The Bill of Rights Who Needs It?
Akhil Reed Amar, (1998), a leading constitutional scholar reminds us that states rights were an issue of our national politics “older than the Union itself.” The separate and distinct English colonies in the New World laid the foundation for the argument for states’ rights that in turn set the stage for the creation of the Bill of Rights. But in the 1780s no states yet existed and the power of individuals was heard the Constitutional Conventions held in each colony. Here it is argued that the Bill of Rights was necessary as an amendment to the Constitution in order to allow citizens a legal tool for retaining power in the face of a centralized government. Therefore the Bill of Rights were added to the Constitution to uphold the rights of citizens.
The anti-Federalists were led by men like George Mason, Patrick Henry and Elbridge Gerry. The anti-Federalists adamantly warned against a Constitution that granted the new federal government too much power. They predicted that given a chance a centralized entity of power would overshadow and perhaps, in the worst-case scenario, remove the rights of states and their citizens. On the other hand leaders of the Federalists like John Adams, James Madison, George Washington and Alexander Hamilton argued that a nation of states could never remain stable without a strong power center.
Alexander Hamilton based his feelings for a strong centralized government on humankind’s history of conflict where “Neighboring nations are naturally enemies of each other, unless their common weakness forces them to league in a Confederate Republic, and their constitution prevents the differences that neighborhood occasions.” Hamilton was certainly making a strong argument for keeping the peace between states with mutual boundaries, because no one could argue that conflict was not an integral part of history. On the other hand the anti-Federalists focused on the abuse of powers and the fear that a powerful centralized government could overstep its power if not held back by setting specific limitations. This is not surprising given the experience with King George and the Parliament of Great Britain, after all the fulcrum of the American Revolution was a revolt against the English move to monopolize tea trade using the India Tea Company. To all those that supported the American Revolution this was a clear abuse of power that would hurt individuals in the colonies. But although the members of the Constitutional Congress agreed about the government of England when the subject was the American Revolution when the government of the new United States of American was at issue delineation in opinion was clear. The debate over whether or not the new central government needed to have limitations was a passionate one.
The Federalists argued that the government would be constrained by limited powers. The anti-Federalists countered this argument by asking why there was a need to add limitations such as “in Article I, §9. Why, if the powers of the national government were limited to assigned powers, was it necessary to prohibit Congress from, say, granting titles of nobility?” Meese and Spalding share their thoughts on how the Bill of Rights in action sets limits on the central government “There are limits to the length to which Congress may go in its exercise of power, in this respect, like all of its other powers, is subject to the Bill of Rights and other constraints in the Constitution.”
The Preamble to the Bill of Rights is revealing when it states that the reason for the Bill of Rights was because of several State Conventions that “. . . Expressed a desire, in order to prevent misconstruction or abuse of its (the central government’s) powers, that further declaratory and restrictive clauses should be added. And as extending the ground of public confidence in the Government, will best ensure the beneficent end of its institution.” The people through the Conventions in the States exerted their individual powers to demand a Bill of Rights. The colonies or soon to be states were the actors that enabled the creation of the Bill or Rights and its ratification along with the Constitution, but in 1789 the Bill of Rights was not about states’ rights it was about the rights of individuals versus a centralized government. The Preamble makes clear that the Bill of Rights was added to avoid the public’s distrust of the new centralized government. Article IV protected individuals and them the right of security which forbids government intrusion on their homes and persons. Subsequent amendments are also to protect individual rights such as voting rights and the right to a fair trial which support the same interpretation.
The Harvard Law Review (2013) discussed the meaning of “the people” in the Bill of Rights because claims have been made that the phrase does not include “minors, felons and non-citizens – (are) groups that lack political power” but "this interpretation is at odds with the Court's precedents, the Constitution's purposes, and this country's principles. The claims of the Harvard Law Review also support the claims of this author that at the time of the ratification of the Constitution the addition of the Bill or Rights was in the interest of the individual citizens.
References
- Amar, Akhil Reed The Bill of Rights: Creation and Reconstruction. New Haven, CT: Yale University Press, 1998.
- Brant, Irving. The Bill of Rights: Its Origin and Meaning. Indianapolis: Bobbs-Merrill, 1965. http://www.questia.com/read/34605558.
- Brest, Paul, Levinson, Sanford, Balkin. Jack M. Siegel, Reva B. and Akhil Reed Amar. Processes of Constitutional Decisionmaking. Aspen, CO: Aspen Law & Business, 2006.
- Ketcham, Ralph. The Anti-Federalist Papers and the Constitutional Convention Debates. Penguin Group (USA), 2003.
- l’Abbe de Mably, vide “Principes des Negociations” cited by Hamiton, A. Federalist No. 6 Concerning Dangers for Dissensions Between the States, For the Independent Journal. Wednesday, November 14, 1787 available from http://www.gutenberg.org/files/1404/1404-h/1404-h.htm#link2H_4_0006
- Meese, Edwin, David Forte, and Matthew Spaulding. Heritage Guide to the Constitution. Washington. Regnery Publishing, Inc. 2006.
- Rutland, Robert Allen. The Birth of the Bill of Rights, 1776-1791. Chapel Hill, NC: University of North Carolina Press, 1955. http://www.questia.com/read/3179341.
- Sturgis, Amy H. Presidents from Washington through Monroe, 1789-1825: Debating the Issues in Pro and Con Primary Documents. Westport, CT: Greenwood Press, 2002. http://www.questia.com/read/102138156.
- "The Meaning(s) of "The People" in the Constitution." Harvard Law Review 126, no. 4 (2013): 1078+. http://www.questia.com/read/1G1-321180188.
- Zietlow, Rebecca E. Enforcing Equality: Congress, the Constitution, and the Protection of Individual Rights. New York: New York University Press, 2006. http://www.questia.com/read/117884723.
