Happy Birthday to the Bill of Rights
Here's to another 225 years.
Two hundred and twenty-five years ago this month, Virginia ratified the Bill of Rights, thereby enshrining its 10 Amendments in the Constitution. The official anniversary, 10 days ago, was noted here and there, but it did not get the sort of celebration it deserved: something like the Fourth of July and Mardi Gras and Christmas all rolled into one.
Virginia ought to celebrate the loudest, and not just because the votes of Virginians put the Bill of Rights over the top. The document was drafted by one Virginian (James Madison), and it was based on the Virginia Declaration of Rights, which had been written by another (George Mason). The latter declaration—with some judicious editing—remains a part of Virginia's Constitution to this day.
Patriotic celebrations have fallen out of favor of late. There is a gawdawful lot that is wrong with our country, as everyone will tell you—probably at greater length than you would prefer. Last month's presidential election has soured the national mood even further. One side is bitter about the Electoral College and the other side is bitter about the first side's bitterness. Congress has the approval ratings of a gangrenous wart, the president-elect is about equally well-liked and the general consensus seems to be that everything stinks.
Except the Bill of Rights. It is not merely the general consensus but the unanimous view of the entire country that the Bill of Rights is a keeper.
Granted, some people like certain parts of it more than others. The Second Amendment has plenty of enemies. The Third Amendment doesn't have any friends. Some conservatives think the Fourth Amendment is an irksome technicality that gets in the way of locking up criminals and hunting down terrorists, and some liberals think the Fifth Amendment's protections for private property get in the way of their grand economic designs. Both sides sometimes act as if the First Amendment applies to them but not the other guy (see: flag-burning, hate speech).
You hear a lot of fiery argument over those particulars. What you don't ever hear is somebody suggesting that we ditch the Bill of Rights altogether.
And that is a marvelous thing, because the Bill of Rights embodies two notions that, in world-historical terms, are almost unheard of. The first notion is that government simply cannot do certain things. At the time—and, sadly, even today—that is a profoundly radical notion.
Yet to some Founders, the Bill of Rights was not radical enough. In Federalist No. 84, Alexander Hamilton argues that "bills of rights … are not only unnecessary in the proposed Constitution, 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? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"
As Hamilton saw it—and as the Tenth Amendment makes plain—Congress had no power to do anything not specifically enumerated in Article I. (The claim that the general-welfare clause grants the power to do whatever Congress considers good is a dodge; as Hamilton pointed out in Federalist No. 83, "The plan of the convention declares that the power of Congress … shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.")
The other radical notion embodied in the Bill of Rights is the principle of live-and-let-live. As Thomas Jefferson put it, "The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg."
Your inalienable rights trump every competing consideration—law and order, national security, economic equality, aesthetic preference, religious belief—except one: the inalienable rights of somebody else. And even when someone tries to subordinate individual rights to lesser values, they pretend that's not what they're doing.
Nobody (or at least almost nobody) ever says, "We should deny freedom of speech to flag-burners (or Nazis or whomever)." What they say is: "That kind of speech isn't protected by the First Amendment." In other words, they are leaving people's rights alone, and simply trying to limit something else—something that isn't really a right.
Today much of the country celebrates the birth of the Christian Messiah. For another portion of the country, it's just a day off. But Christian and non-Christian alike can still celebrate the Bill of Rights together—and they should.
This column originally appeared at the Richmond Times-Dispatch.
