It happened today - December 15, 2015

On this date in 1791 the United States Bill of Rights became fundamental law. And rightly so.

There are all kinds of things to like about it. Rights are good. These were real rights; basically they’re a long list of “Thou shalt nots” aimed squarely at the federal government. They were clear and simple, hard even for determined judges to misconstrue or twist.

Almost everyone now tries to guarantee rights in their constitutions, however badly they botch it in terms of content or procedure. And the American example, based on the British Bill of Rights exactly a century earlier, is a major reason why.

Reading accounts of the adoption of the Bill of Rights one encounters the influence of the British example, the Virginia Declaration of Rights drafted by George Mason who pushed for a federal equivalent and so on. You also discover that there were originally 12 amendments in the package, one of which was ratified a mere 202 years later (it says no pay raise for Congress takes effect until the next Congress) and one of which, an entirely harmless formula for determining the size of the House of Representatives, was never ratified but is technically still pending.

Some people find such things fascinating. But what I want to draw to your attention isn’t the details of the Bill of Rights but the decisive argument put forward for its adoption. At the time of the debates over the Constitution itself, the main issue was whether, in creating a real national government in place of the feeble imitation that existed under the Articles of Confederation, the drafters hadn’t gone too far in centralizing power.

Obviously the government they created was tiny by modern standards. I do not think there was a person active in politics at that time, even on the arch-Tory side, who would not howl with outrage at the scope, powers and arrogance of the current U.S. government. But even then the anti-Federalists said it was too big.

In those days people tended to have less deliberately unintelligent political discussions than they do today. It wasn’t a bunch of insults and sloganeering into which a charlatan like Donald Trump could comfortably insert himself.

Instead, the anti-Federalists said there was a danger that the list of powers granted to the federal government, instead of being read as exhaustive, might one day be taken as merely illustrative, and that the government might start to claim and use powers it wasn’t meant to have. So they asked for a series of explicit statements of things the government could not do including, via what became the 9th and 10th Amendments, an unmistakable statement that it did not have powers it was not expressly granted.

The Federalists replied that the danger was a phantom, that the text was quite clear that the federal government had only those powers it was expressly granted. So there was no need of a detailed list of what it couldn’t do or a statement that it had no powers it didn’t have. No one can mistake what we have done.

If that’s the case, replied the anti-Federalists, there’s still no harm in adding that list and that statement, is there? Whereas if you’re wrong it’s very important to add them. So we should do it, since we lose nothing either way and might gain a lot.

Instead of running a negative ad at this point, the Federalists basically went oh yeah, you’re right, thanks for pointing it out. Let’s do it. And they did. The amendments that went on to become the Bill of Rights weren’t in the original Constitution but it was understood, and this understanding was crucial to ratification, that they would be added. And though politics could be ugly in those days, that promise was actually kept honorably.

In the end, the government burst its bounds anyway. Especially from the New Deal of the 1930s on, politicians have made and courts have endorsed preposterous claims about the powers conferred on the federal government by the Constitution. My favourite, in a grisly way, was the absurd 1942 case of Wickburn v Filburn where the Supreme Court said the Interstate Commerce Clause let Washington make rules about wheat a man in Ohio grew on his own farm for his own consumption or that of his livestock because, by reducing the amount of wheat he would go and buy, possibly from another state, it affected interstate commerce.

By that standard, everything is potentially subject to federal control and, in the intervening years, most everything actually has been subjected to it. But it took 150 years for the government really to burst its bonds, and a series of massive upheavals including a Civil War fought over the egregious denial of basic rights of slavery that, in complex ways, empowered the national government against perverse localism. It was very hard to erode the Founders’ original intent thanks, in no small measure, to the intellectually bipartisan consensus about including the Bill of Rights.

If only we could do things that way today. Really limiting government in plain, effective language with a broad consensus. Those were the days.

It happened todayJohn Robson