The Constitution is a Bill of Rights

My 10-year-old, fruit of my own loins, came home from fifth grade on Constitution Day to announce that his teacher could no longer demand his homework because the Fourth Amendment entitled him to be “secure in his documents.” This, like all sensitive situations, was to be handled with a degree of delicacy: interest in the Constitution to be celebrated, fallacies about it to be clipped before flowering.

“Did you read the Constitution in school?’

“Yeah.” Pause. “Well, we read the Bill of Rights.”

Hamilton was right; Madison too. What has come to pass is what both men feared—that the Bill of Rights would become a separate edifice that seemingly trumped the preceding document—and what neither could foresee: that contemporary rights discourse, and the civic education that reinforces it, would sever rights from duties. The main body of the Constitution provides for one while demanding the other; the Bill of Rights read in isolation from it merely entitles. Hence its attraction to 10-year-olds.

There is, moreover, the fact that the exaltation of the Bill of Rights at the expense of the Constitution’s main body has obscured—indeed, eroded—the extent to which the latter is itself, in Hamilton’s words, “in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” It functions as such in at least three ways. The most obvious, as Hamilton says, is its explicit prohibition of ex post facto laws and the like. Far more important are the mechanical restraints on government imposed by, second and third, the separation and enumeration of powers. Yet these have eroded precisely as the Bill of Rights has ascended. It is no coincidence. In the first place, the Bill of Rights has simply distracted attention from the importance of the mechanics of the regime. As Americans have relied more on the courts to protect their rights, they have paid less attention to such imperatives as a muscular and independent Congress. In the latter case of enumeration, the simple beauty of Federalist 84—every use of power requires a specific warrant; to prohibit the exercise of authorities never licensed implies the license was unnecessary in the first place—has given way to a creeping or, if one prefers, galloping ethos in which the national government can more or less do anything that does not violate the Bill of Rights. Except when it can, since the courts are often powerless to stop an encroaching executive; Congress, had it not neutered itself, might not be.

The fact that this national government oversteps its bounds with no check is evident in such episodes as NSA snooping—my 10-year-old is to be congratulated, his exaggerated sense of his homework privilege notwithstanding, for having correctly interpreted the Fourth Amendment and therefore using as his email signature the watch-list-worthy “stop following me, NSA”—yet a Bill of Rights divorced from the main body of the Constitution is unable to stop it. It is, in Madison’s phrase, a “paper barrier.” The institutional mechanics of the Constitution—as initially conceived—might well prove more robust: might.

Far more troubling than these mechanical defects, which both Hamilton and—this fact is under-appreciated—Madison too foresaw, is the collapse of the ancient link between rights and duties. The fetishization of the Bill of Rights read in isolation from the main body of the Constitution elevates the individual over the community in a precise inversion of the classical problem of political thought. The Constitution proper both empowers and limits government and, in so doing, delineates the rights and responsibilities of citizens. A fifth-grader reading solely the Bill of Rights might be excused for thinking he had only the former. The problem is that we now live in a society of such fifth-graders rampantly asserting rights divorced from responsibilities.

Now, if said fifth-grader had a crotchety father whose days were sunk in scholarly toil thinking about such matters, he might object that children of that tender age probably ought not be subjected to all the intricacies of the supremacy clause and the amendment process and the guarantee to the states of a republican form of government. Fair enough. But the Bill of Rights ought not to be read in isolation, nor ought it to be taught as a substitute for the Constitution. Lest there be any doubt, perhaps next year’s lesson—harrumph again—should be Federalist 84

Greg Weiner

Greg Weiner, who teaches political science at Assumption College, is the author of Madison’s Metronome: The Constitution, Majority Rule and the Tempo of American Politics. His book American Burke: The Uncommon Liberalism of Daniel Patrick Moynihan will be published by University Press of Kansas in early 2015.

About the Author

Comments

  1. R Ricard Schweitzer says

    “The problem is that we now live in a society of such fifth-graders rampantly asserting rights divorced from responsibilities.”

    And how has that come to pass should we suppose?

    Well, Jacques Barzun, reports on some of the symptoms (and their sources) in “From Dawn to Decadence.” The quest for “emancipation” as a driving motivation in Western Civilization.

    But, it is quite true, though the author limits himself to “responsibility” and “duty” of the variants of obligations (the “ought to” and “ought nots”) of individuals in their relations with one another and with their surroundings, that the essence of freedom is derived from the performance of obligations – not- from some concept of “rights.”
    We are free in modes of worship because others are obligated not to interfere; we are free to speak and print for the same reason — and all those “freedoms” or rights are dependent on the degree to which others hew to those obligations; as well as we to ours.

    Just like entitlements, which require the obligations of some to perform for others, “rights” require the recognition, acceptance and performance of obligations in a social order; and, will exist only to the extent, and in the degree, that those conditions are met.

    Ask today’s (concerned) parents if their children are aware of, have they been taught, do they know their “rights.” Then ask: do they know, have they been taught (by whom) their obligations. The first will be answered briskly. The second will probably be a more halting or querulous response.

    • gabe says

      Absotively and Posilutely!!!!

      I suspect the response to the second question would be a tirade for attacking their parenting skills, followed by a lawsuit!

    • Greg Weiner says

      While I agree that rights are defined in Kantian terms partly by the obligation of others mutually to respect them, the founding generation also understood rights to include the obligation to use them in accordance with the public good. This was the “ordered” part of “ordered liberty.”

