Why the Bill of Rights Is a Failure

The Constitution cannot provide absolute protection for individual rights for the simple reason that rights are not absolute. Its more essential purpose is to set out a form of government and to provide for ordered liberty.

I have often thought that Americans believe the Framers of their Constitution actually bequeathed to them a bill of rights, with a frame of government attached as an appendix, in the form of a few general suggestions. Constitutional lawyers, judges, and especially academics have been among the worst offenders, here. Jesse Choper, for decades a prominent scholar of constitutional law, built an entire career around the notion that Supreme Court justices should see their job as protecting individual rights. Other supposedly lesser issues of mundane law such as contract disputes, wrongful death, and fraud that are at the center of law and what it can do for (and to) regular people should fend for themselves, on this view. As Mr. Choper would have it, the Supreme Court only has so much institutional capital and should use it where it is most needed.

The crybullies lately rampaging around Yale, the University of Missouri, and other campuses have shown how well that strategy works. Bewailing “microaggressions” that make them feel bad, increasing numbers of college students are dismissing civility, fairness, and especially free speech rights in the name of their “right” to emotional comfort. The Vice President of the University of Missouri student government, one Brenda Smith-Lezama, even said in a television interview, “I personally am tired of hearing that first amendment rights protect students when they are creating a hostile and unsafe learning environment for myself and for other students here.” The astonishing ignorance, selfishness, and contempt for American constitutional values packed into this one statement constitute proof that our constitutional rights are no longer valued or even vaguely understood by a wide swath of American college students.

How did this happen? It is too easy to stop at pointing out Ms. Smith-Lezama’s clear limitations. She is parroting the radical agitprop fed to her by the radical professors and community organizers infesting our universities. But her cynical mentors did not come from nowhere. They and their ideology are products of the limp liberalism of their own upbringing, of a liberalism rooted more than anything in an ideology of individual rights. The rights talk in which liberals for decades insisted we all engage to the detriment of the actual structure and language of our Constitution has only undermined respect for the rights themselves. As important, it has left us without the tools or the knowledge needed to combat the new intolerance that pervades, not just college campuses, but increasing swaths of our society. Remember Brendan Eich, forced to resign as CEO of Mozilla for having donated money to a campaign favoring traditional marriage? He is far from alone, and will have much more company in coming years.

Some commentators on the left have sought to show their consistent support for individual rights by condemning the more outrageous acts of our crybullies. But in point of fact it is they and not the crybullies who are being inconsistent. The liberal insistence that rights are abstract universal principles with no basis in or proper limits set by either history or their own internal logic was founded on an obsession with individual autonomy fated from the start to end in political cannibalism. Autonomy by definition cannot abide restraint. When it becomes the essential value for which political forms and structures exist, those forms and structures will atrophy or, more likely, be torn down in the name of autonomy. And then the most selfish, base emotions of particular individuals will become the foundation for crowd culture and mob action like that seen at Yale and the University of Missouri.

Lost in the relentless drive over many decades for infinite civil liberties rather than ordered liberty has been the Constitution itself. The purpose of a Constitution is not merely to protect the rights of dissenters. Its more essential purpose is to set out a form of government. A free constitutional government provides its people with the procedures necessary to enact laws rooted in the consent of the governed and to chain the governors themselves to the law, including the Constitution. A Constitution cannot provide absolute protection for individual rights for the simple reason that rights are not absolute. As freedom of speech by nature ends where defamation, obscenity, and fraud begin, so all other rights have natural endpoints beyond which they, too, constitute abuses. Drawing the specific lines at which rights must end (for example, defining defamation in its particulars) is the job of tradition-rooted common law and of the legislature; they cannot be drawn by judges other than through the examination of existing law. To pretend otherwise is to grant judges the power to make and unmake laws as they will. And the pretense of absolute rights accomplishes precisely this end by discarding traditional limits and definitions in favor of abstractions judges must try to apply to concrete cases, in the end through simple political will. And after judges reduce law to mere politics, crybullies, bureaucrats, or even overt tyrants will feel free to corrupt or even end it to serve their own supposedly higher purposes, including the infantile pursuit of emotional comfort.

Thus we are left with no substantial protections for our rights on our campuses, in our business world, or in our dealings with governments. Crybullies, Mozilla, or petty administrators can silence us, fire us, fine us, or even send us to re-education camp (“sensitivity training”) for expressing politically incorrect views or refusing to participate in politically correct rituals. Having undermined respect for civility, law, and due process, we are left with the power of the mob, or of the government official. In the “bad old days” before the rise of social justice warriors, one could gain a hearing for one’s right to dissent, or go to court and block intrusive government actions because they violate rules of limited government, federalism or the separation of powers. Such claims are no longer heard, as witness President Obama blithely abusing “administrative discretion” to have his Education Department decree new rules curtailing due process rights for students accused of heinous crimes like rape. Too many judges, lawyers, and citizens (and crybullies) no longer understand that the Constitution can protect individual rights only if its structure is respected and enforced, and so we are left to our own devices in dealing with mobs and an overpowering state.

On campus, one might claim, we are not constrained by the federal government. After all, no Obama Administration rule forced the President of the University of Missouri to resign. But our Social Justice Warrior-in-Chief and his administration have preached at, berated, and bullied Americans for seven years to admit that their legal structure is fundamentally unjust. Should we be surprised that college students, known for neither their humility nor their independent judgment, should take the hint and seize whatever power they can in the name of “justice” defined as “what I want” or “what my feelings tell me”?

In arguing against the need for a Bill of Rights, Publius in the Federalist Papers argued that the Constitution itself constitutes a bill of rights through its prohibition on many forms of government action. James Wilson added to this observation the fact that ours is (or was) a government of limited, enumerated powers, and that in such a government the people are protected much more effectively by the constitution itself than by any abstract declaration of rights. In proposing the first ten amendments to the Constitution—what became our Bill of Rights—James Madison made clear that he was not doing so because those rights would be unprotected unless enshrined in the Constitution. Instead, he pointed out, these amendments would merely increase the confidence of the people in their new government by making clear what already should have been known—namely that the federal government had no power to abridge freedom of speech, the free exercise of religion, or other customary rights because it was a government of limited, enumerated powers. The goal, then, was to buttress the rule of law and respect for the Constitution among the people.

Unfortunately, the Bill of Rights has failed—or rather been made to fail—in its primary purpose. Those claiming to free the individual pretended that these rights are something absolute which the federal government must protect at all costs, and that any laws (even the Constitution itself) standing in the way of those unattainable absolutes are by nature illegitimate. In this way they delegitimized our frame of government, our fundamental institutions, and law itself. Those who claimed to be freeing the individual in effect left him alone, with no defenses, to face the mob. We now have proof of how well that works out. As Russell Kirk pointed out many times, order is the first need of all. And order, if it is not to come from the barrel of a gun, must come from law. For us that law once was rooted in our constitutional frame of government. Without that frame of government, without respect for the legitimacy and integrity—whatever the occasional abuses—of our constitutional order, all will be chaos and the pursuit of unjust power.

The Imaginative Conservative applies the principle of appreciation to the discussion of culture and politics—we approach dialogue with magnanimity rather than with mere civility. Will you help us remain a refreshing oasis in the increasingly contentious arena of modern discourse? Please consider donating now.

The featured image is courtesy of Pixabay.