It may be that every American “knows” the Founding Fathers bequeathed to us a Bill of Rights as a guarantor of various liberties, and this belief may be so deeply ingrained in the national psyche that virtually every famous political actor in the country has attested to the framers’ wisdom in their crafting of the great bill, but the plain, historical and undeniable fact of the matter is the framers overwhelmingly rejected any notion of a bill of rights. When the proposal was put forth during the Constitutional Convention, only two men of 55 spoke in favor of the measure, and the state delegations rejected the idea unanimously.
And the bill didn’t fare much better with the men of the First Congress, who approved the amendments only because of crushing pressure from Anti-Federalist factions. Respected constitutional scholar Robert Goldwin notes the House was almost “unanimously opposed” to the amendments; and that the bill’s sponsor was told of these feelings “in terms that were caustic, scornful, and even derisive.”
The framers were convinced that such a bill would actually rob Americans of their rights, not protect them. And they were correct, for as Alexander Hamilton said: “I affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous.”
Unnecessary? Dangerous? How, exactly?
When the framers wrote our Constitution, their strategy for safeguarding liberty against government encroachment was really quite simple — they would list, specify and detail the few and defined rights of the federal government. All the uncountable, innumerable scores of rights and powers not found on this small list were off limits to the federal government and were retained by the people. As every good conservative knows, this list the framers referred to is the “enumeration,” and it is contained in Article I, Section 8 of the Constitution.
At this point the framers directed their critics who bemoaned the absence of a bill of rights to the enumeration and noted, quite logically, that since the enumeration contained no provision for the federal government to assail cherished liberties, those rights were already protected. A bill of rights was unnecessary because the rights so loved in our Bill of Rights were already protected, were already completely off limits to federal authority. Nowhere in the enumeration do the people cede to the government the power to regulate the press, thus the federal government has no authority whatsoever to do so, or to suppress free speech, or establish a church, or seize firearms. The logic and simplicity of their reasoning are undeniable.
We now see why the bill was unnecessary. But why, exactly, was it “dangerous?”
Though Madison and Hamilton penned virtually the same words, James Wilson, Pennsylvania delegate to the convention, said it best:
“In a government consisting of enumerated powers, such as is proposed for the United States, a bill of rights would not only be unnecessary, but, in my humble judgment, highly imprudent. In all societies, there are many powers and rights, which cannot be particularly enumerated. A bill of rights annexed to a constitution, is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated, is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government; and the rights of the people would be rendered incomplete.”
This, of course, is the sad situation in which we now live. A huge majority of Americans and our legislators believe that the federal government may legislate on any topic, at any time, for any reason, period — so long as the legislation does not offend the Bill of Rights. We used to have all the rights contained in the Bill of Rights, plus untold scores of others. Now, as the framers predicted, we have only those rights contained in the Bill of Rights. This is a disaster, not a blessing.
The world the framers gave us (government’s powers limited to a small list) is entirely different from the world given by the Bill of Rights (people’s powers limited to a small list). These two worlds are mutually exclusive. They represent, with mathematical precision, exact and precise diametric opposites. One is the antithesis of the other. The world the framers gave us is not diminished by the Bill of Rights, it is not marginalized; it is utterly and absolutely destroyed. These two visions simply cannot exist side by side. One must die, and indeed, one did.
Others will blame any of a dozen different reasons for our lost rights, but can it really be a coincidence that the only rights we have left are found in the Bill of Rights? Can it?
Rick Lynch, a writer living in Virginia, discusses constitutional issues in his forthcoming book, “They Are Vicious… :How Democracy and the Bill of Rights destroyed the U.S. Constitution.”