Why We Need the Bill of Rights

Curmudgeon at Second Effort got me thinking; so, if you don’t like when I do the law philosophy stuff, this is his fault. The length of the post is my fault. He did a post that proposed that we remove government from the marriage business. Let people religiously or civilly commit to each other and let contract law govern their relationship to each other. I disagreed in a comment. Here are my broader thoughts.

As you may recall, the Constitution was on its own for a few years. The first ten Amendments were enacted in 1791. Alexander Hamilton argued with some authority that they weren’t needed and were a bad idea. From Wikipedia.com:

“Bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was "Magna Charta", obtained by the Barons, swords in hand, from King John.

“…Hamilton expressed the fear that protecting specific rights might imply that any unmentioned rights would not be protected:

I go further, and affirm that bills of rights, in the sense and in 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 which are 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?”

There was a strong feeling back then in favor of limited government. The colonies, soon to be states, were very leery of replacing the British monarch with a stateside version of the same thing. Federalism was suspect. The States would only give to the new Federal government enumerated powers. Why reserve peoples’ and states’ rights that had not been ceded?

People back then, other than slaves who weren’t people, were fairly homogeneous. They didn’t need too much protection from each other as they for the most part thought alike, at least those in charge were. They probably would have fared well enough without a Bill of Rights.

But then our society burst at the proverbial seams. There were the necessary, but pesky, slaves of course. And then the further waves of European refugees seeking the promise of the New World. Oriental people came from the other coast. Each group in turn faced a majority that was not aligned with its interests. Economic advantages shifted and those losing traction fought to protect against their losses.

You see very little in the way of use of the Bill of Rights in the Nineteenth Century. The Fourteenth Amendment passed following the Civil War was not applied to State action abridging freedom until the 1920’s.

Slowly in the Twentieth Century, the courts began using the Bill of Rights to protect people against the excesses of the majority. The easier Amendments were used first – the First, guaranteeing freedoms of press, speech, assembly, religion, in fits and starts.

Due process found in the Fifth Amendment found real life by way of the Fourteenth Amendment’s protection of equal protection of laws only in 1954. Separate but equal fell by the wayside the same year.

The Supreme Court slowly addressed other rights afforded people found in the Fourth, Fifth and Sixth Amendments. It took leaps in finding an “unenumerated” right of privacy in the Ninth Amendment, implicitly found in other Amendments.

The Court has not found it proper to find a violation of the Eighth Amendment’s protection against cruel and unusual punishment by way of the death penalty.

We have seen a retreat in protection of our constitutional rights in the last ten to fifteen years, a result of the will of the majority, the very thing the Bill of Rights was to protect us from.

And that brings me back to Curmudgeon’s post about marriage and law. In a perfect world (mine at least) we wouldn’t have to worry about rights. We would all “just get along” in the immortal words of Rodney King. But, we of course have the people that beat on the Rodney Kings of the world, the people that would wiretap our conversations and communications, that would discriminate against people because they have a different skin color, religion, ancestry or sexual orientation.

Until the lion lies down with the lamb, law must protect the lambs, the minorities of the world. They must be given due process, no railroading and short-cutting “in the national interest.” No disparate, unequal treatment because of “traditional family values.”

To quote another old document:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights that among these are Life, Liberty and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

Day in and day out, I don’t need the Bill of Rights as our ancestors didn’t need it some two hundred twenty years ago to protect the rights outlined in the Declaration of Independence. I’m a member of the ethnic, religious and economic majorities in our country. I see the Bill of Rights to be a fundamental protection for those not in power to live the life that the majority enjoys.

I applaud the California Supreme Court for its recognition that “in contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights.”

Too bad that the majority as represented by many state governors, legislatures and courts and the President, Congress and the Supreme Court doesn’t think the same way.