In response to: The Constitution's Structural Limitations On Power Should Be the Focus of the Bill of Rights
There is much to commend Professor Garry’s essay. He is eminently correct in saying that the Constitution contemplated a limited government. Whether it adhered to a “limited government model” is a different issue.
What is more than curious, however, is Professor Garry’s statement that the “the overall scheme of the original Constitution” is primarily concerned with structure and process and not “values.” In other words, the Constitution merely provides a process for making decisions and is wholly indifferent to the results. The Constitution is thus process without purpose.
This view that the Constitution is unconcerned with “values”—or ends or purposes—is utterly alien to the framers’ understanding. Madison famously wrote in The Federalist that “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” The end of government is justice, the quintessential political “value.” Justice was understood by the framers to mean the protection of rights and liberties under the rule of law. And the first object of the rule of law was simply the equal protection of equal rights. In The Federalist, Madison also wrote that the purpose of the Constitution was grounded in “the transcendent law of nature and nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.” Everyone, of course, recognizes this statement as a paraphrase of the Declaration of Independence. Madison clearly says here and other places in The Federalist  that the principles of the Declaration supply the ends or purposes of the Constitution and that institutions—structures—are subordinate to the ends. There can be little doubt that this was the understanding of the Founding generation.
Professor Garry, however, disagrees with Madison on this point. A concern for “individual freedom and natural rights . . . had inspired the Declaration of Independences,” Garry claims, but “to the framers, natural or individual rights were vague and highly abstract.” In addition, “the framing generation did not know how to go about the goal of using specific constitutional provisions to protect natural rights or specific understandings of individual autonomy.” During the founding era, apparently, ideas about natural rights were so “ambiguous and imprecise” that no broad consensus existed about their meaning or content. Thus we cannot take our bearings from such vague and inchoate expressions as “life, liberty, and the pursuit of happiness.”
All of Garry’s evidence about the Founders’ inability to understand individual freedom and natural rights is derived from secondary sources—not one contemporary source is mentioned. Jefferson, however, noted that when he wrote the Declaration he only sought to give expression to the “American mind” and that he believed that “all its authority rests then on the harmonizing sentiments of the day.” Where twenty-first century scholars say that the Founders were confused about first principles, the Founders themselves believed there was a strong consensus among the American people as to what constituted natural rights.
The idea that the Founders did not understand that the natural right to life was an irrefragable conclusion from the “self-evident truth” that all men are created equal is rather incredible. The way of the world for more than a thousand years was divine right rule; the Founders posed the natural equality of all human beings as evidence that there are no inequalities—however measured—sufficient to make any human being by nature the ruler of another. No human being occupies the position with respect to any other human being that every human occupies with respect to any dog. Every human is by nature the ruler of every dog, but the same inequalities do not exist within the human species—this is a “self-evident truth” and it establishes the right to life as a principle of human nature, or as a principle of natural right.
Even more incredible is the claim that the framers were confused about the meaning of the natural right to liberty, even though they clearly said what they meant and meant what they said: the natural right to liberty means that no one can be ruled without his consent or be ruled for any purpose except for his benefit. Thus the natural right to liberty means, in the language of the Declaration that the “just powers” of government must be derived from “the consent of the governed.” How ambiguous is that?
And the “pursuit of happiness?” Clearly for the Founders it meant the right to acquire and possess property understood in its most extensive sense—including free communication of ideas, free exercise of religion, and the right to the possession of the products of one’s own labor. These ideas are spelled out in numerous tracts and treatises of the founding era, including public documents, sermons, political broadsides, correspondence and, as Jefferson notes, “the elementary books of public right.”
The notion that the framers were confused about natural rights is simply a product of modernity’s claim that reason cannot establish “value” claims or arbitrate “value” disputes. But this was no part of the universe inhabited by the American Founders. They knew—and conclusively demonstrated from the first principles of human nature—that natural rights were, to use Madison’s phrase, part of “the fabric of human nature.” Surely they did not believe that liberty was a mere “value judgment” or that it was impossible to prove that freedom was preferable to tyranny. A Progressive historian, writing near the beginning of the twentieth century, wrote that “to ask whether the natural rights philosophy of the Declaration of Independence is true or false is essentially a meaningless question.” It is meaningless because that philosophy was only an expression of the “value judgments” of the founders—the dominant thought of their day. But if it is meaningless to ask whether it is true that free government is preferable to tyranny, then it is equally meaningless to ask whether freedom is preferable to slavery. If all values are relative, and reason cannot decide between competing values, then the universe of politics is reduced to a simple contest in which justice becomes merely “the interest of the stronger.”