  2. Kevin R. Hardwick says

    While I largely concur with Professor Weiner’s argument, above, I do wish to offer a modest dissent. James Wilson–whose Statehouse Speech of 6 Oct. 1787 represents the classic brief statetment of the Federalist brief against a Bill of Rights–argued that aa Bill of Rights was necessary in the case of the state governments, but unnecessary with regard to the proposed Federal government, because the government created by the was one of strictly limited powers. The classic rebuttal, by “Brutus” of New York, pointed out that the “necessary and proper” clause of the Constitution was sufficiently vague as to empower the government to do what ever the government thought necessary to achieve its ends, as the politicians who staff the government perceive them. Neither Brutus nor Madison, nor to my knowledge Wilson, anticipated the other primary constitutional loop hole through which the government has expanded–the constitutional authority to regulate interstate commerce.

    So while I heartily concur with Weiner’s conclusion–that talk of rights has overwhelmed teaching (and performance) of duty–I do think there was some cause for concern with the Constitution as it actually was written. Power corrupts; powerful and corrupt men will seek to slip the bounds on their authority, sometimes with the best of intentions and sometimes not. It should not surprise us that this has happened to the document that the Founders created–and that this would and could happen whether or not there was a Bill of Rights attached to the document.

    • Greg Weiner says

      Professor Hardwick, I largely concur, and thanks for drawing our attention to the much, and unjustly, overlooked Wilson speech.

    • gabe says

      Kevin:
      Indeed! “Commerce” has now been so defined as to include my willful decision to NOT participate as interstate commerce, other protections in the constitution and Bill of Rights notwithstanding.
      Amazing what venal, corrupt “statesmen” can accomplish, isn’t it?
      As of late, I have come to see the main defect in the Founding as an overoptimistic assessment of the “virtue” resident in the community, perhaps, resulting from the headiness of the times. Whatever the cause, it is necessary to combat the effect.
      Unfortunately, we are stuck with two statist parties who have neither the desire, intelligence, nor apparent inclination to return to basic principles.
      I do hope that you meet with some success in educating your students who have probably never been taught otherwise.

      Take care
      gabe

  3. R Ricard Schweitzer says

    A further thought:

    In the origins of our society, obligations and their performances were of, from, and between the people of the society. Organizations were established through which individuals, directly, or in cooperation with others, could implement performance and effectiveness of the performance of obligations. Many of those organizations resulted in the sharing or diffusing of the burdens of individual obligations; but, they were not established or conducted for the purposes of transferring the obligations of individuals, or “emancipating” individuals from obligations or from the necessity of their performances.
    Among the significant changes to be observed in the organization of our society has been the accelerating trend for the development of organizations as instrumentalities to replace the requirements for performance of obligations, individually or in cooperation with others. This has extended to the transfers of the requirements for the performance of obligations to the mechanisms of the several levels of governments. Those transfers in particular are directly affecting not only the nature of the performances of transferred obligations, but, perhaps more importantly, the delineations and qualifications of those obligations, together with the assignment of the necessary burdens and the re-determinations of purposes for performance. We can observe the development of these and other vicarious instrumentalities in the “cultural” search for “emancipation” from the responsibilities, commitments, duties and other forms of obligations, the performances of which were once the main strengths of our society and the source of the freedoms and “rights” within it.

    It was that society, whilst still in the latter part of its earlier stages that did establish the written Constitution.

    • Kevin R. Hardwick says

      Mr. Schweitzer,

      I assume you are talking about the transformations of American society in the period 1870 to 1940, when you talk about “the accelerating trend” and so forth.

      To my eye, the great shift in the institutional landscape occurred in response to the integration of a national market consequent to the development of national transportation and communication grids. Institutional responses, including what historian Alfred Chandler terms the “Managerial Revolution,” permitted the development of sophisticated private economic entities that were capable of exercising economic power on a scale that dwarfed anything the founders could have imagined. The statism of the progressive era stemmed from efforts to constrain large scale corporate economic enterprise.

      Public ethos had to change, because the private virtue that the Republican Party of the 1850s rightly celebrated, captured brilliantly in the slogan “free soil, free labor, free men,” no longer conformed to the day to day experience of many, perhaps even most, Americans. In the 1850s, private economic virtues (thrift, self reliance, independence, hard work, and so on) meant that the virtuous man achieved what men at the time termed “competency,” that is the capacity to support themselves and their families decently via ownership of productive property. These same private virtues also corresponded with the public virtues that sustained the republic. Thus, Americans rightly celebrated their public achievements, and had confidence the republic would endure. This is what Lincoln was talking about in, among many other places, the Gettysburg Address.

      The emergence of large unconstrained concentrations of private power changed this, at least to the perception of large numbers of Americans. This is the real message of social commentary like Upton Sinclair’s THE JUNGLE. Jurgis, Sinclair’s protagonist, is precisely the kind of man who, in the 1850s, would have thrived, and whose energies properly channelled would have sustained American public life. But in 1900, Jurgis’ virtues do neither. If power corrupts, then surely it does not matter whether that power is public or private. Where are the institutional checks and balances to come from, if the corrupting influence of private power is to be constrained? How, in the public realities of life as it is, shall ambition be channelled to restrain ambition? The answers, advocated first by the populists, and then by progressives in both mainstream political parties, was the state.

      Whether or not this was a prudent answer is highly debateable. But it is easy, for us, in condemning their answer, to forget the problem that they confronted. The problem was real. The men and women who grappled with the public problems of their day were no less intelligent, prudent, educated, or informed than are we. We do them a huge disservice if we retroactively, from our time, tell them that their problems were meaningless. Thus, it seems to me to be wisest to assume that they got the problem right. And this implies that, if we do not like their solution, we must do more than simply dismiss it. We also have an obligation to address the underlying problem. Large scale corporate enterprise exists, it is powerful and therefore corrupt, and thus potentially a threat to public life. In a world in which this is so, the older virtues on which the republic depended in the 18th and 19th centuries have been, to some real degree, eclipsed.

