’s not currently an issue.
Few people can tell you that the Constitution consists of seven Articles establishing the Legislative, Executive, and Judicial Branches, the role of the States, the Amendment processes, outlining the nature of federal debt, the Constitution’s supremacy, legislative oaths, and the terms of ratification. But most Americans are at least somewhat familiar with the concept of Constitutional rights, even if they don’t actually know what those rights are or how they apply to the citizens of a Constitutional Republic.
What is the Bill of Rights?
To answer that question, it may be useful to state what the Bill of Rights is not: Contrary to an all-too-common assumption, the Bill of Rights does not grant rights to American citizens. This is an important distinction that many politicians seem to not understand.
Historical luminaries such as Aristotle, the great Roman Senator Marcus Tullius Cicero, and the Medieval scholar St. Thomas Aquinas referred to the existence of laws that transcended human law, applying to all people, regardless of nationality. Aristotle referred to it as “universal law,” Cicero called it “true law,” while Aquinas discussed it in terms of “Divine Reason.” Historically, governments have usually trampled on such notions in the name of expediency. Natural law, after all, is an abstract concept, whether we now accept it as truth or not.
The Constitution, and the amended Bill of Rights, is an Enlightenment-era document. The Enlightenment witnessed a revival of the ancient notion of natural law through the writings of John Locke, Jean-Jacques Rousseau, Montesquieu, and others. James Madison, who authored the Bill of Rights and championed it in the 1st Congress, was strongly influenced by Aristotle, Cicero, and Aquinas, though he was certainly familiar with more recent thought on the subject.
Negative Rights vs. Positive Rights
If you read the Bill of Rights, you will notice that the text does not say something like “the people shall have the freedom to worship as they choose,” or “the people shall enjoy freedom of speech.” That wording would be classified as a “positive right,” meaning that the government, through the Bill of Rights, grants those rights.
Instead, the First Amendment begins by stating “Congress shall make no law…” This is framed as a “negative right,” meaning that the right is understood to exist as part of natural law and the government has no power to restrict it. The same can be said about the Second Amendment with the phrase “shall not be infringed.” The wording reflects the Constitution’s recognition that the right already exists beyond any government’s purview.
Not Limited
The Ninth Amendment states that, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Many Americans are unaware that James Madison initially opposed including a bill of rights in the Constitution. He felt it was unnecessary and that the Constitution itself was enough to secure the people’s liberty.
One of his objections was that it would be impossible to include all the rights a free people would, by definition, enjoy. He feared that a bill of rights might be interpreted to mean the people’s rights are limited to what is expressly included. Madison and the other Framers, those who supported the Constitution and those who did not, were suspicious of a too-powerful central government. They understood that governments always collect power to themselves at the people’s expense.
Phrasing the Bill of Rights in negative terms and including the Ninth and Tenth Amendments was a safeguard against that tendency. The Ninth Amendment clearly states that the exclusion of a given right from the Bill of Rights does not mean or imply that the people do not still retain those rights. That notion was later clarified by the Fourteenth Amendment.
The Tenth Amendment furthers the Ninth Amendment’s assertion by stating the following: “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.” That was Madison’s way of strengthening the rights of the states against the central government, though the Constitution is the supreme law, to which state laws must adhere.
The Bill of Rights Is Even More Important Today
Madison appears to have come around to the idea of a bill of rights for several reasons. First, and most expedient, he probably would have lost his bid for election to the 1st Congress had he not supported the idea. Madison was many things, but he was certainly no fool.
But, more importantly, Madison seems to have been influenced by Thomas Jefferson on the dangers posed to a republican government by majorities. Jefferson, as a student of Ancient Athens, clearly understood that majority factions can and will write laws that infringe on minority rights as a matter of course. How often do we hear that “the majority of Americans” support stronger gun control? I question whether that is actually true, but the media presents it as fact.
But, because we have the Bill of Rights, the rule of law, as represented by the judiciary, prevents whimsical changes dictated by whichever party controls Congress and/or the Presidency. It is difficult to imagine the right to keep and bear arms as we know it today without the Second Amendment to protect it. And what about free speech? Just look how both of those are working out in Canada, which does not enjoy protections like our Bill of Rights.
While it is doubtful that Madison or Jefferson could foresee the impact of modern media propaganda, ironically protected by the First Amendment, there seems to be little doubt that the Bill of Rights is possibly more important today than ever. The Federal Government grows more bloated every year, at the expense of the states and, especially, the people.
The Bill of Rights, every one of them, even the Third Amendment, is our bulwark against what Enlightenment philosopher Thomas Hobbes called the “Leviathan.” Beginning in 2008, with the Heller Decision, the Supreme Court began rolling back draconian Second Amendment infringements. As governments do, the Leviathan is fighting back, seeking to suck up as much power to itself as possible. Maintenance of control requires ever more control. I shudder to think of our current overreaching Washington establishment without the Bill of Rights standing in its way.
Happy Birthday
The Bill of Rights was ratified 231 years ago today, on December 15, 1791. Despite his early misgivings, James Madison introduced the Bill of Rights, which initially included 12 amendments, and shepherded it through the 1st Congress. He may have done it simply because he promised he would. That was undoubtedly one reason. Imagine a politician keeping his promises.
But I like to think that he also came around to the idea that a bill of rights was good for the fledgling American nation. Madison wrote to Jefferson in 1788 that, “The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.”
In other words, Madison believed that a written bill of rights would establish those protections more firmly in the people’s minds, thus overcoming temporary factions and impulsive politicians. You know, like the ones who clamor for onerous gun control whenever a criminal presents them with bodies on which to dance.
As he introduced the Bill of Rights before Congress on June 8, 1789, Madison argued that Americans had “something to gain” from it and that government abuses should be “guarded against in a more secure manner.” He went on to declare that the government itself was not the danger, but rather unchecked majorities wielding the government’s power. A bill of rights, he said, would provide that check.
Again, I believe Madison has been proven right. So, on its 231st birthday, raise a glass, or several, to the Bill of Rights. And while you’re at it, include James Madison, Thomas Jefferson, George Mason, and all the other Framers and early statesmen who saw the wisdom in its creation and adoption. Well done, gentlemen.
