Should we have a Bill Of Rights

Political Philosophy
1

Ideally, a country’s constitution should say “These are the powers of government. Government may not excercise any powers not ennumerated in this Constitution.” Not necessarily in those words, but with that precise meaning. Why? For the simple reason that “governments derive their powers from the consent of the governed” as Thomas Jefferson well knew. Therefore such powers ought to be carefully defined and restricted.

I am less certain whether the constitution should also contain a Bill Of Rights. That is, a number of articles, or ammendments, detailing certain rights possesed by the people.

Let’s take the I Ammendment to the US Constitution. It prevents the government from making laws restricting freedom of speech and of the press, among other things. Well and good. But is it necessary? Shouldn’t a government know it cannot enact such laws because it does not explicitly have the power to?

The IV Ammendment prevents unreasonable serches by the government. Wouldn’t it be better to have a constitutional article saying what kind fo searches governemtn is allowed and under what circumstances?

But that is merely procedural. The main issue si that individual rigths are intrinsic to individuals. Setting up a Bill Of Rights, however well-intentioned, assumes that certain rigths at least exist only by a favor from the government. Worse, yet, some groups ahve come to think the only rights afforded the individual are those explicitly ennumarated in the Bill Of Rights, which is entirely ridiculous and ignores the IX Ammendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

In fact, the IX Ammendment (and the X, but that one also mentiosn the rights of the States) has been largely overlooked in many cases where it should have applied. I’ve read the reason behind the IX was to secure rights not enumerated, as acompromise between those who favored a Bill Of Rights and those who didn’t. If so, it hasn’t done a good job.

The imoprtance of this question is simple. Any constitution, however carefully throught out, can have flaws. And none can predict what changes will take place (technological, sociological, cultural, etc) that may render parts of it obsolete. Therefore all constitutions must be subject to change by latter generations. Philosophical and cultural changes can wreak havoc with a constitution’s original intent (consider how often you hear a bout “the General Welfare” clause, which doesn’t even exist!)

So regardless of how well reasoned a constitution may be, how limmiting it is of government power, it can be changed to render its meaning moot, or even to become something antithetical to its original intent. We’ve seen this happen with the US Constitution, after all.

Of course, a well reasoned document is harder to change than a poorly reasoned one. A well reasoned one would include safeguards for itself. One possible safeguard against future tyranny is a Bill Of Rights. It’s harder for statists to mess with free speech when there is an article or ammendment protecting free speech explicitly (not that it has done so too well, as we all can see).

However, the recognition of the fact that individual rights are paramount should be the first, and most important, item on such a Bill. That makes it hardest to restrict such rights in the future, no matter how well intentioned such restrictions are.

Overall, though, I favor strict limits on government, no enumerated rights at all, and, above all else, a firm and explicit philosphical foundation for the entire document.

What do you think?

2

Many of the theorists who developed the Constitution believed a Bill of Rights to be redundant, and some thought that including a Bill of Rights would eventually lead to government only recognizing the enumerated rights to the exclusion of others. The Bill of Rights was added as a palliative to ease ratification. The drafters believed that if they didn’t expressly give a power to Congress, then Congress didn’t have that power. But the Bill of Rights has come to be primary law in and of itself. Modern courts say Congress can’t establish a state religion because the 1st Amendment prohibits it, not because Congress was not granted such a power (to establish a state religion) by the main body.

History shows that inclusion of a Bill of Rights with the power of law eventually leads to exclusion of unenumerated rights, even when such exclusion is expressly disclaimed (as in the 9th Amendment). If the Bill of Rights is treated as law, rather than a restatement of the law, then it becomes a restraint on government power, rather than a limited grant. The government stops being one created with limited powers and becomes a leviathan state in restraints. It will strain against those restraints to maximize its power (see e.g. Kelo).

