The Rational Argumentator

A Journal for Western Man

Arguments for Bills of Rights and Constitutional Clauses Restricting Governmental Power

This essay is part of a series of papers by Mr. Stolyarov discussing an improved constitutional blueprint for a free society. Such a constitution is now publicly available and is called the Freecharter. This essay discusses Articles I and II of the Freecharter.

Debates regarding the necessity of an explicit constitutional enumeration of governmentally untouchable rights have occurred at least since the American founding. In establishing a framework for a securely free society, it is important to revisit some of the arguments historically made for and against bills of rights. Here, claims on both sides of this debate will be explored and additional arguments given for the importance of a bill of rights. Furthermore, these arguments for the necessity of a bill of rights will be shown to imply the need for additional constitutional clauses explicitly restricting or prohibiting certain exercises of government power.

A bill of rights enumerates some of the prerogatives retained by individual subjects of the government and which the government may not infringe. In his 1789 Speech to the House of Representatives, James Madison described some of the guarantees that bills of rights may entail:

“In some instances they assert those rights which are exercised by the people in forming and establishing a plan of government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact [such as the right to a jury trial]…. In other instances they lay down dogmatic maxims with respect to the construction of the government; declaring, that the legislative, executive, and judicial branches  shall be kept separate and distinct: Perhaps the best way of securing this in practice is to provide  such checks, as will prevent the encroachment of the one upon the other.”

As Madison’s description indicates, a bill of rights is not a substitute for a government whose constituent parts are so designed as to check the growth and abuse of power. Rather, the bill of rights is a supplement to constitutional checks and balances and a way of clearly establishing some areas of human endeavor that the government may not restrict.

Some critics may wish to dismiss bills of rights as mere “parchment barriers,” which must inevitably fall before the onslaught of power-hungry men with guns who seek to infringe on individual liberties. However, Madison explains why parchment barriers may hold up against substantial pressure:

“It may be thought all paper barriers against the power of the community are too weak to be worthy of attention. I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defense; yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one mean to control the             majority from those acts to which they might be otherwise inclined.” (Madison 1789)

Madison’s argument acknowledges that there exist cases in which a bill of rights may be flouted and violated, especially by people of sufficient ruthlessness and determination to acquire coercive power. The primary function of a bill of rights, however, is not to directly affect the minds of these would-be usurpers, but rather to influence the understanding of a preponderance of ordinary people regarding the just limitations of their government’s powers.

We can conceive of bills of rights as having two distinct functions. First, a bill of rights solves an information problem that exists with regard to public awareness of what rights people have and what their justification might be. Dispersed information as a fundamental economic problem has been extensively discussed by F. A. Hayek in “Economics and Knowledge” and later in The Fatal Conceit. In the former essay, Hayek writes that “Clearly there is here a problem of the division of knowledge, which is quite analogous to, and at least as important as, the problem of the division of labor.” This division of knowledge exists not just with regard to conditions surrounding production of and demand for tangible goods. Different people also have different knowledge and understandings of what constitutes individual rights, and it is possible that no person has a complete understanding of the entire scope that these rights encompass. Without a document enumerating these rights, or at least their major categories, extensive coordination on matters of justice may not be achieved, just as without a price system the failure of economic coordination on a large scale is virtually certain. As Patrick Henry points out, “A bill of rights, even if its necessity be doubtful, will exclude the possibility of dispute; and, with great submission, I think the best way is to have no dispute” (Henry 1789, Speech to the Virginia Ratification Convention). A bill of rights can be designed to combine insights from the most sophisticated proponents of liberty at the time of its writing. Moreover, it can package these insights in a document accessible to the ordinary literate person, enabling him to be guided by information he could not have originated in acting to bring about a more just and liberty-friendly state of affairs than he could even have independently conceived.

The second function of a bill of rights is to raise the costs of expanding government power. As Madison’s argument hints, the unscrupulous would-be usurper may not be swayed by the merits of a bill of rights. However, he would find himself acting in a society where most people do coordinate their views and enforcement of the just limitations of government by using the bill of rights as a reference and a standard in their decision-making. He who personally disrespects individual rights still faces a higher cost of transgressing against them in a society that has a bill of rights compared to a society that does not. If violations of highly respected principles can be pointed out clearly and concisely to enough people, then these people will act to stop the usurper. Awareness of this likelihood creates a deterrent from undertaking the usurpation in the first place.

