Wednesday, August 21, 2013

The Bill of Rights was a bad idea

Alexander Hamilton, quoted in my previous piece, from 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? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.
Hamilton--writing as Publius of course--wrote this in July of 1788 as a part of the continued effort by himself, Madison, and Jay to increase popular support for the newly drafted Constitution via a series of articles now collectively called the Federalist Papers. Those arduously opposed to the new Constitution, the so-called Antifederalists, were simultaneously engaged in a similar campaign of article, letter, and pamphlet writing. And the lack of a "Bill of Rights" in the Constitution was a major bone of contention for this latter group.

Following the publication of the above piece, the Anitfederalists responded with a point by point rebuttal in "On the lack of a bill of rights" (now called Antifederalist #84), published under the pseudonym Brutus, but likely authored by Robert Yates, a delegate to the New York State ratifying convention, justice of the New York State Supreme Court, and future chief justice of the same. I mention his background to indicate the intellectual weight of the arguments; these were not small thinkers and this was a glorious time for a spirited exchange of ideas on the nature of government and law.

Yates (Brutus) takes Hamilton's argument on by citing specific examples of rights and reaching the following conclusions:
These provisions are as necessary under the general government as under that of the individual States; for the power of the former is as complete to the purpose of requiring bail, imposing fines, inflicting punishments, granting search warrants, and seizing persons, papers, or property, in certain cases, as the other.

For the purpose of securing the property of the citizens, it is declared by all the States, "that in all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable."

Does not the same necessity exist of reserving this right under their national compact, as in that of the States? Yet nothing is said respecting it. In the bills of rights of the States it is declared, that a well regulated militia is the proper and natural defense of a free government; that as standing armies in time of peace are dangerous, they are not to be kept up, and that the military should be kept under strict subordination to, and controlled by, the civil power.

The same security is as necessary in this Constitution, and much more so; for the general government will have the sole power to raise and to pay armies, and are under no control in the exercise of it; yet nothing of this is to be found in this new system.
Thus, he finds Hamilton's argument to be without merit by suggesting that the lack of an enumeration of rights is not only a fatal flaw in the Constitution but even represents a curtailment of the already-mandated rights in various Sate constitutions. In other words, he argues that failing to have a bill of rights would effectively negate rights already granted by the States:

"The senators and representatives before-mentioned, and the members of the several State legislatures, and all executive and judicial officers, both of the United States, and of the several States, shall be bound, by oath or affirmation, to support this Constitution."

It is therefore not only necessarily implied thereby, but positively expressed, that the different State Constitutions are repealed and entirely done away, so far as they are inconsistent with this, with the laws which shall be made in pursuance thereof, or with treaties made, or which shall be made, under the authority of the United States. Of what avail will the Constitutions of the respective States be to preserve the rights of its citizens? Should they be pled, the answer would be, the Constitution of the United States, and the laws made in pursuance thereof, is the supreme law, and all legislatures and judicial officers, whether of the General or State governments, are bound by oath to support it. No privilege, reserved by the bills of rights, or secured by the State governments, can limit the power granted by this, or restrain any laws made in pursuance of it.
Admittedly, it is a powerful argument, provided one accepts the idea of Federal authority trumping State authority in all things as a matter of course. But that idea is, in fact, ultimately contrary to the basic premise of the Constitution as a limiting document. This limiting is not exactly codified in the Constitution (but clearly implied in the Preamble and elsewhere), but when the Bill of Rights was ultimately introduced into Congress as a series of Amendments, Madison saw fit to make this point clear in the Tenth Amendment:
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.
Why did he do this? Because while Madison was not so strongly opposed to a Bill of Rights as was Hamilton and others, he recognized the truth of Hamilton's warnings: once such an enumeration was made, the door would be flung wide open for the Federal government to assume powers it was never supposed to possess, it was never granted. Madison's views in this regard are made clear in a letter to another prominent Antifederalist--none other than Thomas Jefferson--written on the heels of the above debate on October 17, 1788. His views on why such an enumeration is unnecessary:
My own opinion has always been in favor of a bill of rights; provided that it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I suppose it might be of use, and if properly executed could not be of disservice.

I have not viewed it in an important light —

1. because I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted.

2. because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are ever likely to be by an assumed power. One of the objections in New England was that the Constitution by prohibiting religious tests, opened a door for Jews Turks & infidels.

3. because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other.

4. because experience proves the inefficiency of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State...
Point number three is perhaps the most critical from the standpoint of establishing a new government. It affirms the limited nature of the government being constituted by noting the intentionally created conflict between the Federal and the various State governments already extant.

As to why an enumeration of rights wouldn't necessarily be a bad thing, Madison writes (in the same letter):
What use then it may be asked can a bill of rights serve in popular Governments? I answer the two following ...

1. 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.

2. Altho it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter source; and on such, a bill of rights will be good ground for an appeal to the sense of the community. Perhaps too there may be a certain degree of danger, that a succession of artful and ambitious rulers may by gradual & well times advances, finally erect an independent Government on the subversion of liberty. Should this danger exist at all, it is prudent to guard agst it, especially when the precaution can do no injury. At the same time I must own that I see no tendency in our Governments to danger on that side.
Thus, Madison argues that a Bill of Rights serves mostly an honorific role, except in those instances where elements of the enumeration might be useful as an appeal against government transgressions, proper.

But here's the kicker, possibly unseen by Madison though surely recognized by Hamilton: the mandating of the enumeration is, itself, the primary pretext for such government transgressions! Consider Yates' example, as concerns the principles of the Second Amendment:
In the bills of rights of the States it is declared, that a well regulated militia is the proper and natural defense of a free government; that as standing armies in time of peace are dangerous, they are not to be kept up, and that the military should be kept under strict subordination to, and controlled by, the civil power.

The same security is as necessary in this Constitution, and much more so; for the general government will have the sole power to raise and to pay armies, and are under no control in the exercise of it; yet nothing of this is to be found in this new system.
Despite the codification of the Second, it's existence has not prevented the transgressions feared by Yates (like standing armies) and warned of by Madison. Why? Because the Federal government has, at various times, assumed more and more authority in this regard, not on the grounds that such authority is granted to it in the Constitution, but on the grounds that such authority was not specifically prohibited by the Second or an other Amendment.

Indeed, government encroachment via regulation and the like in various other arenas--often justified initially by the Commerce Clause--is often ultimately defended by citing the rights (from the Bill of Rights) such encroachments do not violate. Yet, the argument can be made--as is again the case with the Second--that these encroachments do go too far. And at that point, the matter becomes an issue for the courts (per Madison's argument), wherein interpretations of the Rights in question prevail, thus making the issue of usurpation one of the prevailing mindset in the SCOTUS at a given moment in time, as opposed to the hoped-for rock-solid protections wrongly imagined by Yates and others.

Thus the Bill of Rights, desired by the Antifederalists as a bulwark against the expansion of Federal powers at the expense of the States and the people, serves as a fundamental instrument of expansion instead. We cannot of course go back in time and describe how things would be different now, had there never been such an enumeration, for there are simply too many variables to consider in this regard, too much human agency. However, we can fairly note that the arguments made by Hamilton proved true over time, while those made by Yates have proved false. Madison, in trying to placate both sides by providing both a specific list of rights and a limiting doctrine, seems to have failed as the latter is roundly ignored in favor of the former.

Cheers, all.

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