The government of the United States, for all its majesty, is a government of limited powers. It operates under the terms of a fundamental charter — a written Constitution — which specifies what it may do, and also what it may not do, and which fixes certain procedures for its dealings with its citizens.
If a Constitution is to have force and meaning, the restraints which it imposes on the government — which is to say on the will of the majority — must by implemented by men as detached as may be from political pressures and popular passions. In the American governmental structure, this responsibility is assigned to a Supreme Court….
The Bill of Rights appended to the Constitution limits the power of the United States government in two ways. First, it restricts the reach and range of governmental authority; it says that there are certain areas — the areas of conscience, expression and association — into which the government may not penetrate at all. It says that the law-making body of the government may make no law whatever respecting religious worship or respecting freedom of speech or publication or restricting the right of the people to join hands freely in voluntary associations for the accomplishment of common political purposes.
Second, the Bill of Rights fixes certain forms which the government must follow in dealing with the people. The Fourth, Fifth, Sixth and Seventh Articles of the Bill of Rights specify procedures designed to keep the government from acting arbitrarily or capriciously or unfairly. These articles declare, among other things, that people living in this country are not to be arrested or imprisoned without judicial authorization, that their homes are not to be subjected to unreasonable searches, that they are not to be tried twice for the same offense, nor required to be witnesses against themselves, nor be deprived of life, liberty or property without due process of law.
The reasons why the authors of the Constitution saw fit to limit the powers of government are set forth candidly and clearly in that extraordinary document, the Declaration of Independence, in which they explained why they were severing their political connections with the English crown. The Declaration sets forth three basic assumptions, or premises, so commonly accepted among the educated people of the eighteenth century that they were referred to as “self-evident.”
What are these self-evident premises? First, that all men are created equal; second, that they are endowed by their Creator with certain unalienable rights; and, third, that it is precisely in order to secure these rights that governments are instituted among men, deriving their just powers from the consent of the governed.
Now, it is plain that these ideas have religious roots. They grow out of a belief that the individual human personality is possessed of an innate worth and dignity by reason of its divine origin — by reason of the supposition that man was created in the image of God. Because man is God’s creature, he is born free. He possesses inviolable immunities. There is in him a shrine of conscience which no temporal power may invade. John Milton expressed this belief eloquently:
Our liberty is not Caesar’s. It is a blessing we have received from God himself. It is what we are born to. To lay this down at Caesar’s feet, which we derive not from him, which we are not beholden to him for, were an unworthy action, and a degrading of our very nature.
These ideas have ancient and diverse origins, of course. The sense of man’s worth as an individual child of God finds expression in the Old Testament and is the central premise of Jewish thought and theology. It finds expression equally in the New Testament as the keystone of Christianity. And its sources are no less discernible in classical Greece and Rome.
But for the political implementation of these ideas, one must look to English history in particular. There was a foreshadowing of them in Magna Carta — although one could hardly call Magna Carta a democratic document. Nevertheless it did provide that “No free man shall be taken or imprisoned or dispossessed or outlawed or banished, or in any way destroyed … except by the legal judgment of his peers or by the law of the land.”
It was in the first half of the seventeenth century, however, that the idea of individual liberty and the concept of limited government as the indispensable condition of liberty came into full focus. This was perhaps the most tumultuous and teeming half-century in English history…. It was in the new world, however, that the vision [of limited government] became a political reality. [The] Constitution erected a fortification for freedom. It furnished safeguards against ourselves, against our passions and extravagances. It set forth in a Bill of Rights those “unalienable rights” which no Congress, no government, no majority of the people could invade or violate.
It is far easier to lose liberty than to win it. The loss comes about, like so many losses, from forgetfulness, from carelessness…. Again and again in recent years — in the name of national security, in the name of public safety, in the name of convenience masquerading as necessity — we have tolerated constitutional short-cuts which involved serious trespasses on individual rights….
The Constitution is a limitation not alone upon the government. It is a limitation on the people, on us. Sometimes it keeps us from doing what we would like to do. That is the purpose of a Constitution. That is the essential meaning of limited government. That is the indispensable condition of a government of laws….
[F]ree men can never rely upon courts alone for the preservation of their freedom. Courts can give warning of danger. But they are really powerless to protect us from ourselves. They can remind us of our heritage. But they cannot preserve that heritage for us.
A free society is a society in which there is wide tolerance of diversity — tolerance of religious convictions which may seem to the majority to be leading to perdition, tolerance of political opinions which the majority may deem dangerous and even disloyal, tolerance of the largest possible range of individual eccentricities and idiosyncrasies. It is a society in which there is respect for privacy, respect for individuality.
What we have to remember above all else as a self-governing society is that it is we, the people, who must be controlled. And it was precisely in order to control us — to fix boundaries for our power — that the United States Constitution was ordained and established.