The original Constitution proposed by the Philadelphia Convention on September 17, 1787, did not contain a bill of rights. The omission was not an oversight. Most of the Framers, led by James Madison, argued:
- A bill of rights was unnecessary, because no powers had been delegated that might infringe on them.
- Declared rights are mere "parchment barriers" that can only be protected by constitutional structures that divide power among contending forces.
- Listing all rights was impossible, and it would be dangerous to provide a partial list because any omissions could be interpreted as those rights not existing, under the rule of expressio unius est exclusio alterius.
Madison originally proposed to avoid the expressio unius est exclusio alterius problem with a catch-all amendment that declared protection of "unenumerated" rights, which were to be found in legal history and right reason according to the principles of natural law. Congress divided his proposal into two amendments that became the Ninth and Tenth amendments.
Those ten rights amendments were ratified by December 15, 1791, and came to be called the Bill of Rights, even though that is not their official title in the Constitution of the time.
Utility of Bill of Rights soon proven
As the anti-federalists feared, it did not take long for clever lawyers to find excuses in the imprecise language of the Constitution to expand federal power beyond what the Framers originally intended. The provisions of the Bill of Rights have become the main battleground for cases over rights. Time and again it has only been the more specific language of the first eight of the Bill of Rights that has stood in the way of having rights infringed.
As Madison and some others feared, the Ninth and Tenth Amendments have, in their lack of specificity, proven to offer little protection for rights. Even judges who proclaim themselves "originalists" are loath to find any rights in the Ninth Amendment by researching the historical background, and the Tenth Amendment has proven to be no barrier to interpreting the Commerce and Necessary and Proper clauses to give the federal government almost unlimited power to do whatever it wants.
But the other articles of the Bill of Rights are under attack, in practice if not in court. Every one of them have been violated, and it has only been the somewhat more specific language they contain that has prevented complete loss of their protections. They have provided "a standard to which the wise and the honest can repair", in the words of George Washington on the last day of the Constitutional Convention. Having that standard has enabled defenders of freedom to unite their efforts to push back, in a way they would lack in the absence of those somewhat specific words.
But if we are to prevail we must do more than conduct a fighting retreat. We must rediscover those rights referenced in the Ninth Amendment, and cut back on the expansions of power that threaten to make the Tenth Amendment meaningless.
Why we celebrate Bill of Rights Day
Although defenders of liberty must celebrate the Bill of Rights, including the Ninth and Tenth amendments, every day, December 15 of each year provides an anniversary to give it common focus. We have created a website to facilitate this:
bill-of-rights-day.org
You are also invited to study the following documents:
- U.S. Bill of Rights
- Documentary History of the Bill of Rights
- List of constitutional rights — Expanded list, derived from legal history
- Presumption of Non-authority and Unenumerated Rights — Analysis of Ninth Amendment
- Civil Rights Act — Legislation to protect expanded list of rights
- Social Contract and Constitutional Republics
- Constitutional Construction
