En­shrin­ing lib­erty in law

The Framers nearly passed on the Bill of Rights

The Washington Times Daily - - OPINION - By Ed Feul­ner Ed Feul­ner is founder of the Her­itage Foun­da­tion (her­itage.org).

Ask some­one to quote from the U.S. Con­sti­tu­tion, and you’ll likely hear the words “Congress shall make no law re­spect­ing an es­tab­lish­ment of re­li­gion … .” Iron­i­cally, though, if some of the Con­sti­tu­tion’s framers had had their way, these words wouldn’t even have been in the doc­u­ment in the first place.

That’s be­cause the phrase above is what opens the First Amend­ment. It and the nine amend­ments that fol­low are what make up the Bill of Rights, which some framers con­sid­ered su­per­flu­ous at best, and dan­ger­ous at worst.

Why? A good ques­tion to con­sider as we mark Bill of Rights Day. The first 10 amend­ments, af­ter all, were adopted 225 years ago on Dec. 15, 1791. They con­sti­tute per­haps the most sig­nif­i­cant pro­tec­tion of lib­erty in the his­tory of the world. How could any of the framers op­pose their in­clu­sion in the Con­sti­tu­tion?

It wasn’t be­cause they op­posed the rights enu­mer­ated in the amend­ments. Quite the con­trary, in fact. Ac­cord­ing to Joseph Postell, Ph.D., as­sis­tant pro­fes­sor of po­lit­i­cal sci­ence at the Univer­sity of Colorado:

“The de­fend­ers of the Con­sti­tu­tion ar­gued that a bill of rights would un­der­mine the idea of a gov­ern­ment with lim­ited pow­ers. A bill of rights might be­tray the cen­tral prin­ci­ple of a writ­ten con­sti­tu­tion as the prod­uct of a so­cial com­pact, which af­firms that all authority orig­i­nally re­sides in the peo­ple and that the peo­ple cre­ate a gov­ern­ment of lim­ited and enu­mer­ated pow­ers in a writ­ten con­sti­tu­tion.

“To sug­gest, for ex­am­ple, that the lib­erty of the press is not to be in­fringed upon might im­ply that, with­out such a pro­vi­sion, the fed­eral gov­ern­ment would pos­sess that power. The Founders feared that we might in­fer that they cre­ated a gov­ern­ment with un­lim­ited power and that the spe­cific pro­vi­sions in the Bill of Rights de­note par­tic­u­lar reser­va­tions of power from an other­wise un­lim­ited gov­ern­ment.”

Those ar­gu­ing against the Bill of Rights had two other con­cerns. One was that the list could never re­ally be com­plete. Wouldn’t peo­ple as­sume that any right not ex­plic­itly listed was con­sid­ered un­pro­tected? Hence the im­por­tance of the Ninth and 10th Amend­ments, re­spec­tively:

“The enu­mer­a­tion in the Con­sti­tu­tion of cer­tain rights shall not be con­strued to deny or dis­par­age oth­ers re­tained by the peo­ple.”

“The pow­ers not del­e­gated to the United States by the Con­sti­tu­tion, nor pro­hib­ited by it to the States, are re­served to the States re­spec­tively, or to the peo­ple.”

Their fi­nal con­cern was that a Bill of Rights might con­fuse peo­ple about the ori­gin of their rights. The Dec­la­ra­tion of In­de­pen­dence had al­ready made it clear that our rights are in­alien­able be­cause they are en­dowed by God. Gov­ern­ment’s job isn’t to grant them, it’s to pro­tect them. They felt a list of rights might in­ad­ver­tently en­force the wrong idea.

Even­tu­ally, though, the op­po­nents — most no­tably fu­ture Pres­i­dent James Madi­son — changed their minds. Mr. Postell writes:

“The safe­guard of in­di­vid­ual lib­erty, Madi­son rea­soned, must lie with the peo­ple them­selves. It is the peo­ple who must be re­spon­si­ble for de­fend­ing their lib­er­ties. And a bill of rights, Madi­son and his col­leagues fi­nally con­cluded, might sup­port pub­lic un­der­stand­ing and knowl­edge of in­di­vid­ual lib­erty that would as­sist cit­i­zens in the task of de­fend­ing their lib­er­ties.”

There’s no ques­tion that those who op­posed the in­clu­sion of a Bill of Rights raised sev­eral valid con­cerns. But con­sid­er­ing the threats that have arisen in the decades since, we can be thank­ful that many of our most im­por­tant rights were in­deed enu­mer­ated.

Our right to write and speak freely is un­der con­stant at­tack. Our right to keep and bear arms is fre­quently tar­geted. Our rights to be spared un­rea­son­able searches and seizures, to be rep­re­sented by coun­sel, to have a pub­lic trial — all have been chal­lenged in the past and surely will be chal­lenged in the fu­ture.

“I am con­strained by a sys­tem which our Founders put in place,” Pres­i­dent Obama once said. If that sounds as good to you as it does to me, thank the Bill of Rights.


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