Tuesday, December 27, 2016

Happy Birthday to the Bill of Rights

by |

Two hundred and twenty-five years ago this month, Virginia ratified the Bill of Rights, thereby enshrining its 10 Amendments in the Constitution. The official anniversary, 10 days ago, was noted here and there, but it did not get the sort of celebration it deserved: something like the Fourth of July and Mardi Gras and Christmas all rolled into one.

...You hear a lot of fiery argument over those particulars. What you don't ever hear is somebody suggesting that we ditch the Bill of Rights altogether.

And that is a marvelous thing, because the Bill of Rights embodies two notions that, in world-historical terms, are almost unheard of. The first notion is that government simply cannot do certain things. At the time—and, sadly, even today—that is a profoundly radical notion.

Yet to some Founders, the Bill of Rights was not radical enough. In Federalist No. 84, Alexander Hamilton argues that "bills of rights ... are not only unnecessary in the proposed Constitution, but would even be dangerous.

They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable 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?"

As Hamilton saw it—and as the Tenth Amendment makes plain—Congress had no power to do anything not specifically enumerated in Article I. (The claim that the general-welfare clause grants the power to do whatever Congress considers good is a dodge; as Hamilton pointed out in Federalist No. 83, "The plan of the convention declares that the power of Congress ... shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.")

The other radical notion embodied in the Bill of Rights is the principle of live-and-let-live. As Thomas Jefferson put it, "The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg."

Your inalienable rights trump every competing consideration—law and order, national security, economic equality, aesthetic preference, religious belief—except one: the inalienable rights of somebody else. And even when someone tries to subordinate individual rights to lesser values, they pretend that's not what they're doing.

No comments: