Every year around this time some politicians will say something obligatory about Bill of Rights Day and the cherished freedoms and liberties of America’s heritage, and perhaps about how the troops fighting in the foreign war du jour are fighting for those very freedoms and liberties.
As these politicians describe it, government is the mother of liberty. Freedom is granted by the state. The Bill of Rights is just one of the many charters that empowers the state and enables it to give freedom to its subjects.
Some of these politicians claim that the Bill of Rights does not go far enough — that it should also provide the American people with shelter, health care and the other necessities of life. Conservatives will often correctly point out that the Bill of Rights does not, should not, and cannot grant such positive rights. But most conservatives, too, seem to miss the big picture when talking about the Constitution, the U.S. warfare state, and American freedom, as if they were all the same thing.
The Bill of Rights is, as best understood, an anti-government document. Its main purpose is not to call upon the government to provide rights; it is rather a list of restrictions on federal authority, spelling out some particular rights that the government shall not violate. It is a prohibition on the federal government from engaging in censorship, religious persecution, firearms control, militarization of domestic society at peacetime, unreasonable searches and seizures, the coercing of confessions, uncompensated confiscations of private property, attacks on due process and fair trials, cruel and unusual punishment, abrogation of the unenumerated rights of the people, and any and all activities not specifically authorized by the Constitution.
In this sense, the Bill of Rights underscores a radical conception of liberty: that the state does not create liberty, that in fact the state’s actions inflict harm on liberty, and that to protect liberty all we must do is keep the state away.
If the government actually obeyed the Bill of Rights, it would do virtually none of what it is doing now. Practically every federal law, regulation and activity is an affront to the Ninth and Tenth Amendments. These two provisions have long been ignored completely, at least since Franklin Roosevelt’s New Deal. A horrifying amount of what the government now does is also specifically prohibited by the first eight amendments. According to the document that supposedly justifies the government’s existence, almost every action carried out by its officials is illegal, and those officials are criminals in violation of the law. For any of them to talk about the greatness of the Bill of Rights is akin to Al Capone sermonizing on the virtues of temperance.
An America that followed the Bill of Rights would never tolerate the PATRIOT Act. It would have no place for a national ID card. It would not allow for the nationalization of airline security and local police forces. Nearly everything done by Bush, and probably Clinton and most presidents before him, would be out of the question. The national war on drugs would have to go, as would all national gun laws. The colonial revolutionaries of the late 18th century revolted against the British Crown over far lesser abuses.
Last year, I wrote an article for LRC called "Happy Bill of Rights Day" in which I said it’s a good time to celebrate the freedoms we are supposed to have. Since then, Bush’s already active War on the Bill of Rights has only accelerated. We have lost so much freedom since Bush took power that it has been hard to look on the bright side these last few Bill of Rights Days.
For years, presidents have beaten and raped the Bill of Rights. Bush might be remembered as the president who finally murdered it.
This might sound very depressing. But it is not the end of the world. It doesn’t even mean that liberty will perish from the earth.
Human liberty is a natural right. It existed before the Bill of Rights. It will exist after the Bill of Rights. It exists wherever it is left free to exist. Those ten amendments supposedly protect liberty, but they are not the origin of liberty, no matter what anyone says to the contrary.
The rights to life, liberty, property and the pursuit of happiness were not invented by the Founding Fathers. The Founders only recognized the natural rights that humans were born with and attempted to defend them more rigorously than had ever been done before.
But even the Founders were far from perfect. They tolerated grave violations of liberty in their time, including slavery, oppression of the American Indians, and the denial of the property rights of women. I know that among certain libertarians it is somewhat politically incorrect to say so, but the Founding Fathers, despite all their genius, insight and admirable understanding of the murderous danger of centralized power, were not libertarians.
If they had been libertarians, they would not have accepted a federal government with the power to confiscate property at all — with or without "just compensation." They would have resisted allowing the feds to house soldiers in private homes at wartime — even if in a manner "prescribed by law." They would have probably rejected the Sixth Amendment provision that guarantees to suspects "compulsory process for obtaining witnesses in [their] favor" — a positive right that gives some people the power to coerce others for criminal justice purposes.
Compared to the present day, the Bill of Rights sounds utopian. But it is not the source of our freedom. It was written up, even if reluctantly, by a warmongering Federalist who believed in centralized power and wrote a bunch of pamphlets urging the Americans to abandon the more radical Articles of Confederation in exchange for the reactionary Constitution. The Anti-Federalists might have forced him into it, and it is indeed the best part of the Constitution, but it is not flawless.
I do mourn the murdering of the Bill of Rights. I do hope it can be resuscitated and one day used to restrain the state. But even the Bill of Rights is secondary to the natural rights and liberties it is supposed to protect.
Ultimately, no law can bind people unless it is upheld in people’s hearts and minds. This includes Constitutional law. To arrive at a day when the Bill of Rights means anything, the principles it presumably defends must first be shared and cultivated among society.
The struggle to bring back the Bill of Rights is primarily an intellectual and philosophical one. While we’re at it, let’s also envision a future in which there is only one law, even simpler than the Bill of Rights and infinitely simpler than the unconstitutional laws Congress now enacts every day: the law of non-aggression, the natural law of liberty. That is, after all, the only real law. Everything else is consistent with that principle, and thus a redundancy, or is no law whatsoever.
Anthony Gregory [send him mail] is a writer and musician who lives in Berkeley, California. He is a research analyst at the Independent Institute. See his webpage for more articles and personal information.