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Did the Framers Forget the Bill of Rights?

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AFTER THE CONSTITUTION WAS RATIFIED in 1788, the states adopted the first 10 amendments, which became known as the Bill of Rights. Given the importance of the provisions in those amendments, an obvious question arises: Why didn’t the Framers of the Constitution include those provisions in the original Constitution, thereby obviating the need to amend the document so soon after it was ratified?

The answer lies in the radical way in which our ancestors viewed the nature of rights, government, and the Constitution.

A necessary starting point for understanding the perspectives of early Americans is the Declaration of Independence, which expressed what the overwhelming majority of British colonists in America (the revolutionaries were British subjects, not American citizens) embraced as a universal truth: that such rights as life, liberty, and the pursuit of happiness do not come from government but instead from “their Creator.” In other words, such rights are fundamental and inherent in human beings and therefore actually preexist government.

What then is the purpose of government? Thomas Jefferson, the author of the Declaration, explained that its purpose is to protect the exercise of those fundamental rights. While most people in society are peaceful, there is always the small minority that consists of murderers, robbers, thieves, invaders, and others who violently interfere with how other people are peacefully living their lives. Thus, we need government to arrest, prosecute, and punish antisocial individuals and to have sufficient power to effect such actions. That’s what Jefferson meant when he wrote, “That to secure these rights, Governments are instituted among Men.”

But what happens if government uses its power to infringe or even destroy people’s rights, as our Founders feared it might do? As the Declaration points out, in that case it is the right of the people to alter or abolish their government and to institute new government that would be more likely to protect their rights. What Jefferson was referring to was peaceful change through political action as well as, in extreme cases, violent change through armed revolution.

A distrust of government

Undergirding the political philosophy of our ancestors was a severe distrust of a strong central government, even (or perhaps especially) a democratically elected one. (The Bill of Rights expressly restricts the power of the majority.)

When the Constitutional Convention met in Philadelphia in 1787, it was for the purpose of revising the Articles of Confederation, under which the United States had been operating. The delegates to the Convention decided instead to propose a federal government to the American people, but the challenge they faced was: How could they persuade the people to accept such a proposal, given their strong distrust of a central government?

James Madison, the principal author of the Constitution, resolved the dilemma by using the Constitution to accomplish two things simultaneously: to call the federal government into existence but, at the same time, expressly limit its powers to those enumerated in the Constitution itself. The idea was this: “We the people, whose rights preexist you, call you, the federal government, into existence with this Constitution; and given that your powers derive from us, we have chosen to limit them to those enumerated in the Constitution.”

Thus, contrary to popular opinion, the Constitution does not grant any rights whatsoever to the people but instead expressly restricts and restrains government power.

The reason that the constraints on government power that are expressed in the Bill of Rights were not included in the original Constitution was that there was no need to do so, given that the government’s powers were expressly limited to the few, limited powers that were enumerated. Since the Constitution did not enumerate the power to regulate religion, for example, the government could not exercise such a power. If a power wasn’t enumerated, it couldn’t be exercised.

That didn’t satisfy the American people, however, and especially not people such as Patrick Henry and George Mason, who were among the Anti-Federalists opposing the new form of government. They believed that government officials, given their nature, could never be trusted to constrain themselves within the Constitution’s list of limited, enumerated powers.

Finally, as a condition of accepting the Constitution and the federal government it brought into existence, people successfully demanded the adoption of the express restrictions on government power that are listed in the first 10 amendments.

Success or failure?

Has the Bill of Rights been successful in restraining government power? The answer is both yes and no. Yes with respect to intellectual, political, and civil liberties and no with respect to economic liberties and property rights.

Consider, for example, the fact that there are no federal compulsory attendance laws for churches, either for adults or children. That is, no one is required by law to attend church. Moreover, while there is federal aid to “faith-based organizations,” there is no direct government funding of churches. Why not? Not because there aren’t people who would love these types of things and who would consider them beneficial and useful, but because there is an express constitutional restriction prohibiting such laws, a restriction that would be enforced by the judicial branch of the federal government.

What about freedom of expression and freedom of the press? While there certainly are constant governmental attacks on speech and press at the margins, including by agencies such as the Internal Revenue Service, by and large Americans are free to read and write anything they want without being jailed for it. And the reason for this is not that federal officials have a deep-seated devotion to the exercise of these rights — it’s because our Founders believed that they wouldn’t have such devotion and protected us from them by an express restriction on their power to regulate speech and the press.

