On September 25, 1789, Congress submitted to the states for ratification ten amendments to the 1787 Constitution, known as the Bill of Rights. Seldom is there much serious reflection on the issues involved in a “Bill of Rights,” but there was a great deal in 1787-1789. Those Americans were highly informed political thinkers, versed in the entire Western tradition. The author most frequently cited in the federalist-antifederalist debates was Livy, the historian of the Roman Republic; and they knew their Locke and Montesquieu.
To dig right into the major question: does a “Bill of Rights” violate the theory that is at the core of the 1787 Constitution? You will note that the famous Preamble mentions no rights at all in defining the goals of the new government. The goals set forth are specific and severely practical. If the question arises, as surely it would, of how to choose between the goals of “justice” and “domestic tranquillity,” the Constitution answers with the deliberative mechanism of government it then proceeds to set up. In other words, the “deliberate sense of the people”—what this mechanism is sometimes called—operates to make the decision. It operates through Congress, the President, and the courts. Under the 1787 Constitution, the “deliberate sense of the people” is absolute, and in its due operation brooks no opposition. Indeed, the Constitution itself permits amendment in any direction the “deliberate sense” might will. Of course, the process is so complex that the Constitution resists it tooth and nail.
But is a “Bill of Rights” contradictory to a “deliberate sense” theory of government? Many at the time thought it was, and if the “Bill” had been a French theory of rights they would have been correct. The “universal rights of man” would necessarily take precedence over any “deliberate sense” mechanism.
James Madison of Virginia, perhaps our profoundest political theorist, said in effect, “Don’t worry.” The ten amendments of the Bill of Rights consist only of specific common-law and customary traditions dating to the British revolution of 1688. They can be traced to Blackstone and beyond: a “well regulated militia,” no quartering of soldiers, trial by jury, no excessive bail. The now famous First Amendment, in fact, was a blow on behalf of the states, and limited the power of the central government: “Congress shall make no law. . . . “
James Madison was correct in his own time, and the ten amendments were quickly ratified. But was he right in the long run?
The Fourteenth Amendment turned the First Amendment upside down, by applying it not only to Congress but to the state legislatures. Madison must have spun in his grave. In its original formulation, the First Amendment meant that Congress could not pass a law limiting, for example, flag burning. Under the Fourteenth Amendment, this is denied to the states. So, whereas in its original Madisonian conception, the First Amendment was meant as a check upon federal power, it has metamorphosed under the Fourteenth, ratified in 1868, into a French-like “universal right” to virtually unlimited individual freedom. Go-go dancing and flag burning therefore become “constitutional rights.”
It is also true that when Madison wrote “speech” into the First Amendment he meant speech. He surely did not have in mind the idea that walking down the boulevard naked could be called “symbolic speech.” The profound constitutional scholar Walter Berns has argued that Madison had in mind “political argument,” and was so understood by those who voted for the amendment. He did not wish to legalize any calumny, and libel laws, for example, have not been held unconstitutional, though Justice Hugo Black did and Alan Dershowitz does think the Constitution mandates this.
On the vexed abortion question. Roe v. Wade represents an usurpation on the part of the federal judiciary, the Court overturning at a stroke the varied opinions of fifty legislatures. Justice Harry Blackmun, writing for the majority, discovered in the Constitution a “right” to “privacy” nowhere mentioned in it, but discernible to him in “penumbras.” Madison would have laughed out loud.
As against my argument here that “rights” are alien to the theory of the Constitution, a complicated argument could be mounted. It could be argued that the Constitution of 1787 was not born de novo, but existed amidst a cultural consensus that involved a myriad of traditional customs and everyday assumptions, and that one they have had certain expectations of treatment, or “rights” in that sense; that is, not the French sense of “universal rights” but things that neighbors assumed of each other, the “rights of Englishmen” that Burke talks about. It is inevitable that the framers assumed such habits as part of an understood “way of life” and did not feel any need to mention them in the Constitution.
It could therefore be argued that the concept of a “way of life” changes, that the cultural context now surrounding the Constitution is very different. In any case, the mechanism remains a “deliberate sense” one, with the people ultimately deciding and the imposition of supposed “rights” by Court edict remaining a distortion of the Constitution.
A subsidiary problem surrounds the concept of “equality” as found in the Declaration. Jefferson’s prose here is very compact, and now little understood. It is compact because he was addressing a body of like-minded educated men here and abroad who were well-versed in political philosophy. He meant that some truths were “self-evident” to them, and not to any highwaymen or jackanapes. The phrase “self-evident” indeed contradicts the vulgar reading of the equality clause. What did Jefferson mean by a “right” to life and liberty? He certainly believed in hanging murderers, despite their “right” to life. He would certainly have endorsed conscription in times of national emergency, despite a “right” to liberty. What Jefferson meant, and all of his intended readers would have understood, is that the stated “right” meant that you could not be deprived of life or liberty without due process.
Of course, all of this takes place within the context of a Declaration of Independence, which amounts to a national and international lawyer’s brief against George III. The English King is here indicted for violating those “self-evident” rights—through impressment, confiscation, taxation. In a long bill of particulars, Jefferson is so un-egalitarian that he refers to the British employment of “savage” Indian warriors against the Americans.
But, if he thinks the Indians are “savage,” what then does he mean by “all men are created equal”? Remember that Jefferson is a highly educated 18th-century rhetorician. That means that everything in his “declaration” will be linked to its main thrust. The main thrust is “independence,” independence from England. Jefferson is speaking as a prosecutor, and King George III is in the dock.
In this specific context, what “all men are created equal” means is that Americans, under “nature’s god,” are not naturally inferior to Englishmen. Americans are “equally” entitled to independence from England as Englishmen would be if they wished to kiss America goodbye. The phrase also implies that Americans are “equally” as capable of governing themselves as Englishmen are, and, based upon his Notes on Virginia, it is clear that Jefferson thought more so. Perhaps above all, it must be remembered that the Declaration is not self-expression on Jefferson’s part. He knew that he had to craft a document for which Americans would be willing to risk their lives to sign, one that would be credible not only to American educated opinion but to educated opinion abroad.
There is a kind of cool 18th-century poetry in the language of the final and Tenth Amendment to the Bill of Rights: “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.” Very high on the conservative agenda should be the restoration of this spirit of limited government. We should, as I would put it, reacquire these founding documents, most importantly by understanding their language—which derives from an American political tradition that can be discerned in the colonial constitutions of the various nascent states, which can be discerned in the Mayflower Compact, crafted just off the shore, and from thence goes back to 1688 and the classical traditions of republican thought.