Friday, January 22, 2016

SCOTUS Gay Marriage Ruling and Hamilton’s Bill of Rights Warning

The Supreme Court’s June 2015 ruling sweeping away legal restrictions on gay marriage nationwide once again raised fundamental questions about the proper role of government regarding the relationship between the people’s individual rights and their government. The ruling brought to my mind Alexander Hamilton’s warning during the debate over the propriety of inserting a Bill of Rights into the U.S. Constitution. In Federalist 84, Alexander Hamilton explains why inserting a Bill of Rights into the constitution was not only unnecessary, but could even be dangerous to America. I quote Hamilton at length, with my emphasis added, followed by my understanding of his observations as relates to marriage rights specifically, and individual rights generally:

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.

Hamilton is reiterating that the people’s liberty pre-exists government, and that the people create governments “to secure the blessings of liberty” (as the constitution says)—or, as the Declaration of Independence states, “to secure these [unalienable] rights.” The people grant to government only powers necessary to do that job. A Bill of Rights listing the rights of individuals in a constitution that does not grant the government the power to violate rights is not only unneeded: It carries the dangerous implication that the people are naturally “subjects” (servants) of the government whose liberties are only those expressly granted by the government as privileged exceptions to that servitude. Besides, one cannot possibly list, in “minute detail,” all rights—”volumes of those aphorism”—not surrendered by the people in the first place. After all, the constitution of the United States is not intended to regulate “every species of personal and private concerns.” The U.S. Constitution “is merely intended to regulate the general political interests of the nation”; i.e., to regulate the means by which the government goes about “secur[ing] the blessings of liberty.” (Think of that when you observe today’s regulatory welfare state running amok.)

Then comes Hamilton’s warning, again with my emphasis:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

Hamilton warns that, since America is a nation with a government of enumerated powers, not enumerated rights, any implication to the contrary could subvert the very purpose of the Constitution. As he explains, a Bill of Rights could lead to the inference that individual rights are nothing more that privileges granted by the state, not actually inalienable rights that precede government and which “governments are instituted . . . to secure,” as the Declaration of Independence so clearly establishes. “To men disposed to usurp,” Hamilton feared, a Bill of Rights could serve as a “plausible pretense” supported by “a semblance of reason” that America is a nation of unlimited government ruling over a people who are free to act only by permission, rather than by unalienable right.

Hamilton lost the debate, as the Bill of Rights was eventually added to the Constitution as the first eight amendments. It wasn’t a total defeat, however. James Madison, to allay Hamilton’s fears, added the Ninth Amendment, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” But the Ninth Amendment, often called the forgotten amendment, didn’t completely neutralize Hamilton’s fears. Even Madison acknowledged Hamilton’s concern to be “one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system.” Hamilton’s warning continues relevant and prescient to this day, and the response by some to the gay marriage ruling demonstrates this, as we’ll see in my next post.

Related Reading:

Rights are Inalienable, not an Electoral Privilege

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