There is nothing objectionable about a Bill of Rights as a restatement. “Here,” we say, pointing to the main body, “is the Law. Over here,” we say, pointing to the Bill of Rights, “is what we mean by it.” Treating the Bill of Rights as law creates the impression (and, I believe, the fact) of a government that would have those powers denied it by the Bill of Rights if the Bill of Rights were absent. If, for example, Congress and the several States decided to repeal the Establishment Clause, would Congress then have the power to establish a State religion? If the Bill of Rights is a limiting document, then yes, Congress would have that power. If the Constitution is a granting document, then no. Constitutions are supposed to be granting documents - this is premised on the assumption that sovereignty derives from the people, who give over small portions of that sovereignty to a government for the purpose of securing their sovereignty. The Constitutional government has no power that is not expressly granted it by the people.

The view of Constitutions as limiting documents is related to legal positivism. [At least, I think it is - I’m still mulling over the philosophical connections, and I need to review the historical ones.] As I have it, a jurisprudence that grants a legal system the power to say what the law is must be granting that system practically unlimited power, which only a ‘constitution’ can limit. The problem is, such a ‘constitution’ would still be subject to change under the system’s power to say what the law is, and it doesn’t really ‘constitute’ the government. The constituting is done by the mystical tautology, “the law is what we say it is because we said so,” with the bit about who has all the guns left as given. Such a ‘constitution’ would more accurately be called a Restraint. Such a government would be a partially limited tyranny. This is what the US system has become.

In summary, no, we shouldn’t have had a Bill of Rights in the first place, but now it is essential to hold back the leviathan. The Bill of Rights’ inclusion as primary law in the Constitution obscured the working of the main body and changed the Federal Government from something constituted to something restrained.

-Q

3

Yeah, what Tom said. That cussed legal principle expressio unius is a major contributor to the mess that we’ve got. If it is clearly established what the function and power of government is – especially if there is a Purpose Clause that requires all government acts to be justified (and judicially reviewed) with reference to the proper function of government, then there is no need to say anything about what individuals may do. All restrictions on men’s actions follow from that purpose: the government may, indeed must, have a law to prevent murder, if it is to serve its function.

4

Many of the theorists who developed the Constitution believed a Bill of Rights to be redundant, and some thought that including a Bill of Rights would eventually lead to government only recognizing the enumerated rights to the exclusion of others.

Which is exactly what is happening now. Consider abortion. The basic question is what property rights a woman has over her body, an issue not really covered by the Bill Of Rights.

Modern courts say Congress can’t establish a state religion because the 1st Amendment prohibits it, not because Congress was not granted such a power (to establish a state religion) by the main body.

And because to change the I Ammendment would require a super-majority vote from the various States (3/4 as I recall). But that’s being limited for the wrong reason.

There is nothing objectionable about a Bill of Rights as a restatement. “Here,” we say, pointing to the main body, “is the Law. Over here,” we say, pointing to the Bill of Rights, “is what we mean by it.” Treating the Bill of Rights as law creates the impression (and, I believe, the fact) of a government that would have those powers denied it by the Bill of Rights if the Bill of Rights were absent.

I hadn’t seen the matter that way. Would you say that constitutes an additional safeguard?

In summary, no, we shouldn’t have had a Bill of Rights in the first place, but now it is essential to hold back the leviathan.

Absolutely.

My question is abstract. Obviously eliminating the Bill Of Rights now would be counterproductive, and a boon to statists from all sides.

5

Would you say that constitutes an additional safeguard?

With trepidation. The peculiar format of Bills of Rights, be it “the people shall have such-and-such a right,” or “government shall not do so-and-so,” makes them dangerous to include in primary law, for the above-stated reasons. A Bill of Rights should have no more legal authority than, say, the Declaration of Independence: it’s a statement of intent, but not of law.

I’m partial to David’s suggestion of a Purpose Clause, but I’m not sure exactly how to write a foolproof one. If all Acts of Congress must be in furtherance of the safeguarding of individual rights, then don’t you have to define “safeguard,” “furtherance” and “individual rights?” I can see it getting quite long. How much obvious stuff is it safe to leave out? The Framers thought a lot was obvious and didn’t need restating. Much of it is still obvious, but for some reason, no one notices the obvious anymore. To some people, a right to free health care is now an ‘obvious’ ‘individual’ ‘right.’

especially if there is a Purpose Clause that requires all government acts to be justified ( and judicially reviewed ) with reference to the proper function of government, then there is no need to say anything about what individuals may do.

