The Bill of Rights Never Gets Old

By Charles C. W. Cooke

Thursday, September 13, 2018

One of the more irritating misconceptions about the American Bill of Rights is that it is the product of a debate over ephemeral policy and not over constitutional structure. In the midst of modern arguments relating to free speech, religious liberty, or the private ownership of firearms, it is common to hear critics of the status quo say something along the lines of “We are dealing here with amendments that were passed two centuries ago, which shows us both that the document isn’t perfect and that it can be changed.” Rendered a little more stupidly, this critique takes another form: “Who cares what a bunch of dead people thought about politics?”

In a strict sense, it is of course true that the Bill of Rights contains alterations to the original constitutional text, and true, too, that those alterations are antique. But the charge’s underlying implication — that a few years after the Constitution was written, the Framers had a big debate over guns and religion and speech and quartering troops, and then put the results into their national charter — is not true at all. As James Madison made clear when introducing his proposed amendments, the remedy he was offering up was architectural in nature, not substantive, and the rights in question were not the product of a passing fad but the essential building blocks on which all free government must rely. The purpose of the Bill of Rights, Madison confirmed, was to “expressly declare the great rights of mankind secured under this constitution.” And those rights, far from being controversial or contingent, were those “against which I believe no serious objection has been made by any class of our constituents.” By enumerating certain protections within the Constitution’s text, the Framers were merely adding another means by which to ensure the preservation of liberties that all agreed must be preserved.

The idea for an American Bill of Rights had arisen as a result of the Constitution’s historically unique presumptions, which were radical for the time and remain radical to this day. As designed, the Constitution carefully listed the powers that the federal government enjoyed, and left everything else to the people and the states — a conscious inversion of the usual order of things. Typically, governments were presumed to enjoy all powers that they had not been explicitly denied; in America, the opposite was the case. On paper, this arrangement served as a solid guarantor of freedom, for if its terms were to be faithfully observed, its signatories could rest assured that only the authority they had consciously signed over would be wielded against them. Indeed, on paper, the arrangement obviated the need for any serious “parchment barriers” that might be raised against government overreach. Defending the unamended Constitution, Alexander Hamilton proposed that the addition of a Bill of Rights was self-evidently unnecessary and might even be dangerous. “Bills of Rights,” Hamilton wrote in Federalist 84, “are in their origin, stipulations between Kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince.” What use for one could the American republic possibly have?

This, of course, was an excellent question. And yet so was the answer, which came incessantly and vigorously from the Constitution’s many critics: that history teaches us how quickly government can metastasize, and confirms that a list of enumerated rights can serve as a useful rallying tool in the hands of those seeking redress against caprice. To assuage the cavilers, a compromise was struck: The Constitution would be ratified as written, and a Bill of Rights would subsequently be added, along with an explanatory note in the form of the Ninth and Tenth Amendments. Thus would all involved be satisfied, and would the added protections be reconciled with the ostensibly incompatible enumerated-powers doctrine.

And thank goodness that such a compromise was achieved, for, on this point at least, the anti-Federalists who demanded the additions have been proven prescient. Since the late 18th century, government has indeed expanded; the enumerated-powers doctrine has indeed been undermined, if not gutted; and we have been left with a constitutional order in which the Bill of Rights is indeed necessary as a means by which to reserve to the people that which has not been surrendered to the prince. Moreover, the amendments have proven fairly effective as a barrier against usurpation.

One of America’s greatest roles is that of an — no, of the — incubator of classical liberalism in the world. It is, of course, a shame that it is required at all, but the Bill of Rights has played a considerable role in that incubation, serving as it has as a bulwark against transient majorities, ideological whimsy, and political overreaction. Antonin Scalia was absolutely correct to describe the “structure of government” both as the sine qua non of the American order and as the key prophylactic against tyranny. But he was perhaps too dismissive of the salutary effects of the Bill of Rights, which in the American context does not exist in a vacuum but has come to inform the nature and the instincts of another fundamental player within the system: the People. Writing to Thomas Jefferson in 1788, James Madison predicted that truths set into constitutional aspic “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.” This process has been uneven, certainly. And, by definition, it has been imperfect: If the people demonstrated perfect respect for the Bill of Rights, it would not be necessary. Nevertheless, the mere mention of the “Bill of Rights” can be enough to “counteract the impulses of interest and passion,” and that is a positive thing indeed.

As for the common charge that the contents of the Bill of Rights are “outdated” or “tainted” or applicable only to a time or place, to me it seems quite ridiculous. I have met a good number of people who think that the Third Amendment’s restriction of the peacetime quartering of troops seems “antiquated.” But I have met few who, when asked in earnest, suggest that it should be removed in consequence. Other provisions within the series are more hotly disputed at present, but, as someone who is familiar with recent human history, I am at a loss to explain why. We are often told that “the Founding Fathers couldn’t have imagined the modern world,” which, if true, would seem to militate in favor of preserving their robustly individualist Constitution, rather than against. Who can seriously look at the horrors of the 20th century — at the Soviet Union, at Mao’s China, at Nazi Germany — and conclude that the countries that escaped that fate would benefit from having fewer explicit rights chiseled into their national stone? Who can propose with a straight face that the ills attendant to untrammeled free speech, guaranteed trial by jury, and a broad right to bear arms outweigh the benefits that are provided by Madison’s “free Government”? Who hopes to remove the prohibition of “cruel and unusual punishment” or to allow the state to establish a religion or to leave the presumption of innocence to congressional vagary?

Not I. Indeed, I would sooner consent to have these sureties tattooed in red upon my forehead, as an example and an injunction. Properly understood, America’s Bill of Rights represents a set of prerequisite instructions, without which a free political system simply cannot function over the long term. Just as the programmer of a robot must include a line forbidding his creation to remove its own battery, so the Founders entrenched the basics into their contract, that it might endure well into posterity. It has worked — and worked well. It would be quite the vandal who sought to pull out the wiring.