Like we do, Jake and I had a very long argument today on AIM. As you may have gathered from the title, it was about the United States Constitution’s Bill of Rights. The argument was about whether or not the Bill of Rights (hereafter referred to as BoR) is a positive thing or not. Since most people can already form a pretty coherent argument as to why the BoR is positive, here is my argument as to why it’s negative. (This same point was argued by Alexander Hamilton in 1788 around the initial inception of the BOR.)
The argument is that if rights and freedoms are specifically granted by the constitution, there is a subtle implication there that freedoms not specifically mentioned in the BOR are not actually granted to the people! For example, people often argue about whether the second amendment gives people the right to own guns, or whether they are only allowed to do that in the context of a “well-regulated militia”. Well, it doesn’t matter what the second amendment says, because by default people have complete liberty — this is the entire premise upon which our nation was founded! The only way people should lose this right (or any other right) isn’t if the BoR doesn’t specifically guarantee it, but if our body of laws specifically prohibits it, and such a law would have to be specifically allowed by the constitution. Alexander Hamilton puts it very succinctly:
[The Bill of Rights] would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power.
The federal constitution was originally designed to grant powers to the federal government, with a specific clause — amendment X, the only acceptable part of the BoR in my opinion — that says that powers not specifically granted to the government in the constitution are prohibited by it. Granting freedoms and rights to the people is too similar to be comfortable. Why, when deciding the legality of a flag-burning law, should we turn to the 1st amendment? Shouldn’t we simply say, “the constitution does not specifically grant the federal government the power to make such a law” and have that be enough? For in enumerating certain rights that must not be infringed by the government, we have obfuscated the fact that the government is not allowed to infringe upon any of our rights.
Discussion welcome.
Please note that the 10th amendment does not prohibit powers of “the government.” It prohibits powers of the federal government and gives them all to the state governments. It says that any power not explicitly banned is given to the states.
So, before that amendment, you might have had a case. But the 10th is pretty clear. I’m surprised you find it so acceptable.
To the states or to the people, it says. And in turn the state constitutions should act in the same way, granting state governments certain specific powers and reserving the rest to the people.
Ah, but you miss the word “respectively” there, Dave. It’s saying that all powers not delegated to the federal branch are with the states. And that all powers prohibted to states lie with the people.
But I agree that state governments should be awesome. And by and large, Massachusetts ain’t so bad.
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