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Legislating a Second Bill of Rights

Original Article

If you think the worry about too much power in the federal government is new, then you need to take a quick trip back in history to the original debates surrounding the ratification of the Constitution between the Federalists and the Anti-Federalists.

In some ways (some, mind you), it was like our current debates today between liberals and conservatives. More accurately, it was a debate between those who desired a stronger federal government (the Federalists) and those who feared that a strong federal government would sap local and state institutions of all their vitality and create a new despotism (the Anti-Federalists). The Federalists were urging ratification of the Constitution. The Anti-Federalists wanted a strong Bill of Rights attached to the Constitution to protect states, local governments, and individuals from federal encroachments upon their lives and liberties. What we got—what we need to protect—is the compromise: the Constitution and the Bill of Rights.

What is the nature of this compromise? The Constitution grants powers to the federal government. The Bill of Rights (i.e., the first ten amendments) is largely a negative list, meant to draw a large and definite barrier surrounding states, local institutions, churches, and individuals to protect them from infringements by federal power.

For example, the first amendment, which asserts that “Congress shall make no law respecting an establishment of religion,” was meant to keep the national legislature from imposing a national religion (as, for example, Britain did with Henry VIII’s Anglican Church). It was not meant to give the government license to eradicate religion from the state and local public square, but to keep the federal government itself from fiddling with the religious lives of the people.

With the increasing imposition of state secularism as the state religion, the first amendment is being used for exactly the opposite purpose it was intended. It has become a positive right of federal power, rather than a negative right of the people that limits federal intrusion.

The second amendment? Given their experience in the revolutionary war, the Anti-Federalists were unhappy about the formation of a national militia. A national militia, they argued, has the power to enforce unjust, tyrannical demands of the federal government upon states, local governments, and individuals. To protect them from armed and ambitious federal power, the Anti-Federalists championed anegative limit on federal power: “the right of the people to keep and bear Arms, shall not be infringed.”

The tenth amendment is perhaps the most neglected and misunderstood. The intended goal of reserving powers “to the States respectively, or to the people,” is to keep the federal government from gathering powers to itself. For the Anti-Federalists, the assumption was that the burdens and blessings of self-government were built from the ground up, beginning in the family, the township, the county, and then the state. That is the way that America itself was built. We didn’t begin with a strong central government drawing bold institutional lines on the national level, and then filling in the local details of the plan. America grew from multiple local points outward, from families into towns, townships into counties, counties filling out the states like lush gardens growing from many small seeds. Self-government was homegrown, indigenous, a thing of local soil, climate, and tradition, strong because deeply rooted and well cared for.

The Anti-Federalists wanted to protect all this from being overridden and uprooted by the federal government. The tenth amendment drew a large protective fence around it, a negative barrier to ward off federal intrusion. The federal government must have only specific delegated powers that supplement state, local, and familial life. Supplement, not supplant. Thus, the tenth amendment affirms that “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.”

The substance of our political, social, and moral lives was taken to be locally built and locally owned. The federal government was only supposed to do what the states could not. We needed a national militia, so the federal government had to have the power “To declare war…To raise and support Armies…To provide and maintain a navy.” We couldn’t have each state with its own monetary system, so the national Congress must have the power “to coin Money” and “regulate the Value thereof,” and “No state” shall have the power to “coin money” (Constitution, Article I, Sections 8-9). But again, these enumerated federal powers were strictly limited to those that went beyond the abilities of any one state, or were made strictly necessary by the federal government’s role in facilitating the union of the several states.

The Anti-Federalists agreed to the Constitution if a Bill of Rights was firmly attached to it. Without the Bill of Rights, they believed a federal control of state and local governments, and even individual lives, was inevitable. They were worried, to take an important example, about the federal government assuming the entirely undefined task (as stated in the Constitution’s Preamble) of promoting “the general Welfare.” “Now, what can be more comprehensive than these words?” complained one Anti-Federalist. Promoting the general welfare is so broad that it amounts to a positive right for the federal government to impose any project, any tax, any federal program upon the population that it deems will in any way promote the general welfare.

“It is not too much to say that the Anti-Federalists fears were realized in the Welfare State. Franklin Roosevelt was the first to argue that we needed a positivebill of rights that gave the federal government the power to promote the general welfare in a myriad of particulars, entirely overriding the negative limits of the actual Bill of Rights as firmly attached to the Constitution.

While their intentions may be noble, the effect of giving the government such immense power over the welfare of its citizens is the eclipse of all local institutions, from the family and town, to the state itself, and the growth of the power of the federal government miles beyond the Constitution.”

Benjamin Wiker

Senior Fellow, Center for Science and Culture
Benjamin Wiker holds a PhD in Theological Ethics from Vanderbilt University. A Senior Fellow at Discovery Institute's Center for Science and Culture, he has taught at Marquette University, St. Mary's University (MN), and Thomas Aquinas College (CA), and Franciscan University of Steubenville.