LF: Bill of Rights Day: A Day of Mourning

Editor’s Note: Bill of Rights Day is December 15th. But as Kevin Gutzman points out in this article, originally published December 14, 2009, it’s not a day of celebration. Instead, it should be a day of mourning for the death of decentralized self-government.

In 2008, the Supreme Court of the United States decided Kennedy v. Louisiana. In that decision, the Court created a new categorical right to rape a child without receiving the death penalty.

Although the majority made mention of the Eighth Amendment’s prohibition of “cruel and unusual punishment,” no one really believed that this new right had any basis in the Constitution. The Court majority claimed that its decision reflected a new societal consensus, despite the fact that six states and, as it turned out, Congress recently had adopted legislation providing capital punishment for certain child rapists. The dissenting justices said that the actual basis of the Kennedy decision was “the Court’s ‘own judgment’ regarding ‘the acceptability of the death penalty,'” but the majority opinion made clear that the Court simply differed with the people’s representatives on the question how significant rape of a child is.

In other words, the justices substituted their legislative will for that of elected legislators. Alas, there was nothing unusual about this.

Kennedy v. Louisiana illustrates what has come of the Bill of Rights in our day.

The Bill of Rights should be mourned, not celebrated. It is defunct. Intended as the bulwark of the right of decentralized self-government, it now serves mainly as an excuse for the opposite: a roving judicial veto of state policies that federal judges dislike.

So, if the people of virtually every state ban flag burning or regulate abortion, provide capital punishment or support prayer in school, that does not settle the matter. Unlike 200 or 100 years ago, today the federal judiciary is apt to step in to stop state legislatures from adopting policies like this.

The purpose of the first ten amendments was laid out clearly by their Preamble. “Preamble?” You might ask. “What preamble?” Although the main body of the Constitution is never published without its Preamble, one could study American history for a lifetime without ever encountering the Preamble to the Bill of Rights.

That Preamble says that Congress is recommending amendments to the states because a number of states in ratifying the Constitution “expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.” Since the people were afraid of the new Federal Government, that is, the Bill of Rights was being added to hedge in the powers of the Federal Government more carefully.

So, for example, the Tenth Amendment stated what Thomas Jefferson called the underlying principle of the entire Constitution: “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.” In other words, the Constitution gave the Federal Government a few enumerated powers, and those were all.

That is why the First Amendment begins by saying that, “Congress shall make no law.” Congress, not government generally. The point was to leave such questions in the hands of elected state legislators.

America’s Revolution was fought and won in the name of self-government via elections to state legislatures. King George III and Parliament insisted that those legislatures could legislate only when and as far-off officials essentially unaccountable to American colonists said they could. The Americans rejected that idea. In fact, rejecting that idea was what made Britain’s North American colonists into Americans.

No surprise, then, that six years after the Revolution ended, in the First Congress, the people insisted that the principle of local self-government “” of federalism “” be made explicit through the Tenth Amendment and the other nine. They wanted explicit statements that the distant new Congress could not violate Americans’ most cherished rights “” rights the king and Parliament had repeatedly infringed.

This was an uncontroversial understanding of things in the Constitution’s first century and more. The Supreme Court unanimously said in 1833 and thereafter that the Bill of Rights was a limitation solely on the Federal Government.

But the 20th century saw a great change. The Progressives of the early part of the century opposed constitutional limitations on government power generally, and the New Deal of the 1930s stood for the elimination of the Tenth Amendment from constitutional law. Congress’s power is essentially unlimited today, and federal courts have come to supervise virtually all state policies – essentially on the basis of federal judges’ policy preferences.

No one today even pretends that the Bill of Rights serves its intended purpose of restraining the Federal Government. Quite the opposite. And the death of decentralized, election-based government is entirely lamentable.

BILL OF RIGHTS DAY, 2015
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BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION

The ratification of the Bill of Rights on December 15, 1791, marked one of our country's earliest and most important steps toward ensuring that the ideals enshrined in our founding documents are the birthright of all Americans. Written to guarantee our fledgling Nation would never succumb to the tyranny it fought against, these first 10 Amendments to our Constitution help safeguard the bedrock principles of equality, liberty, and justice. In the years since, America has carried forward the spirit enshrined in the Bill of Rights -- recognizing that freedom is a value we must forever work to uphold.

Each generation is tasked with continuing the work of perfecting our Nation. In the 224 years since this codification of our most fundamental freedoms, America has been propelled by the persistent effort of her citizens -- people from all walks of life who have accepted the challenge of pushing to expand liberty to all. The same American instinct that sparked our revolution and spurred the creation of the Bill of Rights still inspires us to step forward to defend our founding ideals. It is what inspired a groundbreaking convention in Seneca Falls, drove courageous people to march in Selma, and started a transformative movement for LGBT rights at a bar in New York City. Generations of heroes who believed America is a constant work in progress have advocated and sacrificed to realize that progress and have worked to uphold the belief at the heart of the Bill of Rights: Free men and women have the capacity to shape their own destiny and forge a fairer and more just world for all who follow.

Today, we stand on the shoulders of those who dedicated their lives to upholding the meaning of our founding documents throughout changing times -- a mission made possible by the fundamental liberties secured in the Bill of Rights. As we reflect on the strides we have made to lift up an engaged citizenry, we pay tribute to the extraordinary foresight of our Founders who granted the protections that enable us to bring about the change we seek. Let us recommit to continuing our legacy as a Nation that rejects complacency, empowers its citizens to recognize and redress its imperfections, and embraces the struggle of improving our democracy so that all our people are able to make of their lives what they will.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim December 15, 2015, as Bill of Rights Day. I call upon the people of the United States to mark this observance with appropriate ceremonies and activities.

IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of December, in the year of our Lord two thousand fifteen, and of the Independence of the United States of America the two hundred and fortieth.

BARACK OBAMA

Thank God that no special rights for gay community organizers, ended up in the BOR.

Presidential Proclamation -- Bill of Rights Day, 2015