Randy Barnett recounts that the framers of the Constitution “contended that the enumeration of powers in the Constitution was itself a bill of rights that would protect the liberties of the people.” Since it operates to the opposite effect, a bill of rights would therefore be “highly imprudent,” as James Wilson observed at the Philadelphia ratification convention. Wilson further observed:
A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete.
James Iredell at the North Carolina ratification convention concurred, noting:
It would be the greatest absurdity for any man to pretend that, when a legislature is formed for a particular purpose, it can have any authority but what is so expressly given to it.
Were they not correct? Can advocacy of an Individual Mandate be anything but the rejection of the premise that Congress was “formed for a particular purpose”? The left has but one response to Madison, Wilson, Iredell, and the rest: “You were right, I’m afraid—Bill of Rights sunk the Enumerated Powers Doctrine. No backsies.”
It’s a worthwhile point indeed. I don’t see it as a left-right split on that issue, though; the other axis of state-individual, strong government-limited government, communitarian-libertarian is a better way of looking at this. I recall a lot of voices raised during the Bush years to join the chorus of “if the Constitution doesn’t prohibit the government from doing something the government can do it.” Neither left nor right has a monopoly on those who would use the state to achieve their ends.
Burt,
I do fear that my persistence on left/right distinctions may be nauseating. And I am wary that the political right often veers from its principles and commitments to the Constitutionalism. That said, I am unsure what “chorus” you are referring to. That sentiment is often directed to what was done in the Bush years in the name of National Security. Now, I understand that it is in no way settled whether things like the Patriot Act and FISA etc. were justified under Article II and whether they didn’t step on the toes of the Fourth Amendment. Similarly, it cannot be taken for granted that the exercise of state power does not violate fundamental rights or privileges or immunities of national citizenship. However, asserting federal executive authority under Article II, or state authority under the police power, are quite different animals than asserting federal legislative authority under Article I. It is my impression that the right is at least more consistent in resisting significant expansions of Article I power than the left.
Do you subscribe to the point of view that the Bill of Rights, being addressed largely to Congress, does not restrict Article II power? To pick the extreme example, can the President acting on his own authority alone, Establish a religion? If not, what restricts him from doing that if not the First Amendment?
You raise an interesting point. To your first question, I would give the answer the Framers might have given: No. The Bill of Rights does not limit either the Article I or Article II powers, because there is no such power to begin with that permits the infringement of the rights enshrined in the first ten amendments. Thus, I would reject the premise that the President has any power in the first place to “make [any] law respecting an establishment of religion.” That is not a power anywhere given to him.
Of course the BoR apples to the executive. And in fact, because article I power is plenary (“the executive power”, meaning all of it, is vested in a president), rather than enumerated, we *should* be more likely to see contests between art. I and the BoR than between the more constrained, enumerated art. II powers and the BoR.
That art. II butts up so often against the BoR should signal we’ve somewhere gone wrong.
That art. II butts up so often against the BoR should signal we’ve somewhere gone wrong.
Agreed!
As much as I hate to disturb agreement, I obviously mixed up my references to the articles in my last comment. I should have said:
And in fact, because article II (not art. I) power is plenary (“the executive power”, meaning all of it, is vested in a president), rather than enumerated, we *should* be more likely to see contests between art. II (the executive power, not art.I legislative power) and the BoR than between the more constrained, enumerated art. I (not art. II) powers and the BoR. That article I (enumerated legislative, not art. II plenary executive) butts up so often against the BoR should signal we’ve somewhere gone wrong.
I imagine that may spoil our agreement.
That sours our agreement a tad, but I don’t think it spoils it at all. I might quibble with the use of the word “plenary” as “unitary” as opposed to “formally unrestrained,” but that’s just semantics.
Congress ought to confine itself to its enumerated powers but does not. That’s an ongoing problem and we clearly agree on that.
The President claims a broad reach of powers that are undefined and we can anticipate conflicts arising out of that — but if there is consensus that the President’s powers are limited by the BoR in the same way Congress’ powers are (perhaps by reference to the Ninth and Tenth Amendments?), it becomes possible to find the countours and limits of those powers and evaluate them in court.
Of course, we don’t know how U.S. history would have evolved without a bill of rights, because that’s not what happened. It seems naive to me to think that, but for the inclusion of the bill of rights, the federal government would not have arrogated to itself the powers it has thus far arrogated.
And of course some framers–I guess it depends on how expansively one uses the word “framers”–wanted a bill of rights, which is why it had to be argued against.
