Unenumerated Rights are Best

In Federalist 84, Alexander Hamilton argued that the anti-federalist fear of a constitution without a bill of rights was groundless. He went even farther and argued that a bill of rights, in the context of the American system, would lead to government interference in those rights. The anti-federalist, in the spirit of English common law, saw a bill of rights as an essential part of liberty. Who was correct? Which side does the history of this country come down on? The bill of rights has not prevented the government encroachment upon individual rights and has actually made increased the ease of such encroachment.

Alexander Hamilton provides many arguments as to why a bill of rights is not needed. His first is that several of the states did not have a bill of rights. He then proceeds to explain that most of the main rights granted by the King John in the Magna Carta were incorporated as restrictions on the national government within the text of the constitution. He includes in these restrictions habeas corpus, jury trials, no bills of attainder or ex post facto, no grants of nobility. The distinction between rights surrendered by the king and restrictions placed on the government is key. Hamilton argues that “they [the Magna Carta, English bill of rights, and the petition of right] have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants.”

The English bill of rights was based on the assumption that the king was sovereign and was promising certain rights to the lords and people. Edmund Burke wrote of the English bill of rights, “You will observe, that from the Magna Charta to the Declaration of Right, it has been the uniform policy of our constitution to claim and assert our liberties, as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity[.] [emphasis his]” In Edmund Burke’s understanding, rights or liberties are a gift given by the king and passed down throughout time. Hamilton’s argument is that this concept cannot apply to a governmental system where the sovereignty rests with the people and the government has only the powers given to it by the people. In the United States, the rights are those historically enjoyed by Englishmen, but they no longer descend from the king; they are possessed by the people. This fulfills Edmund Burke’s theory that rights must be based on a historical progression. Additionally Burke wrote, “All other nations have begun the fabric of a new government, or the reformation of an old, by establishing originally, or by enforcing with greater exactness, some rights or other of religion.”

Another interesting difference in the development of the concept of rights in Great Britain and the United States concerns what exactly a right entails. Perhaps due to the idea rights were granted by the king, the word "rights" seems to entail much more in Great Britain. For example, people there talk of a child's "right" to education, a woman's right to reproductive health services, the right to freedom from poverty, etc., not as something that someone has a uninfringable right to do (as is the case of education or abortion in the U.S.), but as something that the government must provide its citizens. This concept of rights hasn't made significant headway into American political thought. Americans will often say that the government ought to do something - provide free education, welfare, medicare, etc. - but it isn't really until they have paid for it that they demand it.

Interestingly, taxpayer funded abortions have never been strongly supported in America; while women have the right to abortion on demand, its not something the government has a duty to provide its citizens. The national healthcare craze has only begun to implant the English conception of rights into the American political psyche. Because the concept of rights in the U.S., rather than being something provided or granted by the sovereign king, are retained from the government by the sovereign people. Thus, Americans only have a "right" to those services that which they authorize the government to provide and for which they (in theory) pay. There seems to be less of an expectation of provision under a system where rights are held by, not granted to, the people.

The United States reformed the old, English system and began with the understanding that all men have certain basic rights given to them by their Creator, not a king. The power over these basic rights rest then, first in the people, but ultimately in God. In the American system, the people are sovereign under God. A better comparison between the American and English system would be to look at the constitution as a bill of rights for the government. Both the English bill of rights and the constitution came from the power-holders, the king and the people respectively, and granted rights to the people and to the government respectively.

An especially compelling argument made by Alexander Hamilton is that “a minute detail of particular rights, is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to one which has the regulation of every species of personal and private concerns.” This argument proceeds from his former argument regarding the English bill of rights. He argued that in a system, like the American constitution, where the government only has the powers given to it by the people, a bill of rights is unnecessary. A related concern with the “minute detail of particular rights” is that it is simply impossible to enumerate every right. The danger with a bill of rights, especially in a system based on the English system, is the mentality that it is only the enumerated rights which are protected.

This mentality has crept into our jurisprudence system. Supreme Court
Justice Antonin Scalia, a bastion of conservatism and original intent analysis in the Supreme Court, does not believe that the judicial system has the authority to protect unenumerated rights. In the case of Troxel v. Ganville, a parental rights case, the majority of the court ruled in favor of the right of the parents to make decisions for their children. Justice Scalia, however, dissented. His reasoning is clear. He believes that parental rights are part of the “unalienable rights” mentioned in the Declaration of Independence, but does not believe that the mention of rights in that document gives the judicial system power to protect those rights. He writes, “I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right [emphasis his].” He writes further, “The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming anyone of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”

Justice Scalia’s argument follows logically from the concept of a bill of rights. A bill of rights, traditionally, came from a king, someone who held supreme power, who granted rights and liberties for various reasons (needed cooperation with legislation, a war, new taxes, etc.). The bill of rights, therefore, did not necessarily extend beyond what was enumerated in the document itself. While other rights might exist, as Scalia would argue, these rights are not given the same amount of protection because they are not in the document. Essentially, a bill of rights carries with it the idea of its being a grant of protection of certain rights, even if that was not the intention of those who framed it.

