Why the Bill of Rights Would Never Pass Today

By Charles C. W. Cooke

Monday, May 4, 2015

Having watched closely the manner in which questions of liberty and power are batted around in the first part of the 21st century — most recently during the disgraceful contretemps that Indiana’s rather tame Religious Freedom Restoration Act provoked across the land — I have come to wonder of late whether the Bill of Rights could be ratified today.

In its classical mode, liberalism requires the citizenry that it serves to respect the crucial distinction that obtains between the principle of a given rule and the consequences that the rule might feasibly yield. Simply put, a country in which the people regard certain individual rights as inviolable axioms of nature — and who accept with alacrity, therefore, that they will often be used for ill — will be a country that boasts protections of those rights within its national charter. A country in which the people are focused primarily on what might be done with those rights, by contrast, will be a country that prefers to elevate and to abide by the whims of transient majorities —  or, perhaps, by the discretion of a supposedly enlightened few. In Indiana, we were given an insight into which of these countries the people of the United States would rather live in.

Speaking at the Virginia Ratifying Convention of 1788, the anti-federalist Patrick Henry insisted that Americans should expect the refurbished national government to provide a framework for ordered liberty, and not to guarantee a particular set of outcomes. “You are not to inquire how your trade may be increased,” Henry advised, “nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your Government.” Increasingly, alas, we seem to be more interested in trade and power and prescription than we are in liberty.

One can only imagine the attack ads that would today be marshaled against the Bill of Rights. Posited in 2015, the First Amendment’s speech protections would likely be characterized as “anti-gay” or “pro-racist” measures that had been cynically contrived to protect the capacity of bigots to say disgraceful things with impunity and to reinforce the various power structures and privileges that are at present claimed to be destroying America. The “freedom of the press,” meanwhile, would be openly disdained as an overture to the corporate purchase of elections; the “right of the people peaceably to assemble” would be regarded as a direct threat to the sanctity of the land around the entrance to abortion clinics; and the wide-ranging conscience protections contained within both the establishment and the free-exercise clauses would be cast as a devilish recipe for theocracy that would allow the irrational to operate without oversight and the backward to undermine the great cause of Science.

To run down the list is to see the modern objections fall neatly into place. As it is so often, the Second Amendment would be cast as a recipe for “Wild West” anarchy, an open invitation to sedition for those white, mountain-dwelling racists of the Southern Poverty Law Center’s nightmares, and an overture to the execution of children. The Fourth, the Fifth, and the Eighth would be denounced by both overzealous law-and-order types and totalitarian feminists as damnable “soft on crime” provisions intended to help dastardly types get away with raping college students and selling drugs to the vulnerable. And the Ninth and Tenth would be attacked viciously by our seemingly endless plague of ambitious public-policy graduates, almost all of whom believe down to their ill-fitting boots that there is no problem so small or so personal that it cannot be solved nationally. Precisely because it has such a limited effect in restraining the government, the only provision that would remain would be the Third, about quartering soldiers, although one can only suppose that John McCain and Lindsey Graham would put up quite the fight.

Worst of all, rather than discussing any of these questions in terms of their effect on individual freedom and the limitation of the state, we would be subjected to an endless set of graphs and numbers and pseudo-meaningful jargon, all meditations on the essential question of capital-L Liberty having been replaced by dry lectures delivered by 29-year-old UCLA graduates with no life skills at all. Oscar Wilde once complained that in the industrial era we have come to understand “the price of everything and the value of nothing.” There is, I’m afraid, a little truth in this. Last month, the left-leaning magazine Mother Jones attempted to put a financial “cost” on the Second Amendment. The right of the people to keep and bear arms, the magazine contended rather unconvincingly, costs the Treasury more each year than does Medicaid and should therefore be abolished or seriously restricted. Responding to the ruse, one wag on Twitter observed wryly that “the future of policy debates is argued with spreadsheets and calculators to show individual rights ‘burden’ the masses.” He is right. Sorry, Mr. Jefferson, your insights aren’t needed here.