I understand the argument against the mandate and have some sympathy for it, but it seems that the supporters of the mandate base their argument on the commerce clause, the taxing clause, and the necessary and proper clause, not on the claim that the Bill of Rights doesn’t prohibit it. And at least some opponents of the mandate claim that the reason the mandate is unconstitutional is at least in part because it contravenes the 9th and 10th amendments.
If you have a citizenry made up of people who demand that Something Be Done in response to everything from personal trainers to cyberbullying to tobacco use within 10 feet of an entrance to a bar, you’re going to have an uphill battle when it comes to a government limited by a Constitution.
The guy who says “sorry, the bus scheduling issue within your city is not a Federal issue” will always lose to the guy who says “PEOPLE ARE HURTING! PEOPLE WITH THE POWER TO MAKE IT BETTER ARE PART OF THE PROBLEM IF THEY DON’T MAKE IT BETTER!”
Every time.
You’re exactly right, and that’s the problem. The idea, then, was to make the limitations of that power as clear as possible so there would be a strong argument to push back against the phenomenon you describe. Which leads me to Pierre’s point that no one is basing the Mandate on the existence of a Bill of Rights. The BoR implicitly supports arguments for a Mandate because those supporters are thus not required to establish a limiting principle for the Commerce Clause, et al. The idea that Congress can do most anything so long as it does not infringe on a constitutional right is a bedrock of big government liberalism. This was why it was important that economic liberties be read out of the Constitution by eviscerating the Privileges or Immunities Clause and by instead finding most every one of those rights in the Substantive Due Process doctrine *except* for economic liberty.
I think I see it differently. I think it is at least a plausible hypothetical to say that without a Bill of Rights, there would have been a constituency in the US, and politicians eager to oblige that constituency, for would have favored an expansive principle for the commerce clause. Short of going back in time and running an experiment where the US did not have a Bill of Rights, I’m not sure how to prove my claim, however.
I’ll have to mull this one over a bit. It does stand to reason that “big government liberalism” would want an expansive definition of legitimate governmental power. But if so, why stop at “not infringe[ing] on a constitutional right”? The principal reason I can think of is, because there is a Bill of Rights. (I acknowledge, however, that stating that “well, the constitution protects certain rights, so as long as we don’t violate those, we’re in the clear” might support your claim that the BoR implicitly argues, or enables, expansive government.)
It seems to me that this process has/had less to do with the existence of a BoR than it did with how the courts interpreted the
fourteenthfourth amendment in a BoR-less world. I realize that the process of “incorporation” deals explicitly with imposing the terms of the BoR onto the states, but the prohibition against taking “life, liberty, and property” without due process of law could still be read to include any sort of substantive rights, with or without a BoR.I’d agree that’s a reasonable assumption. Though I’d make the further assumption that, were that to have happened, it would more likely to have done so through a constitutional amendment than through the Court.
One of the advantages of recourse to the courts over recourse to the amendment process is that it’s quicker. Much of the expansion of the federal government in the last 220 years or so has owed a lot to jurisprudence over the proper reach of the commerce clause or other enumerated powers and not over whether the BoR has been violated. Much, of course, has been over BoR issues. If there’s any legal ambiguity, there’s a chance that it’ll be litigated or seized upon and taken advantage of.
Having said all that, I realize that we’re both dealing in hypotheticals, and I’m not even sure if we’re disagreeing on much of substance.
Logically, no that can’t be correct. Since the bill of rights includes the tenth amendment, which obviously says that the things not enumerated are NOT presumed to be given. That’s its purpose, right?
Furthermore, the powers enumerated in the original constitutional text are enormously vague and expansive. The commerce clause is only the most egregious example. If you’re arguing that the obvious expansion of the commerce clause powers is a consequence of the existence of the bill of rights, I’d say you don’t have any textual evidence of that, and I don’t know of any that exists.
I, for one, agree with you (although you might be partially confusing the 9th and 10th amendments).
Simon,
The Ninth Amendment is an object of odium in the legal academy on both the left on the right. For the left, it presents a limitation of the power of the central government. For the right, it presents a bottomless well of new rights from which liberal jurists may draw. By and large, then, the Ninth Amendment is courted primarily by libertarians.
As for the claim that “the powers enumerated in the original constitutional text are enormously vague and expansive,” I think that begs the question a bit. Most of the framers would not have characterized it as “vague and expansive” in the sense we understand it today. Of course, you have a point that the scope of the commerce clause has not been consistently interpreted. During his presidency, for example, Madison was willing to read its scope as much larger than his explanation of the limitation role of Congress would lead one to believe.
Privatized Social Security, purely a project of the political right, was a mandate to “invest” a certain amount of one’s income in approved ways.
And yes, your insistence on badly supported left/right distinctions is annoying.