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Were the Constitution and the Bill of Rights a Mistake?

The United States Constitution was ratified in 1788, the Bill of Rights in 1791. The Constitution replaced the Articles of Confederation which had previously organized the separate states in a confederation which could not tax people directly or raise an army on its own. There was much opposition to this change, and those who were opposed feared a tyranny. Here is Patrick Henry:

The question turns, Sir, on that poor little thing-the expression, We, the people, instead of the States, of America. I need not take much pains to show that the principles of this system are extremely pernicious, impolitic, and dangerous.

The purpose of the Constitution was to allow the central government to raise taxes and an army, and those in favor, in particular Hamilton who arranged for the Constitutional Convention, offered several dangers this change would protect against. There were the Indians, Shay’s Rebellion, France, and Spain to say nothing of England. The Anti-Federalists insisted this was overblown ;and that the cure was far worse than the disease. They pointed out that the country, under the Articles of Confederation, had proved more than able to defeat its enemies and secure a territory larger than that of any king in Europe. They also pointed out how the ability to raise taxes and an army would make the central government too powerful for the states to oppose. Although the disagreement was bitter, the Constitution was ratified.

The Anti-Federalists, such as Patrick Henry, feared such a tyranny. Madison, at Henry’s urging, proposed the Bill of Rights. Henry would have liked a lot more. The Bill of Rights were a compromise with those, Hamilton and others, who opposed any such addition. Madison was convinced the Bill of Rights could be a structural bulwark against the dangers of the centralized state. Henry thought more was needed to actually protect liberty. He did not support the ratification of the Bill of Rights, but they were ratified and he could do no more, since Madison was satisfied.

The Supreme Court was, of course, an institution of the original constitution. Its job was to take up cases that could not be decided in the state courts– disputes with foreign states or their dignitaries, disputes between states, and the like. Since there was no Bill of Rights, there was nothing much to interpret. The Supreme Court’s purpose was to adjudicate cases outside the purview of the states that affected the safety of the United States as a whole.

Although such cases might be rare, war and peace sometimes hung in the balance for the Supreme Court was to handle disagreements with other countries. As much as possible, the judges had to be protected from anything that might corrupt them. The Constitution puts structures in place to guarantee the independence of the Supreme Court judges. But however extensive these structures, the judges all have an interest in their own august positions continuing, and so were on the side of the state. The principle of “precedence” is an intrusion of the interests of the state into the courtroom. For it’s purpose is to ensure stability, the state’s continuation, at the expense of justice.

The Anti-Federalists understood that the Supreme Court could not protect the population from the tyranny of the state, for the Supreme Court is a part of this state. If the Supreme Court could have offered such protection they would have had no need for the Bill of Rights. If the Bill of Rights were “interpreted” by the Supreme Court that would defeat its purpose, for it would then be completely swallowed by the institutions of the original Constitution. And these, again, the Anti-Federalists insisted, offered no protection against, but in fact set up the conditions for, a tyranny.

In 1803 the Supreme Court heard the case of Marbury vs Madison. Wickipedia’s description is generally accepted

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and some government actions that contravene the U.S. Constitution.

From then on the Supreme Court “interpreted the Constitution” in one way or another as cases came up, and so decided whether Constitutional, that is Bill of Rights, protections apply. In the decision of Marbury vs Madison the Supreme Court corralled the Bill of Rights and made them subservient to the potentially tyrannous state set up by the original Constitution, the state that the Bill of Rights were intended to curtail.

John Marshall’s actual decision in the case has a diabolical beauty. It is held up as the poster child of brilliant legal thinking. Jefferson’s predecessor, Adams, had appointed Marbury to a judgeship, but Jefferson had instructed Madison, his secretary of state to refuse to deliver Marbury’s commission. Marbury sued. The Supreme Court ruled that although Marbury had a right to the judgeship the Court did not have jurisdiction in the case, for it was powerless to force the Executive branch to do anything. With this decision he established the principle that the Supreme Court is empowered to interpret the Constitution. Note that no question concerning the Bill of Rights comes up in Marbury vs Madison. It is the non-controversial separation of powers that Marshall appeals to. By interpreting something that needs no interpretation, and announcing his powerlessness to see justice done, Marbury gains the right to oversee the Bill of Rights for the Supreme Court. By establishing his weakness Marshall gained immeasurable strength.

It is possible to argue that the power to “interpret the Constitution” was given to the Supreme Court in Article III of the Constitution. But why give the power to interpret something that needs no interpretation? The enumerated cases are all those that the states cannot handle because they are between states or between a state and a person living in another state and so on. There is really no ambiguity here. Interpretation of the Constitution does not come into play. The Virginia plan from which much of the language in Article III is taken word for word reads:

That the jurisdiction of the inferior tribunals shall be to hear and determine in the first instance, and of the supreme tribunal to hear and determine in the [last] resort, all piracies and felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony.

Of course virtually the entire business of the modern Supreme Court is interpretation of the Bill of Rights. The cases listed in the Constitution as appropriate for the Supreme Court, mostly those above, arise no doubt, but not that often. Cases which have a “Constitutional” question, by which is meant a question concerning the Bill of Rights and further amendments to secure liberty, occupy virtually the entire docket of the Supreme Court. Of course Supreme Court judges concern themselves only with the deeper issues that require brilliant legal minds. Only brilliant legal minds can follow the ins and outs of knotty legal questions and the forking paths of precedent. Who could doubt that much interpretation needs to be done and that you need extensive legal training to do it? Sometimes surprising rulings are beyond the capacity of the layman to understand. In any case incompatible interpretations will be made by liberal and conservative justices as a matter of course.

Once the Supreme Court took charge of “interpreting” the Bill of Rights, the Bill of Rights’ role as protector against the encroachments of the Constitutional state, such as it was, was over. If there can be “liberal” and “conservative” contradictory interpretations of the Bill of Rights, what content can there be? The Supreme Court became a political football. Madison imagined some sort of structure would prevent tyranny. In my opinion Patrick Henry saw much more clearly than Madison. He saw an army. A couple of new rules will not make much difference when push comes to shove with an army. The Civil War proved that.

But it is hard to imagine another fate for the Bill of Rights. Patrick Henry was right to not support its ratification. What effect could the Bill of Rights have had if the Supreme Court did not interpret it? At least in this you can sometimes get your guy on the court. Could words alone have restrained the incipient tyranny? In truth under the Constitution there is really no place for a power to counter the tyranny of the state. To be sure it is a tyranny without a tyrant or an idea, an aimless blind beast, a bureaucracy. Democracy? Empty elections are merely a disguise. Who could believe in the stability of a system that could be defeated by a couple of Facebook ads? Most of the taxes go for military hardware, that is force, the characteristic method of rule of a tyrant. Whatever is left over goes to grease economic output that can be taxed. It’s analogous to pig slop. Because the United States is a blind tyrant that acts only to increase its force, and uses that force indiscriminately to no purpose other than its increase, it is led around by the nose and used for the purposes of others.

 

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Michael Doliner studied with Hannah Arendt at the University of Chicago and has taught at Valparaiso University and Ithaca College.

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