Bill of Rights Day, December 15th

Happy Bill of Rights Day!

The first 10 Amendments to the Constitution, known as the “Bill of Rights”, were ratified Dec 15, 1791.

Quiz:

  1. How many rights does the Bill of Rights give us?  Answer: Zero.
  2. Then what did the Bill of Rights do, what did those 10 Amendments amend?  Answer:  Nothing.  The Constitution was the same document, with or without the first 10 Amendments.

Why ratify 10 Amendments that didn’t amend anything?  This was one of the most important debates in human history, and we still do not know who was right.

On one side, the federalists thought the Constitution was fine as it was, they generally opposed a Bill of Rights.  On the other, anti-federalists were opposed to the Constitution, but some were willing to compromise if a Bill of Rights was added.

Why would anyone oppose a Bill of Rights?

Bills of Rights were precious documents in the Old World where people were subjects of kings and needed his permission before exercising their rights.  But Americans recognized the ancient truth that a “right” is a quality endowed in human nature, and therefore aligned, or “right”, with the will of the Creator.  Since rights are qualities of human nature, the idea of a government granting rights does not make any sense.

“…bills of rights are, in their origin, stipulations between kings and their subjects, …reservations of rights not surrendered to the prince… Here [in America] the people surrender nothing; and as they retain everything they have no need of particular reservations.” (Federalist #84)

Also, in America the people are sovereign (the source of power), not the government.  The government was created by, and is therefore subordinate to, the people, and has no authority to exercise any power unless the sovereigns give it permission, as listed in the Constitution.  And since, for example, the Constitution does not grant the government any power to infringe on the freedom of speech, no power to infringe on speech exists.

[To suggest that government has powers not granted] “…would be to affirm that the deputy is greater than his principal; that the servant is above his master;” (Federalist #78)

[The idea that Americans need a Bill of Rights] “…is founded on ideas of government that are totally false.”  (“On the Absurdity of a Bill of Rights”, Noah Webster, 1787)

The federalists had a solid case, so why would anyone want a Bill of Rights?

Anti-federalists agreed with the federalists on all of the above, but they were afraid for the future!  They knew that as time passed and memories faded, corruption would find ways to begin anew and gradually infiltrate the government.  They wanted express (clear; direct; unambiguous) prohibitions on government power.

“There is no knowing what corrupt and wicked judges may do in process of time, when they are not restrained by express laws.” (“What Shelter from Arbitrary Power?”, Samuel Parsons, 1787)

NOTE:  If you did not pass the quiz at the beginning of this article, please stop reading at this point and get a copy of the Bill of Rights to refer to before continuing.  The following paragraphs will then make much more sense.

Anti-federalists wanted an American style Bill of Rights.  Instead of declaring rights (which Americans already possessed), it expressly prohibited the government from infringing on some of the most important rights, or commanded it to preserve some traditional bulwarks of freedom.  For example, the first Amendment cannot give us the freedom of speech because, as human beings, we already have it.  Also, the government was created by us to be our servant so it has no lawful authority to tell us what our rights are.  The first Amendment merely provides express emphasis, for corrupt politicians of the future, that the Constitution does not grant them any authority to abridge the freedom of speech.  Also, the Bill of Rights could not give us the trial by jury (“the bulwark of liberty”) since it was already our established legal tradition.  (The Constitution only changed the form of government which was to administer our law.  It did not change our law, except where expressly stated.)  The Bill of Rights merely emphasizes to future politicians, should they become corrupt, that the Constitution does not grant them any authority to alter or abolish the trial by jury.

The 9th and 10th Amendments were added to prevent corrupt politicians of the future from using the Bill of Rights as a source of rights, or pretending that the federal government had implied powers which were not expressly granted.

The federalists finally agreed to a Bill of Rights but warned that it would cause confusion, and someday men who are disposed to usurp will use it as a list of rights, and as a pretense “to prescribe proper regulations”, even though no power to regulate rights was granted, and even despite the addition of the 9th and 10th Amendments.

“For why declare that things shall not be done which there is no power to do?” (Federalist #84)

The anti-federalists finally agreed to the Constitution but warned that it gave the government too much power, and the list of express prohibitions, or “Bill of Rights”, would only slow, not stop the relentless march of tyranny.

Today, just as the federalists feared, many judges actually look at the Bill of Rights to determine if the sovereigns have a right, instead of looking in the body of the Constitution to determine if the government has permission to exercise a power.  The federalists’ nightmare has come true.

But would we have fared better without the Bill of Rights?  Did it merely cause today’s confusion, as the federalists predicted, or did those express prohibitions in fact slow the advance of tyranny as the anti-federalists hoped?  We will never know who was right, but we are fortunate to live in a country where such a question was openly debated.

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