December 15 was Bill of Rights Day. People have different reactions to the Bill. For some, it is the most important feature of the Constitution, indicating and protecting the rights that people enjoy. The rest of the Constitution may be a good one, but it is these rights that are essential. For others, the Bill of Rights is a regrettable feature that gave the Court the opportunity to govern the country in many areas in whatever it desires.
My view is somewhere in between. I believe that the structural features of the Constitution – the separation of powers and federalism – are key features for preserving liberty and good government. But I also believe that the individual rights are an important part of the constitutional mix, protecting substantial interests against government intrusion. Significantly, the Bill of Rights is primarily enforced through a feature of the separation of powers – judicial review.
It is often forgotten that the Bill was initially applied only to the federal government, not to the states. In many ways, it was a federalism provision, preventing the distant federal government from infringing on the rights of people. It was not that people believed that the states should be able to violate those rights. Instead, they believed that many of those rights were already protected by state bills of rights and that the state governments could be better trusted to protect those rights.