At the time when it was demanded, there was little to no serious argument over whether the individual protections contained within the Bill of Rights were worthwhile in and of themselves. Rather, the contemporary dispute was over structure, the vast majority of opposition to the insertion of explicit protections coming not from those who feared that such protections would hamstring government’s capacity to act, but from those who were worried that they would destroy the overarching logic of the Constitution and therefore serve to undermine it.

This was a reasonable objection. In its original form, at least, the Constitution that had been drawn up in Philadelphia was a charter of enumerated powers that granted to the national government a limited and clearly delineated role in the nation’s political life. As James Madison recorded in Federalist 45, “the powers delegated by the proposed Constitution to the federal government are few and defined.” In other words, what it was not clearly permitted to do, it could not do. That being so, a Bill of Rights made little sense, for, if the federal government had been accorded the opportunity to do only a certain number of things, listing what it could not do was superfluous. Underscoring this point, Alexander Hamilton submitted in Federalist 84 that a list of specific prohibitions would represent “various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.” “Why declare,” Hamilton asked, “that things shall not be done which there is no power to do?”

The answer to this question was a simple one: The naysayers did not trust the dam to hold. Rather, they were sincerely worried that the national government would expand beyond all recognition, and that, in its broadened form, it would inevitably begin to encroach upon the rights of the people. To help prevent this from happening, they sought a parchment backstop to which they might appeal in such cases as denied their natural liberties.

A host of proposals were offered up, ten of which made it in. There is a certain logic to their order. For the protection of their spiritual, political, and intellectual rights, the rebels secured the First Amendment. For the protection of their Lockean physical rights, they acquired the Second, Third, and Fourth. For the protection of their legal, civil, and criminal safeguards, they obtained the Fifth through the Eighth. And, in order to ensure that the inclusion of such prophylactics did not adversely alter the document’s structure, they garnered the Ninth and the Tenth.

In the year 2015, it is difficult not to conclude that this was a smart and prescient move. Because the commerce clause has been expanded so drastically — and because the Supreme Court does not effectively police its limits — the Bill of Rights is now the only serious check left on the power of a federal government that has slowly come to enjoy the plenary powers that were intended to be reserved to the states. As the dissenters feared, Americans now live in a country in which it is presumed that the national authorities can do whatever they wish unless they are checked.

Worse still, they live in a country in which the majority is not upset by this development. Indeed, without a Bill of Rights to serve as a bulwark, one imagines that the United States would look more like everyplace else. It is commonplace for conservatives to note that in most of the world’s countries, key individual rights are routinely ignored. It is less usual, however, to hear it observed that this is true even in more liberal nations such as Britain, Canada, Australia, and New Zealand. In my own country of birth, free speech is now violated without thought; the right to keep and bear arms is, to borrow a phrase from the 19th-century jurist William Rawle, “allowed more or less sparingly, according to circumstances”; there are few meaningful rights of conscience left; and the criminal-justice system is showing signs of cracking at the edges. Shockingly, even the Magna Carta has been undermined. Not only is the British government allowed to lock up suspects without charges for up to 28 days, but in 2009 the Crown Prosecution Service invoked a 2003 law and held its first criminal trial without a jury. There were no protests.

If it sometimes feels as if the Bill of Rights is the only thing standing between the little guy and majoritarian tyranny, that’s possibly because it is. Americans may be freer than most, but it is often thanks to Supreme Court decisions and not to public opinion that America remains an outlier. It is because judges have stepped in that it is legal to burn the American flag in protest; that the Westboro Baptist Church may stage its execrable funeral demonstrations without fear of tort liability; that seditious speech may not be punished by the government; that disgusting videos may not be banned; that conservative Christians have been spared the indignities of the Obama administration’s contraception mandate; that collections of citizens may engage in political criticism; that parents caring for their children may not be forced by the state to join a union; that the residents of Washington, D.C., Chicago, and other “blue” cities may buy and own handguns for their protection; that the government is prohibited from searching cell phones without a warrant; and so on and so forth. Looking around the country — and examining the attitudes that prevail in Washington, D.C., on our college campuses, and in our hopelessly excitable media — can we honestly conclude that three-fourths of We the People would vote today to so restrain ourselves? We are living on borrowed wisdom.