Don’t Cross the Streams: A History of Constitutional Rights
During the period between the completion of the drafting of the Constitution and the states’ ratification of the document, one of the major debates was over the protection of civil rights. Concerned Americans saw the Constitution as a worrisome concentration of power compared with the loose Articles of Confederation it was replacing. With the abuses of the British monarch fresh in their minds, this group, known as the Anti-Federalists, argued for the inclusion in the Constitution of a bill of rights. Their position was that formally stating the people’s rights would impede the government’s ability to infringe them.
The Federalists, proponents of the new Constitution, opposed the call for a constitutional statement of rights, and not because they wanted to aggrandize the government’s powers (a charge their leader, Alexander Hamilton, would face throughout his life). The Federalists were just as concerned about governmental abuse, but they had a different vision of the Constitution. They saw the new government the Constitution proposed to create as a government of enumerated, and therefore limited, powers. The Constitution’s text mostly contains grants of power to the government, and the Federalists’ view was that the government would have these powers and no others. To act, in other words, the government would have to be able to point to the constitutional provision that authorized that action. An enumeration of rights, the Federalists feared, would similarly limit rights and make it easier for the government to infringe them.
The Federalists were the country’s first political party and they dominated the early American political scene, but James Madison and the Anti-Federalists won the rights enumeration battle. Immediately following ratification of the Constitution in 1789, Madison successfully shepherded ten constitutional amendments through the amendment process. Unlike the document they amended, these ten Bill of Rights provisions mostly state restrictions on government authority.
The Anti-Federalists won the day, but the Federalists’ fears were prescient. Government power expanded under the Commerce Clause, Art. I, § 8, cl. 3, and the Necessary and Proper Clause, Art. I, § 8, cl. 18, and the Supreme Court upheld the carving away of the rights the Bill of Rights was intended to protect. Even the First Amendment’s strong, direct language on free speech that “Congress shall make no law…abridging the freedom of speech” has not proved sufficient to protect that right absolutely. The Supreme Court upheld a conviction under the Espionage Act of 1917 of a man who mailed anti-war pamphlets to drafted soldiers and established the “clear and present danger” test, allowing prohibition of any speech that creates “a clear and present danger that [it] will bring about the substantive evils that Congress has a right to prevent.” Schenck v. US, 249 U.S. 47, 52 (1919). In Gitlow v. New York, 268 U.S. 652 (1925), the Court upheld the authority of state governments to restrict statements that, “by their very nature, involve danger to the public peace and to the security of the State.” Gitlow, 268 U.S. at 669. The Court said that the states have the authority to define the expanse of this restriction, id. at 668-69, and upheld the conviction of the distributor of a leftist tract. Both of these cases are good law today, as are numerous other decisions upholding limitations on the rights the Bill of Rights was intended to protect. This article, to be taken with a grain of salt, presents examples of limitations of these rights.
While the Third Amendment’s protection against the forced quartering of troops may be the only enumerated right to survive the past 220 years wholly unscathed, the enumeration of rights presented a second challenge to citizens’ rights. Besides confining rights to language susceptible to restriction, the Bill of Rights also created a closed universe of rights. This second consequence requires citizens to be able to point to a specific authority to authorize protection of the rights they are claiming. This is most apparent in the litigation over a right of privacy, a mother’s right to an abortion, and homosexuals’ right to marriage. Each of these areas is at a different stage, but in each, the Court has required those claiming the right to locate it within the Bill of Rights or deeply rooted tradition. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 122-23 (1989) (“We have insisted not merely that the interest denominated as a ‘liberty’ be ‘fundamental’…but also that it be an interest traditionally protected by our society….[T]he Due Process Clause affords only those protections ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’…Our cases reflect ‘continual insistence upon respect for the teachings of history [and] solid recognition of the basic values that underlie our society.’”) (quoting Snyder v. Mass., 291 U.S. 97, 105 (1934) and Griswold v. Connecticut, 381 U.S. 479, 501 (1965)).
Modern proponents of judicial conservatism scoff at the labors of the Griswold and Roe v. Wade, 410 U.S. 113 (1973), Courts (to take two well-known examples) and their tenuous (“activist”) attempts to root rights to privacy and abortion, respectively, in the Constitution and foundational tradition. In some ways, though, this all seems to be mixed up. Judicial conservatives are supposed to be interested in limiting the government to its enumerated powers and conducting original meaning interpretation of the Constitution and statutes. They seem to have crossed over, however, when they combat the work of those they label judicial activists, at least when it comes to civil rights. Judicial conservatives tend to give short shrift to the Ninth Amendment, for example, which states, with brevity: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Ninth Amendment, the argument goes, does not confer any rights, but merely states some abstract sense about the Constitution. See, e.g., Troxel v. Granville, 530 U.S. 57, 91 (2000) (“[T]he Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one 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.”) (Scalia, J., dissenting).
The Federalists’ view of a limited government of enumerated powers at least suggests the corollary that the people retained the broad liberty that was everything beyond the government’s limited scope. Unlike the government, the people should not have to identify authorization for their actions. To hold otherwise means that the Constitution (and its Amendments) was meant to constrain people and the government in like manner. It means that the Constitution grants people certain rights just as it grants government certain powers.
Even if the Bill of Rights was not intended to so limit rights, the enumeration of rights has contributed to a modern reality in which judicially conservative and liberal judges believe they must locate and anchor rights in the Constitution and deep tradition.
The shifting identities of the Democrat and Republican parties (especially during the period between the Civil War and today) are familiar, but the shift described in conceptions of civil rights and government power is of greater consequence than the policy connotations of the letter next to a candidate’s name. Today’s civil rights advocates are laboring under the burden their predecessors created for them. Instead of preserving a conception of rights that allowed people the full range of liberty (less those things state and federal criminal law properly prohibits), the Bill of Rights confined liberty and eased further restriction. This forces rights advocates to be judicially activist, stretching the meaning of or combining individual Amendments to justify a claimed right. Rather than than retaining the broad balance of liberty, the people must look to the government and the Constitution to find their rights. This seems like a reversal of the original American position. Even if the Ninth Amendment is not entitled to substantial weight, the notion that people must be granted rights is a transformative twist on the view that it is the government, and the government alone, that is to be granted its authority through constitutional enumerations.
It is not obvious why things developed this way, but today, the message is clear: rights claimants bear the burden of justification for their desired actions, and judges who claim to use strict interpretive methods and seek original understandings support this result. Apparently opposing judges, by laboring to “find” rights to privacy and abortion, for example, within the Bill of Rights, nevertheless do not attack this premise. This shift has led to a civil rights landscape arguably much different than the one the Anti-Federalists (and Federalists) imagined.