Hamilton also raises the issue that a bill of rights will give the government the idea that they are able to interfere to some extent in those areas. His reasoning is that they would be restrictions on powers not granted, and, as such, would give the government a foothold for claiming some jurisdiction in that area. Even the federalists worked off the assumption that power wants to increase itself. Alexander Hamilton writes, “I go further, and affirm, that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colourable pretext to claim more than were granted.” He continues, “For why declare that things shall not be done, which there is no power to do?” His reasoning is, that if the government has not been given the power to do a particular action, adding language telling the government that it cannot do a particular action is redundant. Is this redundancy a problem, however?

Telling the government that it may not interfere in a particular area in which it was never even given power is extremely problematic because it leaves open the question of what exactly interference entails and how much interference is allowed. For example, in 2002 Congress passed the Bipartisan Campaign Reform Act which prohibited corporations and unions from “using their general treasury funds to make independent expenditures for speech that is an ‘electioneering communication’ or for speech that expressly advocates the election or defeat of a candidate.” This is an example where the first amendment protection of free speech is open to interpretation. Does the first amendment protect the speech of corporations? or merely individuals? Did the national government go too far? Is it allowed to merely restrict instead of ban such speech? An enumerated right is no more free from interpretation than is any clause in the constitution. The Supreme Court ultimately decided that such restrictions were unconstitutional, but only after serious debate about the meaning of “free speech.” The national government is never granted any power to abridge free speech. It is limited to actions necessary and proper to accomplishing the actions it is allowed to do. None of the list of “foregoing powers” granted to Congress will be assisted by the abridgement of free speech. The inclusion of a right which the government cannot abridge, where the government has no authority to abridge anyway, leaves the right open for interpretation by any of the branches of government. In Citizens United v. Federal Election Commission, the Supreme Court restrained government interference, but it did so not by stating that the government had no right to legislate in this area, but by deciding that it was undue interference.

Additionally, there exists the problem of advances in technology. Does the second amendment protect the right of the individual? or the militia? Is an individual citizen allowed to own an automatic assault rifle? a high-powered sniper rifle? Does the freedom of the press include the internet? Once these issues are enumerated as rights, someone must interpret them. In our system, the government interprets the rights. This, while unavoidable, is regrettable. If the government was limited merely to interpreting its powers, it would be much more restricted.

Madison’s ideal of the separation of powers was “Ambition [being] made to counter ambition.” In a system where the branches of government interpret what their powers are, each branch will attempt to protect its own power and be jealous of the increases of the other branches’ power. If one branch gains more power, it has the potential to use it against the others. This system works incredibly well because it is based on correct understandings of human nature and power: man is fallen and power corrupts and seeks to expand.

To allow the government to interpret our rights, however, is vastly more problematic. By this means, ambition can actually foster and complement ambition. For example, the Supreme Court can gather more power by deciding something completely outside the meaning of the constitution, such as finding trimester qualifications on abortion as it did in Roe v. Wade . By gathering this decision power to itself, the court trampled on the powers of the state governments and gave more power to Congress which had to regulate this new issue. Allowing the government to interpret our rights rather than merely its powers negates the true strength of the doctrine of the separation of powers and allows for parallel government growth. A particular branch of government will most likely be completely comfortable with permitting the growth of power in another branch provided that the action used to gain that power expands its own power as well. This being the case, a type of democratic tyranny as envisioned by Madison in Federalist 48 is very possible. The rights of the people would rest more secure if the government had no ability to interpret them and was limited to interpreting its enumerated powers. The strongest protection of individual rights is a clear understanding that the government has only those powers given to it by the people.

The American system is different than the British system in that in the American system power comes from the people. A bill of rights comes with the connotation of the rights being granted to the people by a higher power such as a king. A bill of rights cannot contain all rights, and this limitation opens the door for the government to deny protection of those rights. Allowing the government to interpret rights limits the effectiveness of the doctrine of separation of powers and allows the branches of government to expand conjunctly; the combination of these two results, given the natures of man and power, will result in a reduction of rights. “An elective despotism was not the government we fought for;” a bill of rights enhances the potential for the abuse of governmental power.