As Tim Lynch has already blogged — and as Cato is currently featuring on its front page, today is Bill of Rights Day. But of course, this is less of a big deal than Constitution Day (September 17, when we release the Cato Supreme Court Review at an annual conference) — because the Bill of Rights is essentially redundant of the Constitution’s original structural protections: Whenever the government exceeds its constitutionally granted powers, it violates rights of some sort.
Tim Sandefur explains over at the Pacific Legal Foundation’s blog:
Madison, along with his colleagues like James Wilson, Alexander Hamilton, and others, expected the Constitution to give Congress only a limited set of powers—powers that were listed in the text of the document. If it wasn’t listed in the text, then Congress couldn’t do it. So the federal government could collect taxes or run a post office, but it couldn’t do other things—like run a national health care program, for instance. Since Congress’s powers were, in Madison’s words, “few and defined,” there was no need to add a bill of rights to declare that the federal government couldn’t do such‐and‐such, because they already couldn’t do such‐and‐such.
Indeed, the argument went, if you enumerate various rights, some will later claim that this is an exhaustive list — even though it’s impossible to list all of our rights at every conceivable level of specificity — with everything else subject to state regulation and control and perhaps implied powers too. That concern is why, even though Jefferson and others won the debate over whether to have a bill of rights, Madison and others ensured that the Ninth Amendment would be included as a safeguard against those who would “deny or disparage” other rights that are “retained by the people.” And why the Tenth Amendment reiterated that, conversely, the powers “not delegated to the United States” are “reserved to the States respectively, or to the people.”
We’re fortunate that both Jefferson and Madison got their way because, as we’ve seen over the last 70+ years, the Supreme Court read out of the Constitution the structural protections for liberty that are plainly there in the pre‐amended Constitution. Not that the Court has done a very good job on the “rights” side of the coin, either — think eminent domain abuses (earlier this week it denied cert. in the Columbia University case, by the way), or the Second Amendment before Heller, or, perhaps most infamously, economic liberties since the rights bifurcation of 1937’s Carolene Products footnote 4 — but if it weren’t for these little bones that it has thrown our way, why the government would always be the sole judge of its own powers. (Which, of course, is what Obamacare proponents argue, that the check on Congress’s power is purely political.)
In any event, bully for the Bill of Rights, even if it’s not — as many people think — the most important part of the Constitution.