The first 10 Amendments to the United States Constitution, widely known as the American Bill of Rights, were adopted in 1791 under pressure from the Antifederalist opponents of the Constitution. In its echo of the Declaration’s timeless principle of inalienable rights, it is certainly a document worthy of veneration; yet appropriate veneration requires reflection in the light of history and a clear view of exactly what is being venerated.
When it comes to the Bill of Rights, a conundrum becomes immediately evident, for it is plain that the Bill of Rights in effect today is not exactly the Bill of Rights handed down to us by the Founders, either in its legal application or its philosophical foundation. If we are really celebrating its 225th anniversary, then we should be celebrating the document that was handed down to us 225 years ago, and this means that we will be celebrating something which is in some respects a dead letter. Let us see what this means.
First, when we celebrate the Founders’ Bill of Rights, we celebrate a document designed chiefly to protect states and their citizens from federal aggrandizement. The final article in the Bill of Rights is the 10th Amendment, which reserves any power not granted to the national government (or denied to the states) to the states or their citizens. As the 10th Amendment suggests, the original Bill of Rights was designed to limit only the national government, thus leaving space for states to exercise autonomy in their mode of recognizing the rights of their own citizens.
This was the common understanding for more than 150 years of the nation’s existence.
It was not until the middle of the 20th century that the U.S. Supreme Court began to “nationalize” the Bill of Rights through a process it called “selective incorporation,” according to which the Court applies whatever provisions it chooses against the states on a case-by-case basis.
This process, by now nearly complete, has had the effect of turning the Bill of Rights from a document designed primarily to protect states and their citizens from an overbearing national government into a document that authorizes enhanced federal control of both individuals and states.
Second, when we celebrate the Founders’ Bill of Rights, we celebrate a document intended to guarantee the inviolability of rights originating in God or nature, not in government. Yet the Court’s selective appropriation of the Bill of Rights in the manner described above laid a foundation for its ultimate appropriation of the entire Constitution through the doctrine of judicial supremacy.
Briefly stated, judicial supremacy is the doctrine that the Court has exclusive, final authority to determine the meaning of all constitutional provisions — including the Bill of Rights.
Judicial supremacy has, in effect, produced a different constitution than the one given to us by the Founders. This new constitution — usually termed the “living constitution” — is based on the idea that the Founders’ Constitution (and the original Bill of Rights) is “outdated” and needs to be periodically “updated” in order to “keep up with the times.” The living constitution, when coupled with judicial supremacy, means the Court is entitled to change the Constitution (and the Bill of Rights) via interpretation whenever it likes.
In its new capacity as exclusive interpreter of the Constitution, the Court has interpreted the Bill of Rights in ways that would have been unrecognizable to anyone living 225 years ago.
In 1947, it began the process of excluding religion from the public square by falsely declaring that the First Amendment erected a “wall of separation” between church and state. In 1962 and 1963, it declared school-sponsored prayer and Bible reading unconstitutional, and in 2000, it outlawed prayer at high school football games.
In 1965, the Court fabricated an extra-constitutional “right to privacy” based, in part, on several provisions in the Bill of Rights, and in 1973, it included abortion in that right. In 1992, the Court, while upholding its own fabricated right to abortion, arrogantly declared that the American people must earn their legitimacy as a People by recognizing that the Court “speaks before all others for their constitutional ideals,” and in 1997, it explicitly denied the authority of the people’s representatives in Congress to interpret the Constitution with any conclusive effect.
In 2003, the Court fabricated a constitutional right to engage in homosexual sodomy, and in 2013, it declared Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Finally, a succession of federal courts — and finally the Supreme Court — declared same-sex marriage bans in several states unconstitutional.
The cases mentioned above represent just a few of the instances in which the Court has invented new rights — such as the right to engage in homosexual sex acts, or cancelled old ones — such as the right to life of an unborn child. Thus, it appears that many of the rights we currently have are not the work of God or nature, but rather of government, particularly of the courts.
This suggests that the foundation of the rights embodied in the living constitution and the foundation of the rights embodied in the Founders’ Constitution are not the same.
The Founders’ Constitution protects rights conceived as anterior to government; the living constitution seems to regard rights as gifts of government. In his dissenting opinion in Obergefell v. Hodges (2015), Chief Justice John G. Roberts Jr., perhaps had something like this in mind when exhorting the victorious proponents of same-sex marriage to celebrate, but not to celebrate the Constitution, “for it [the Constitution] had nothing to do with it.” Or perhaps he simply spoke better than he knew. So let us celebrate, and be fully aware of what we celebrate.
• Robert Lowry Clinton, Ph.D., is professor emeritus at Southern Illinois University and adjunct professor of political science at the University of Missouri-St. Louis. He is the author of “Marbury v. Madison and Judicial Review” and “God and Man in the Law: The Foundations of Anglo-American Constitutionalism,” as well as numerous articles and book chapters. His articles have appeared in The American Journal of Political Science, Political Research Quarterly, The Journal of Supreme Court History, The American Journal of Jurisprudence, and First Things, among others.