When I read that, I first cried, “Oh no! We’ll need a 500-member, full-time Supreme Court!” But on further reflection, I realized that such a restraint would drastically reduce the quantity of legislation as well. Still I worry that, if all legislation must be judicially reviewed, the Justices might get lazy and defer to Congress’ offered justifications.

-Q

6

If all Acts of Congress must be in furtherance of the safeguarding of individual rights, then don’t you have to define “safeguard,” “furtherance” and “individual rights?”

The fundamental right of any man is the right to his own life: each man has the right to act on his own judgment by his own voluntary choice. No law or constitutional provision shall be valid except as it is necessary to protect those rights. I avoid “furtherance”, and while “safeguard” will end up in this discussion, it’s logically subordinate to this principle regarding the purpose of government and its relationship to legal validity. Actually, the Interpretation Clause is important as well, viz that if a law is found to be materially ambiguous, it must be interpreted in a rights-respecting manner, or else stricken.

Of course, the real problem will almost certainly come in the factual argument, and this would be true even in Objectopia, where one could argue that violation of rights is necessary to protect rights. In time of war, for example, when the threat of actual destruction due to enemy agents sabotaging the war effort does exist, ordinary good faith assumptions may not always hold.

When I read that, I first cried, “Oh no! We’ll need a 500-member, full-time Supreme Court!”

Right, I guess that the sentence was sub-optimal. The standard of review for the validity of a law is whether the law is necessary to protect rights. However, as a separate matter, I don’t think justices should be restricted to only rendering narrow opinions (of the precedent type) on the specific matter before them. If a law contains a clause legalizing confiscation of property for the common good, that is a violation of the purpose of government which can be recognised by any competent legal authority, whether or not a complainant with legal standing makes it to the courtroom to raise a ruckus.

7

The fundamental right of any man is the right to his own life: each man has the right to act on his own judgment by his own voluntary choice. No law or constitutional provision shall be valid except as it is necessary to protect those rights.

I guess my concern is: How much of this needs to be explained in the actual text? The problem with any Constitution is that it is written within an assumed philosophical context. If the prevailing philosophy changes (as it has), such a document will fail. To what extent should the philosophical assumptions be expressly stated in the text? I’m sure most of us agree that this definition of individual rights is the only rational one, and that the only proper way to interpret a Constitution is through using reason. But what is there to stop a judge who doesn’t hold reason in such high regard from reading free health care into ‘rights?’ [Perhaps if a society has devolved to such a state where reason is no longer a qualifying factor for judgeship, it deserves what it gets? Ahh, but we started zoning in property today, and I’m still grouchy…]

I don’t think justices should be restricted to only rendering narrow opinions (of the precedent type) on the specific matter before them[, or] whether or not a complainant with legal standing makes it to the courtroom to raise a ruckus.

Pardon the paraphrase. I like the idea of sua sponte judicial review (assuming an objective standard), but such rulings should only be binding if they throw out the statute, not if they uphold the statute.

-Q

8

I like the idea of sua sponte judicial review (assuming an objective standard), but such rulings should only be binding if they throw out the statute, not if they uphold the statute.

Excellent point.

9

I guess my concern is: How much of this needs to be explained in the actual text?

The American Constitution has been praised for both its brevity and relatively few ammendments. I would preffer a longer document that were clearer and more certain.

The downside is that any excess verbiage makes it more difficult for the layman to understand the document. Because government ought to be watched, an understanding of the constitution is important for every citizen.

So it’s a dilemma, no doubt about it. I’d favor a happy medium, if only I knew what it was.

The problem with any Constitution is that it is written within an assumed philosophical context. If the prevailing philosophy changes (as it has), such a document will fail.

I would advocate a firm philosophical foundation outside the constitution, which I think we all understad is necessary in any case. However, even if we had the ideal society now, there are no guarantees it would remain ideal forever, or even for a very long time. Constant vigilance is the price of liberty.

