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

The problem with the Bill of Rights and complaints about the demise of state power to trump Federal judges is the same one that everything always comes back to: history.

In American history, the Declaration of Independence was made, the Constitution was set up, the Bill of Rights adopted, the government began...and a quarter of the population were still chained black slaves.

Almost 100 years after that, about a quarter of the population was STILL black slaves.

Now, it's true that the slavery issue by that time was such a glaring contradiction that Americans divided and fought on account of it, but the truth of the Civil War is that the slaves were not freed constitutionally. The Civil War was not constitutional as such. It was, rather, a complete breakdown of the Constitution, with the Union winning the war under the management of a quasi-dictatorship. Habeas corpus and the like were suspended. The slaves were freed by executive order, without compensation to the slaveholders.

The Constitution was set aside, the war was fought, the slaves were freed, the Constitution was amended - under duress - and then the Constitution was picked back up again and started functioning again.

But EVEN THEN fierce segregation, protected by "states rights", endured ANOTHER 100 years until, once again, having to be crushed down by federal power, this time the courts backed by the occasional deployments of federal troops.

One looks back across the whole sorry record of the treatment of blacks, from slavery to segregation, and one realizes that the Bill of Rights NEVER worked. The Constitution was used to protect the states' desire to oppress the rights of substantial numbers of their citizens.

This is why the "pure" states rights argument always fails. Yes, the IDEA was that the states would be sovereign in their sphere, but what they did in their sphere was a massive crime against humanity, and when beaten down on account of it, the states PERSISTED, for another century, in using the shield of states rights to STILL crush out the equal protection under the law of a substantial oppressed minority of the people.

And given the behavior of the police, there is no good reason to believe that state and local government have learned a damned thing even to our day.

So we CAN'T simply follow the Constitution as written, because if we DID, we would still have a major portion of the population in chains.

We had to modify the experiment to get to something more just. Unfortunately, the modifications don't work too well either. They concentrate too much power over everything else NOT involving personal liberty. So, the blacks are free, thank God, but then the whole economy is bound up in special interest rules made by the federal gov't and imposed on all.

In American history, the Declaration of Independence was made, the Articles of Confederation was adopted creating a union of 13 states, and a government was set up pursuant thereto. Eight Presidents [of the United States in Congress Assembled] were elected under the Articles of Confederation.

The Constitution was adopted creating a union of 11 of the original 13 states, and a government was created pursuant thereto, with George Washington being elected President of the union of 11 states, 10 states participating. Six months later the 12th original state [NC] joined and another six months after that, the 13th original state [RI] joined.

Under the Articles and under the Constitution, slavery was lawful and protected. George Washington, who presided over the constitutional convention, was a slaveowner when the Articles were adopted, he was a slaveowner when the Constitution was adopted, he was a slaveowner when he died, and his will left his slaves, in slavery, to his wife.

Neither the Declaration of Independence, nor the Preamble to the Constitution, nor the preamble to the Bill of Rights have ever been considered law.

Presidential Proclamation -- Bill of Rights Day, 2015