      So while I would hope we can all agree on the pernicious effects of statism, we cannot simply go back to what Herbert Hoover termed “rugged individualism.” We can not stop our analysis with proving the ills of statism, since a generation of very thoughtful men and women developed that in response to public problems that were real, and that still confront us.

      • gabe says

        Kevin:

        Much if what you say is correct. While correct, it may not necessarily be true, e.g., “Large scale corporate enterprise exists, it is powerful and therefore corrupt, and thus potentially a threat to public life.”
        Are you asserting that by definition large successful organizations are corrupt? Let us not confuse the “potentiality” for the realization of corruption.
        It seems the underlying story here is monopoly power and Sinclair and others railed against this – while never decisively demonstrating the exaggerated claims they made against the large corporate entities of the day.
        Consider, Standard Oil and the theory of monopoly pricing. What an absolute farce! Under Rockefeller’s leadership, the price of oil products were reduced to the consumer by orders of magnitude, such that the average working man was able to afford it and thereby engage in such activities as reading ( by oil light) at night. Rather than gouging people, Standard Oil provided an enormous benefit to the population at large and indeed, established the USA as a world leader in petroleum – even in the face of very stiff competition from the Russians who were initially producing at a lower cost from their own oil fields.
        The same can be said for J. Hill and the Great Northern Railroad (built, by the way, with purely private funds). Had Hill not been stopped, this nation would have established a far more extensive trade relationship with Japan and the rest of South Asia.
        Thus, I think it unfair to assert that, by nature, large scale enterprises are corrupt.
        Indeed, as I see it, the only monopolies employing price fixing as a modus operandi are GOVERNMENT sponsored monopolies. (Yes, I am exaggerating here – but just a little bit).
        If perhaps, a more reasoned view had prevailed during the period you cite, one not inflamed by muckraking, we may not have chosen the legislative path that we did.
        I agree that government would have grown in response to the growth in the economy. The question we must ask is this: Did we grow the government in the proper manner, direction and using the proper methodology? Did we in so doing, alter our basic ideology?
        And finally, was it proper to do so.

        take care
        gabe

        • Kevin R. Hardwick says

          Gabe,

          No. Being large and successful does not create the potential for corruption. Rather, it is power that corrupts. Some large and successful organizations, it seems likely to me, are not especially powerful, and thus not likely to produce corruption. Nor would I wish to say that all powerful persons are corrupt. But power does make corruption more likely.

          Also, there are different ways to be corrupt. Corruption to seems depends in part on perspective. So institutional incentives matter. And the corruption that concerns us most here is corruption that has civic or public consequences.

        • R Ricard Schweitzer says

          No, your assumption is wrong on two counts.

          1. I was not writing about a “transformation of **society.**”
          I was writing about what can be observed in the changes in its organization.

          2. The “accelerating trend” I referred to (repeated below) had nothing to do with the period of 1870 – 1940, which encompassed all but the last eight years of my father’s life. Some of his experience was imparted to me.

          “. . .the accelerating trend for the development of organizations as instrumentalities to replace the requirements for performance of obligations, individually or in cooperation with others.”

          The initial period of the acceleration referenced, began in 1934; with an additional “boost” about one generation later in the mid-1960s; followed by the current trends of an additional generation later in the early 2000’s. The basis for the selections of instrumentalities began to be established with the “Progressive Movement” of the early 1900s.

          As to the comments about “concentrations of wealth and power;” they have always existed since colonial and pre-colonial times. If I remember my readings of Thorstein Veblen correctly: “Wealth and Beauty tend to concentrate.” I find it difficult not to accept the observations of Walter Lippmann, A. A. Berle and the notable historian Carroll Quigley concerning the effects of the separation of beneficial ownership of accumulated surpluses (capital) from control over their redeployment or distribution, which has given rise to “managerial capitalism” to which you refer.

          The devolution of responsibilities and duties to a managerial class may be (probably is) further evidence of a shift in the concept of responsibilities held by those individuals who aggregated the large-scale business enterprises and social organizations of our society.

          From the balance of your remarks I can understand the difficulties today’s students encounter in academia if they try to gain anything other than cookie-cutter perspectives of our present conditions and how they have come to be.

          • Kevin R. Hardwick says

            I have tried to refrain from ad hominems. I would be grateful if you would do likewise. Because you tend to write vaguely and in the passive voice, I find it hard to figure out where you and I disagree.

    • Kevin R. Hardwick says

      An example of the kind of private power I am talking about. Starting in the late 19th century, in direct response to national markets, the extraction of coal in southern Pennsylvania and West Virginia expanded. Economies of scale concentrated ownership and management of this extractive industry into the hands of corporations that, quite responsibly and legitimately sought to minimize expenses and maximize profits. As scale of extraction expanded, theses enterprises needed to dispose of waste, “slag,” which they did by dumping it in large heaps in the valleys below the mine opening. Heavy metals and especially acids leached from the slag heaps into the watershed, and ultimately into the gigantic estuary that is the Chesapeake bay.

      This action, in turn, imposed costs on the tens of thousands of economic enterprises, organized much as economic enterprise had been in the 1850s, that drew their livelihood from exploiting the natural resources of the bay. The actions of the coal companies were completely legal, and also economically responsible. But they had the direct consequence of driving other enterprises, mostly owner-proprietors who possessed capital in the form of skill and boats, out of business. This happened because the coal companies took action that had the consequence of destroying the natural resources on which the watermen depended.

