Today is Bill of Rights Day. Should we celebrate? Or should we mourn the Bill of Rights?
Editor’s Note: Bill of Rights Day is Tuesday, December 15th. But as Kevin Gutzman points out in this article, it’s not a day of celebration. Instead, it should be a day of mourning for the death of decentralized self-government.
The Bill of Rights should be mourned, not celebrated. It is defunct. Intended as the bulwark of the right of decentralized self-government, it now serves mainly as an excuse for the opposite: a roving judicial veto of state policies that federal judges dislike.
So, if the people of virtually every state ban flag burning or regulate abortion, provide capital punishment or support prayer in school, that does not settle the matter. Unlike 200 or 100 years ago, today the federal judiciary is apt to step in to stop state legislatures from adopting policies like this.
The people never consented to have the federal judges behave this way.
The purpose of the first ten amendments was laid out clearly by their Preamble. “Preamble?” You might ask. “What preamble?” Although the main body of the Constitution is never published without its Preamble, one could study American history for a lifetime without ever encountering the Preamble to the Bill of Rights.
That Preamble says that Congress is recommending amendments to the states because a number of states in ratifying the Constitution “expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.” Since the people were afraid of the new Federal Government, that is, the Bill of Rights was being added to hedge in the powers of the Federal Government more carefully.
So, for example, the Tenth Amendment stated what Thomas Jefferson called the underlying principle of the entire Constitution: “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.” In other words, the Constitution gave the Federal Government a few enumerated powers, and those were all.
That is why the First Amendment begins by saying that, “Congress shall make no law.” Congress, not government generally. The point was to leave such questions in the hands of elected state legislators.
America’s Revolution was fought and won in the name of self-government via elections to state legislatures. King George III and Parliament insisted that those legislatures could legislate only when and as far-off officials essentially unaccountable to American colonists said they could. The Americans rejected that idea. In fact, rejecting that idea was what made Britain’s North American colonists into Americans.
No surprise, then, that six years after the Revolution ended, in the First Congress, the people insisted that the principle of local self-government — of federalism — be made explicit through the Tenth Amendment and the other nine. They wanted explicit statements that the distant new Congress could not violate Americans’ most cherished rights — rights the king and Parliament had repeatedly infringed.
This was an uncontroversial understanding of things in the Constitution’s first century and more. The Supreme Court unanimously said in 1833 and thereafter that the Bill of Rights was a limitation solely on the Federal Government.
In the latest issue of the Southern California Review of Law and Women’s Studies, Gary Simson and Erika Sussman argue that abstinence only sex education is unconstitutional because it promotes a religious agenda. The fact that such education is supported by the Christian Coalition and the "religious right" makes legal toleration of abstinence teaching an unconstitutional act.
If such a proposition is seriously considered, it becomes quickly evident then, that any law which promotes ideas and morality which originated with Christian groups must be interpreted as a violation of the establishment clause of the First Amendment to the Constitution. To carry this concept over to other concepts and agendas, this would mean that public espousal of things like human or "natural" rights, representative government, respect of human dignity, the first amendment, and the Constitution itself must all be declared unconstitutional. A brief look at the history of liberalism and the idea of a separate church and state illustrates the foolish nature of such an argument.
The concepts of human rights and the dignity of the individual were conceived exclusively within Christian Europe. Although applied heavily to politics by British and French philosophers of the 17th and 18th centuries, such ideas originated even earlier with Jesuit and Dominican scholastics who wrote often of the primacy of the human individual in natural law. Men like Juan de Mariana and John Locke were religious men who simply pointed out that God’s natural law is superior to the law of man. Without this basic premise there can be no comprehension of human rights as anything more than favors granted by a governmental body. Human rights are a concept which grew out of medieval Christian Europe. They are a moral concept born of a religious morality. To teach people that they have "rights" is to teach them that there is a moral law which exists outside the jurisdiction of government.
The idea that religion is an entity which exists separate from government is a product of Christian civilization as well. The idea of divine rulers was abhorrent to the ancient Jews and their offspring, the Christians, adopted a similar attitude. Prior to the rise of Christianity, religion was seen as one and the same with the state.
Freedom and liberty or progressive tyranny. It's your choice. Let's bring back the Bill of Rights!