Against the Bill of Rights
I've always referred to the Bill of Rights to answer a question about the Constitution, and like most Americans, I've held them in high regard. In fact, I'd wager that most Americans would readily apply the Nazi label to anyone who spoke out against the first ten amendments. With this in mind, consider Alexander Hamilton's argument against the Bill of Rights:
Hamilton may have been right.
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power.Today's thinking on the Bill of Rights is the result in a paradigm shift: the Constitution was constructed to give government specific, enumerated powers, leaving everything else to the people and their local governments. Today's thinking on the Constitution and the role of government is that government can do anything not specifically excepted in the Bill of Rights, a much more powerful position for government.
Hamilton may have been right.
19 Comments:
"I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power."
Any examples of this actually happening? Of government making the argument that "since we explicitly can't do part of X, we must implicitly be able to do the rest of X"?
This point about constructionistm and federal authority is kind of a double-edged sword, as most constitutional commentary is. Strict constructionists as often affirm government authority as limit it. During the current court, there have been decisions coming down on both sides of what I think what you're referring to (in re the scope of federal authority); the 9th/10th Amendments, read in tandem with the commerce clause. The obvious clash is over "all rights not conferred to government explicitly reserved for states/people" vs. "Congress shall have the power to regulate interstate commerce." The Supreme Court has historically expanded Congress' power by broadening the definition of acts affecting interstate commerce, but more recently there have been significant disagreements. The commerce clause, not the positive powers implied by the exceptions of the Bill of Rights, has been the tool by which the federal government has brought nearly every aspect of public and private life under its jurisdiction.
There've been 2 big decisions striking down federal power under the commerce clause and one more recent one upholding it. In 2000, US v. Morrison struck down a law establishing a federal right to be "free from crimes of violence motivated by gender" on the ground that such violence did not affect interstate movement or commerce. Same reasoning in US v. Lopez (1995) that struck down a prohibition on possession of a firearm within 1,000' of a school. The government argued that guns and crime disrupt education, which disrupts employment opportunities for students, which then affects interstate commerce. A doubtful CJ Rehnquist wrote that "Under the theories that the Government presented... it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where states historically have been sovereign."
This term, Gonzales v. Raich affirmed the federal government's power to prohibit and prosecute the use of marijuana despite state allowances for its medical use. Scalia voted with the majority; Thomas dissented.
Another example where avowed constructionists convey a huge amount of power to government is abortion. Roe v. Wade did not create a right to abortion, it struck down laws seeking to limit it. Strict constructionists who want to overturn this decision, which, however poorly decided with respect to the specifics of abortion, reaffirmed the the penumbra argument to a right of privacy that originated in Griswold, would overturn a precedent based on the Bill of Rights, and by doing so would grant federal and state governments a huge new source of authority.
There's no clear agreement on what the 9th/10th/Commerce Clause provisions imply about the federal government's reach. Constructionists and "activists" strike down and affirm regulations in equal parts--there's no clear standard for calling judges "activist" or "constructionist" based on their interpretation of these provisions. It's been inconsistent on all fronts; each case has been decided pragmatically and specifically, and there isn't a systematic body of case law to suggest a judge's view on these questions clearly labels him an activist or constructionist.
I'm surprised Hamilton would make this argument, since he was the leading supporter of a powerful federal government and the supremacy of the executive. If I'm not mistaken he even though the Constitution didn't give enough power to Washington. I guess two things could follow; a) he made the argument because without an explicitly stated Bill of Rights, the federal government would be even stronger; or b) strangely, and in contrast to the other founders, he trusted the government--even that which he wanted to make stronger--way, way too much.
By Tim McGuire, At 9:46 AM EDT
I don't think Hamilton was really talking about the Supreme Court at all. The Supreme Court was an afterthought to the founders.
I think he was talking about legislative action. This was really a followup post to Teaching the Constitution.
My point isn't related to federalism, either. It's about the role of government: enumerated powers, not enumerated limitations to power.
I like the idea of listing what the government can do rather than creating some kind of peasant's agreement listing what it can't do.
By Ben Polidore, At 12:24 PM EDT
The credit for paradigm shift mentioned by Ben can be largely credited to FDR and his myriad of government social programs. In the desparation of the Great Depression, FDR turns to the Socialist tenets of central planning to control his way out of economic freefall. After more a decade of failure in this mindset, the Japenese prove to be more successful at rescuing our economy than our own President.
But the damage had been done. For more than a decade, people looked to the government for answers and aid because they frankly had no where else to turn.
