Author: Timothy Sandefur
Today is “Bill of Rights” Day—the 219th anniversary of the ratification of the first ten amendments to the Constitution. These amendments have been so crucial to protecting the rights of Americans in the years that have followed that it’s interesting to think that many people at the time, including James Madison, the “father of the Constitution,” didn’t think there should even be a Bill of Rights. His reasoning is instructive and we’d do well to remember it today.
Madison, along with his colleagues like James Wilson, Alexander Hamilton, and others, expected the Constitution to give Congress only a limited set of powers—powers that were listed in the text of the document. If it wasn’t listed in the text, then Congress couldn’t do it. So the federal government could collect taxes or run a post office, but it couldn’t do other things—like run a national health care program, for instance. Since Congress’s powers were, in Madison’s words, “few and defined,” there was no need to add a bill of rights to declare that the federal government couldn’t do such-and-such, because they already couldn’t do such-and-such.
The 84th Federalist Paper is all about why there shouldn’t be a bill of rights. Wrote Hamilton, “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?”
But even more—the Constitution’s authors thought a bill of rights could be dangerous for two reasons. First, you can’t list all of our rights. We have the right to wear hats, for example, and to wear red hats, and to wear a hat at an angle, or with a feather in it. Do you have to add that to a bill of rights? Do you write all these separately? When James Wilson was asked about a bill of rights he said,
who will be bold enough to undertake to enumerate all the rights of the people?—and when the attempt to enumerate them is made, it must be remembered that if the enumeration is not complete, everything not expressly mentioned will be presumed to be purposely omitted.
In other words, if you leave out the right-to-wear-a-hat, people will later claim that there is no such right. Hamilton said the same thing: leaving something out of a bill of rights “would furnish, to men disposed to usurp, a plausible pretense for claiming...power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining [for example] the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.”
When Thomas Jefferson, then living in Paris, wrote to Madison to say that he thought there should be a bill of rights, Madison answered,
My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration.... What use...can a bill of rights serve in popular Governments? I answer...1. The political truths declared in that solemn manner 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. 2. Altho’ it be generally true...that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter sources; and on such, a bill of rights will be a good ground for an appeal to the sense of the community. Perhaps too there may be a certain degree of danger, that a succession of artful and ambitious rulers, may by gradual & well-timed advances, finally erect an independent Government on the subversion of liberty. Should this danger exist at all, it is prudent to guard agst. it, especially when the precaution can do no injury.
Although Jefferson and others won the debate that there ought to be a bill of rights, Madison and his allies tried to write that bill of rights in a way that would avoid implying that the government had more powers than it actually had. That’s what the Ninth Amendment is for: it declares that just because something is left out of the bill of rights does not mean it’s not a right.
Today, both conservatives and liberals alike are often prone to argue that something isn’t a right because it isn’t listed in the Constitution. What’s more, we have now reached a point where the federal government does claim broad powers, far beyond those listed in the Constitution. It’s a lucky thing that the bill of rights was ratified to give us greater protection. But the Ninth Amendment and the arguments surrounding the bill of rights are there to remind us that by expanding federal power, we are threatening the safety of the “other rights” that are ours not as government-created entitlements, but because as human beings we are entitled to liberty.
For those interested in the history and meaning of the Bill of Rights, check out Akhil Amar’s fantastic book, Bill of Rights: Creation And Reconstruction, Randy Barnett’s outstanding works on the Ninth Amendment (such as this paper), or Harry Jaffa’s Original Intent And The Framers of The Constitution. And take a moment today to reflect on how fortunate we are that our forebears carefully created a Constitution to protect us from government.
