The Origins and Changing Interpretations of the Bill of Rights (Given to Phi Kappa Phi, ISU, April 4, 1991)
Let's begin our investigation of the Bill of Rights with an excerpt from one of my favorite books, Robert Penn Warren's All the King's Men:
I tell you what I am going to do. I am going to build a hospital. The biggest and finest money can buy. It will belong to you.... To heal sickness. To ease pain. Free. Not as charity. But as a right.... And it is your right that every child shall have a complete education. That no person aged and infirm shall want or beg for bread.... That no poor man's house or land shall be taxed.... That you shall not be deprived of hope....
AKM was first published in 1946 and well expresses the feeling of many Americans after the Depression, after the New Deal, and after WWII that government can be a positive force for good when citizens demand numerous services.
Throughout most of American history, however, the concerns have been reversed -- how could citizens of the Republic limit government's power to abridge people's rights? In the words of James Madison in Federalist 51:
What is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on government; but experience has taught mankind the necessity of auxiliary precautions.
This suspicion of government among the framers of the Constitution was firmly fixed by their experiences as colonists in the British Empire and their belief that they had fought the American Revolution in large measure to secure rights for themselves and their posterity.
Indeed, much of English history may be said to revolve around the people's attempts to limit the powers of government, beginning with the powers of the King.
At the time of King John (Robin Hood, etc.), the king claimed to rule by DIVINE RIGHT. In 1215 on the plain at Runnymede, the nobles of England made King John a deal he could not refuse--they forced him to limit his rights. From this limitation, the idea of due process expanded greatly as did the notion that people can influence government in ways other than just at the point of a sword.
Over the next 5 centuries, several developments in England enlarged the notion of rights. First, the rights that the nobles won from King John began to spread throughout England to others through the English Common Law. People began to believe they had rights, especially when accused of a crime. Second, Parliament asserted its power to extend and protect rights and issued, over time, many Declarations of Rights. These Declarations built on each other, both reaffirming the idea that the king and queen had limits on what they can do and that the people should rely on Parliament to defend the people's rights. Third, because of the fact that these battles between Parliament and the kings and queens lasted so long, Parliament began to assert its sovereignty in the area of the people's rights. As the Parliament passed Declarations of Rights, it specified the rights of the people and defined these rights in important ways.
So, in the Declaration of Rights in 1689 after the Glorious Revolution establishing William and Mary as king and queen of England, the document begins with the words, "An act declaring the rights and liberties of the subject...."
Just as Parliament's powers grew in England in the area of rights, so Parliament's powers over the English colonies expanded over time. Because there was no intent to create an empire at the start of colonization, no overall plan directed the establishment of colonies. Therefore, both the king and Parliament had a hand in creating and administering the empire.
By the time of the Glorious Revolution, however, Parliament had begun to assert its supremacy over the colonies in numerous ways, including regulating colonial trade and eventually taxing the colonists. The issue of taxes--which became especially important after the French and Indian War which doubled the national debt of England--led the colonists across America to become especially sensitive to the issue of rights. In the years leading to Revolution, their ideas crystallized along two initially independent lines of thought.
First, they argued that when they came to America, they brought with them the rights that the English people had come to enjoy. The colonists saw themselves, in this sense, as English people in a new environment. Therefore, the assemblies of the various colonies passed Declaration of Rights that in very many ways replicated Parliament's declarations in order to establish the people's rights under their colonial governments.
Second, because the colonial assemblies were far more representative of the people than Parliament was in England--by that I mean that people living in specific places elected representatives to govern them--the assemblies began to expand rights into other areas. Most fundamentally, the assemblies convinced themselves that they alone had the right to tax the colonists because it was only in the colonies that the people had representatives. One of the most important declarations of the revolutionary era, "no taxation without representation," was based far more on the American experience of representative assemblies than on the English experience of Parliament. What this phrase meant, then and now, is that people can only be taxed where they are represented; and this idea became one of the major cornerstones of the American Revolution.
In the Declaration of Independence, these ideas of English and American rights combined to produce a powerful mixture. At the heart of the Declaration is the assertion that rights come before government, which exists in order to secure, protect, and defend these rights. In other words, rights do not come from the king or from Parliament. They reside in the people. Jefferson and the boys might have placed these rights in any number of places, including the colonial assemblies and their Declarations of Rights. Instead, they chose not to specify their origins (the word "Creator" offended no one) but rather to specify their location--in the people.
Therefore, in contrast to both Parliament's Declarations of Rights and their own assemblies' documents, the Declaration of Independence does not spell out the people's rights. Rather, it asserts that people have "unalienable rights...among which are life, liberty, and the pursuit of happiness" as well as the right to alter and abolish governments that become destructive of rights.
In other words, the American Revolution was necessary because the British had tried to take away rights over which government in particular and civil society in general had no control. By using the term "unalienable rights," the patriots were expressing their conviction not only that the people have rights which government cannot take away but also that the people cannot give away. Governments are created not from the people's unalienable rights but rather from other rights that belong to people in societies.