      Now leave aside the pathos of the environmentalists or the pseudo Marxists. Nor is this an example of creative destruction, since the two industries are extracting different resources. The two industries had access to legal resources in proportion to the scale of their organization, which meant, in practice, that for many decades the corporate enterprise could impose its costs on the owner-proprietor enterprise. So the acidity of the bay changed, the fish died, and the enterprises of the watermen went bankrupt. Was this a desirable outcome? Surely not, if our perspective is that of the Republican Party of the 1850s (or that of Jefferson, for that matter) since there are real civic benefits that derive from ownership of small business, but that do not from large corporate enterprise.

      Do we want one form of enterprise, because of the scale of its organization, to be able to impose its costs onto other forms of enterprise? And if we say no, then what do we do to check and balance the relative power of the two industries? As a practical matter, what alternative do we propose to the progressive solution of state regulation?

      • gabe says

        Let me add one thing:
        With respect to whether it was proper to do so. In our equation, we must consider whether the attendant rent-seeking and corruption that has followed as a result of the government stepping in to manage the economy was (is) worth it?
        Hill’s Great Northern was derailed not simply because of “monopoly” per se”, (as it was obviously not) but, rather, because he was beating the living daylights our of the corrupt rail barons of the time, who then enlisted the aid of our political masters to stop him.
        Sound familiar?

        Also, it seems as if it is more likely today than in the past that large enterprises can impose thier costs on small business. Ever wonder why, GE and others are so willing to support costly regulations? It is simply beacuse they can carry the burden whereas their smaller competitors cannot. Thus rent seeking has become more likely given the proclivity of our elected officials to manage the “meanness” ineherent in the economy
        take care
        gabe

        • Kevin R. Hardwick says

          Gabe,

          No argument from me that government regulation has perverse consequences.

          My point with the example is twofold. First, from the perspective of the republicanism of Lincoln and Jefferson, both of whom saw civic good in an owner proprietor economy, the outcome in the example was bad, if one is concerned for the long term health of the republic. So someone committed to the ideals of Lincoln, or of Hoover for that matter (see his 1928 campaign address, “rugged individualism,” for a very eloquent restatement of Lincolnian republicanism) might well feel some urgency to take action.

          Second, my other point is that there are meaningful public consequences for organizing the economy in large scale corporate enterprises. The difference in scale allows large enterprise to exert considerably more power than owner proprietors can. So if owner proprietors wish to resist, they must change the rules of the game. That is what the progressives did, for better or worse. It did not in fact save owner proprietors, because large scale enterprise adapted handily to the new rules. But make no mistake. The impulse towards statism originated in an effort to preserve rugged individualism. That is what the populists were all about. That is why guys like Thomas Watson and James Weaver, and for that matter Terrence Powderly, stood for something very different than Eugene Debs. They could make common cause, but they acted for different reasons and ultimately to achieve different ends.

      • R Ricard Schweitzer says

        What I wrote was ***not*** ad hominem.

        It was specifically directed at the **ideas** expressed, not at the character or intellect of the exponent.

        Those ideas (of particular causes and effects) are so common in academia and so comparatively similar that I can understand why those so convicted might find my terminology pejorative, regardless of my intent.

        As you can read, I have not been addressing “Statism,” or any other real “isms.” Perhaps that “condition” (Statism) may be inferred from my references to the results of transfers of responsibilities to the mechanisms of our several levels of governments; but, the thrust of my observations concerns the examination of the reasons or causes for those transfers, not the results (which I do indeed lament).

        • Kevin R. Hardwick says

          Fair enough, although you used the words “cookie cutter” (which most certainly does have pejorative connotations) to dismiss an argument with which you emphatically did not engage. I can live with people disareeing with me–but to dismiss two decades worth of engagement with primary sources and with extensive reading in a variety of disciplines without so much as an effort to engage the particulars of the argument is, at the very least, unconstructive. I gave reasons for my positions, backed up by references to primary sources and to prize winning scholarship. You dismiss that but offer no alternative.

          Since the narrative as I recounted it here is not the standard textbook narrative (it seems very likely to me, from what you have written, that you are unfamiliar with the content of contemporary college level American textbooks–nor should you be, since most of them are not all that interesting to read), I find your implication that this is somehow not the result of serious and close thought just a tad presumptious on your part. Again, if you disagree, fine. But your unwillingness to critically engage in the fashion that others here routinely do is, well, striking.

          I offered an intepretation of the period 1870-1945, and you 1.) criticized me for not instead intuiting your intentions, and realizing that in your post you intended to be talking about the period 1932-present; and 2.) then criticized the narrative you assumed I would teach for that period, implying very strongly that I am teaching irresponsibly (which I take to be a kind of ad hominem). But you know nothng of how I teach the post-ww2 narrative. You know nothing because on these pages I have written nothing about it–and on the basis of that nothing, you make aspersions about my professional integrity.

          I would like to think you can do better than that. But at this point, if you want to convince me, you will have to demonstrate it.

          Put up or shut up.

  4. R Ricard Schweitzer says

    Whatever the social theories for its cause, The Transformation of the Citizenry has been the essential element, more so than power seeking, corruption of power or perversions in the uses of the mechanisms of governments.

    The subtle, and sometimes not so subtle, changes in the motivations and objectives of the members making up the cultures of our society have led to those transformations. Perhaps those changes are hard to understand, but they should be observed and recognized if we intend to understand the condition of our present society.

    It is not the departures from constitutional strictures that are essential to our understanding; it is the transformations of the citizenry that have permitted, and to some extent fostered, the departures that require understanding.

