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Liberty and the Bill of Rights


The foundational document of Anglo-American constitutionalism, the Magna Carta, turns 800 years old this summer. While most important political anniversaries prove fertile ground for historical triumphalists and cynics, the fact that some are celebrating the event as the 800th birthday of modern democracy promises to make for a lively exchange: the triumphalists overstating earlier democratic commitments; the cynics sensationalizing bad motives, hypocrisy, and incompleteness at every turn. Of course much of this exchange is more about the present than the past, each camp using the occasion to advance its preferred democratic agenda in our day.

This fall will mark the 250th anniversary of what might be the American equivalent of the Magna Carta: the Stamp Act Congress’s “Declaration of Rights and Grievances,” the first public document in the runup to the Revolution, claiming against the King and Parliament the colonists’ equal share in the “rights and privileges” of British subjects. Americans celebrating our own “great charters” would do well to stay clear of fitting ourselves in the historical straight jackets of either the triumphal or cynical democratic partisan. Better to ask how much and how well we have maintained our commitment to political liberty, informed by an understanding of the timeless truth and goodness of political principles upon which it was originally advanced.

The natural place to start our inquiry would seem to be the Bill of Rights. Unfortunately, as Joe Biden might put it, “the past six years have been really, really hard” for the Bill of Rights:

  • President Obama took the Supreme Court to task in his 2010 State of the Union Address for protecting (First Amendment) political speech with its Citizens United decision, encouraging ongoing efforts to impose strict limits on campaign finance spending;

  • Obamacare and the emerging gay marriage legal regime pose a serious and growing threat to the (First Amendment) “free exercise” of religion;

  • The Justice Department engaged in unprecedented “snooping” on reporters from the AP and Fox News’ James Rosen, undermining the (First Amendment) “freedom of the press” and convincing 64% of reporters, according to a recent survey, that they are under covert government surveillance;

  • Former Supreme Court Justice John Paul Stevens proposed a “fix” to the (Second Amendment) “right to keep and bear arms” that amounts a repeal, while left-leaning politicians continue to look for ways to undercut the ability of common citizens to protect themselves and their families;

  • NSA practices revealed by Edward Snowden suggest that the (Fourth Amendment) protection against “unreasonable searches and seizures” may have been significantly compromised.

The list, of course, might go on. To its credit, however, there is no evidence that the Administration plans (contra the Third Amendment) to quarter soldiers in private homes without the consent of the owner, now that peace has been secured by the end of American combat operations in Afghanistan.

There is no negotiation between the sovereign and his subjects; there is not even an office holder to negotiate with until the Constitution creates the office.

As troubling as the items we’ve enumerated might be–or even those on a more comprehensive list–the sum of the parts seems to fall short of the whole challenge to liberty that we face in our day. Federalist 84 helps us understand why.

The fact that the original Constitution included no distinctive bill of rights was perhaps the most powerful objection raised to the document by its Anti-Federalist critics. In Federalist 84, Alexander Hamilton responded to this objection with a very different understanding of the best way to secure liberty under law in the United States.

After identifying a number of key provisions in the Constitution that “in substance amount to the same thing,” Hamilton noted that the British bills of rights admired by the Anti-Federalists (including “Magna Charta”) had been “stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, and reservations of rights not surrendered to the prince.” To attach such a bill of rights to the Constitution, then, would suggest that the (federal) government possessed an inherent, sovereign authority that could only be curtailed by negotiated, positive limits on its power. It is not a coincidence, in other words, that that the British bills of rights were reconcilable with the principle that the Parliament possesses absolute sovereign in the British regime.

But this was very far from the principle that informed the American founding. As Supreme Court Justice James Wilson noted in his famous Chisholm v. Georgia (1793) opinion, the Constitution begins with “the People of the United States,” who then vest certain powers in the three branches of the federal government. There is no negotiation between the sovereign and his subjects; there is not even an office holder to negotiate with until the Constitution creates the office. The same people, moreover, authoritatively impose limits upon the respective state governments and declare in Article VI that all office holders, state and federal, “shall be bound by Oath or Affirmation, to support this Constitution.”

A British-style bill of rights, then, may have no place in the American system–and indeed be destructive of it. But what is wrong with a carefully-enumerated list of rights protecting essential liberties?

Hamilton suggests two dangers. In the first place:

…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? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.

A bill of rights, then, might implicitly suggest that the relatively narrow powers granted to the national government are to be read much more expansively than the language of the Constitution would otherwise allow. If so, this would endanger rights not specifically protected and, ironically, require legislation around the prohibited areas, at least to define their outer boundaries. Whatever the consequences may be for particular liberties, the cause of liberty itself may be hindered, on balance, by a bill of rights.

Too easily, perhaps, have we come to assume that our rights themselves come from their inclusion in charters like the Bill of Rights, rather than being bound up in our nature as human beings.

Recognizing this and related dangers, Hamilton’s Federalist co-author James Madison included early versions of the 9th (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”) and 10th (“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”) Amendments in his conciliatory speech proposing what became the Bill of Rights to the First Congress. Properly understood, these amendments would resolve interpretive questions that might otherwise arise after the ratification of the rest of the Bill of Rights.

But a deeper problem remains, suggested in Hamilton’s last Federalist 84 argument against a bill of rights: “whatever fine declarations may be inserted in any constitution respecting it [“the liberty of the press”], [“it’s security”] must altogether depend on public opinion, and on the general spirit of the people and of the government.”

Too easily, perhaps, have we been convinced that the security for our rights comes from their inclusion in charters like the Bill of Rights. Too easily, perhaps, have we come to assume that our rights themselves come from their inclusion in charters like the Bill of Rights, rather than being bound up in our nature as human beings. We come to suppose that we need not articulate a defense of our rights because the Founders wrote them down–and the courts will stop any legislator or executive who challenges them.

Furthermore, we may not ever need to explain how the original Constitution limits the powers of the national government, far beyond the boundaries of the Bill of Rights, if our favorite rights are already singled out for special protection. And so: the structural limitations of the Constitution have all but disappeared, swallowed up by words and phrases like “commerce,” “general welfare,” and “necessary and proper.”

It is perhaps too much to regret the Bill of Rights. But it is not too much to recognize that the bad habits it has allowed us to adopt will remain an impediment to the recovery of a fuller measure of our liberty until we recognize just how much its enjoyment ever depends upon the “general spirit” of the people and our government.