Guns & Patriots

Our Bill of Rights: Limiting federal power

Our Bill of Rights: Limiting federal power

In 1787, the framers of the Constitution asked the American people to adopt a new political charter for the nation, and in the ensuing debates over the Constitution’s ratification, a common concern emerged among many: the federal government would become too powerful.

Skeptics of the new Constitution believed that a stronger national government might threaten state sovereignty and individual rights. Vocal opponents questioned whether the Constitution would restrain federal power in any way—one anonymous writer in the Maryland Gazette asked in 1788, “What limits are there to [federal] authority? I fear none at all.”

This widespread anxiety over the potential reach of federal power ultimately inspired a movement to add a bill of rights to the Constitution—a bill of rights that would help guard against expansive federal authority.

Of course, the framers of the Constitution never set out to create a government with unbounded power. Their aim was to correct the failures of the Articles of Confederation by constructing a new national government that would better preserve the people’s natural rights. They were well aware that domineering centralized governments were prone to abuse, corruption, and failure. They knew that the government they designed had to remain limited in power for liberty to last.

Yet many framers opposed adding a bill of rights to the Constitution. While this position may seem inconsistent with their aim to confine federal authority, the framers didn’t take this stance because they were indifferent about individual rights or because they wanted to trample on state sovereignty. In truth, they opposed a bill of rights for the same reason why supporters wanted one: they sought to restrain federal power.

Alexander Hamilton and James Madison argued that, given the popular foundation of American government, a bill of rights was unnecessary to preserve the people’s most cherished rights. The United States was unlike other nations in history, where the people had to plead with the ruling authority to grant them certain rights or to restrain the otherwise unlimited power of government. Hamilton explained that past bills of rights were “stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince.” By contrast, the people of the United States were the ruling authority, and all governing power was derived from them. So they had no need to insert specific rights into the Constitution when they delegated to the federal government no power over those rights. Madison stressed that “the rights in question are reserved by the manner in which the federal powers are granted.” Hamilton likewise said that, because the federal government was “founded upon the power of the people” and limited to the enumerated powers in the Constitution, the people “have no need of particular reservations.”

Hamilton further warned that a bill of rights would be “not only unnecessary in the proposed Constitution, but would even be dangerous.” He reasoned that the inclusion of a bill of rights might be implied as a grant to the federal government of a regulatory power over these rights. It would give “men disposed to usurp a plausible pretense for claiming that power. They might argue with a semblance of reason . . . that a power to prescribe proper regulations concerning [the Constitution] was intended to be vested in the national government.” Such arbitrary power, he believed, would only give rise to a more expansive and intrusive federal authority over time.

Despite these principled objections to a bill of rights, popular support for a bill prevailed. Although the Constitution was ratified without it, many states included a recommended bill of rights in their ratifying documents, and the people pressured the First Congress of the United States to adopt one by amendment when it convened in 1789.

James Madison (newly elected as a U.S. Representative from Virginia) took leadership of the amendment process in the First Congress so that he could steer the phrasing of the bill of rights to be consistent with the American principle of popular sovereignty. He intentionally avoided language that suggested government was the source of all rights (e.g., “the people are granted the freedom of speech”). Instead, Madison used prohibitive language to make abundantly clear that these rights naturally belonged to the people and that the federal government could not interfere with them in any way (e.g., the First Amendment says, “Congress shall make no law . . . abridging the freedom of speech”).

Madison also authored two special amendments to make certain that the enumeration of specific rights, in his words, would never “be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution” to the federal government. The Ninth Amendment specifically reinforces the principle that the people, as the source of all governmental power, hold many more rights than those stated in the Constitution. It reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And the Tenth Amendment places a clear boundary on federal power. It states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Our Bill of Rights was meant to preserve a number of key rights long valued by the American people, but what it stands for, above all, is the great care taken by the founding generation to ensure that federal power would always remain limited. The reason for the Bill, and the reason against it, was to prevent the rise of a powerful national government in America.

So as we debate the proper scope of federal authority today, we must not lose sight of this original design: our Constitution and our Bill of Rights established a government of limited power.

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  • LoneWolf

    Obama and the Congress (both parties) have no desire to maintain a government of limited power.

  • ALTILLA

    Well great name, what does the “unwashed” do?

  • Ed_USA

    “Their aim was to correct the failures of the Articles of Confederation by constructing a new national government that would better preserve the people’s natural rights. ”

    Well, yes and no. Yes they wanted to correct the failures of the AoC, mostly by giving the federal gov’t its own taxing power. But they most certainly did not guarantee that “natural rights” would be protected. The Bill of Rights did not in any way constrain state laws. States could and did do things like establish religion, limit speech, restrict guns, etc.

    Not until the 14th amendment was ratified did the Bill of rights secure anything against intrusion by state laws. For example, until the 2nd amendment was “incorporated” into the 14th by the McDonald case in 2010, Chicago was NOT prevented from restricting guns by the US Constitution.

    The Constitution itself gave more, not less, power to the feds than had the AoC. Most every amendment after the 10th has similarly expanded, not reduced, federal power.