    • Kevin R. Hardwick says

      Mr. Schweitzer,
      Can you develop a bit more just what you mean by the Transformation of the Citizenry? I suspect from the way you write that you are making reference to a body of writing for which that term, capitalized, means something specific. But I am not party to the conversation in which that term has precise meaning. I would imagine, a priori, that there have been multiple transformations of civic identity across American history. Some result from political change, eg. the transformations consequent to the Founding (I am thinking here of the scholarship of Gordon Wood and more recently Doug Bradburn), some the response to economic change (eg. the late 19th century transformation I describe elsewhere in this thread), some the consequence of response to changes in the function of government (eg. the rights revolution that followed ww2).

      • Kevin R. Hardwick says

        Richard–
        I am easy to find, because I post under my name, and there is only one historian with my name. There is, ironically, a political scientist who publishes under the same name as do I, but he focuses on slightly different topics. Anyway, to save you the trouble, my email address is hardwikr@jmu.edu.

        I should add that I got a bit testy in my most recent posts, which I regret. I do not think they advanced the conversation in an especially constructive fashion.

        That said, the reaction I have given you, that I often find it hard to figure out just what you are saying, is honest. Much of the time, I just don’t know what you are saying–I find your prose to be opaque in much the same fashion as I find the prose of various French theorists to be difficult to read. I do not doubt that there is something of substance to think about–but much of the time I don’t know what it is. And, given the nature of blogs, I have only limited time to try to figure it out. Most of the time, when I find something in a forum like this unclear, I just skip it. I am not trying to criticize you or your intentions in saying this, and I am of course speaking only for myself.

        Well wishes,
        Kevin

  5. gabe says

    Richard:

    Another good exposition.
    What we now call the “safety net’ used to be viewed as the responsibility of the community with the instrumentalities being the churches, civic organizations or “just plain” neighbors taking care of one another. This not only embedded in the minds of the citizen a sense of their responsibility but actually fostered the same sensibility and a proclivity for such action(s).
    As it is now “handled” by the state, the threads that tie us one to the other are not in evidence; unfortunately, what cannot be seen is assumed to not exist. This is an element in the conversion of responsibility to rights mentality.
    It is quite tragic, actually, not only because of the loss of “connectedness” but because it conduces to the “morally superior” elements of our society’s ongoing attempts to take from my pocket and give to others while permitting them to feel as if they are doing justice.
    take care
    gabe

    • R Ricard Schweitzer says

      I have posted my address:s24rrs@aol.com earlier for your convenience.

      It has not been my intent to expound upon some particular “school of thought,” body of study or research. The views I express are simply my current conclusions from some 60 years of post-academic experience, personal study, thinking, analysis and attempts at articulation. If observations lead to other perceptions, my thinking will undoubtedly adjust.

      The use I make of “Transformation” is not the same as the application of that term by Karl Polanyi . The “Citizenry” are the individuals who make up the members of groupings within the cultures, which in turn make up our social order.

      The motivations and objectives of individuals determine the nature of the cultures.

      How the humans making up the membership of a culture regard one another during any particular period or era of the culture is perhaps the dominant feature in the expression of the motivations and objectives of those individuals. It is those senses of “what kinds” of regard for one another, how they view and react with one another, as determined by those motivations and objectives, that have effects which we observe as “economic;” rather than “economic effects” determining how humans come to have particular regard for one another. In this particular line of thinking you can find some current extensive writing by McCloskey. You can also go back to the studies of Edward Banfield and his wife. Currently, you could read “A Nation of Takers” by Eberstadt, together with the commentary by Yuval Levin. There is much to be learned from the works of Charles Murray as well. If you want to go deeper in the background, James Q Wilson’s works and those more recently of Kenneth Minogue, will give you a feel for the nature of “Transformation.”

      • Kevin R. Hardwick says

        Some specific points, to illuminate the vagueness and lack of specificity with which you write:

        Why introduce Polanyi, if that is an example of what you do not believe? Are you implying that anyone here IS relying on Polanyi’s work? I assume you are referencing THE GREAT TRANSFORMATION, but since no one here has worked from that work, introducing it in order to dismiss it is odd. Moreover, Polanyi was a very diverse thinker, who produced innovative scholarship in history, anthropology, and economics. Why bring him up at all–and if you do bring him up, why not explain just which of his ideas you think are relevant?

        Similarly you mention McClosky, by whom I assume you mean Deirdre McClosky. But her work has a number of distinct phases to it–she has had an enormously productive career that encompasses a wide variety of interests. I doubt you or anyone else here has read the full corpus–I certainly have not. I know her work in two distinct arenas of thought–her earlier focus on cliometrics, with which I largely disagree, and her later work on rhetoric, which I find very much compelling. Neither arena, however, seems especially pertinent to the issues at hand.

        You write: “Organizations were established . . .” Which organizations? I do not know, because you do not tell me. Who established them? For what purposes? I do not know, because you write in the passive voice, and thus leave this rather important bit of information out. The subjects of your sentences are far too often abstractions. “Organizations resulted in the sharing or diffusing of obligations, etc.” What does this mean, exactly? I like concrete subjects, because I can wrap my head around those. When an abstraction does something, I am too often not entirely sure just what that means. In this sentence, and in several of the ones that follow it, I have no idea what you are talking about.

        Lord knows, it is easy enough to write in too compressed a fashion, and to use language loosely or without analytic precision. I have certainly been guilty of that, as have many others here and elsewhere. That is the nature of hasty writing. Maybe that is what is going on with your prose.

