FUNCTIONAL CONSIDERATIONS OF THE BILL OF RIGHTS

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.