The protection of natural rights was understood by the Founders as the necessary means to the preservation of the “safety and happiness of the people.” The Founders were arguing about regime questions—what is the best regime to secure rights and liberties—not about procedural questions. It is utterly absurd to say that the sole purpose of government is to limit itself. The reductio ad absurdum of understanding the Constitution as merely a procedural document might be Justice Oliver Wendell Holmes’ view that the world of politics is simply one of “fighting faiths”—or as we might say today “competing value systems.”
The views of the American Founders were merely one of several “fighting faiths” competing for dominance in the marketplace of ideas. “The best test of truth,” Justice Holmes asserts, “is the power of the thought to get itself accepted in the competition of the market.” Thus, Justice Holmes concludes “if, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” Holmes views the Constitution as merely a procedural document without any purpose. Here he would allow the means that the framers designed to secure free government (free elections and freedom of speech) to destroy the ends.
The framers repeatedly stated that the purpose of the Constitution was to secure the “safety and happiness of the people.” Surely, nothing in the Constitution can be allowed to annihilate the purposes for which it was formed, no matter how democratic the means. The “dictatorship of the proletariat,” even if approved by a majority, would destroy the rights and liberties essential to the “safety and happiness” of the people.
Abraham Lincoln famously argued against Stephen Douglas’ popular sovereignty plan which would have allowed majorities in the territories to approve slavery if they found it in their interest. Lincoln rightly noted that even a majority in a democracy does not have the right to do what is intrinsically wrong by nature, i.e., whatever violates the principles of natural right adumbrated in the Declaration of Independence. Madison also noted that the “majority may do anything that could be rightfully done by unanimous concurrence of the members; the reserved rights of individuals (of conscience for example) in becoming parties to the original compact being beyond the legitimate reach of sovereignty, wherever bested or however viewed.”
Madison frequently remarked that “just and free government is derived from compact.” Madison continues that “The purpose of compact is to form one political society, in order that the rights the safety and the interest of each may be under the safeguard of the whole.” This compact “must result from the free consent of every individual.” Madison notes that a second contract is executed between the people and government, specifying the terms and conditions upon which they consent to be governed and the duties and obligation which they owe in return. It is vital to note that the Preamble to the Constitution states that “We the People . . . do ordain and establish this Constitution.” The people created the Constitution, the Constitution did not create the people.
When, then, did Americans become a “people?” Article VII specifies that the Constitution was “Done in Convention . . . in the Year of . . . the Independence of the United States of America the Twelfth.” Thus the “independence of the United States” is fixed on the date of the Declaration of Independence. The Declaration, of course, refers to Americans as “one people” and as “the good People,” and it denominates “the people” as the ultimate authority for independence. Thus, the people who established and ordained the Constitution were the same people who dissolved “all Allegiance to the British Crown.” The Declaration specifies that the only legitimate basis for government is “the consent of the governed”—the doctrine of social compact is thus intrinsic to the principles of the Declaration.
The rights to be protected by civil society are not created by government—they exist by nature and are prior to government—although governments are necessary to secure them. Thus, political society exists to secure the equal protection of the equal rights of all who consent to be governed. But it is important to emphasize that each person who consents to become a member of civil society enjoys the equal protection of his own rights, while at the same time incurring the obligation to protect the rights of his fellow citizens. Here there are reciprocal rights and obligations—not “autonomous rights.”
For the first time in the history of the world, a system of government based on the sovereignty of the people was established. In the American constitutional system the people, not the government was sovereign. In establishing the government, the people delegated specified portions of its sovereignty to government to be exercised for its benefit. What was not delegated remained within the sovereign prerogative of the people. One sovereign prerogative of the people that can never be delegated—and is specifically denominated a duty in the Declaration—is the right “to alter or abolish” government when it becomes destructive of the ends for which it was established. The right to revolution is the ultimate expression of the sovereignty of the people and, in a very real sense, it is the right that guarantees every other right.
It should be obvious that with a government of delegated powers, a bill of rights is superfluous. Why prohibit the government from doing what it has no delegated power to do? In a monarchy—or any other system where government, not the people, is sovereign—bills of rights redound to the liberty of the people because in these systems the people’s liberties exist only to the extent that exceptions can be made to the power of the sovereign. But as Hamilton wrote in The Federalist, “the Constitution is itself in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” What Hamilton meant, of course, is that the government under the Constitution can only exercise delegated powers and it has no delegated power (or even the reasonable inference from a delegated power) to interfered with rights and liberties. Why prohibit the government from interfering with freedom of the press, Hamilton queried, when there is no delegated power to do so
Madison agreed with Hamilton in opposing the addition of a bill of rights saying that rights are best protected “by the manner which the federal powers are delegated.” In other words, rights and liberties are best protected by confining government strictly to the exercise of its delegated powers. Under these circumstances rights do not have to be defined; the government has to justify the exercise of its power in terms of a delegated power or a fair inference from a delegated power. This would be a great advantage for the protection of rights and liberties.
