The Bill of Rights turns 232 years old today. Adopted in 1791 as a consolation prize for the Anti-Federalists, it has been perhaps the most important part of American legal history since the eighteenth century, and has served as an inconvenient reminder of the laissez-faire libertarian philosophy that permeated American political theory in the late 18th century.
As I noted in “Magna Carta and the Fantasy of Legal Constraints on States,” words written on parchment do not actually protect anyone’s freedoms, and legal constraints on state power are only as good as the ideological backing they receive from the population.
Nevertheless, for all its weaknesses, the Bill of Rights—when taken seriously by the general population—has played a part in preserving basic human rights for Americans that were eviscerated in many nations long ago. Thanks to the First Amendment and those who support it, for example, freedom of speech is often more respected in the United States than is almost any place one might hold up as an example. One can be arrested and imprisoned for saying unpopular things in France and Germany, to just name two examples. (And we’re not even considering the far more illiberal states of Asia.)
How absurd it was, for example, to hear the French pretend to be supporters of freedom of speech in the wake of the Charlie Hebdo massacre when the French state imposes legal sanctions on people for saying allegedly anti-Semitic or racist things. In Germany, one can be imprisoned for saying unpopular things about Nazis or the Holocaust. What most (but not all) Americans understand—and what the French and Germans don’t—is that in a free country, some people will say repugnant things.
The First Amendment can also be partly credited for the lack of strong anti-defamation laws in the United States. For example, thanks to the First Amendment, federal law makes it very difficult for government agents to sue members of the public for alleged “defamatory” behavior. The whole concept of defamation, of course, is just a way to shut people up who say things the “victims” don’t like.
Moreover, religious freedom has never been more than a temporary convenience for people in most of the world. The French government seized Catholic churches long ago, and most of Europe shut down religious services during the Covid Panic. In the United States, these shut downs were shorter, less widespread, and more haphazard due primarily to the lingering power of the First Amendment, as written. And certainly, for all the anti-Semitism and anti-Catholicism that has reared its head in America over the decades, nothing compares to the government-sanctioned anti-Semitism that has at times permeated France, Germany, Austria, and a host of other “free” countries in Europe.
And as far as being Catholic goes, even the worst anti-Catholic persecutions in American history have nothing on the persecutions concocted by anti-Catholic regimes of the Spaniards, French, Mexicans, Brits, Japanese, and many others.
As for property rights — which includes the right to own weapons for self-defense — the US regime has managed to find new exceptions to this every year, but even in that case, the US often comes off looking relatively less awful. We need look no further than the French regime’s scattered jihads against basic privacy and property.
Of course, most regimes do this every time there’s an “emergency.” In Canada, during World War II, the federal government mandated registration of all firearms, which it claimed was necessary to fight domestic subversion. Human rights go right out the window in the UK whenever the state feels the “need.” The US itself suspended habeas corpus and a host of other human rights during the Civil War. And the Bill of Rights didn’t prevent the internment of the Japanese-Americans, many of whom, unlike the Reservation Indians of old, were full-blown American citizens.
In the long sordid history of conquest and colonialism, the US has held its own (in a bad way) whether in the Philippines or in Iraq or on the Western frontier of North America. And yet, the presence of the Bill of Rights, and the ideology it represents, has long been an inconvenience and an impediment — albeit often a weak one —to an even more aggressive state in terms of prosecuting “enemies” of the state who oppose American militarism.
A Bright Spot in an Unnecessary Constitution
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.
The tiny Shays Rebellion in 1786 finally provided them with a chance to press their ideas on the masses and to attempt to convince the voters that there was already too much freedom going on in America at the time.
The Federalists didn’t mention that they’d benefit personally from the new constitution, of course, but instead focused on the idea that without a stronger central government, they country would be overthrown by the powers of “faction.”
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 330 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.
