The Bill Of Rights: America's Last Defense Against The Federal Suffocation Of Civil Liberties?

Is our Bill of Rights necessary? Does it put a limit on our government, or on our liberty? Do these ten amendments hold the same meaning today as they did two-hundred and fourteen years ago? Are they now or have they ever been relevant? These questions were debated by our nation's founding fathers in the eighteenth century and continue to be debated by the historians, academics, and political scientists today. Over the course of the last two centuries, its meaning has been twisted and stretched by the interpretation and misinterpretation of our legislature and, most of all, by the Supreme Court wielding its power of judicial review. It is my belief that these rights were and are absolutely essential to maintaining any liberty in this country; however, I also believe they have placed a limit on our liberties in that the government has come to restrict many rights that are not expressly declared in the Constitution and the Bill of Rights. Perhaps, it is necessary to convene a convention dedicated to defining and expanding the protected rights and to put these revisions to the people through normal amendment processes requiring ratification by three-quarters of the states.

To begin, we need to understand what a "bill of rights" is and where it comes from. Bills, or lists, of rights litter American colonial history, from the Declaration of Rights issued to the British parliament in response to the Stamp Act of 1765, which led to the repeal of that act, to those found in state governments such as Virginia and Delaware during the earliest days of the new nation. These lists were written in response to years of oppression suffered by the colonists at the hands of a tyrannical British government. They outlined certain individual rights that were held to be above government regulation by the philosophy of the time. Though the first ten amendments do not constitute the first list of rights ever devised, they are the first list incorporated into a national constitution.

The founders developed two contradicting viewpoints on this subject, which threatened to bring the process of ratification to a standstill. In his letters, Federalist 84 and Federalist 85, Alexander Hamilton, writing as "Publius", summarized the federalist argument against the bill of rights. He presented what I feel is a valid and well placed fear that, in stating the liberties shielded from government control, you imply that it has the power to regulate all those not listed. The opposing viewpoint, as found in the anti-federalist letters written by "Brutus", was that a greater threat could be found in not protecting these rights. He claimed that, if left unchecked by a bill or rights, the federal government would eventually assume much greater power due to legislation by the Congress utilizing the implied powers clause. Anti-federalists feared that this would eventually result in direct consequences on the liberties of individuals. Given the advantage of seeing this country after two centuries under the current Constitution, I believe that this was and is an even greater threat than that feared by the federalists.

Despite two years of heated debate between federalists and anti-federalists, the Constitution was adopted in 1789 without the bill of rights; however, the terms of ratification issued by several states, including Virginia, Massachusetts, New York, South Carolina, New Hampshire, and Rhode Island, required an unwritten understanding that the ratified Constitution would quickly be amended to include such a bill. James Madison, once a champion of the federalist cause, was the first to propose a bill of rights to the Congress. Of the twelve amendments he proposed, the Congress accepted and incorporated ten into the Constitution. Since admission into the Constitution, the role of those amendments has changed drastically.

During the years following its ratification, the Bill of Rights was seen only as a limitation on the relatively weak national government. It had very little bearing on the states, most of whom incorporated more comprehensive bills of rights into their own constitutions. Of the ten amendments that were ratified, the one most highly regarded in this time was the tenth which states that those powers not expressly given to the federal government are retained by the states or by the people. In this era of dual federalism, it was not uncommon for the Supreme Court to rule in favor of the states in cases which would now be considered violations of an individual's constitutionally protected rights, such as Barron vs. Baltimore in 1833. This pattern continued throughout the majority of the nineteenth century as evidenced by the Supreme Court's decision to declare the Civil Rights Act of 1875 unconstitutional because it violated the tenth amendment. Despite this emphasis on State sovereignty, this era also included slow steady growth in the national government.

While the Supreme Court was defending state's rights, the Congress and the executive branch were steadily increasing the scope of national government's authority. In 1819, the Supreme Court's ruling in McCulloch vs. Maryland opened the doors for implied powers by citing the necessary and proper clause. This ruling enabled the government to expand their role and overturn the rulings of the states. The restriction of state powers began by regulating commerce and enforcing new national tariffs. When South Carolina responded with threats of secession, President Andrew Jackson responded by asserting national government supremacy and declaring secession an act of treason against the United States. In the years that followed, the nation began to drift toward civil war. At the heart of this movement was the issue of states' sovereignty.

During the Civil War, President Lincoln exercised absolute supremacy over the states and exacted greater control over liberties not expressly granted to the citizens by the Constitution. It was during this time that the first draft was established and that the national government began to greatly influence the transportation industry through subsidies. Further, rights expressed in the Bill of Rights became conditional when restrictions on firearms were instituted to suppress the draft riots and when newspapers and protesters were silenced for the sake of national strength during the war. In the aftermath, Congress passed the fourteenth amendment which conferred upon all citizens of the United States all rights listed in the Constitution including the Bill of Rights. The national government then forced the southern states to ratify the fourteenth amendment as a condition of reinstatement and release from the military rule instituted by the First Reconstruction Act of March 2, 1867. This amendment changed the relationship between state and federal laws and strengthened

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