When the Constitution was being written, some delegates didn’t want to ratify it because there were a number of civil rights that they said should be included. To meet these concerns, the Bill of Rights was added as a group of amendments.
Some people at the time opposed the Bill of Rights. Alexander Hamilton was one of them. He wrote that the problem with a explicit list of rights was that people would then assume that anything that isn’t in the list is not a right.
To a certain extent, Hamilton has been proven right. Anytime somebody tries to invoke a non-listed right (usually be invoking the Ninth Amendment) such as a “right to privacy” or a “right to vote” there are certain to be people who oppose this and declare that the only constitutional rights are those that are explicitly listed.
But taking it a step further, I’d say Hamilton missed the point. If there were no enumerated rights such as the Bill of Rights, Hamilton’s belief was that we would have a broader array of rights. But I think the opposite is true. The people who now say that there is no constitutional basis for a right to things like privacy or voting or a right to travel or a right to die would also be able to say there’s no constitutional basis for a right to free speech or religion or a trial by jury. Personally, I’d say Jefferson had the better understanding of the situation when he said “Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.”
Sounds like a semantic quibble, then. It is a mere tautology to say that any rights not enumerated in the Consitution are not constitutional rights. The Ninth Amendment explicitly allows for the recognition of “extra-constitutional” human rights. The trick is getting everyone to agree on what these are and how they are delimited.
My take on this is the following… Having a bill of rights is inherently un-democratic. That does not make it a bad thing, it is by far the best thing about the US form of government. You are effectively saying “you can shove the will of the people up your ass, you can’t have a law that bans paganism, or the says you cannot criticize the armed forces, no matter what the people’s elected representatives say, not matter how big a majority they hold. You want to do that you have to change the constitution, and good luck with that”.
However because of this it is essential that it IS quite small IMO, as it involved taking power AWAY from the people. If the people elect a government that wants to introduce a 75% rate of income tax for the rich, or ban the use of marshmallows, they should be able to do so.
The government can do such things (and the top income tax rate has been much higher than 75%), it just has to justify them. I don’t see how those two examples interfere with the Bill of Rights.
But it should represent the will of the people. If the people want to do X, they should elect an government that believes in X. The constitution prevents them from doing that (in the event that X contradicts what it says).
Those people do exist, but nevertheless many unenumerated rights (especially the “right to privacy”) are recognized and enforced by courts. You make a good point that with no rights explicitly spelled out we might be in an even worse situation with no rights to free speech or bear arms or whatever.
I don’t think the Constitution is perfect by any means, but the Bill of Rights does function at least a little bit in favor of unenumerated rights by having emanations from penumbras that give clues as to what other unenumerated rights should be protected.
Alot of people believe things such as that should be covered by the bill of rights, some in fact believe they are (possibly bad examples but I’m sure there are plenty of better ones). My point is that an democratically elected government SHOULD be able to do those things. If you disagree with them you should campaign for a government that agrees with you, not endeavor to extend, or re-interpret the bill of rights so that it covers those things.
The government can do anything* the people elect it to do. The Constitution defines the amendment procedure. Perhaps you think it should be easier for amendments to be added, but the people can elect a government that will change that, if they wish.
*The only part of the Constitution not subject to amendment is the equal representation of the states in the Senate. Only an extra-Constitutional process can change that.
Only by an extremely difficult, long drawn out process, in the modern political environment, making it effectively impossible, even with a large majority.
Quite the opposite. I think it is GOOD thing that you can’t pass an amendment banning gay marriage, or income tax, or whatever at the drop of hat. My point was its ALSO a good thing that the bill of rights is small, as it means overruling the will of the people.
Exactly my point. My point was, however that the number of things that should allow an unelected court to override the will of the people should be as small as possible…
Not impossible. Since 1790, we’ve had 16 amendments, which is about one every 15 years.
I think you’re conflating “will of the people” with “will of the majority”. The government could do almost anything that the people will. But the government cannot act solely on the will of the majority.
The only one ratified since 1971 only required a few states (as it had been proposed, and almost ratified hundreds of years earlier), and was extremely non-controversial. There is very little chance that anything more controversial could ever get ratified in the modern political environment. Personally I think this is a good thing.
At this point it becomes somewhat a point of semantics, but I’d say its democracy itself that makes that that conflation, not me. And so my point that the idea of a “bill of rights” is undemocratic still stands.
