J.D. Tuccille: After more than two centuries, the U.S. Bill of Rights still limits government power

Happy almost Bill of Rights Day! On Dec. 15, 1791, 10 amendments to the then-new United States Constitution were ratified in a deal to win acceptance of a frame of government to replace the unstable Articles of Confederation. Now known as the Bill of Rights, those amendments place limits, however imperfectly, on government.

Other countries also offer safeguards, but they generally treat freedom as a privilege to be respected so long as it’s convenient. By contrast, the U.S. was founded on the belief that rights are inherent, and government is legitimate only if it refrains from violating them. That principle is celebrated every year on Dec. 15.

Then-representative and future-president James Madison is considered the father of the Bill of Rights, but he started as an opponent of codifying constitutional protections for liberty. A believer that rights are natural and pre-exist any form of government, Madison argued in the Federalist Papers that, “The powers delegated by the proposed constitution to the federal government are few and defined,” and that the new government had no authority to do anything beyond what was stated in ink, let alone to encroach on people’s liberty.

He also worried that people would come to think that the only rights possessed by Americans were those specifically protected in a bill of rights, while he believed that people possessed the natural right to do as they please so long as they don’t encroach on the equal liberty of others. Madison detailed his ideas in a 1792 letter, in which he wrote that property “embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.”

This means, he elaborated, that property is not just land and merchandise, but that, “A man has a property in his opinions and the free communication of them.… He has a property very dear to him in the safety and liberty of his person.” Added Madison: “Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and unalienable right.”

Aware of the doubts expressed by skeptics of the proposed constitution, Madison’s mentor, Thomas Jefferson, urged him to embrace protections for some rights. He wrote to Madison that the constitution “forms us into one state as to certain objects” subject to executive and legislative bodies and “should therefore guard us against their abuses of power.” Regarding Madison’s concerns over listing some rights and not others, Jefferson responded: “Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.”

Such arguments won Madison over. He shepherded 12 proposed amendments through debate and consideration, winning approval for 10 of them (another, delaying the effect of congressional pay raises until after the next election, was finally ratified in 1992).

Among the approved amendment was one addressing Madison’s hesitation to protect only select rights: The Ninth Amendment states: “The enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That further embedded the idea of natural rights in the constitution. Originally limiting only the federal government, the Fourteenth Amendment applied the Bill of Rights to states.

Other countries have passed similar protections for the freedoms of their people, but they are usually framed in such a way that liberty is granted as a privilege. It’s not supposed to get in the way of legislation about which politicians are especially enthusiastic.

New Zealand’s Bill of Rights, for example, is just a law itself, like the English Bill of Rights, though it has gained quasi-constitutional status. It specifies that no law can be invalidated “by reason only that the provision is inconsistent with any provision of this Bill of Rights,” and that, “The rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law,” as if government officials ever thought limiting people’s freedom was anything other than reasonable.

If a law is suspected of clashing with the Bill of Rights, the attorney general is supposed to inform Parliament. What lawmakers do with that information is up to them.

As part of the country’s Constitution and with standing to invalidate laws, Canada’s Charter of Rights and Freedoms has more teeth than New Zealand’s tepid effort. But the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Politicians are extremely skilled at justifying offences against liberty. In many cases, the ability to do so is what attracted them to seek government office to begin with. The notwithstanding clause also creates an enormous opening for government excesses.

For its part, the U.S. Bill of Rights is framed as a set of strict limits on government. It grants nothing. Instead, it places prohibitions on the exercise of government power beyond boundaries that define its legitimacy. The First Amendment begins, “Congress shall make no law,” and goes on to define the areas of freedom of speech and conscience that are protected from such laws.

The Second Amendment specifies that, “The right of the people to keep and bear arms, shall not be infringed.” The Fourth Amendment demands that, “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” These are absolute prohibitions that make no allowances for the preferences of lawmakers or what government officials think can be “justified.”

That’s not to say government doesn’t encroach on liberty in the U.S. It does so often and sometimes in horrific ways. We saw it with slavery, wartime censorship and the internment of Japanese-Americans. But political culture and legal scholars often rally to revive the firm protections in the Bill of Rights, as they did with the First Amendment a century ago and the Second Amendment within the last 20 years.

Writing on Bill of Rights Day in 2009, the Cato Institute’s Tim Lynch noted that, “The Framers of the constitution would not have been surprised by the relentless attempts by government to expand its sphere of control.” They knew paper protections were weak defences against power-hungry politicians. But, Lynch added, “They nevertheless concluded that putting safeguards down on paper was better than having nothing at all.”

Those safeguards are imperfect. They’re often attacked by Americans who are uncomfortable with specific rights or even with liberty in general. But each Bill of Rights Day reminds us that Americans enjoy firmer and more rigorous protections for liberty than most other countries have ever attempted.

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