  • fafhrd

    Seems that you are failing to acknowledge the role of the Judiciary regarding the Bill of Rights. It took a case being brought before the courts, to allow the court to rule that Chicago’s gun restrictions were in violation of the Constitutional powers vested in governments.

  • Niniane

    I propose a new amendment: the federal government cannot force me to buy into Obamacare or limit my choice to those curlicue CFL lightbulbs by limiting the supply of incandescents. Ah, there is so much more I could include, but for the sake of brevity, I won’t.

  • Ed_USA

    Prior to the 14th amendment after the Civil War, the 2nd amendment would not have applied to Chicago’s law anyway. See Barron v. Baltimore, 1833.

    “Writing for a unanimous court, Chief Justice John Marshall held that the first ten “amendments contain no expression indicating an intention to apply them to the State governments.”

    States could do whatever they wanted. The Bill of Rights did not apply to state laws, and that includes the 2nd amendment.

    The reason that it took until 2010 to get the 2nd “incorporated” was not that there were no suitable cases. There have been gun control laws for over a century. One law that’s pretty comparable to what was struck down in McDonald was the 1967 Mulford Act signed by Ronald Reagan when he was governor of CA. No, 2010 was just the first time that a SCOTUS was activist enough to want to mess with the precedent set by the Miller decision in 1939.

  • RenegadeScholar

    Seems that you are failing to acknowledge the role of the Judiciary regarding the Bill of Rights

    Ed_USA fails to acknowledge a lot of things, especially his own hostility and anger towards those who disagree.

  • RenegadeScholar

    States could and did do things like establish religion, limit speech, restrict guns, etc.

    You are correct in the first two items–it is plainly stated in the Amendment that “CONGRESS shall pass now law…”

    You are wrong on the last part. The second amendment simply states “shall not be infringed.” Meaning: BY ANYBODY. Just because it was being violated here and there does not mean that it magically said something else.

  • RenegadeScholar

    But they most certainly did not guarantee that “natural rights” would be protected.

    Well–yes they did. That’s what the Bill of Rights was. A LIMIT on FEDERAL power. The states, being closer to The People, would be more accountable and therefore have their own ways of dealing with these issues.

    The Constitution itself gave more, not less, power to the feds than had the AoC.

    This is correct. But it does not invalidate the author’s point. Not in the least.

    Most every amendment after the 10th has similarly expanded, not reduced, federal power.

    Incorrect simplistic blanket statement.

    Prohibition, for example gave the Fed. more power, its repeal, less.

    Specifically, the 18th, 22nd, and 27th are clear limitations on Federal power. The 11th is neutral in this regard.

  • Samuel Edward Konkin III

    The Framers of the Constitution never asked the people to adopt the new document as a principal law of the land and rather foisted it upon the people, and they authored the Constitution in secret. The Framers were only interested in protecting their own business interests.

    The AoC served quite well its purpose, but most of Founding Fathers were as evil as King George the Third.

    This Founding Father worship is nauseating and delusional. George Washington wanted to murder people for producing whisky without paying tax. George Washington is identical to Barack Obama in regard to tyranny. And both of them are of Anglo Saxon heritage.

  • Samuel Edward Konkin III

    Government of limited power is a logical contradiction; the end of government is absolute power.

  • HomesickExWasillan

    Sam, you start out with a lie, and go from there. The people of the 13 states ratified the Constitution.

    Regarding “evil” and King George III. He was not an evil man. He was king of the most powerful nation in his day. And, as Lord Acton said, power corrupts. How that worked out in the life and rule of George III is that he expected his subjects to be subject to the laws his parliament passed, whether they had any say in the framing of those laws or not. A man of his times.

    Washington’s reaction to the whiskey rebellion was not murderous. Washington was a man with much self-discipline, and he expected others to be the same.I could go on, but you get the picture.

  • Samuel Edward Konkin III

    This ” a man of his times” argument is old and tired. If you sublject people to your will than you are evil. The same with the Founding Fathers as being racist as a result from the times in which they lived, the Founders made the choice to be racist and own people as possessions.

  • Ed_USA

    “have their own ways of dealing with these issues”

    Right. Maybe you should check into the history on that. Start with the Dorr Rebellion. That’s what it took to get the vote for about 60% of the white men in Rhode Island in the 1840s. Women, blacks, etc. still couldn’t vote, of course. So there’s your responsive state gov’t in action. It took armed rebellion to get results.

    As for amendments numbers 13, 14, 15, 16, 17, 19, 24, and 26 expand federal power over the states or impose federal law on areas previously under state control. Only the 11th amendment even arguably expands state power. 18 and 21 are, as you say, as wash. 22 and 27 in no way limit federal power over states. They are purely procedural.

  • fafhrd

    As I understand you, an earlier court held that states or cities could restrict the Second Amendment rights of the citizen to bear arms, on the basis of the Tenth Amendment, since it wasn’t Congress doing so. Even though the Second Amendment is clear that the rights of the citizen shall not be infringed.

  • Ed_USA

    Not quite. The SCOTUS in Barron v Baltimore held that the entire Bill of Rights did not, and was never intended to, constrain state laws. Thus the 2nd amendment, like the rest of the Bill of Rights, was simply not relevant to state or local laws.