The mindset that goes hand and foot with the new thinking Ben mentioned is that the US government has money or weatlh. The government pays for nothing, it generates no wealth; it can only redisdribute amongst its citizens: forcibly take from you and give to someone else. Since this simple fact which may be nothing more than terminology or semantics has been obscured and replaced by "the government pays for this, and the government pays for that" the government has become overreaching and bloated.
We now have a government that not only seizes 30-50% of your income but controls who you can hire and how many, who you can admit into your clubs and organizations, when you can talk publicly about polictical campaigns and recently your "private" property.
To make matters worse we have a President in the White House who is not any more a fiscal conservative than his predecessor save for the largely symbolic, temporary tax rebate.
I'm feeling pretty good about the whole situation, how about you?
By Marc Moseley, At 11:10 AM EDT
OK, but I don't think it's possible to discuss enumerated powers without bringing in Supreme Court case law and the state/federal government balance of power.
The New Deal/Keynes vs. Friedman/Hayek argument is a different debate altogether that doesn't really have anything to do with what government constitutionally CAN do, but what it SHOULD do.
In short, this is way too complicated of a topic to address in a blog comment. And I am starting to get embarrassed about sounding too much like a polisci professor.
By Tim McGuire, At 12:52 PM EDT
You guys are spot on.
By Holmes, At 1:10 PM EDT
Tim, I appreciate the complexity of the argument I only outlined, but I think it has everything to do with what the government consitutionally CAN do, if you're of the mindset that the power the Constitution endows is to the government by the people and not the other way around. Anything beyond is un... well do I sound like a constructionist yet?
I suppose I may be something along those lines.
By Marc Moseley, At 8:24 PM EDT
Yes, well, the Constitution is purposefully vague on most issues. Which is why we haven't had to write a new one in 215 years.
But on the issue of economic policy, the Constitution is silent. As a matter of policy, the US could have a socialist economic structure without contradicting anything in the Constitution. The Supreme Court has acknowledged as much plenty of times.
I'll restate another point: the constructionist argument doesn't always put power in the hands of the people. It's wrong to characterize constructionism as a governmental philosophy when it really is a legal philosophy. Very often, a justice like Scalia will uphold government power, and Breyer will overturn it. The pendulum swings both ways.
By Tim McGuire, At 9:52 AM EDT
I don't think our founding documents completely silent on economic policy at all.
Here are some obvious quotes:
"They are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"
"nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
I feel that true socialism is at odds with these quotes.
And further, big government spending and wealth redistribution are not enumerated powers. This relates back to the point of the argument: the government is far more powerful than our founders ever imagined.
By Ben Polidore, At 10:21 AM EDT
"They are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."
And if the governed consent, then what?
"nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
What constitutes just compensation?
The Constitution is prescriptive, not descriptive. There's no way, none at all, to enumerate everything possible government action with any sort of precision. There are, by necessity, negative and positive enumerated rights. Because of that, there's ALWAYS interpretation involved... there is damn near ZERO black-letter constitutional law.
Again, all this constructivism, enumerated-powers, small-government strikes me as purely political. Today's so-called (neo?)conservatives are OK with laissez-faire, enumerated-powers only interpretations when it comes to economics; when it comes to social issues, they are very much hands-on (see abortion, gay marraige, contraception, evolution, etc).
By Tim McGuire, At 11:37 AM EDT
Again, all this constructivism, enumerated-powers, small-government strikes me as purely political. Today's so-called (neo?)conservatives are OK with laissez-faire, enumerated-powers only interpretations when it comes to economics; when it comes to social issues, they are very much hands-on (see abortion, gay marraige, contraception, evolution, etc).
11:37 AM EDT
It's apples and oranges. You're talking Federal and State issues.
And the evolution thing is a straw man argument if I have ever seen one.
By Holmes, At 8:39 PM EDT
I was speaking from a political standpoint. We are not lawyers here.
Why do you say that evolution is a straw man? Again, I'm not speaking in a legal sense here.
By Tim McGuire, At 1:51 PM EDT
Well, you used the point about Constructivism to say that Conservatives are "laissez faire" in all things, and perhaps implied that they take a strict constructionist/originalist view to accomplish that goal. But to be Constructionist with the Constitution means that the Federal government is limited in its powers as they are defined. All other powers and rights are left to the "states and people respectively."
