Bill of Rights: Our Rights Come from God, Not the Government
I had been studying The Federalist Papers for a couple of years, but had not yet reached Paper #84, when someone told me that the drafters of the Constitution did not want to include a “bill of rights.” This seemed counterintuitive to me. Why wouldn’t the drafters want to define my “rights” in the Constitution? That question, alone, proves how much I still needed to learn about the Constitution. The Constitution doesn’t give us our rights. Our rights come from God.
Let me be very clear, I am not going to argue that we should not have a “bill of rights” in the Constitution. I believe that it is an essential tool for protecting our rights. However, Federalist Paper #84 warns that a “bill of rights” in our Constitution would lead to abuse of power. It explains why a “bill of rights” in the U.S. Constitution is both redundant and dangerous.
By examining the Bill of Rights, we can understand the very heart of the Constitution, why it is so special, and why it deserves to be defended.
Our Rights Come From God
I am so glad that the Founders left Paper #84 for us, reminding us that our rights come from God, not the government. However, I’m also glad that we have a Bill of Rights. An awfully lot of people are in positions of power, gleefully demanding that they can define our rights and our behavior. And many citizens simply don’t understand that judges, governors, mayors, and police don’t have the power to take away our rights.
Federalist Paper #84 explains what a “bill of rights” is and why it is not needed in our Constitution:
Bills of rights are agreements between kings and their subjects. They reserve to citizens the rights not surrendered to the king.
The Magna Charta is an example. Barons with swords in their hands made King John sign. Succeeding princes confirmed the Magna Charta. The Petition of Right agreed to by Charles the First is an example. So is the Declaration of Rights presented to the Prince of Orange in 1688. Parliament then made it the "Bill of Rights."
The proposed Constitution is founded on the power of the people. The people's representatives will execute it. Therefore, a bill of rights doesn't belong in the Constitution. The people surrender nothing. And they keep everything. Specific reservations are not needed.
"We, the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
This recognizes popular rights. And it is more effective than the large number of aphorisms that make up our State bills of rights, which would sound much better in a treatise on ethics than in a constitution of government.
I hesitate to point out an error in the Papers, but I believe the author made one when he stated: “The people surrender nothing. And they keep everything. Specific reservations are not needed.”
The U.S. Constitution is, in fact, a list of the few rights that citizen surrender so that everyone can live in a civilized society. For example:
Article 1 Section 8. The Congress shall have Power To . . .To establish . . . post Roads;
Federalist Paper #14 . . . national infrastructure improvements will make commerce easier throughout the Union. Roads will be shortened and better maintained. Places for travelers to eat and sleep will increase and improve. River navigation will extend through most of the thirteen States. Communication will become easier. Nature gave our country many rivers; engineers find them easy to connect with canals.
Federalist Paper #42 . . . [the federal government’s] remaining powers [includes establishing] post offices and post roads. The power of establishing post-roads is a harmless power and if managed well it may produce a great public convenience, helping interstate commerce.
What are the rights that we give up by giving the government the responsibility for our roads? The biggest right that some people must forfeit is the right to their land. Usually the government must acquire privately owned land to build a road.
Since the government is responsible for both the roads and the safety of its citizens (the first responsibility of government), it issues driver’s licenses and creates speed limits. It also levies taxes to maintain the roads and related infrastructure.
From the comments in the Federalist Papers about post roads, we see how they relate to another governmental responsibility:
Article 1 Section 8. The Congress shall have Power To . . .regulate Commerce with foreign Nations and among the several States,
Just think that if the federal government didn’t have responsibility of interstate roads, the states could make laws detrimental to businesses in other states.
Federalist Paper #7 . . . If trade regulations are made that only benefit one State, the other States probably won’t obey them, which would lead to arguments, new regulations aimed at hurting the other States, then wars. Some States would make commercial laws that make other States involuntarily subservient. The situation of New York, Connecticut, and New Jersey is an example.
Why is a Bill of Rights Dangerous?
Earlier I said that a Bill of Rights is both redundant and dangerous. It is redundant because God has already given us our rights.
Additionally, we can’t list all of our rights in any document. For example, I have the right to sleep when I want, eat what I want, and travel where I want.
I see two ways that a Bill of Rights is dangerous.
The first is not discussed in the Federalist Papers, but has proven to be very dangerous—rights are denied because they are not listed in the Bill of Rights. Let me give you a glaring example.
In the episode of Law and Order titled “The Ring,” the DA, Fred Thompson’s character declares that the decision from Roe v. Wade was wrong because there is no right to privacy in the Constitution! Although I disagree with Roe v. Wade, I will always defend a right to privacy. That seems a basic human right.
In legal dramas, the judge seems to often say, “Where is that right in the Constitution?” Wouldn’t it be great if the writers understood the most basic facts about our Constitution?
The second danger arises from the fact that all of the federal government’s powers and responsibilities are listed in the Constitution.
Federalist Paper #84 . . . A specific list of rights is even less applicable to a Constitution like the one under consideration. It only regulates the general political interests of the nation. It does not regulate every type of personal and private concern.
The Tenth Amendment is the clearest explanation of how rights and powers are to be used: 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.
Unlike the rights of the citizens, the powers of the federal government are very much limited and they must be listed in the Constitution. This is where the second danger comes from.
Federalist Paper #84 . . . A bill of rights is not only unnecessary in the proposed Constitution, but would be dangerous. It would contain exceptions to powers not granted. This would give the government a good pretext to claim more powers than were granted. Why declare that things shall not be done when there is no power to do it?
For instance, why say that the liberty of the press shall not be restrained when no power is given to impose restrictions? Such a provision would not confer a regulating power. However, men who want to usurp power could use it to claim that power. They might argue—with some logic—that it is absurd to say there is no authority when the Constitution has a provision against the abuse of that authority. They could say that the provision against restraining the liberty of the press clearly implies that the national government has a power to regulate it.
This is an example of the many handles that would be given to the doctrine of constructive powers by the indulgence of an injudicious zeal for bills of rights.” Federalist Paper #84 [paragraphs 8-10]**
We certainly have seen this prediction fulfilled! Let’s just look at the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
It starts out very clearly—Congress shall make no law. What could be clearer? Yet laws exist. People have been convicted to breaking those laws. It is so sad.
All quotes are from The Federalist Papers: Modern English Edition Two, Webster, 2008.