Madison and the leading federalists did not think that a bill of rights was merely superfluous; they believed a bill of rights was dangerous to limited government. Although Madison became the chief architect of the Bill of Rights, he never changed his mind that in principle the addition of a bill of rights was unsound. The push for a bill of rights was taken up by the anti-federalists who, of course, lost in the ratification elections. They used this popular issue in an attempt to call for a second constitutional convention in which they hoped to weaken the national elements of the new Constitution, particularly the commerce clause, the necessary and proper clause, the taxing powers and especially the supremacy clause. They were only tangentially interested in adding a bill of rights; their primary purpose was to use the bill of rights as an excuse for calling a convention in which they would try to weaken what they regarded as the centralizing tendencies of the Constitution.
The anti-federalists never seemed to have understood the revolutionary basis for the new government. They seemed to still regard governments as sovereign and to believe that the liberty of the people existed only within the interstices of the exceptions to government power. In short, they were still fighting against monarchical government, not fully accepting the fact that republican government posed entirely different regime questions.
Madison took up the project of pushing a bill of rights through the first Congress as a way of diffusing the anti-federalist movement for a new convention which he feared would seriously damage the Constitution by turning it back in the direction of the failed Articles of Confederation. Madison says that in proposing a bill of rights he hoped to reconcile the anti-federalists to the Constitution, but his real purpose was to prevent the anti-federalists from damaging the important national features of the Constitution.
What was dangerous about the bill of rights? If you include a specific exception to a governmental power, e.g.. that “Congress shall make no law respecting an establishment of religion. . .,” then you imply that if it were not for the prohibition Congress could make such a law. But in fact, a quick glace at the Constitution reveals no such delegated power and without a delegated power to establish a religion, Congress may not do so. But if we specifically say Congress may not do so, then we imply that Congress would have had the power “but for” the prohibition. Every prohibition thus implies a grant of power.
Here the idea of limited government is destroyed because we have now transformed government into one that can do everything except what the Constitution says it specifically may not do. Madison thought he could obviate this danger by the Tenth Amendment, which says, in effect, that an exception to government power may not be taken as an implied grant of power—powers not granted are reserved to the states or the people. But it appears from modern jurisprudence, some of which is chronicled by Professor Garry, that Madison’s prophylactic failed in this regard.
A second danger comes from the fact that in writing a bill of rights, no list of rights can be complete. Future events will always reveal new exigencies that will require the assertion of new limitations on government through the assertion of rights reserved by the people. The right to privacy is only one example. A long-standing principle of constitutional construction, however, holds that every list must be interpreted as exclusive—that the inclusion of one thing excludes the other. This rule of construction—which is essential to a written constitution—means that the list of rights in the Bill of Rights will be presumed to be exhaustive or complete, not merely suggestive. Madison thought it was thus dangerous to reduce rights to a list.
He believed, however, that he could cure this defect by the Ninth Amendment. The list of rights contained in the Bill of Rights cannot be used to disparage other rights retained by the people. In other words, the Ninth Amendment is in some sense a counterpart to the Tenth: all rights not listed in the Bill of Rights are reserved by the people. It is essential to remind ourselves of the fact that under the original Constitution it would never have been necessary for the people to engage in the dangerous practice of specifying or defining its rights; rather the responsibility would have been on government always to justify its exercise of power.
One of the problems with Professor Garry’s approach is the implausible efforts he has to make to stretch the evidence to fit his “limited government model.” Garry makes an heroic but unsuccessful attempt to deny that the rights protected in the Bill of Rights are individual rights. Thus in terms of his “limited government model” the specific provisions of the Bill of Rights should be interpreted as limitations on government, not as protections for individual rights. But all the evidence is to the contrary. Garry is forced by his model to undermine the importance of the Declaration in the Founding and its relation to the Constitution because the natural rights described therein are obviously individual rights derived from the “self-evident truth” that “all men are created equal.”
It is true that the provisions of the Bill of Rights are designed to restrain the federal government’s exercise of power, but they do so by restricting the government’s power to invade the rights of individuals. We have James Madison’s own testimony that the provisions of the Bill of Rights “relate [first] . . . to private rights.” In his famous June 8, 1789 speech before the House of Representatives in which he introduced his proposals for the Bill of Rights, Madison noted that the judicial tribunals will be “the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulation for in the constitution by the declaration of rights.” Here, Madison was merely echoing the argument of The Federalist No. 78 where Hamilton had argued that “the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments . . . [the] independence of the judges is equally requisite to guard the Constitution and the rights of individuals . . .” This does not mean that because individual rights were the focus of the Bill of Rights that the judiciary, as Garry asserts, would necessarily assume “unbounded power. . . to define and enforce individual rights.” Indeed, in a system of government animated by separation of powers, no branch would have “unbounded power.”
