When the Constitution of the United States was written, there was among the convention members a heated debate centered around rights.
Two competing ideas took the fore. The first of these ideas, born of the fear of governmental abuses akin to those that had instigated the Revolution, was that certain rights held by the people ought to be written down explicitly in order to guarantee their protection by the government. If certain rights were not specifically delineated, so the argument went, it would be easier for an aggressive government to infringe upon the people’s liberties. The people needed, in times of governmental belligerence, to be able to refer to clear and distinct rights in order to defend themselves against its advances.
The other, subtler perspective argued that the very act of articulating specific rights was a limiting process, because implying specific rights could give the impression that those rights not explicitly delineated either did not exist or were somehow inferior to those that were. Members of the Constitutional Convention purporting this view were keenly aware that even the sagest and most civic-minded members of the public were bound to make some oversights. They also knew that the world changes. If, in their human fallibility, the writers of the Constitution produced a list of rights that was incomplete or lacked proper foresight – if it omitted some rights that ought to be considered essential in order to pursue justice, now or in the future – then the act of creating an explicit Bill of Rights might in fact do more harm than good.
Instead, these opponents of an explicit Bill of Rights argued that a just government ought to operate from a default perspective of freedom. That is, if a behavior is not forbidden, it ought to be assumed permissible.
This is actually a fundamental tenet of most Americans’ conception of justice. It is written into traditions such as “innocent until proven guilty” and most of our institutions of freedom – free speech, freedom of assembly, etc. We assume that people ought to be considered, first and foremost, free, and our freedoms ought to be limited only in those occasions where the public good is significantly endangered by freedom’s excess. And it has been a general principle of our traditions (certainly in the case of the founding fathers) that if a question of justice seems murky, we ought to err on the side of liberty. It is better, we think, to risk excessive liberty than to risk the rise of repression. This “liberty first” mindset is a hallmark of our political philosophy.
While the Bill of Rights is often seen as a guarantor of freedom, its inclusion in the Constitution actually runs counter to the assumption of liberty. If people are assumed to be free in all ways not expressly forbidden by the law, why should we have to go to the trouble of pointing out a few of the most important specific ways in which they are free? Shouldn’t they be covered by the blanket assumption of freedom in all cases not proscribed by law? And in the event of ambiguity, shouldn’t the doctrine of erring on the side of freedom prevent the government from reaching too far in regulating citizens’ actions?
This was the argument of those against the Bill of Rights and is perhaps the more elegant endorsement of liberty. However, it is highly idealistic and highly abstract. As we all know, even the most ideal of theories (see communism) may fall flat when enacted by we mortal beings.
Moreover, in the field of politics, too much abstraction is often an open invitation to abuse. For colonists who had just conducted a long and bloody war over just this kind of abuse, this was a weighty concern. Accordingly, the pragmatic-minded drafters of the Constitution – urged on by state assemblies who said they would refuse to approve the Constitution otherwise – added to the Constitution’s body the first Ten Amendments, which we today call the Bill of Rights.
In writing its Constitution with an attached Bill of Rights, the United States endorsed the doctrine of explicit, rather than implicit, rights. Rather than leave all up to the assumption of liberty, they chose to delineate specific rights and designate them as especially in the public interest to protect.
In doing so, the Constitution’s writers almost certainly strengthened the rights they specifically laid out, which now had clear and explicit passages in the nation’s founding document to refer to for their protection. However, the choice to name specific rights also weakened the premise of liberty and charted our nation on a course that deviated from the strongest possible endorsement of liberty.
When a nation, unlike the United States, declines to highlight specific rights because it endorses an implicit view of liberty – one that assumes all things to be, from the beginning, permissible unless distinctly forbidden by law – it may seem at first that the ground on which it stands is tenuous and ephemeral. However, it also sets a powerful precedent. By refusing to articulate individual rights, the government asserts from the outset that the tenet of liberty is so strongly endorsed in this nation that individual rights need not be articulated. To highlight individual rights would be redundant, because the protection of all liberties not expressly forbidden is assumed to be an innate duty of government.
But the Constitutional Convention was afraid of such a wide definition of rights and so chose to include the Bill of Rights, which is a list of several of the rights the politicians of the time considered to be inviolable.
It is important to note the founding fathers’ motivation for doing so. They were not afraid of the granting of too many rights. Quite the contrary, they considered the protection of a wide range of rights to be a central duty of government. However, the convention was so concerned with certain specific rights – the right of assembly, freedom of speech, freedom of the press, and so on – that had been central to the struggle for independence and which it saw as particularly integral to a properly functioning republic, that it chose to delineate the rights outline in the Bill of Rights as specifically worthy of attention..
This choice came at the cost of weakening all other rights, not directly but indirectly. Such must necessarily be the case, because otherwise the Bill of Rights would be completely superfluous. Why bother writing down ten examples of rights that ought to be protected if the infinite number of additional rights protected by the government are just as important as the ten written down? It is like saying, “Our government considers that all people are born equal and free, including Amanda Sheffield, Thomas Huckleby, Ahmed Chamakh, Peter Jansen, Ilya Petrovich, and Marco Estrada.” If all people are equal and free, why do we need to name a few individuals? The natural and logical assumption is that there must be something especially important about the people who were named as opposed to those who weren’t.
The Constitution’s writers, aware of this weakness, tried to buttress the Constitution with the Tenth Amendment, which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The “or to the people” part is particularly important, because it endorses the believe that the people ultimately ought to be assumed to have the right to control their own affairs in every way not forbidden by the Constitution. The Constitution’s authors were trying to clarify that the mere fact of highlighting certain specific rights was not meant to imply that they were exclusive rights, nor indeed that the document of the Constitution as a whole ought to be considered exhaustive.
I find the Tenth Amendment quite comforting, in a way, but in all honesty it conflicts with the very existence of the Bill of Rights of which it is a part. The Tenth Amendment is an endorsement of implicit rights but is attached to an entire battery of explicit ones. And while the United States courts, especially the Supreme Court, have operated more or less continuously on the doctrine of implicit liberty, the long-term impact of the founding fathers including the Bill of Rights in the Constitution is, I believe, doomed to (and is already beginning to) cause more and more chronic problems.
What is more the act of writing out specific lists of explicit rights that are of special interest for governments and communities to protect has become the paradigm for the world’s treatment of the issue of rights and liberty. At least in part because of the example of the United States’ Bill of Rights, democratic societies around the world have adopted an explicit view of liberty. The world, then, is bound to suffer from the same problems as the United States, stemming from their choice to articulate specific rights instead of embracing a more all-encompassing approach.
This is because in the end the explicit view of rights is a stunted definition of liberty. A stunted version of liberty that – as it is codified into one of our most famous and well-known legal documents – shapes the public’s conceptions of liberty, stunting them in turn. Our own stunted ideas of liberty then affect the way we vote, the opinions we hold on key issues, and in the end alter the shape of our nation.
I’ll begin to examine just how I see this happening in my next blog.