Sometimes, as a civics teacher, I
had to think hard about whether to include some concept or other in
my lesson plans. Any teacher has to consider the level of
abstraction that his or her students can handle. Yet what might seem
too abstract or perhaps too obscure might be some basic notion that
if not addressed, could cause students to formulate faulty
assumptions or otherwise make unfounded conclusions. So, before a
teacher might gloss over or not expand on some distinction for fear
that the students before him or her might not appreciate it or
understand it, he or she should consider what the student could
possibly derive from the omission. This posting is about such a
situation.
In the field of political science,
there is a bit of a disagreement over the function of the Bill of
Rights. The disagreement, at first glance, might be judged to be
a bit esoteric by those who don't consider the document too often –
meaning most of us. But here is an issue that if misunderstood can
have repercussions in both political advocacy and in policy
formation. Is the Bill of Rights a document that is to
protect individual rights or to restrain government – to help
make our government a limited one?
In our current era – an era
dominated by the mental construct, natural rights – the general
conclusion has been formulated that the first ten amendments to our
constitution were there to protect what we seem to consider our
individual rights. If you read the Bill of Rights, you might
determine that that is its primary purpose. With such a view, the
general cultural proclivity that we seem to be bent on expanding in
every aspect of life, we find justification in granting license for
just about any behavior and we find it more and more difficult for
the majority to pass laws that might stifle any personal choices
individuals might feel inclined to exercise. Or, another expression
of this proclivity, is how a minority of the electorate is protected
from the majority when the majority might want to implement policy
that even hints at any concern which the Bill of Rights
mentions. This might include unwanted expressions of speech
(pornography) or of religion (nativity scenes in public places during
Christmas). I am writing these thoughts with mixed feelings. I
enjoy my rights and I enjoy the majority not foisting its bias on me
– even when I might agree with the majority. On the other hand, I
do believe in a government that can govern.
My attention was drawn to this
distinction when I became aware of a recently released book that
addresses it. Limited Government and the Bill of Rights by
Patrick M. Garry1
is dedicated to this topic. He argues – and based substantially on
extensive research – for the idea that the Bill of Rights
was proposed, written, and ratified not to promote individual rights,
but to add to the overall constitutional makeup one more element that
limits the power of government. This extra element is added to other
ones: separation of powers and federalism. And so, when considering
these amendments, one should not consider them legal licenses to do
what one wants to do or be protected from majority whims, but instead
one should see these amendments as constitutional provisions that
reign in government from doing certain things.
Let me illustrate. Garry argues
that the First Amendment guarantee of free speech is to
protect primarily political speech because the people's right to
criticize their government is an important way to limit its power.
What is not so protected under the original purposes of the Bill
of Rights is nonpolitical speech such as sexually oriented
publications or entertainment, commercial speech, violent films, and
the like. Here, Garry would argue that the founders would have no
problem in outlawing this type of material. He also says that the
amendment was not meant to create what is called, minority
“dissenter's right.” The case of a minority prohibiting the
majority of supporting religious expression, for example, was foreign
to the intents of these founders. Ralph A. Rossum's review on the
Garry book points out “[l]iberty, the Framers believed, was best
secured through limited government and through those constitutional
structures that checked, diffused, and divided governmental powers.”2
This is what James Madison explained in The Federalist, No. 51.
So how did we go so far adrift
from the original intent? I have, in previous postings, explained
how difficult it is to decipher the intent of the founders. One
thing is to analyze the motivations of the Framers, but they are not
the ones ultimately responsible for our constitution. That honor
should be bestowed on those who ratified the Constitution and all of
the subsequent amendments, including the first ten. Having said
that, I do think that the burden of proving a disagreement between
the Framers and those who voted for ratification should be on the
scholar who makes that contention. Is there sufficient evidence that
a rift existed between these groups of actors? In terms of the
original constitution, there is evidence: records of the ratifying
conventions in the separate states – a topic I have addressed in a
previous posting. But in terms of the individual amendments – a
piece of constitutional material limited in its concerns – it would
be harder to find much variance in how these voters understood the
basic concepts involved. In terms of the distinction described
above, there is none as far as I can determine. I state this while
finding myself at odds with Garry's contentions – not from a
historical point of view, but from my own sense of individual rights.
Still, we owe it to our students to present and explain Garry's
argument. Actually, in terms of a federalist perspective, the more
conservative view of granting communities more say in determining
policy over speech and religion is in line with traditional
federalism.
My position is that even if the
goal is to limit government, a healthy positioning of individual
rights is essential. Perhaps one can conclude that a basic
distinction between traditional and liberated federalism is the
extent that individualism is promoted. While both types of
federalism find the individualism of the natural rights perspective
to be too extreme, the liberated federalism view is that there is a
balance to be achieved between the concerns of local, communal
beliefs – they can be too parochial and stifling – and individual
choices – they can be too self-centered and narcissistic. This
nuanced distinction is not easy to reconcile or determine what
exactly is prudent or constitutional. My purpose here is not to
settle the issue, but to present it as a legitimate issue for
students to consider.
1Rossum,
R. A. (2013). Book Review: Limited government and the Bill of
Rights by Patrick M. Garry. Political Science Quarterly,
Winter 2013-2014, 128 (4), pp. 773-774. Facts about Garry's book
derived from this review.
2Ibid.,
p. 773.
