The Bill of Rights and Subsequent Amendments to the Constitution 2:26:59
The fight over ratification of the Constitution was won by its proponents, the Federalists, only by means of a compromise with their opponents, the Anti-Federalists. That compromise was the addition of the Bill of Rights, the first ten amendments to the Constitution. The fear of a consolidated government was by no means new or unique to Americans; it grew out of a long history of struggles to limit the powers of kings, going back at least to Magna Carta. The various efforts to tie the rulers down with constitutional chains are charted in the audiocassettes for this module and documented in the readings, including Magna Carta, the Petition of Right, and the English Bill of Rights. Fear of expanding government is not out-of-date, as David Boaz demonstrates in his chapter “What Big Government Is All About.”
The audiocassettes for this module explain the background and meaning of each of the amendments in the Bill of Rights, as well as the debates over their ratification. In addition, all of the subsequent amendments to the Constitution are examined and explained.
Readings to Accompany The Audio
From From Magna Carta to the Constitution: Documents in the Struggle for Liberty: Magna Carta (1215) (pp. 1-16); The Petition of Right (1628) (pp. 19-24); the English Bill of Rights (1689) (pp. 37-46); the American Bill of Rights (1789) and subsequent amendments to the Constitution (pp. 90-101).
From Libertarianism: A Primer: Chapter 9, “What Big Government Is All About” (pp. 186-209).
From The Libertarian Reader: Roger Pilon, “The Right to Do Wrong” (pp. 197-201).
Some Problems to Ponder & Discuss
• Why list rights if no exhaustive list could be written? And why list activities and powers forbidden to government if those powers are not authorized in the first place? Is the Bill of Rights a redundancy in the Constitution?
• How are “natural rights” related to “legal rights” and “procedural rights”?
• Is it “undemocratic” to limit by law what the people may do?
• How can law limit itself?
• What good are “parchment barriers” to tyranny?
• What other items might you have added to the Bill of Rights, especially considering the experience of the years following the ratification of the Bill of Rights?
• Would an amendment to the Constitution limiting the terms of office of members of Congress (the president is already limited to two terms) help to secure limited government?
• The Ninth Amendment (“The enumeration in the Constitution of certain Rights shall not be construed to deny or disparage others retained by the people”) speaks of other rights retained by the people. What might those other rights be?
• In Article I, Section 8, of the Constitution, the Congress is empowered to “provide for the common Defence and general Welfare of the United States.” How is this related to the Tenth Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively or to the people”)?
Suggested Additional Reading
The Rights Retained by the People: The History and Meaning of the Ninth Amendment, Randy E. Barnett, ed. (Fairfax, Va.: George Mason University Press, 1989). The Ninth Amendment to the Constitution reads: “The enumeration in the Constitution of certain Rights shall not be construed to deny or disparage others retained by the people.” This collection of historical documents and articles by legal scholars shows how the Ninth Amendment places checks on the power of government.
Leonard Levy, The Emergence of a Free Press (Oxford: Oxford University Press, 1985). Despite focusing principally on the First Amendment to the Constitution, this book offers valuable historical background to the Bill of Rights generally. Especially useful are Chapters 6 (“On the Eve of the American Revolution”) and 7 (“From the Revolution to the First Amendment”).
Herbert J. Storing, What the Anti-Federalists Were For: The Political Thought of the Opponents of the Constitution (Chicago: University of Chicago Press, 1981). Storing offers a synoptic view of the Anti-Federalist arguments and concerns and makes it clear that the Anti-Federalists were important shapers of the American constitutional system; the chapter of special relevance to the present module is Chapter 8, “Bill of Rights” (pp. 64-70).
For Further Study
James Bovard, Lost Rights: The Destruction of American Liberty (New York: St. Martin’s, 1994). Bovard documents the active disregard for the Bill of Rights under current policies. This book reveals the great distance between the law of the land—the U.S. Constitution, as amended—and the “laws” issued by Congress, federal executive-branch agencies, and state and local governments.
Michael P. Zuckert, Natural Rights and the New Republicanism (Princeton: Princeton University Press, 1994). This book shows the roots of Whig and natural law thinking about the ends and limits of political power and how those were extended and developed by the American Founders.
The Bill of Rights: A Documentary History, Bernard Schwartz, ed. (New York: Chelsea House, 1971). This two-volume set includes the various precursor documents to the Bill of Rights, as well as excerpts from the correspondence of Madison, Jefferson, and others. Schwartz has also written a history of the Bill of Rights, The Great Rights of Mankind: A History of the American Bill of Rights, 2d ed. (Madison, Wis.: Madison House, 1992).