Mises Wire

Why the Bill of Rights Is Failing

225 years ago today, the first ten amendments were added to the new Constitution of 1787. Those amendments have come to be known as the Bill of Rights, and taken as a whole, these amendments represent what can only be described as one of the few parts of the Constitution worth applauding today. 

While most of the Constitution is concerned with centralizing government power, raising tax revenue, protecting the institution of chattel slavery, and hammering the independent states into a consolidated political union, the Bill of Rights, on the other hand, was concerned with limiting government power

Bizarrely revered by many as a ”pro-freedom” document, the document now generally called “the Constitution” was originally devoted almost entirely toward creating a new, bigger, more coercive, more expensive version of the United States. The United States, of course, had already existed since 1777 under a functioning constitution that had allowed the United States to enter into numerous international alliances and win a war against the most powerful empire on earth.

That wasn’t good enough for the oligarchs of the day, the crony capitalists with names like Washington, Madison, and, Hamilton. Hamilton and friends had long plotted for a more powerful United States government to allow the mega-rich of the time, like George Washington and James Madison, to more easily develop their lands and investments with the help of government infrastructure. Hamilton wanted to create a clone of the British empire to allow him to indulge his grandiose dreams of financial imperialism. 

Fortunately, there were some who stood in the way of the people we now refer to as “the Founding Fathers.” They were the anti-federalists — the good guys who stood against Washington and his friends — and who demanded a Bill of Rights before they would even consider ratifying the new Constitution. 

In the end, however, the Bill of Rights was far weaker than it should have been. It was, essentially, just a bone the Federalists threw to the opposition in order to get the new Constitution ratified. The anti-Federalists, after all, couldn’t even conceive of a federal government as enormous, bloated, and powerful as the US government is today. Living in a world where the individual state governments were both highly democratic and powerful in relation to the central government, the anti-Federalists figured they had enough tools at their disposal to prevent the sort of centralization that has taken place over the past two hundred years. The optimistic anti-Federalists were, unfortunately, wrong. 

But, there was much more than could have been done had the anti-Federalists insisted. William Watkins offers some insights today into what could have been: 

The state conventions that ratified the Constitution suggested over 200 amendments to the Constitution to cure structural problems. For example, Virginia offered a lengthy amendment on the judicial power. The proposal, in the main, would have limited the federal judiciary to the Supreme Court and various admiralty courts established by Congress. State courts would serve as the trial courts of the Union with the possibility of appeal to the Supreme Court. Virginians rightly feared that the federal judiciary would become an engine of consolidated government and sought to limit its power.

Massachusetts feared the new power of taxation in the federal government. Massachusetts, through the pen of John Hancock, offered a proposal that would have prohibited Congress from levying direct taxes ... As a check on the national government, Massachusetts wanted the states to retain some control on Congress’s demands for revenue.

Massachusetts also proposed an amendment dealing with concerns about inadequate representation. Massachusetts asked that the Constitution be amended to guarantee “one representative to every thirty thousand persons . . . A ratio in excess of one representative for every 30,000 people would not, in Massachusetts’s opinion, be a true and viable representation. How disappointed would Hancock and Company be to see that today we average 1 representative for about every 750,000 person. Do we have truly representative government? Not in the eyes of the patriots from Massachusetts who understood that true representation can only take place on a human scale.

Rather than sitting back today and mindlessly celebrating the “high temple” of our constitutional order, Americans should dust off copies of the substantive amendments proposed by the state ratifying conventions but ignored by Madison and the Federalist majority in the first Congress. (Massachusetts’ AmendmentsVirginia’s AmendmentsNew York’s AmendmentsNorth Carolina’s Amendments). 

The Bill of Rights Means Nothing Without the Liberal Ideology The Produced It 

Better, more limiting, and more numerous amendments may indeed have been helpful. 

But, no law written on parchment can control the size and scope of government if the population is willing to accept more state control over their lives. 

The fact remains that the American public generally tolerates countless violations of the Tenth Amendment, the Ninth Amendment, the Sixth Amendment, the Fourth Amendment, and the Second Amendment. The federal government routinely seizes private property without due process, fails to provide for speedy trials, passes federal gun control laws, and invents powers for itself that are reserved to the states and the citizens alone. Even the First Amendment is now being targeted by the feds who are the throes of limiting freedom of speech and freedom of the press by labeling objectionable ideas as “fake news” and thus not so-called protected speech. 

These attacks will be tolerated if the public is willing to go on doing so. After all, the Bill of Rights itself never actually limited government power. Government power — to the extent it has actually been limited — was limited because citizens valued the ideas reflected in the Bill of Rights. 

Once the public abandons the ideology behind the Bill of Rights, then the Bill of Rights will cease to mean anything, even if it still ostensibly remains in force. 

Not surprisingly, as the public ideological views have changed, the Constitution has failed to limit the power of the central government. Murray Rothbard observed this long ago when he wrote

From any libertarian, or even conservative, point of view, it has failed and failed abysmally; for let us never forget that every one of the despotic incursions on man’s rights in this century, before, during and after the New Deal, have received the official stamp of Constitutional blessing. 

Rothbard was echoing Lysander Spooner who wrote:

But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.

From a legal standpoint, this state of affairs was easy to bring about because in practice the Constitution, including the Bill of Rights, means whatever the Supreme Court says it means. But, even the Court is limited by the public’s ideological views and the public’s willingness to tolerate the Court’s rulings. If the public is willing to accept the seizure of private property in the name of the War on Drugs or the War on Terrorism, then we should not be surprised when government agencies do so. If the public is willing to grant the federal government powers that are clearly not found in the Constitution itself, the fact that the Bill of Rights legally prohibits such things will be of little consequence. 

As written, the Bill of Rights is a beneficial summary of many of the limitations that should be placed on government power. Without a public rooted in an ideology that supports and demands respect for the Bill of Rights, however, the words will ultimately mean nothing at all.

Image Source: Ted Mielczarek www.flickr.com/photos/49243838@N00/
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