But being undemocratic is not necessarily a bad thing. The idea of having a few fundamental rights enshrined in such a way as they cannot be overridden, even by a democratically elected government is a good thing. But it needs to be that, a few fundamental rights, not a here’s “a big list of stuff that would be nice”.
A working definition of a right might be “something that 51% of the populace can’t vote to take away from the other 49%”. A constitution with a bill of rights provides significant protection against a tyranny of the majority. Granted that a supermajority can still vote to enact effectively anything, but it’s good that it cannot be done so quickly or trivially. Consider Britain, where under the theory of “sovereign parliment” every session of Parliment is the equivalent of a constitutional convention. While Britain is hardly a totalitarian dystopia, it’s much easier for the government there to summarily impose mandates upon the population.
I think Hamilton’s position only worked as long as the US remained militantly federalist: that the federal government had NO power whatsoever not explicitly granted it. The Civil War put that idea on it’s deathbed and Franklin D. Roosevelt strangled it, mutilated the corpse and buried it in a shallow grave. I wish that an amendment had been passed back in the 1930s that officially expanded federal power in recognition of twentieth-century realities rather than the half-assed system of workarounds and torturous interpretations that we have instead.
It’s impossible to do more than guess at this stuff, but I have to disagree. Given the types of things in the Bill, it seems obvious to this armchair historian that the new system was greatly concerned with federal intrusions into individual privacy. Which makes sense given that they were being driven kicking and screaming towards a strong federal system only because the last two governments with their weak powers and non-existent civilian executive authority couldn’t get anything accomplished. I can’t imagine the U.S. under a Bill-less Constitution would not have made that clear as an animating principle of early legislation such that it became an enforceable norm of our jurisprudence. The likely result would be fewer bright-line rules on the things that are in the Bill, but more general protection of privacy rights that aren’t specifically enumerated. (Not unlike the UK and Commonwealth systems, although it wouldn’t be the same because of they don’t have our separation of powers.
That said, of course this is only the federal government; state governments would be empowered to invade citizens’ privacy willy-nilly. I don’t know if this imaginary federal government would have expanded to guarantee the federally recognized rights of fairness and privacy to citizens as against state governments as it did in the real world post-Reconstruction. Slavery would still exert all the same pressures, but who knows how the Civil War might resolve differently? Perhaps if the country had a more generalized idea of the rights of privacy and self-determination, it would have just let the South secede. Or perhaps a broader but less defined right of privacy would have made Northern politicians loath to interfere in how Southern landowners managed their “property,” and the peculiar institution would have remained unmolested for another few decades until it died out for economic reasons.
Regardless of guarantees of civil rights, with a federation you inevitably have limits on the rights of the majority. So, for example, all the people in all the states apart from New Hampshire and Vermont could agree that NH and VT are too small, and should be made into one state for the greater convenience of all concerned. But, even with a 99% majority supporting it, it won’t happen unless NH and VT agree (and, of course, they will never agree!)
You must be working from a different definition of democracy than I am: “government which derives its power from the expressed will of the people”. We can change any part of the Bill of Rights if we wish to. The fact that it would be extremely difficult in the current political environment is another way of saying that the people do not want to change any part of it right now.
That seems to be Hamilton’s position. He apparently felt that the national government would be presumed to be starting from a baseline of having no power and then a short list of specific powers would be explicitly given to it. His assumption was that the national government would therefore have no further powers other than enumerated ones. What’s actually happened is that our government has developed in the opposite direction; the baseline is now presumed to be any powers are allowed unless they are explicitly prohibited by enumerated limits.
I just feel that Hamilton was naive to thing this developement was avoidable. If people have power, they’re going to use it. In a democracy, the majority is going to legislate their views absent any checks on their power to do so.
It’s an open question how much this matters in practice, but it just ain’t so as a matter of law. The federal government cannot act outside of the specific powers mostly enumerated in Art. I Sec. 8, the Reconstruction Amendments, and a few other places – and then that action is further circumscribed by the limits in the Bill of Rights and elsewhere. Whereas the state governments at the time had plenary power, but the clear trend over the last century has been a significant constriction of that power. Now, states need a reason to legislate, even if the reason doesn’t have to be all that well supported. In Hamilton’s day, there was no such requirement.