Therefore, in most of the states the framers of state constitutions prefaced their constitutions with Declarations of Rights or Bills of Rights in order to express those areas over which government had no control. Further, to ensure that a powerful government did not arise to disturb this situation, the state governments rested most of the powers in the legislature--and where there were two houses, in the lower house--in order to keep government close to the people. At the national level, the people in the states made sure that the Confederation government could not violate people's rights by making the states sovereign and severely curtailing the powers of the national government.
It is precisely as a result of these perceived weaknesses in the national government that the founders met in Philadelphia in the sweltering heat of the summer of 1787 to draft the Constitution. At that meeting, those who came were far more concerned to strengthen national authority than they were to protect the rights of the people that were supposedly already guaranteed in the states.
During the course of the Convention, however, men like George Mason of Virginia (author of Virginia's Declaration of Rights) came to fear the power of the national government in the area of rights. He tried and failed to amend the document to insert either a complete section on rights or to change the wording of the text in a piecemeal fashion. Then, after the Convention adjourned, Mason and others used the lack of protection to oppose ratification of the Constitution, and the lack of a Bill of Rights became the most unifying position of Anti-Federalists across the nation.
Those Federalists who supported the Constitution as drafted argued that the document did not need a Bill of Rights for three reasons. First, the people were sovereign under the Constitution, not the states or the national government. Therefore, by extension, the national government had no more power under the Constitution than the document assigned it. To include a Bill of Rights -- in the view of James Wilson, Alexander Hamilton, and others -- would be to invite government action in areas where under the text it had no ability to act. Third, there were those like James Madison who feared that the inclusion of a Bill of Rights would mean that some of the people's rights would be left out. As a case in point, he recalled having seen the Virginia Assembly justify numerous incursions on people's rights during the American Revolution despite the existence of a Declaration of Rights.
As the debate over the Constitution dragged on in the states, however, Madison and other Federalists changed their minds. Anti-Federalists pointed to Art. 1, sect. 8 of the Constitution where the Congress was given the power to make laws necessary and proper for carrying into effect its own powers and those of other departments under the Constitution. In the course of the Virginia ratifying convention, Madison promised to work for a bill of rights in order to get the document approved and in order to stop a movement for additional reservations or outright defeat of the document.
Thus did he begin work during the first Congress to offer amendments to the Constitution. We must, he said, "expressly declare the great rights of mankind secured under this Constitution." From the existing state documents, Madison fashioned a set of proposals specifically intended to limit the national government's powers. Hence, the simplicity and beauty of the first amendment: "Congress shall make no law...." With the first eight amendments, the people could feel secure in the knowledge that the national government would not interfere with the people's rights in specific areas of concern.
But that's not all that Madison did. With the Ninth Amendment, he linked the Bill of Rights to the unalienable rights of the Declaration of Independence by stating that the enumeration of some rights did not exhaust those still retained by the people. Clearly, Madison was trying to keep from spelling out all of the people's rights for fear of leaving some out.
And with the Tenth Amendment, he placed the state governments in a position of defending people's rights as well by stating that those rights not delegated to the national government nor prohibited to the states remained with the states and the people. With the Tenth Amendment, Madison hoped to use the states as an important line of defense against a too-powerful national government.
Much but not all of the Tenth Amendment is changed by the Fourteenth -- that the rights of citizens to due process and equal protection of the laws may not be denied in the states -- and to a certain extent Madison would have agreed. At various points in his life, he advocated that the U.S. Congress be able to monitor laws passed by state legislatures.
Madison might also, however, appreciate current trends where some people are using state constitutions to secure to themselves as citizens of states rights not guaranteed or specified under the Constitution. In Idaho, for example, the ability of citizens to bear arms extends under the Idaho Constitution much farther than it does under the Second Amendment to the U.S. Constitution, at least on paper.
More interesting, I think, are current discussions relative to the meaning and implementation of the Ninth Amendment. From 1791 to 1965, the Ninth Amendment remained largely a constitutional curiosity. Then in 1965, the Supreme Court ruled in Griswold v. Connecticut that "a right of privacy older than the Bill of Rights" could be derived from the Ninth Amendment. Within 15 years, the Ninth Amendment had been cited (by Leonard Levy's count) in over 1200 state and federal cases.
Where the controversy has centered regarding the Ninth Amendment -- and this brings me back to All the King's Men and the start of this talk -- concerns exactly how rights under the Ninth Amendment become manifest. Did the Supreme Court protect an "unalienable right" located in the people, or did it "create" or manufacture a right that does not (and, some would say, should not) exist?
In order to answer that question, we must specify what we expect from government. What role should government play today and in the future regarding the people's rights? Do we want a government limited by a Constitution and a Bill of Rights in what it can do; or do we want a government that actively promotes, and perhaps thereby expands, the rights of the people? To say we want both seems like a sensible answer, but in fact the two positions may in some cases be antithetical.
Using our history as a guide, of this we can be sure -- one way or the other, the people will decide. We will decide by exercising our sovereignty under the Constitution to amend the document; or we will acquiesce in the government's actions; or even, perhaps someday, we may decide to alter and abolish the current form of government and institute new government in order better to protect our safety and happiness.
We will decide this issue not because English nobles wrested this from a tyrant almost eight centuries ago and not because a bunch of dead guys gave it to us two centuries ago. We will decide it because in the United States -- for better and for worse -- rights reside in the people.