So while I, as a conservative, take this constructionist view, I may or may not take a similar view with state government. (Of course, there was a time when a laissez faire Supreme Court also struck down state legislation on "economic rights" grounds, which was just as activist and wrong as the modern liberal court). There are only a few restrictions on States within the Constitution, and orginally, even the Bill of Rights did not explicitly apply to the States (not until the 14th amendment was passed). But that's a Con Law lecture for another day.
As to evolution, Conservatives are not a monolithic group with identical ideas and viewpoints across the board. I think only a tiny sect of proclaimed conservatives suggests interfering with the teaching of evolution. And locally, that is their right to do so. But to put Conservatives on the defensive about a position they do not hold from the get-go is the definition of a straw man argument.
And I'm not a lawyer either- 2 more years. I enjoy your site though as I happened across it randomly the other day. My fellow law student friend and I have started a blog about being law students. So far it's just silly as we get our feet wet, but we hope to capture the law school experience (post 1L, which is the most important year with the most change/upheaval, but it's been written about before).
By Holmes, At 8:16 PM EDT
Ah, my point about constructivism and a laissez-faire, enumerated-powers federal government was that conservatives adopt those ideas when it suits their purposes. Even proponents of strict constructionism will go against this philosophy when it suggests an outcome they strongly disagree with:
- Clarence Thomas in Virginia v. Black
- Bill Frist in the Schiavo cases
- The Bush campaign in Bush v. Gore
- Bush again in proposed Defense of Marraige Amendment
Both parties/philosophies (legal and governmental) are outcome-dependent when it comes to constitutional interpretation.
By Tim McGuire, At 10:50 AM EDT
- Bush again in proposed Defense of Marraige Amendment
An amdendment is the acceptable way to change the meaning of the Constitution to most Conservatives.
I would agree with you to a point. For example, social conservatives like that drugs are outlawed, and don't seem to mind that it didn't take an amendment to accomplish that as it did with alcohol in the early part of the last century.
By Holmes, At 11:31 AM EDT
Well, yes, but the marraige amendment would be a major usurpation of a power that's always been reserved to the states. In that sense, because conservatives don't like the outcome of the current constitutional regime (e.g., some states will have gay marraige), they're pushing to amend the constitution to achieve a specific policy goal, not to reform the structure of government. This doesn't seem like an action that "small 'c'" conservatives would support.
By Tim McGuire, At 2:28 PM EDT
Bush is not a "small c" conservative. He's a big government Republican and many Conservatives disagree with his stances (see: prescription plan for Medicare, increase in federal funding for education, etc.)
I agree that gay marriage is a state issue, but what happens when a non-gay- marriage state is forced to recognize a gay marriage from another state via the equal protection clause or immunities and priveleges clause? The defense of marriage act is federal legislation that supposedly would prevent that from happening, but all it takes is a 5-4 decision from SCOTUS to undo that. A pre-emptive amendment is required nowadays. But the gay marriage thing is mostly just scoring political points and is case in point on how the Republicans don't know what to do while in power.
After taking Con Law I, I found that the Pandora's box was opened with judicial review in Marbury. It seems the court swings politically, but just on a more delayed basis than the political bodies because of lifetime appointments. In any event, we'll survive.
By Holmes, At 2:49 PM EDT
"Bush is not a 'small c' conservative."
Agreed. I haven't and won't dispute this.
"...what happens when a non-gay- marriage state is forced to recognize a gay marriage from another state via the equal protection clause or immunities and priveleges clause?"
I honestly had not thought of this. Good question. I'm not nearly knowledgable about marraige law to suggest answer to this, but I'd imagine they'd have to treat them as a legal marraige like any other (?).
"After taking Con Law I, I found that the Pandora's box was opened with judicial review in Marbury."
Ditto, not to mention Marbury was itself a questionably decided political decision.
By Tim McGuire, At 4:08 PM EDT
Originalists do have a problem to overcome with Judicial Review. The concept makes sense- otherwise the Congress would be equivalent to British Parliament, running without a Constitution as any law would be valid. But it's not explicitly stated in the Constitution- so where's the intent/text to interpret?
By Holmes, At 1:32 AM EDT
If I remember correctly, Marbury was decided based on the position of a semicolon in the Judiciary Act, distinguishing two clauses, which Marshall then interpreted as an intent by Congress to enlarge SCOTUS' original jurisdiction. I always thought that was iffy reasoning. Even more so in light of the context: Marshall was trying to avoid forcing the president to confirm an action that Marshall himself authorized as Adams' Secretary of State!
Anyone who says SCOTUS isn't a political body ought to read this one carefully.
By Tim McGuire, At 3:45 PM EDT
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