“The Sacred Rights of mankind are not to be
rummaged for among old parchments or musty records. They are written, as with a
sunbeam, in the whole volume of human nature, by the Hand of the Divinity
itself, and can never be erased or obscured by mortal power.” Alexander
Hamilton
Alexander Hamilton |
Madison’s support for a bill of rights became crucial. At first he
objected, then became unsure, and finally became a forceful advocate. He came
to believe that a Bill of Rights had become a political necessity. In his
speech on June 8, 1789, when he first proposed a Bill of Rights, he said, “It
may be thought all paper barriers against the power of the community are too
weak to be worthy of attention … yet, as they have a tendency to impress some …
it may be one mean to control the majority from those acts to which they might
be otherwise inclined.” Politically, Madison became a strong advocate for these
amendments, but as these words reflect, he remained ambivalent philosophically.
On September 25, 1789, the First Congress of the United States sent the proposed amendments to the states. Seventeen amendments were approved by the House, the Senate trimmed the list to twelve, and ten ended up being ratified by the states. With Virginia's ratification on December 15, 1791, articles III through XII became our revered Bill of Rights.
Because the Founders feared that a
Bill of Rights might impede liberty due to sins of omission, the 9th Amendment
provided that, “The enumeration in the Constitution of certain rights, shall
not be construed to deny or disparage other rights retained by the people.” The
10th Amendment further stated that “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.”
These simple fifty words
encapsulated the political philosophy of the Founders. Rights are not bestowed
by the government, they are “endowed by their Creator” and reside with the
people, and liberty depends on government operating within the restriction of
enumerated powers delegated by a sovereign people.
Through the years, this sound philosophy has been
diminished. Americans seem to turn to their government to validate and protect
real and presumed rights, and increasingly rely on government to guarantee the substance
of life. The Founders feared overly powerful government, while today, many
Americans embrace national authority and fight to enlarge governmental powers.
Constitutional devotees generally
fall into two categories: those who focus primarily on the basic document with
its checks and balances, and those who see the Constitution as a vehicle to carry
a Bill of Rights. This split in emphasis is similar to the struggle between
Federalists and Antifederalists, but either perspective would disappoint the Founders.
The Founders had fought, argued, and spent a good deal of their wealth to make
the Constitution and the first ten amendments the supreme law of the land. If
called on, they would fight again to preserve the ideas embraced by the entire
document.
Today, some want to use the Bill of
Rights to restrict other people’s freedom of action. These activists start by
getting something widely perceived as a right, then they harangue the Supreme
Court until their pet project is declared a right—generally one that has been loitering for
several hundred years in the shadow of an existing right.
Over the years, the
Supreme Court has succeeded in setting itself up as the arbiter of rights. So
much so, many people have come to view government—specifically the Supreme Court—as the grantor and guarantor of rights. As the 9th
Amendment states, rights exist that are not included in the first eight
amendments, but the proper way to secure these rights from government
interference is through laws at the state or national level or through the
amendment process.
The Founders anticipated minority
factions using the Constitution as a bludgeon. Hamilton wrote in Federalist 1,
“a dangerous ambition more often lurks behind the specious mask of zeal for the
rights of the people than under the forbidding appearance of zeal for the
firmness and efficiency of government. History will teach us that the former
has been found a much more certain road to the introduction of despotism than
the latter, and that of those men who have overturned the liberties of
republics, the greatest number have begun their career by paying an obsequious
court to the people, commencing demagogues and ending tyrants.”
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