Thursday, November 4, 2010

Why No Bill of Rights in Original Constitution?

Now that we have all reviewed our copies of the Constitution, and have particularly studied Article 1, sec. 8, as I suggested in entry preceding the election discussion, we are able to begin to tackle [albeit somewhat superficially] what the National, or General, or Central, Government was supposed to be doing, and what was none of its business. One question surrounding Article 1, sec. 8, partially explains why there was no “Bill of Rights” in the original body of the Constitution.
The general government was intended to be a government of enumerated powers, which means that things not expressly and specifically assigned to the general government were beyond its power. The specification of that assignment is generally found in Article 1, sec. 8: what’s not there, Washington could not regulate, order, have anything to do with. Things not there, if they were of a nature that government should deal with them, were state government business. And, of course to the liberty-focusing Framers, many things did not have, nor merit, a government solution, which seems bizarre in this modern “state-istic,” paternalistic, “we’ll take care of all ills” view of government.

While the general government was to be a government of enumerated powers, the state governments were to be governments of reserved powers: the sovereign people gave all government power to their states; they then specifically shunted some of the power they had given to their states to their national, general government, while leaving in the states what they had not expressly given to the general government. They also retained to themselves certain fundamental rights, which was their own reservation against assigning powers to either of the two levels of government.

Reading down through Article 1, sec. 8, you’ll be hard-pressed to locate the power of the general government to tell people what medicine is lawful; what guns can be possessed or what is required to purchase them; what speeds to drive on roads; whether children could be left behind or not in public schools, and what they needed to be given for lunch; what punishment to give bank robbers, or kidnappers crossing state lines; etc., about which more later; or to command the purchase if medical insurance, on the pain of fine or jail for not doing so.

When the subject came up in the Convention of 1787, which was supposed only to amend the Articles of Confederation but ended up establishing a new order and structure [which is the danger of doing a convention now], there was scholarly opposition to a Bill of Rights by some who proved to be clairvoyant. Their argument was that individual rights were protected by the various state charters of liberties and by common law traditions, and that there was no need to protect people against the general government, because that government could not do what was not specifically authorized.

That is, there would be no need, for instance, in prohibiting Congress from abridging freedom of speech, because the power to abridge it had never been granted. There would be no need to prohibit quartering of troops in people’s homes, because the power to do so had never been granted. There would be no need to prevent unreasonable searches, because there was a common law tradition against such and the general government had never been awarded the power to do any searches, let alone unreasonable ones. And so forth.

The prescient portion of the argument, advanced by Hamilton, Madison, Jay, and others, was that if they then wrote a bill prohibiting the general government from doing specified things, evil people in later generations would rationalize that the national government could do everything that was not prohibited, instead of only being able to do what was enumerated in Article 1, sec. 8. Bad captains of the ship of the American state would chart a self-serving and duplicitous course through the imagined shoals erected by the specific prohibitions. And that is what we see happening now; they predicted it 223 years ago.

Their [federalist framers’] position was that the very structure of the nation, with the limited assignment of power nationally and reserved powers locally, was its own and sufficient Bill of Rights, and dangers of usurpation lay on the horizon if there were to be express reservations against a system that axiomatically could not do what was never granted. But their political scholarship and insight did not carry the day; a sufficient number of framing parties insisted that there be a promise that a Bill of Rights would be produced in the first Congress sitting under the new Constitution, or there would be no such Congress because there would be no new Constitution.
That promise was made, so the Constitution was ratified, and the first Congress heeded the commitment to put together a Bill of Rights in 1791.

Of course, that 1791 effort was not labeled a “Bill of Rights” when being put together, and it was not originally designed as the “amendments” we see now. The order of the provisions defined the location in the original body of the Constitution where the provisions would be inserted. That is, the “First Amendment” is not “First” because the Framers considered it to be the most important provision of liberty [as some erroneously assert these days], but because it was the first thing to be inserted, and it coincidentally was to be inserted into Article 1. Moreover, that “First” was not what really would have become the first provision; it was really the third item of liberty voted upon, about which more the next time.

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