If there is no possibility of explicitly pointing out violations with reference to a concrete and accessible document, then this deterrent effect becomes substantially reduced. Most people are not moral philosophers and cannot readily articulate their own original reasons for why a particular expansion of government power is undesirable. Moreover, tradition and implicit cultural understandings tend to be indeterminate and disturbingly fickle – permitting intelligent and rhetorically clever statists to use “tradition” and “culture” as justifications for, rather than restraints on, unprecedented claims of power. The barriers to the success of statist sophistry are greatly raised if the arguments in favor of growing government are met with resounding prohibitions that people can readily access, remember, and defend.

Alexander Hamilton’s “Federalist No. 84” outlined the most systematic case in opposition to an American bill of rights. Hamilton argues that a bill of rights is not necessary under a representative government founded on the sovereignty of “the people,” because under such a government “the people surrender nothing; and as they retain every thing they have no need of particular reservations” (Hamilton 1788). Hamilton presumes, however, that perfect popular sovereignty, in which no action which does not have the explicit and enthusiastic consent of the people can be implemented, is practicable in the real world. On the contrary, Russell Hardin discusses the inevitable pitfalls of popular sovereignty:

“Popular control fails in principle for two quite different reasons. First, there are the standard problems of social choice, that popular views will commonly not aggregate into a collective view and that individuals will be motivated neither to understand public issues well enough to act on them nor to take action even when they do understand them.” (154)

Hardin is here referring in part to the information problem with respect to getting the people to understand and agree on the nature of their rights and of limits on government. To say that the “will of the people” prevails under representative government is to presume that “the people” are a monolithic entity with a single will that has complete knowledge of what is desirable for it. In reality, there are only millions of separate, unique individuals who each know a small fraction of what is necessary to prevent any of them from being violated in disturbing ways by the very agents they delegated to protect them.

Another roadblock to the “will of the people” controlling the government is that

“[t]o be effective, government must work through institutions. But the structure and eventually the actions of institutions are substantially unintended consequences, the result of growth and not the outcome popular choice or even any systematic choice at all.” (Hardin 1999, p. 154)

Many of the ubiquitous hallmarks of the American political landscape, from the two-party electoral system to the myriad of powers exercised by federal executive agencies, have never been subject to approval by “the people.” Most of them did not even emerge at any single moment in time when they could have been voted up or down. There is no guarantee that the spontaneous emergence of institutions will at all correspond to justice or exhibit a respect for the rights of every individual. A bill of rights endeavors to channel institutional evolution toward accomplishing the objective of any legitimate government – the protection of the rights of its subjects to life, liberty, and property.

Robert Yates, writing under the pseudonym “Brutus,” further notes that elected representatives are no less keen on expanding their own power than are monarchs. He observes that

“rulers have the same propensities as other men; they are as likely to use the power with which they are vested for private purposes, and to the injury and oppression of those over whom they are placed, as individuals in a state of nature are to injure and oppress one another. It is therefore as proper that bounds should be set to their authority, as that government should have at first been instituted to restrain private injuries.” (Yates 1787, Essay II)

Whether one is in the state of nature, under a monarchy, or under a representative government, one is likely to encounter powerful people who intend to violate one’s liberties. A person’s ambition and hunger for power are not diminished because he happens to be acting in the name of “the people.” Indeed, such persons may even usurp power more readily, because they are generally perceived to be acting in the “common interest” of those who elected them. This is why Thomas Jefferson wrote to Madison that “[a] Bill of Rights is what the people are entitled to against every government on Earth… and what no just government should refuse” (Jefferson 1787).

Furthermore, it may be that popular opinion hostile to liberty is the threat against which a bill of rights needs to protect individuals. In Madison’s words,

“[t]he prescriptions in favor of liberty, ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power: But this [is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.” (Madison 1789)

If the culture or the interests of the majority of the people are such as to consider some individuals lucrative targets for oppression, then a bill of rights can help protect otherwise helpless minorities against violation. A bill of rights can serve as a rallying point for anyone who is not a member of the oppressing majority and give such individuals an ability to clearly identify and agree on which rights are being violated and how. With legitimacy on its side, the oppressed minority may succeed in protecting itself via the legal system and other official mechanisms through which unpopular rights may still be somewhat enforced.

