I've been watching/listening to some of these congressional "town hall" meetings that have been taking place recently and there's a recurrent question or theme that I've been glad to see brought up. They're questions surrounding the legislative powers specifically enumerated in the Constitution. Now, granted, I would say about 95% of what the federal legislature does is not within the bounds of the Constitution, but I'm glad it's at least being brought up for debate. Maybe more questioning in this line will bring other existing or proposed federal programs under a new scrutiny in the years to come (I can only hope). But interestingly enough, this focus on enumerated powers has got me thinking about some of the amendments to our Constitution...and specifically the first ten, The Bill of Rights.
To most Americans, The Bill of Rights is as ominous a symbol of this great country as the flag or apple pie. But was the Bill of Rights really a good idea? Believe it or not, the founding fathers were very conflicted regarding these amendments. On one side you had Federalists like Alexander Hamilton proclaiming the idea to be nonsense. On the other side you had Anti-Federalists like Thomas Jefferson and Patrick Henry refusing to push for ratification without one. But who could be against what we've all come to know and love as the first ten amendments to our great Constitution? And more importantly, why were they against it?
To understand what the opposition was thinking we have to put the Bill of Rights in the context of the Constitution as a whole. Our Constitution was unique in that it wasn't, generally, a document meant to define the rights of individuals with regard to federal entities. Instead, in addition to defining the overall structure of the federal government, it put forth a very small list of powers that each branch of this new government had. All individual rights and powers that were not usurped by the few and enumerated powers of the federal government were allocated to the states and subsequently the people. To put it another way, the people and the states operate on the assumption that they have ALL RIGHTS with the exception of a few preceded by the powers given to federal government. Since the federal government only held purview over these few powers, the Federalists argued that securing enumerated individual rights in the form of subsequent amendments would only serve to enforce the idea that all other rights reserved by the states and the people were somehow less "sacred" and even subject to federal usurpation. Hamilton argued in this manner on behalf of the Constitution's entire basis in limited government and natural rights (particularly what was found in English Common-Law of the day).
People like Jefferson and Madison (who largely penned the idea) felt that the Federalists' influence in the construction of the Constitution had led to weak protections against the federal government. They felt that the way things were laid out, although much better than previous systems, the Constitution was still very lacking and would allow the federal government to seize large amounts of power if given enough time. They therefore wanted certain rights "carved in stone" so to speak so that they would be indefinitely out of reach of the grasp of federal government. At the Massachusetts convention the Anti-Federalists got their way when ten amendments were made to the original Constitution and the Bill of Rights was born.
On most matters of the Constitution, I find myself very much siding with the Jeffersonian interpretation of things. He's certainly a cornerstone, historically, to the modern conservative and libertarian viewpoints. But on the other hand, as much as I may besmirch some of his ideas at the time as being terrible, I find myself leaning in the direction of Alexander Hamilton on this one in some ways. Looking back through legislative history, and particularly the last ninety years or so, it's hard to wonder if the door to ignore the legislative constraints of enumerated powers was left open by the ill-conceived notions and perceptions of the average American regarding the Constitution and its relation to the Bill of Rights. I would proffer that if you conducted a poll today that most Americans would offer the idea that our only rights (federally speaking) are contained within the Bill of Rights, and that if it is not something specifically mentioned within those first ten amendments that the federal government, largely, has the power to do what it wishes. Of course this is in staggering contradiction to the views and interpretations of not only the Jeffersonians of the day but of even Federalists like Hamilton. In fact, the Federalists were so worried about this misconception that they proposed an additional amendment to address it:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Short and sweet, most Americans probably don't recognize this amendment, but it is the ninth amendment contained within our Bill of Rights. And its purpose was to ensure that this type of confusion regarding the Bill of Rights and the extent of all citizens' true rights would be quashed indefinitely. But, over time, I can't help but feel that the Bill of Rights and the Constitution as a whole has been misconstrued. The Congress seems to be engaged in all kinds of programs that, Constitutionally speaking, it has absolutely no business in conducting, regardless of the wishes of their constituents. And given that we're now finding ourselves in a national debate about what is essentially the introduction of (another) government-sponsored enterprise into the private health care system, a self-proclaimed Jeffersonian like me has to wonder; was Hamilton right?
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