        Or maybe you are just genuinely brilliant, a savant who is writing at a level far above my poor ability to apprehend it. Maybe so–but if that is the case, you are writing to a very limited audience, perhaps, like Roger Williams in his old age, an audience of one. But I honestly do not know what you are talking about, most of the time, and when I ask, politely I thought, for clarification, what I get are insults.

    • Kevin R. Hardwick says

      Gabe–

      We should be careful to qualify this. There has always been poor relief in America, from the very beginning of colonization, and it has always been a public matter. The real issue, at least so it seems to me, when viewed historically, is the level of public government at which it takes place. In Virginia for most of the 18th century, poor relief was handled by the parish vestries of the Church of England. But of course, the CoE was established, so it was acting as an agent of government when it did so. After disestablishment, poor relief was handled by the County courts.

      I am a bit murkier on the details, but sometime after the Civil War (I think–take this with a grain of salt, as I may be wrong here) poor relief was assumed by the State government as an obligation of the Commonwealth. And then, I am pretty sure as a consequence of the Wilsonian reforms, but accelerated in the New Deal, poor relief became increasingly a Federal Government concern. One of the ways that this happened was that state and federal officials increasingly differentiated types of poverty, so the process was largely piecemeal. I cannot fill in the details because I have never researched this particular question–someone else here may be able to fill them in better than can I.

      Leaving aside the crappy job I just did of narrating the details of the story, there are two trends here that I can confidently assert: 1.) Poor relief–ie. welfare–has always been a matter of governmental concern (although of course, then and now, private charity also mattered); and 2.) the trend has been to shunt it upwards, from local government to the state, and then to the federal.

      • gabe says

        Kevin:

        Yep to much of the above – well, maybe to all of it.
        My point was that the “movement upwards” as you say had a consequence; i.e., the lessening of the citizenry’s sense of relatedness to each other and a consequent loss of the recognition that there are responsibilities (perhaps, not constitutional ones) that come with citizenship. To my mind, I see this as another component weakening the bond between right / responsibilities and in the hands of skillful, corrupt politicians conducing to a fetishization of the Bill of Rights.
        Yep, it took a ling time to get there, but get there we did.

        take care
        gabe

        • Kevin R. Hardwick says

          Gabe–

          100% agreement. I can appreciate the argument for shunting it upwards, but the consequences of doing so have been pretty awful.

          One of the things that I think is often over looked is that in making decisions, oftentimes the choice is not between a good option and a bad, but rather between a bad option and an even worse one. When advocating for our positions, it is rare for someone to say, “well, I think the option I prefer really stinks, but it stinks less that the other choices.” Instead, people tend to frame it as “my preferred option is great, and all the others suck eggs.” And that very natural rhetorical proclivity tends to obfuscate what often is the underlying reality.

  6. says

    This is an excellent piece. While the author did say that the main point of his article was less troubling than the more fundamental “collapse of the ancient link between rights and duties,” the readers’ comments have ignored the primary thesis. To me what makes this article unique and important is recognizing “the fetishization of the Bill of Rights read in isolation from the main body of the Constitution” itself.

  7. says

    Referring to the post The Constitution is a Bill of Rights by Greg Weiner, I agree w/Donald Devine’s response of Sep 23, 2013: “…the readers’ comments have ignored the primary thesis. To me what makes this article unique and important is recognizing “the fetishization of the Bill of Rights read in isolation from the main body of the Constitution” itself”.
    If we refer to the Debates on the BOR’s, House of Representatives, Amendments to the Constitution, 8 June , 21 July , 13 , 18-19 Aug. 1789, Annals 1:424-50, 661-65, 707-17, 757-59, 766) we will see that the object of the BOR’s was unique in its Amendment(s) separation from the main body of the Constitution, rather than it’s “incorporation”. (“Incorporation” was a line in the sand for the delegates, and they voted against “incorporation”, to process the BOR’s as required by the amendment Clause process. I would like to mention a few of the delegate’s remarks so that you can see that they (the delegates themselves) were resolved to protect and preserve The Constitution in particular.) (Between 8 June and 13 August, Madison used the word(s) “incorporate” a minimum of five times … “such as would be likely to meet with the concurrence of two-thirds of both Houses, and the approbation of three-fourths of the State Legislatures.” A statement that leaves out — the delegates to conventions by the people.)
    [13 August]
    Mr. Sherman. —” I believe, Mr. Chairman, this is not the proper mode of amending the Constitution. We ought not to interweave (incorporate) our propositions into the work itself, because it will be destructive of the whole fabric…” Mr. Livermore was clearly of opinion, that whatever amendments were made to the constitution, they ought to stand separate from the original instrument … , unless we mean to destroy the whole Constitution, we ought to be careful how we attempt to amend it in the way proposed by the committee. From hence, I presume it will be more prudent to adopt the mode proposed by the gentleman from Connecticut, than it will be to risk the destruction of the whole by proposing amendments in the manner recommended by the committee ( to incorporate)…” Mr. Clymer was of opinion with the gentleman from Connecticut, that the amendments ought not to be incorporated in the body of the work, which he hoped would remain a monument to justify those who made it; by a comparison, the world would discover the perfection of the original, and the superfluity of the amendments… This perhaps is not the last amendment the Constitution may receive; we ought therefore to be careful how we set a precedent which, in dangerous and turbulent times, may unhinge the whole…” Mr. Stone … “But in my opinion, we ought to mark its progress with truth in every step we take. If the amendments are incorporated in the body of the work, it will appear, unless we refer to the archives of Congress, that George Washington, and the other worthy characters who composed the convention, signed an instrument which they never had in contemplation. The one to which he affixed his signature purports to be adopted by the unanimous consent of the delegates from every State there assembled… For these reasons, I would wish our expressions might be so guarded, as to purport nothing but what we really have in view.”
    To all of the commentators of this post I would like express my thanks for your insights. I am sure you will find that the delegates were very concerned that the Constitution remained exactly as it was accepted by the states and the people. And that the BOR’s themselves were to be a bulwark against federal encroachment or usurpation.

