Today, December 15th, is Bill of Rights Day. On this date in 1791 the first ten amendments to the U. S. Constitution took effect. The advocates of the Bill of Rights feared, above all, that the “necessary and proper” clause of the Constitution (which granted Congress the ability to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers”) was too broad and thus ripe for abuse by the ever-growing tendencies of the political classes.
To those advocates, the Anti-Federalists, we owe a tremendous debt. George Mason, Elbridge Gerry, and Patrick Henry, among others, may be less well known than some of their peers, but they constructed a sea wall for liberty against the encroaching tides of power.
What is clear is that Americans enjoy natural rights. We believe and our founding documents enforce that our basic liberties and rights are granted not by government but bestowed by Providence. Our national political structure actually takes things away from the people, these are called negative rights.
For instance, granting the power to levy taxes, call forth the militia, establish patents and so forth, all actually infringe on full liberty of an individual. Yet, we as a nation allow this incursion for the good of erecting a civil society, and more importantly, creating a set of rules that protect individuals, or minorities, from succumbing to the brute strength of the more powerful or the more numerous. A federal republic of limited powers is actually less a trade-off for a man, than it is an investment that pays dividends in excess of the original outlay.
For the Anti-Federalists this was not enough. They sought, and eventually persuaded Federalists like James Madison, to bolster the protections of the sovereign individual. Thus were borne ten amendments to protect liberty.
To repeat, the Bill of Rights does not grant rights, it guarantees rights. The liberties touched in the first ten amendments are those natural rights which our nation deems non-negotiable. Therefore, as future Congresses debate and pass the laws “necessary and proper” to the execution of its powers, like constituting a courts system, the right to a fair and open trial by jury can never be challenged.
Hats off to the Anti-Federalists, those who recognized the tendency of all governments to reach ever further into the lives of citizens. It is difficult to imagine America without the explicit protections of the Bill of Rights.