  • JayC777

    ” The matter is quite settled now, states cannot nullify laws”
    - Ed_USA, 10 months ago.
    Jay
    Too funny.

  • afisher

    GOP are a day late and several trillion dollars short. Once they lied to the country and forced a WAR – because they could, they lost all credibility. Whine about this and that all you want – in the grand picture the GOP resorted to lies. All a sane person has to do is see how Georgie sold his snake oil – never put the numbers in the budget- that would scare people. Never ever allow the SEC to even consider doing its job, Chris Cox saw to that and allowed banks to over-leverage for the sake of false promised about mortgages bundled and rebundled.

  • Ed_USA

    Hmm, so you find this issue of state vs federal sovereignty which was settled with a bloody civil war that cost over 600,000 American lives just “too funny”. You’re pretty sick.

  • JayC777

    Well, only an illiterate m0r0n would think I meant that within the context of the comment. Keep twisting … it is amusing.

    Jay
    Once again … I accept your surrender.

  • Ed_USA

    That’s a funny childish habit that you have of posting meaningless and totally irrelevant comments and then signing off with “I accept your surrender”. It would even be cute, in a 4 year old.

    This might be hard for you to understand, because it involves grasping the difference between two things.

    1) BEFORE the Civil War: Bill of Rights DOES NOT apply to state laws (see Barron v Baltimore).

    2) AFTER the Civil War: Ratification of 14th amendment permits Bill of Rights to be applied to state laws.

    The supremacy of federal law was established both before and after the Civil War by the “supremacy clause” of Article VI. The SCOTUS ruled several times before the CW that states could not nullify federal laws. Even after the CW, the SCOTUS has had to rule several more times that states cannot nullify federal laws. One would think that the message would be clear, but I guess that some people are not so quick on the uptake.

  • eewell

    Obama expressed his contempt that the bill of rights is an impedement and his fellow progressives have contempt for the founding fathers going back the last 100 years.

  • LarryD2

    I am disappointed that the article and some of the comments
    overlook several critical issues:

    1.
    The Declaration of Independence has no legal
    weight in the USA but does serve as an advice and warning to all forms of government.
    “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.” Certain rights belong to
    the people not because a government allows it but because they are natural
    rights that every human is entitled to by their Creator.

    2.
    The Bill of Rights was a guarantee that
    government would not infringe on the people in these areas. In the preamble to
    the Bill of Rights: “… number of states … expressed a desire in order to prevent
    misconstruction or abuse of its powers, that further declaratory and
    restrictive clauses should be added…”. Although it was a concern among the
    Founders that government would see this Bill of Rights as an all-inclusive list
    of the people’s rights and feel free to infringe on other rights they also felt
    that the Constitution would successfully restrict the federal government to the
    enumerated rights listed.

    3.
    In the preamble to the Constitution “We the
    people of the United States … do ordain and establish this Constitution for the
    United States of America”. ‘We the People’ created the Constitution to form and
    manage a federal government which is a union of all of the states. This
    document describes what our federal government and state governments can and
    cannot do. We created this document to create our government and at the same
    time to protect us from it. Our rights come from our creator and not from our
    creation – the Constitution or the government that we formed.

    4. Although
    we accept that the Supreme Court and Congress define what the Constitution means
    – that concept is ludicrous. The idea that a creation of ‘The People’ would tell
    the people what the Constitution means and what they will and will not do is a
    serious concern.

    The Constitution is a contract between the States and the government formed by them.
    The interpretation of the Constitution belongs to the states and the people,
    not the courts or the government. They get to enforce it not redefine it. The laws
    created by Congress are indeed the law of the land provided that they are in
    fact constitutional (US Const. Art 6 Sec 1). When the Federal government
    oversteps its bounds the States must stop it. Nullification becomes an
    accomplished fact if enough states decide it should be so. Discussing
    nullification as a ‘right’ becomes moot when the states choose to refuse to
    accept the law as constitutional or enforceable.

    Too often we forget that we did not elect leaders and masters
    but instead our representatives.

  • etlib

    Larry, good post!

    I especially think people need to understand your statement that, “The idea that a creation of ‘The People’ would tell the people what the Constitution means and what they will and will not do is a
    serious concern”

    My son (top student in his high school class of over 2000 and a graduate of MIT and Georgia Tech) told me that he was taught that the constitution was “too complex for people to understand” and that was why we had to have a Supreme Court to decipher it for us. That convinced me that our schools are detrimental to the republic.

  • etlib

    See the post by Samuel Edward Konkin III for an example.

  • Ed_USA

    Go read the SCOTUS ruling in Barron v Baltimore. It clearly states that NONE of the amendments in the Bill of Rights applies to state law. NONE would include the 2nd. The astute person would note this as a reason why state constitutions generally have their own guarantee of a right to arms. If the 2nd applied to state laws then the state constitution guarantee would be redundant.

  • HomesickExWasillan

    Who said anything about one of these guys being a “man of his times”?

  • jimzimmerman

    This is really Simple Samuel,If you have such distain for the constitution and the United States. Leave. Head off into whatever wasteland you choose. Bye Bye.