  8. gabe says

    Professor Devine & Mr jenkins:

    Agreed!
    As I am not as learned as either of you two gentlemen, I would ask for an opinion concerning your posts. Are either of you, or both, arguing that the decision to not incorporate has led to, or at least allowed for, the fetishization of the BOR?
    In other words, is this a structural defect that would lead inexorably to our current condition or simply a “seizable” opportunity by Progressive forces?

    take care
    gabe

  9. says

    (Pulling my leg, gabe?…). Your first question, I will answer no. “…recognizing “the fetishization of the Bill of Rights” is Devine’s line. It did lead me to the thought that the younger population is , and has been, consistently subjected to Supreme Court decisions ‘moored’ with federal encroachment or usurpation, by ‘incorporation of the BOR. My posting was no more than an offering to the reader — of some of the conversations going on between the delegates proposing the BOR’s. and their Constitutional intent to abide by the Amendment Clause process, rather than an ‘incorporation’.
    The Amendment process of the BO is not ”a structural defect” – incorporation IS. (”a structural defect”, gabe?)
    When you speak of “Progressive forces”, there are so many different categorical ‘forces’ that the younger generation is subjected to. One significant ‘progressive force’ – is the Supreme Court’s legislative/political ‘binding’ decisions.
    (you can call me john, w/a small j)

    Take care, (gabe)

    • gabe says

      john:

      Actually, I was being serious. I am painfully aware of the gaps in my own knowledge owing to a 35 year lapse in serious reading. Much of the quotes that other posters on this site offer are somewhat new to me, and while I am not unfamiliar with the sentiments of some of the founders, I am not really aware of many of the specific comments. So for me, it is quite helpful.
      My intention, as I often do, is to seek to elicit the opinions of other posters here on certain issues. thought it might be nice to hear what people had to say.

      BTW: gabe is just a four letter word, and having grown accustomed to being called four letter words, I thought I would use it. However, it is my given name and I rather like it.

      take care (that the laws be faithfully executed)
      gabe

  10. Kevin R. Hardwick says

    As an historian, I am interested in matters of timing. And since I am not a lawyer, I find I derive more value from asking questions to which I do not know the answer.

    So here goes: How do we explain the timing of the ill consequences of the “fetishization” of the Bill of Rights? How is it that it took so long to manifest–really not until the mid-1920s, when to my eye the Supreme Court began a process of over-interpreting the meaning of the 14th Amendment to include incorporation of other rights beyond those of the 5th?

    It seems to me that in most cases Madison got it right–when he carefully vetted the various proposed rights, he selected only those that in his view were least likely to do damage to the Constitution. Thus, for example, the first amendment, with its constraint on Congress, represented little threat to the structure of the Constitution.

    And, it seems likely anyway, for a very long time nothing bad happened, at least as a consequence of adding a Bill of Rights to the Constitution. So it seems likely to me that the existence of the BOR is perhaps a sufficient but not a final cause. Something else had to intersect with it, before we get bad results.

    Just thinking out loud here . . .

    • Greg Weiner says

      Thanks for an engrossing question. I don’t know the answer either, but that won’t inhibit speculation. This is your department as an historian more than mine as a theorist, but my guess would be that the ascent of individualism fueled the Bill of Rights fetish more than the other way around. I would start looking for suspects there. Put otherwise, whence — and when — individualism? Perhaps centralization and the collapse of community institutions, perhaps some of the dislocation surrounding industrialization (these can’t be separated, of course), maybe technological factors play a role too. To be sure, Tocqueville spotted individualism well before these occurred, but they certainly accelerated it. I’ll be curious to hear what others think.

      • R Richard Schweitzer says

        One thing to keep in mind about the appellate process that finally appears in actions (or denials) by the SCOTUS is the “time-lag” from an original event, setting a factual framework, and an ultimate resolution involving a question of Constitutional law. Not many cases are processed as “Original Jurisdiction.”

        So, “timing” needs to be viewed with those conditions in mind.

        Once a body of case law has begun to accrue, it becomes a “tool” for appellate lawyers and a resource for appellate jurists; sort of “self-propagating.”

    • says

      Kevin, in answer to “the existence of the BOR is perhaps a sufficient but not a final cause. Something else had to intersect with it, before we get bad results”.
      The younger population has been, and is, consistently subjected to Supreme Court decisions ‘moored’ with ‘incorporation of the BOR. The younger generation has a sense that the S.C. is the ‘final’ arbiter of the Constitution. They have yet to be reeducated to the fact that the Constitution, and the BOR. ARE the ‘laws’ of the land, not the S.C.. Once the S.C bypassed the Supremacy Clause of the Constitution – the federal court encroached with usurpation upon the 9th and 10th Amendments – taking w/them the preceding eight — by an unlawful legislative
      action of ‘incorporation’ — overriding the Amendment Clause provisions.
      You mention “…the first amendment, with its constraint on Congress, represented little threat to the structure of the Constitution”, and you didn’t seem to go any further w/it. You can look at any case that came before the S.C. from the early 1930’s to the present and ask, “Have you ever heard the Justices say that Congress ‘incorporated’ the BOR into the l4th Amendment. It was never, ever, Congress. And you will understand the First Amendment wording, “Congress shall make no law…” when you refer, and add it to the Supremacy Clause wording “This Constitution, and the Laws of the United States which shall be made in pursuance thereof. Ask yourself, “What law was it that Congress made — that they “shall not” make – yet, no one can find “pursuant”?? Then ask yourself, “If Due process is the process “of law” – where did the S.C. find Congress’s law that they “shall not” make?
      My hopes are the reeducation of our younger, and the new immigration members, by scholars who are dedicated to overcome the insistence and persistence of those changing the Constitution without going through the Amendment Process – and reading the Constitution, and educating beyond its syllable enumeration.
      Respectfully, John

  11. Kevin R. Hardwick says

    A question: As I read the 14th amendment, it pretty clearly imposes a mandate on the state governments to oblige them to incorporate due process rights into the state constitutions. In essence, henceforth the state governments must provide due process to all of their citizens, equally.