To what extent should the philosophical assumptions be expressly stated in the text? I’m sure most of us agree that this definition of individual rights is the only rational one, and that the only proper way to interpret a Constitution is through using reason. But what is there to stop a judge who doesn’t hold reason in such high regard from reading free health care into ‘rights?’ [Perhaps if a society has devolved to such a state where reason is no longer a qualifying factor for judgeship, it deserves what it gets? Ahh, but we started zoning in property today, and I’m still grouchy…]

To a greater extent than it’s currently the case. History does teach lessons. One is that you cannot rely on the assumptions of the day to carry a document through for several centuries. But things are different than they used to be, too. Education and literacy are more widespread now than during the Founders’ era. That ought to help. Still, returning to your question, I’d answer as much as is consistent with the consititution remaining the document it is, rather than making it a primer in philosophy.

I agree that people who don’t use reason deserve whatever they get. The problem is whether the rest of us deserve to get it, too. Particularly whether the tiny minority that does rever individual rights deserves high taxes and all the regulations we face today. Naturally the answer is no. How do we prevent it? Read what I’ve written above.

Will it work? It should work better than not stating any assumptions at all, or hardly any. A lot of the better political philosophy of the era is in the Declaration of Independence. Alas, I don’t know how much influence does the declaration have on the law, if any.

What won’t work is any “automatic” system to ensure the sanctity of the constitution. We have to make it a point to educate our children in reason and in proper philosophy. Even then that does not guarantee anything.

10

“A republic, if you can keep it,” I suppose.

Alas, I don’t know how much influence does the declaration have on the law, if any.

Little if any. It is not law. It predates the Constitution, and the Constitution doesn’t incorporate it, so it isn’t authority. It can be used rhetorically when making policy arguments, but I think its effect is purely rhetorical; the legal equivalent of quoting Shakespeare or Ayn Rand in court. It was suggested by one of my professors that referring to the Declaration in a legal argument is now considered both tacky and irrelevant. Thankfully he made the comment as an observation, not with any sort of approval.

-Q

11

"Little if any. It is not law. It predates the Constitution, and the Constitution doesn’t incorporate it, so it isn’t authority.

That’s too bad. The Declaration is pure Jefferson, perhaps at his best.

What about the Articles of Confederation?

BTW, I recall reading an article in of Rand’s publications (I’ve the complete collection of three of them) about a lawsuit concerning the draft (this was in the 60s). The article mentioned the court cited precedent to the Colonial era. Now, I understand Colonial-era laws were laws, and that in the tradition of Anglo-Saxon jurisprudence, any precedent is acceptable; but that the Declaration itself was never a law (I do wonder whther I’ve said this clearly).

12

Colonial-era case law was adopted (along with much of British case law back to the 1400s) as part of the American common law system when the colonies split from Britain. That is, judicial holdings, not statutes. The Declaration wasn’t a judicial holding. Nor was it a statute. It was, under British law, an act of treason.

The common law system sticks around today most prominently in tort law (e.g. negligence). It survives in all areas of law to some degree. It survives in criminal law to the least degree; all states have abolished common law crimes in general, but adopted statutory versions of most of them first. For example, there wasn’t always a statute proscribing murder - the elements of the crime were developed in case law by judges, rather than by legislative action. Most murder statutes nowadays still evidence this judicial origin - ‘malice aforethought’ was originally a judicial invention.

-Q

13

I agree that the bill of rights isn’t as important as some people may think. For example if Article 1 section 9 of the constitution can prohibit the use of ex post facto, why couldn’t the constitution also just prohibit the use of cruel and unusual punishment? (8th Amendment). The main reason why a constitution could be better off with out a bill of rights is the fact that the constitution will remain uneditable. I hate the fact that any one of those bureaucrats can just get together and edit the constitutioin to say what ever they want it to say eg. 16 amendment. Seriously, could there possibly be a more usless amendment? That was definitly nothing more than a cheap shot from the democrats, personal fiscal party platforms need to STAY OUT OF THE CONSTITUTION period. We would be better off with a constitution that remaind permanently uneditable.