I’ve discussed the Bill of Rights before. I’ve explained selective incorporation and the federalist/anti-federalist debate. But the Bill of Rights are very important and seem to be on everyone’s minds right now as we all fight to defend our “rights” against bloated state governments and an ever growing federal government.
So, I think the Bill of Rights need a bit more careful, individual attention. Therefore, I’m going to republish my amendments series over the the next few weeks and discuss each of the ten Bill of Rights. Specifically, I’m going to look at the theoretical foundations for them and ultimately why they were added as amendments to the Constitution in the first place.
The Backdrop
You see, the founders carefully considered every word and every way they phrased every word, when writing the Constitution and the Bill of Rights. This means that each amendment was carefully and intentionally thought through and included—-for a reason. The founders had seen government abuse. Rather, they’d experienced government abuse. They knew the vulnerable areas, the areas most subject to government abuse and control and they added the first ten amendments in accordingly.
But it was not without debate and disagreement that the Bill of Rights were included. Enumerated rights are always a little dangerous because they assume that someone has to first enumerate them. This, of course, usually assumes that this someone can determine what the rights to enumerate are and are not.
Further, the Federalists felt that the Bill of Rights was actually dangerous to liberty because the inclusion of the Bill of Rights insinuated that the government could do things it was not equipped to do. In short, why tell government it can’t do something that it already cannot do?
Hamilton says it clearly: “[the Bill of Rights] would contain various exceptions to powers 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?”
In other words, if you read my most recent posts on the enumerated powers of Congress from Article 1 Section 8 of the Constitution, you would realize that, should the federal government stay within the confines stipulated there, our most cherished rights would never be jeopardized.
Or as Dr. Lawson from the Constitution Center puts it: “It [Bill of Rights] was considered unnecessary because the national government was a limited government that could only exercise those powers granted to it by the Constitution, and it had been granted no power to violate the most cherished rights of the people.”
Given this pretext, I’m going to start republishing this series by looking first at amendments nine and ten since these are the federalist amendments, while the rest of the amendments are anti-federalist amendments. The federalists, because of their fear of the Bill of Rights, made sure to include amendments nine and ten as extra precautions. Therefore, I believe it is necessary to lay a foundation with those two amendments and then begin unpacking the other eight.
As you know, the founders came to a compromise and did, in fact, include a Bill of Rights. The Bill of Rights does enumerate certain rights (Key point being that they are rights that the founders believed, based in theory, already exist apart from government. Therefore, government can never make laws that would ever infringe on those rights. This does not mean that government is tasked with protecting or even guaranteeing these rights for everyone against private citizen infringement.) as particularly important—although, it is not meant to imply that any other right not explicitly written down or enumerated is open to abuse by government law.
The Issue With Rights
But before I launch into this series, I need to first make sure we all stay grounded when discussing the concept of “rights”.
Let’s think about the very concept of rights here for a second. I wrote an article on the dangers of having too many rights and the importance of having our rights grounded in something outside of our time-limited understanding of rights.
You see, rights can be a good excuse or justification for just about anything. I have a right to hate you because you are racist. I have a right to consider myself whatever gender, age, sex, race I want and you can’t tell me different. I have a right to a house, a computer, internet, food, education, free stuff, clean air, to not be offended, healthiness, healthcare, a job, someone else’s body, and the list could go on and on.
Friends, without a clear and solid foundation for what a “right” actually is, where does this list end?
So, the Bill of Rights is not a list of guaranteed rights. Get that.
It is simply a list of specific liberties that government can never ever take away through law. Does this make sense? We tend to see Bill of Rights as a list of rights that government is in charge of guaranteeing or protecting for us. In other words, we believe that it’s government’s job to monitor all private citizen action and if a private citizen/company ever inhibits one of these “rights”, government must intervene and punish accordingly.
No. This is as far from the truth as we can get. Government’s job is severely limited and the Bill of Rights is simply a detailed analysis of this already existent limitation. This means that all the Bill of Rights does is highlight some very important liberties that government already can’t limit through government action. If it were a list of rights that government was supposed to make laws protecting, we’d find that government has much more power than their enumerated powers enumerate and then we’d ever want government to have.
And yet, this is what we assume and demand that the Bill of Rights be. We demand that the federal government treat the Bill of Rights as a list of guarantees against other private citizens, thereby infringing upon their liberty.
Friends, it is absolutely within another person’s right to offend you with their speech or to silence your speech. It is absolutely within another person’s right to kick you off their property for whatever reason they see fit. It is absolutely within another person’s or private company’s right to not allow you on their premises because you have a gun or because you don’t have a gun. It is absolutely a company’s right to hire or not hire (fire/not fire) you because of your religious convictions, race, intelligence, gender and the like (although interpretations of the Constitution have skewed this to no longer be the case. Human nature and our propensity to abuse, misuse and like has changed this situation entirely. The fact that government was never initially given the power to make laws preventing private businesses from choosing this for themselves does not make a business doing such a thing virtuous or good, it simply makes it not government’s job to solve.). And it is absolutely abusing government’s power to ask the government to force that other individual or company to give up their rights for yours.
Yes. We have freedom of speech and religion, but freedom from what? Government oppression.
Yes. We have the freedom to own firearms, but freedom from what? Government oppression.
Should I keep going?
You see, the First Amendment does not say, “No citizen shall infringe upon and violate a citizen’s free speech/religion/expression” nor does it say, “Congress shall do all it can to protect and defend a citizen’s free speech/religion/expression”.
You know what is says? It says, “Congress shall make no law establishing a religion or prohibiting the free exercise thereof…”.
Critical difference.
You see, we live in a country where liberty exists. And where liberty exists, so does abuse. Meaning, the founders fully expected that the citizenry would give each other a hard time, offend each other, and yes, in many cases make poor decisions about how to conduct themselves and their businesses in relationship to other people.
The government exists to do one thing: protect our private property from each other. So, yes, government exists to punish someone when they steal your gun, or vandalize your church building or physically harass you. Why?
Because that’s government’s job. And laws that government creates exist to prevent such actions from ever happening in the first place.
I hope this is making sense. I hope you are realizing just how far we’ve erred from the original intent of the Bill of Rights as a list of liberties that government cannot make laws about by turning it into a list of rights guaranteed to us by government, no matter how many new laws or confines must be put on the citizenry to make good of that guarantee.
We–even those of us who consider ourselves to be liberty and Constitution loving citizens–expect that government is supposed to come in and fix all wrongs and solve all our problems that relate to the Bill of Rights–even if its not government who has violated that right.
Tell me, would it not be your first instinct to run to the federal government if you were fired for what you believe were religious reasons?
And yet, what if you felt compelled to fire someone in your own business because of religious reasons but were unable to do so because of federal laws that prevented you from freely making that decision?
You see. A person who works for a private company does not have a right to that job. That person is completely subject to the will of the owners of that company.
And yet, we’ve come to interpret the Constitution and the Bill of Rights as not only confining government power and action but also confining private citizens power and action.
Ah how far we’ve fallen.
The Bill of Rights were never supposed to be used as an excuse to write more laws and grow the federal government’s power.
And yet…
So, are you ready to re-learn the Bill of Rights?
The Liberty Belle
Excellent introduction. Looking forward to the series.
Thank you!
What a great country and life we would have if we just got back to living according to the constitution. Not sure but I think that would mean we were a free country. Wow sounds like l am dreaming
Progressives want to use various aspects in the Bill of Rights in order to invent rights that are not mentioned.