Hamilton (1787) alleges that bills of rights would be

“not only unnecessary… but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”

Hamilton suggests that simply enumerating the government’s positive powers and presuming that the government may do nothing outside the enumerated powers will suffice to prevent violations of the government’s just limits. As James Madison points out, this argument fails to recognize that virtually any coercive action can be justified rhetorically as a means to one of the enumerated powers: ”It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means…” (Madison 1789). Yates makes an even stronger argument: “The powers, rights, and authority, granted to the general government by this constitution, are as complete, with respect to every object to which they extend, as that of any state government — It reaches to every thing which concerns human happiness — Life, liberty, and property, are under its control” (Yates 1787).

In order to be at all functional, a government needs to be permitted to perform certain roles, such as organizing a military or administering criminal punishments. But even if these are its sole enumerated powers, some clever statist will be able to claim that military conscription is a valid means for raising armies and that torture of “enemies of the state,” as defined by the state, is a proper method of punishment. Any end recognized as legitimate for governments to pursue can be pursued with immoral and unjust means, and a bill or rights is needed to declare these means improper in themselves.

If simply enumerating powers and presuming the rest to remain with the people is not a sufficient defense against government oppression, then it is necessary not merely to have clauses enumerating the rights which the government must not infringe on, but also to have other restrictive clauses regarding activities the government may not engage in irrespective of whether or not these activities violate any rights. Some such clauses may require caps on government spending, balanced budgets, or, per Madison’s suggestion, a strict separation of functions among the legislative, executive, and judicial branches. Although these clauses do not immediately concern individual rights, their ultimate object is to hamper the government’s ability to develop the de facto ability to violate these rights.

Further research into effective bills of rights and restrictive clauses needs to investigate possibilities for establishing effective provisions akin to the Ninth Amendment of the U. S. Constitution: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The intention of the Ninth Amendment was precisely to prevent the government from infringing on any rights not explicitly enumerated in the Bill of Rights. However, this amendment has virtually no legal sway today. In the words of Walter Williams (2000), “if any appellant’s lawyer argued Ninth Amendment protections on behalf of his client, he would be thrown out of court if not disbarred. That’s what the Ninth Amendment has come to mean today.” How might a clause akin to the Ninth Amendment be designed to more effectively protect unenumerated rights? How might similar clauses be constructed so that a list of actions prohibited to the government might not lead to government officials considering themselves entitled to pursue whatever is not explicitly prohibited? Research into this area should examine the history of the Ninth Amendment’s evisceration and its treatment in Supreme Court cases. What kinds of arguments were used to render it irrelevant? What features, needed to achieve constitutional staying power, did it lack? How might different wording have been able to successfully counter challenges that the Ninth Amendment was unable to withstand? An improved Ninth Amendment would help defuse one of the most plausible objections against bills of rights and restrictive clauses.

Find out more about the Freecharter.

Works Cited

Hamilton, Alexander. “The Federalist No. 84.” (1788). Independent Journal. Constitution.org. Available at http://www.constitution.org/fed/federa84.htm. Accessed 10 Oct. 2008.

Hardin, R. (1999), Liberalism, Constitutionalism and Democracy.  Oxford:  Oxford University Press.  ISBN 0199261687)

Hayek, F. A. (1937). “Economics and Knowledge.” Economica IV. Virtual School. http://www.virtualschool.edu/mon/Economics/HayekEconomicsAndKnowledge.html

Henry, Patrick. (1788). “Speech to Virginia Ratification Convention.” Constitution.org. Available at http://www.constitution.org/rc/rat_va_13.htm. Accessed 10 Oct. 2008.

Jefferson, Thomas. (1787). Letter to James Madison. Freedom Keys. Available at http://freedomkeys.com/rights.htm. Accessed 10 Oct. 2008.

Madison, James. (1789). “Speech to House of Representatives Proposing Bill of Rights.” Available at http://www.jmu.edu/madison/center/main_pages/madison_archives/constit_confed/rights/jmproposal/jmspeech.htm. Accessed 10 Oct. 2008.

Williams, Walter. (2000). “Was a Bill of Rights Necessary?” George Mason University. Available at  http://www.gmu.edu/departments/economics/wew/articles/00/billofrights.html. Accessed 10 Oct. 2008.

Yates, Robert (Brutus). (1787). “Essay II to the Citizens of the State of New York.” Constitution.org. Available at http://www.constitution.org/afp/brutus02.htm. Accessed 10 Oct. 2008.

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