Tom Burrell Liberty and Common Consent

Magna Carta and Due Process of Law

Magna Carta and Due Process of Law: The Road to American Judicial Activism

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  • Judicial Enforcement of the Bill of Rights

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    Last updated on March 15, 2013

    The Bill of Rights is a great document, and it represents the history of the struggle to obtain individual rights and liberty. The Bill of Rights and its predecessors provide a rough timeline of the Commons’ struggle with the monarchy and monopolies, the English Civil War, the Glorious Revolution, and our American Revolution.

    But the Bill of Rights is a collection of principles. Keep in mind that the events that helped form the Bill of Rights occurred at a time when England and the colonies had a king or queen, or the colonies were otherwise under English control. The concept of a Bill of Rights is connected with a monarchy. In the monarchical form of government, the king was the fountain of all justice. The people fought against an arbitrary king. The Bill of Rights represented a list of promises that the king swore an oath to uphold in order to save his crown or to obtain revenue grants from Parliament.  Because liberties were grants from the king, the people desired broad declarations or promises.

    Bills of Rights were introduced into England when its king claimed all power and jurisdiction, and were considered by them as grants of power to the people.  They are insignificant as [our] government is considered as originating from the people, and all the power government now has is a grant from the people.  The constitution they establish with powers limited and defined, becomes now to the legislator and magistrate, what originally a bill of rights was to the people.  To have inserted in this constitution a bill of rights for the states, would suppose them to derive and hold their rights from the federal government, when the reverse is true.[1]

    In England, the Bill of Rights served to limit the monarchy in favor of Parliament and government by common consent.  How would such a declaration be implemented in a republican government?  Less than two weeks after the Constitution was ratified, but before the Bill of Rights had been proposed to the states, a young Thomas Jefferson wrote to James Madison:

    In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary. This is a body, which if rendered independent, and kept strictly to their own department merits great confidence for their learning and integrity. In fact what degree of confidence would be too much for a body composed of such men as Wythe, Blair, and Pendleton? On characters like these the “civium ardor prava jubentium” would make no impression. I am happy to find that on the whole you are a friend to this amendment. The Declaration of rights is like all other human blessings alloyed with some inconveniences, and not accomplishing fully it’s object. But the good in this instance vastly overweighs the evil. I cannot refrain from making short answers to the objections which your letter states to have been raised. 1. That the rights in question are reserved by the manner in which the federal powers are granted. Answer. A constitutive act may certainly be so formed as to need no declaration of rights. The act itself has the force of a declaration as far as it goes: and if it goes to all material points nothing more is wanting. In the draught of a constitution which I had once a thought of proposing in Virginia, and printed afterwards, I endeavored to reach all the great objects of public liberty, and did not mean to add a declaration of rights. Probably the object was imperfectly executed: but the deficiencies would have been supplied by others in the course of discussion. But in a constitutive act which leaves some precious articles unnoticed, and raises implications against others, a declaration of rights becomes necessary by way of supplement. This is the case of our new federal constitution. This instrument forms us into one state as to certain objects, and gives us a legislative and executive body for these objects. It should therefore guard us against their abuses of power within the field submitted to them. 2. A positive declaration of some essential rights could not be obtained in the requisite latitude. Answer. Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can. 3. The limited powers of the federal government and jealousy of the subordinate governments afford a security which exists in no other instance. Answer. The first member of this seems resolvable into the 1st. objection before stated. The jealousy of the subordinate governments is a precious reliance. But observe that those governments are only agents. They must have principles furnished them whereon to found their opposition. The declaration of rights will be the text whereby they will try all the acts of the federal government. In this view it is necessary to the federal government also: as by the same text they may try the opposition of the subordinate governments. 4. Experience proves the inefficacy of a bill of rights. True. But tho it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. There is a remarkeable difference between the characters of the Inconveniencies which attend a Declaration of rights, and those which attend the want of it. The inconveniences of the Declaration are that it may cramp government in it’s useful exertions. But the evil of this is shortlived, moderate, and reparable. The inconveniencies of the want of a Declaration are permanent, afflicting and irreparable: they are in constant progression from bad to worse. The executive in our governments is not the sole, it is scarcely the principal object of my jealousy. The tyranny of the legislatures is the most formidable dread at present, and will be for long years. That of the executive will come in it’s turn, but it will be at a remote period.  I know there are some among us who would now establish a monarchy. But they are inconsiderable in number and weight of character. The rising race are all republicans. We were educated in royalism: no wonder if some of us retain that idolatry still. Our young people are educated in republicanism. An apostacy from that to royalism is unprecedented and impossible.  I am much pleased with the prospect that a declaration of rights will be added: and hope it will be done in that way which will not endanger the whole frame of the government, or any essential part of it.[2]

    There are two major contrasting points between the Ellsworth passage and the Jefferson letter.  First, Ellsworth appreciated the concept and context of the bill of rights in English history.  For Ellsworth and other Federalists, the bill of rights had no place in a republic.  Second, Jefferson, who did not participate in the Convention and the deep debates generating the Constitution, held a rather naïve view of a republican legislature.  Jefferson deserves great credit for his role as a Founding Father, but he missed something being absent from the Convention. His letter of March 15, 1789, reflects a 1776 mindset with a king, parliament, and the need for great declarations of rights to safeguard a politically powerless people left to the whim of others’ will.  Who could fault him for such a frame of reference?  This is Jefferson’s background as he wrote the Declaration of Independence.  Jefferson’s fear of the past transferred to his opinion of the Constitution’s legislature, especially the Necessary and Proper Clause, without giving any credit to the Constitution’s internal safeguards in favor of the people.  Demanding a bill of rights, Jefferson and Anti-Federalists, blinded by the fire of individual rights, overlooked the first principle that in a republic the people are sovereign.  The people not only give the federal government its power and serve as its officers, but the federal government is accountable to the people in various ways through frequent elections and checks and balances. I don’t think Jefferson would have held the same naïve view if he had participated in the Convention and experienced its compromises, its modes of election and enforcement, and the amendment process to name a few.