    I doubt that many here would object to that. Due process rights are among the most basic and most fundamental of all of our rights, and they have an ancient heritage. The policies of various states in 1865 and 1866 to provide due process to only some of their citizens, but to withhold it from others, is what prompted the 14th Amendment in the first place.

    But then, in the 1920s, the Supreme Court began a process of extending incorporation to include others of the rights enumerated in the Bill of Rights. Today, due to a fairly long stream of court decisions that began with a fairly conservative court–the same court, after all, that invalidated portions of the New Deal in 1936/1937 (I am working from memory here, and I do not remember the precise date)–most of the other rights enumerated in the Bill of Rights have been incorporated.

    It seems to me that this ongoing, protracted process of incorporation is one of the preconditions contributing to the fetishization of rights in today’s culture, with all of the bad consequences that Professor Weiner has so thoughtfully explicated.

    But when I read the text of the 14th Amendment, I don’t see there a legal basis for incorporation. I see due process rights, but none of the others. So how is it that the conservative justices who sat on the Supreme Court in the 1920s discovered these other rights in the text of an amendment in which none are specified directly? I don’t even see the “penumbra” of those rights in that amendment (irony intended). What gives?

    If incorporation is a wound inflicted, at least initially, by conservatives, just what were they thinking?

    Surely there must good studies of this that I can read. Any suggestions?

    Many thanks, in advance,
    Kevin

    • gabe says

      Kevin and others:

      Mike Rappaport has a great essay entitled Originalism and the colorblind Constitution which deals with some of these issues. I recommend it.
      SSRN: http://ssrn.com/abstract=2244610 or http://dx.doi.org/10.2139/ssrn.2244610

      There is also an interesting piece at the Nomocracy In Politics Blog which takes an interesting view on precedent:
      http://nomocracyinpolitics.com/2013/09/23/real-judgment-less-will-why-the-supreme-court-should-focus-on-cases-and-controversies-not-rabid-judicial-review-by-benjamin-clark/

      This one is much shorter. but both are good reads.

      take care
      gabe

      • R Richard Schweitzer says

        “No State shall make or enforce any law which shall **abridge** the *****privileges and immunities***** of citizens of the United States;”

        • Kevin R. Hardwick says

          I was under the impression that the privileges or immunities clause of the 14th amendment was something of a nullity, and that most incorporation has proceeded under the due process clause instead. Am I misinformed?

          • gabe says

            I don’t think that you are. I know it is a long essay but Mike Rappaport’s Colorblind Constitution is a good start. I cited it above.
            take care
            gabe

      • Kevin R. Hardwick says

        John–

        No worries–thank you much for such a thoughtful and full reply. I am still mulling it, and hopefully will manage a reply before this thread disappears, if only to hold up my end of the conversation.

        I keep bumping up against the limitations of my own training–I am evious of scholars like Professor Weiner, who move so easily and thoughtfully from the founding to the present and back again (see his very thoughtful latest post, Madison in Damascus–really quite a tour de force to read). Its a turn of mind that, when executed by someone who inhabits it well, is seamless–the kind of seemingly effortless intelligence that only is earned by years of hard work. So I can see the results, and appreciate and learn from them, but have little idea what it would take for me to replicate them. Humbling, actually, but also why interdisciplinary conversations are so powerfully rewarding.

        Anyway, like Gabe, I am constantly butting up against what I don’t know. Its a good thing–keeps one fresh and engaged.

  12. says

    Thank you Kevin. You are welcome to address me at any time regarding my posts. ( I am a very aggressive one — when it comes to the BOR , and the 14th Amendment.)
    I noticed a question you had made in one of the above posts about ‘a why’ of conservative Justices in the 20’s. I already have it in my mind, but I want to reevaluate my answer(s).
    Looking forward to hearing from you, and gabe. in the future.
    Respectfully, John

  13. says

    Kevin, for your consideration, I’ll offer the following answers to your three questions.
    l. The l4th states: “… nor shall any State deprive any person of life, liberty, or property, without due process of law…” Due Process of law has always been a law dictum of the Judiciary of all the States before the 14th. (Then Section 5. kicks in for Congress – if a State statute does not give “equal” deprivations to both whites and blacks. (The federal courts have no authority here against the States – but they would if the federal Congress acted unconstitutionally. And even then, the federal court must aver its conclusions to the State judiciary for judgment. Questions 2 and 3 are interwoven concerning ‘conservative(s). (Between you and I, I believe a court justice is to process — the law (specified). Conservative judges, encroaching, are just less negligent as the liberal – but a wrong on both sides.) My reading of the Supremacy Clause commands: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; ,,, shall be the supreme Law of the Land … judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution. A question we can both ask the federal Supreme Court is, as an example: What law did you process that specifies the deprivation of the Free Exercise of Religion of any citizen of any State? Respectfully, John.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>