Keep in mind that the Bill of Rights operates as a restriction on the power of the majority. Suppose, for example, that 95 percent of the American people concluded that mandatory church attendance was as important to children as mandatory school attendance. Even with 95 percent support, they would be precluded from passing such a law. Or suppose the overwhelming majority wished to ban the publication of books defending the Bill of Rights — they would be precluded from doing so because of our ancestors’ decision to expressly prohibit them from doing so.

The idea, again, was that there were certain fundamental rights with which people have been endowed and no one, not even a democratic government, has the legitimate power to interfere with the exercise of those fundamental rights.

Consider the Second Amendment. Everyone knows what the federal government does whenever it invades a foreign nation: It does its best to disarm the populace. The reason? A disarmed populace is an obedient populace. So why doesn’t the federal government disarm the American people? Not because federal officials believe that gun ownership is good for Americans but bad for foreigners! It’s because they know that the U.S. Supreme Court would not permit such action because of the express language of the Second Amendment. (Another reason, of course, is the possibility of armed resistance by the populace to an attempt to take away their guns.)

What about the Fourth, Fifth, and Sixth Amendments — the civil liberties amendments? These are the ones that most often come under attack from conservatives, who refer to them as “constitutional technicalities.” Have you ever asked yourself why the federal government permits juries to decide the guilt or innocence of the accused? After all, nearly everyone would agree that federal judges, many of whom are former prosecutors, would have a much higher conviction rate than juries of ordinary people. Why does the government continue to go along with jury trials?

Well, the answer is not that the government loves jury trials. The answer is that the Bill of Rights expressly requires it. If there were no Bill of Rights, there is little doubt that there would be no jury trials in criminal cases … and lots of unreasonable searches and seizures, convictions on hearsay, and other denials of due process of law.

So those libertarians and conservatives who argue that the Constitution and the Bill of Rights have failed to protect the liberty of the American people are mistaken. Without the Constitution and the Bill of Rights, there would be nothing standing in the way of compulsory church attendance laws, church taxes, bans on books, confiscation of weapons, and Guantanamo Bay-like indeterminate detentions.

What about economic liberties and property rights? It is here that the tremendous assault has taken place, and quite successfully. The government has been permitted to pass laws interfering with a person’s ability to accumulate unlimited amounts of wealth, his ability to dispose of it the way he wants, his ability to enter into mutually beneficial economic transactions with others. Thus, we have licensure laws, minimum-wage laws, progressive income taxation, welfare redistribution, trade restrictions, immigration controls, and many, many more.

Yet the success of these assaults actually confirms that our ancestors who argued in favor of a Bill of Rights were indeed correct. Examine the Bill of Rights: Where do any of the amendments expressly protect the exercise of economic liberty? The closest is the Fifth Amendment but it refers to “life, liberty, or property” in general, not to economic liberty. Why didn’t the Framers place economic liberty in the First Amendment — “Congress shall pass no law respecting the regulation of commerce or abridging the free exercise thereof”?

Due process of law

The Fifth Amendment, which libertarian legal scholars often rely on to protect economic liberty, dictates that no one’s life, liberty, or property shall be taken without due process of law. But that’s not the way the First or Second Amendments read. They don’t say: Freedom of the press and freedom of religion shall not be taken away without due process of law. They say: Freedom of the press and freedom of religion shall not be taken away. Period.

Thus, one could easily argue (and many legal scholars have) that the Due Process clause of the Fifth Amendment simply involves following a correct procedure. In other words, it’s okay to take a person’s life, liberty, or property, but only if a certain procedure is followed, such as giving a person advance notice of the charges against him and the opportunity for him to be heard. That’s significantly different from an absolute prohibition against interfering with liberty at all.

In the late 1800s and early 1900s, the U.S. Supreme Court did protect the exercise of economic liberty on the basis of the Fifth Amendment. That protection resulted from an ingenious (others would say contorted) legal argument that laissez-faire lawyers made before the Court during a time that socialist programs were being enacted by Congress — that the Due Process clause refers not only to procedural guarantees but substantive ones as well. In other words, substantive due process meant that such fundamental rights as economic liberty could not be taken away even when proper procedures were followed.

That precipitated one of the biggest legal battles in judicial history, a battle that was won by the socialists and the statists in 1937. In that year, in a case entitled West Coast Hotel v. Parrish the U.S. Supreme Court, rejecting the concept of substantive due process, effectively held that no law regulating economic activity would ever be struck down again.

In retrospect then, it is clear that those who advocated the adoption of the Bill of Rights were correct. Their mistake — an error that succeeding generations must rectify — was in not enshrining freedom of trade alongside freedom of the press and freedom of religion.

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    Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.