    A collection of great principles like the Bill of Rights works well when sovereignty and discretion is in one hand.  But enforcement of a collection of vague and ambiguous promises encourages arbitrariness in a republican form of government.  The principles behind the Bill of Rights are too amorphous to be handed over to the judiciary for enforcement as constitutional law.  James Iredell recognized in his answers to George Mason’s objections that

    It may be observed, in the first place, that a declaration against “cruel and unusual punishments” formed part of an article in the Bill of Rights at the revolution in England in 1688. The prerogative of the Crown having been grossly abused in some preceding reigns, it was thought proper to notice every grievance they had endured, and those declarations went to an abuse of power in the Crown only, but were never intended to limit the authority of Parliament. Many of these articles of the Bill of Rights in England, without a due attention to the difference of the cases, were eagerly adopted when our constitutions were formed, the minds of men then being so warmed with their exertions in the cause of liberty as to lean too much perhaps towards a jealousy of power to repose a proper confidence in their own government. From these articles in the State constitutions many things were attempted to be transplanted into our new Constitution, which would either have been nugatory or improper. This is one of them. The expressions “unusual and severe” or “cruel and unusual” surely would have been too vague to have been of any consequence, since they admit of no clear and precise signification.

    While subjects under a king wanted open-ended promises, a government derived from the people does not need a set of promises like the bill of rights to protect the people from the people—though the interpretations of nine justices of the Supreme Court!  The degree and scope of discretion the modern judiciary has in interpreting and enforcing the Bill of Rights is outrageous!  The power to judicially enforce the Bill of Rights becomes the arbitrary hand that the Anti-Federalists’ Bill of Rights intended to prevent. Judicial enforcement triggers the maxim: who guards the guardian.  What principles guide the judiciary in interpreting the Bill of Rights?  The “dreadful” legislature’s restraint is enforced through a robust political process accountable to the people.  For the judiciary, what check provides restraint?  Appointment and confirmation?  Impeachment?  In a republican form of government, the open-ended principles of the Bill of Rights should be with the people and the legislatures.  The founding generation understood that the best safeguard for republican liberty was the people. A large part of the problem is the application of the Bill of Rights against the states, nay the people, through the judicial fiction of incorporation.

    What would Jefferson say if he could look forward to the judicial enforcement of the Bill of Rights?  In 1789, Jefferson, with an eye to jurists under a different political and legal system, glowingly praised judicial enforcement of the Bill of Rights.  But the gaping hole left in judicial review of the Constitution and Bill of Rights would soon become apparent.  After a few Supreme Court decisions in the republic’s early period, a mature Jefferson cursing the breast that gave it milk wrote:

    It has long, however, been my opinion, and I have never shrunk from its expression, (although I do not choose to put it into a newspaper, nor, like a Priam in armor, offer myself its champion,) that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body, (for impeachment is scarcely a scare-crow,) working like gravity by night and by day, gaining a little to-day and a little to-morrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated. It will be as in Europe, where every man must be either pike or gudgeon, hammer or anvil. Our functionaries and theirs are wares from the same work-shop; made of the same materials, and by the same hand. If the States look with apathy on this silent descent of their government into the gulf which is to swallow all, we have only to weep over the human character formed uncontrollable but by a rod of iron, and the blasphemers of man, as incapable of self-government, become his true historians.[3]


    [T]o consider the judges as the ultimate arbiters of all constitutional questions . . . [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.  Our judges are as honest as other men, and not more so.  They have, with others, the same passions for party, for power, and the privilege of their corps. [They follow the maxim to amplify their powers and jurisdiction] and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.  The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.  It has more wisely made all the departments co-equal and co-sovereign within themselves….  The judges certainly have more frequent occasion to act on constitutional questions, because the laws of meum and tuum and of criminal action, forming the great mass of the system of law, constitute their particular department. When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity.  The exemption of the judges from that is quite dangerous enough.  I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.  This is the true corrective of abuses of constitutional power.[4]

    Either through self-restraint or constitutional reform, the Bill of Rights should be viewed as aspirational or recommendatory, i.e., promises of good government. There’s simply too much discretion in the Bill of Rights to surrender its principles to the judiciary.  Three years of law school in New England is not a replacement for the principle of government by common consent.




    [1] Oliver Ellsworth, Letters of a Landholder, December 10, 1787.   Several Federalists agreed with Ellsworth.

    [2] Letter from Thomas Jefferson to James Madison, March 15, 1789.

    [3] Letter from Thomas Jefferson to Charles Hammond (Aug. 18, 1821).

    [4] Letter from Thomas Jefferson to William Charles Jarvis (Sept. 28, 1820).


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