Professor Garry is eminently correct in opposing the notion of autonomy rights; but that notion was not a product of the founding; it was the invention of Progressivism, a movement that sought to supplant the founding. Natural rights have nothing to do with “autonomy rights.” The founders did not view rights as idiosyncratic “value judgments,” but as the rational pursuit of happiness within the context of ordered liberty or the rule of law. George Washington signaled the nation’s understanding when, in his first inaugural (written by Madison), he said that “there is no truth more thoroughly established, than that there exists in the economy and course of nature, an indissoluble union between virtue and happiness.” Thus, Washington—and undoubtedly the founding generation—understood the “pursuit of happiness” as the pursuit of virtue! It is only when rights are understood apart from nature or natural right that they can be conceived in terms of autonomy.
A proper understanding of the founding is the best antidote to the rampant notion of autonomy rights which I concur is undermining the moral, political and constitutional basis of civil society today. This has been, as Professor Garry rightly notes, the work of the Supreme Court beginning with the New Deal era and continuing through the activist years of the Warren Court and beyond. But understanding the founding in terms of a “model” that was not intrinsic to the framers’ understanding, it seems to me, only distorts our understanding. We should stick with the framers and understand how they grounded the American regime in the principles of natural right.
The Federalist, No. 43, 279.
See e.g., The Federalist, No. 40, 252; No. 78, 469. In No. 39, Madison wrote that the people should reject the proposed constitution if they did not find it to be “strictly republican,” because “it is evident,” he continued, “that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government.” What is important to note here is that republican government is the only form of government that is consistent with the “principles of the Revolution,” meaning, of course, the principles of the Declaration of Independence. As an aside, Hamilton in The Federalist No. 9 does not distinguish between free government and republican government as Professor Garry claims. To the contrary, his point is that republican government is a type of “free government.” The attempt to argue that free governments protect individual rights and republican governments protect “a more general political freedom as a means to securing individual freedom” is simply mistaken.
 Letter to Henry Lee, May 8, 1825, in M. Peterson, ed., Jefferson: Writings (New York: Library of America, 1984), 1501 (emphasis added).
See Madison, “Property,” National Gazette, March 29, 1792, in Jack Rakove, ed., Madison: Writings (New York: Library of America, 1999), 515.
See Edward Erler, “Natural Right in the American Founding,” 23 Interpretation: A Journal of Political Philosophy (Spring, 1996), 457-475.
 Carl L. Becker, The Declaration of Independence (New York: Vintage Books, 1942 [originally published in 1922]), 277. Becker’s view still dominates historiography today. All ideas are the product of their time and there are no ideas that transcend their time. It is curious, however, that Becker never seems to have questioned whether his own insight—that all thought was historically conditioned—was itself historically conditioned. He simply assumed that it was a though that was valid for all historical epochs. I dare say this is Garry’s view as well. This is the reason he tried to impose a “model” on the thought of the Founders that was not within their own purview.
Abrams v. U.S., 250 U.S. 616, 627 (1919).
Gitlow v. N.Y., 268 U.S. 652m 673 (1925) (Holmes, J., dissenting).
 Madison, “Sovereignty” (1835), in Gaillard Hunt, ed. The Writings of James Madison (New York: G.P. Putnam’s Sons, 1908), 9:570.
 Madison, “Sovereignty,” 9:569-70.
The Federalist, No. 84, 515.
 Letter to Thomas Jefferson, October 17, 1787, in William T. Hutchinson, et. al (Chicago: University of Chicago Press; Charlottesville: University Press of Virginia, 1962 – ), 11:297.
See Erler, “James Madison and the Framing of the Bill of Rights: Reality and Rhetoric in the New Constitutionalism,” 9 Political Communication (1992), 213-229.
See, Erler, “The Ninth Amendment and Contemporary Jurisprudence,” in Eugene Hickok, Jr., ed., The Bill of Rights: Original Meaning and Current Understanding (Charlottesville: University Press of Virginia, 1991), 432-451.
 Garry is so eager to deny the relevance of individual or natural rights to the founding era that he completely misconstrues a quote from The Federalist No. 38, 235, to this effect: “Madison argued that the Bill of Rights ‘ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the states in their political capacity’.” Madison here was not speaking in his own name, but rather rehearsing complaints against the proposed constitution by various detractors: “a fourth [detractor] concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced . . .” These are not Madison’s opinions and to cite them as such is erroneous. We must also remember that Madison originally proposed an amendment to be included in the Bill of Rights that would have restricted the states: “No State shall violate the equal rights of conscience, freedom of the press, or trial by jury in criminal cases.” This proposed amendment was not approval by Congress.
 “Notes for Speech in Congress,” June 8, 1789, Papers of James Madison, 12:193.
The Federalist, No. 78, 469.
The Papers of James Madison, 12:120.
The Federalist, No. 51, Clinton Rossiter, ed., (New York: Mentor, 1961), 324.