Power & Market

Remembering the Bill of Rights

Remembering the Bill of Rights
Power & Market Ryan McMaken

The Bill of Rights was finally ratified on December 15, 1791. Most of the new Constitution of 1787 was devoted to raising taxes, centralizing government, and destroying self-rule in the independent states. 

The Bill of Rights, however, was a bright spot in an otherwise unhelpful and unnecessary document. 

From 2015's article "The Bill of Rights: The Only Good Part of the Constitution":

Patrick Henry and the Anti-Federalists pointed out — correctly — that the US already had proven it had sufficient means to deal with European powers, and that in the bloody history of states, the true threat to freedom lay not in there being too much freedom, as the Federalists claimed, but in the overweening power of centralized states.

Virtually no one believed that a new constitution was necessary to secure what they had earlier called their "English Liberties," including freedom of speech, a right to due process, jury trials, and more. Those freedoms were already assumed to be assured to all non-slaves. Those freedoms had been won in the Revolution. The people didn't need a more powerful Congress to protect them. If their freedoms were threatened, the people could rely on highly-democratic (for the time) state legislatures and a decentralized militia system.

But, in the end, the Federalists won out after they promised to adopt a Bill of Rights to limit the power of Congress. As we know, though, the Bill of Rights began to break down immediately, and it was only a matter of time until the Alien and Sedition Acts, Jefferson's embargo, and other even worse crimes perpetrated on the states and the people.

It was the Constitution of 1787, after all, that strengthened the institution of slavery, set the stage for the fugitive slave acts, and made provision for the criminal prosecution of those who attempted to help set escaped slaves free.

That's what sort of "pro-freedom" document the Constitution was and is.

What the Constitutions Should Have Said 

The Bill of Rights would never have been necessary, however, if so much power had not been granted to the central government by the constitution of 1787 in the first place

Indeed, the earlier constitution of 1777 (the so-called Articles of Confederation) had itself been too detailed and powerful.

After all, the whole idea of a national constitution had always been sold on really just two premises: 1) It would assist in national defense and 2) it would facilitate trade among the member states.

In other words, it should never have been anything more than a customs union and a mutual defense agreement.

So, in the service of sound political science, I have composed a new constitution for us:
 

Article 1. The United States shall meet every two years in Congress assembled to negotiate terms for the maintenance of a union of independent states. There shall be no duties or taxes imposed on trade among the states or the people therein. The states, in Congress assembled shall set the standards for membership in the United States and provide provision for member withdrawal and the conditions for receiving the benefits of mutual defense as a member of the Union.
The End. 


Nothing more is necessary or prudent. Independent states enter into mutual defense agreements quite frequently, without surrendering their independence, and trade agreements are a quite mundane affair in the history of states.

Any appeal to "patriotism" or lofty ideas of "America" or the fanciful notion that people in Arizona are the countrymen of people in New York has no backing in the day to day realities of living. Never in history was there a group of 320 million people spread across four million square miles who were part of the same community and who shared the same experiences, interests, or even the same economic ties.

In reality, the people of Colorado, for example, have more in common with the people of Saskatchewan — in terms of economic interests, culture, and history — than with the people of Georgia or Delaware of Pennsylvania. People only believe the residents of the US states make up "one people" because they were told as much by their third grade teachers. Actual experience tells us otherwise.

Those who demanded the Bill of Rights had attempted to preserve this idea of government on a human scale: government that reflects the realities of daily life, human relationships, and the necessity of free commerce — rather than the ideological fantasies of nation builders. Even to this day, the idea that the minutiae of life and commerce should be governed by a group of millionaires sitting in luxury 2,000 miles away is repugnant to the the reasonable mind. In preventing this, the Bill of Rights has largely failed, although things most certainly could have been worse.

 

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