Rights and The Constitution, Part One

By Stephen Plafker

The purpose of this article is to trace and to explain the history of the concept of rights in judicial treatment.

In this first part, I summarize the history of the Constitution and the Bill of Rights with emphasis on the Ninth Amendment. I will then discuss the deterioration of the way courts have treated rights over the years. Finally, I will show that this deterioration was almost inevitable without a clear, logical theory of rights and that the only solution lies in Objectivist political theory.

Part 1: Brief Constitutional History

Why don’t modern courts enforce rights?

The American Revolutionary War began on April 19, 1775 and ended on September 13, 1783. During the process of separation from England, 13 colonies became states: i.e., sovereign countries with “full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do.”¹ The states were held together in a loose confederation, a “firm league of friendship,” under the Articles of Confederation. Under the provisions of this document, the national government was ineffective.

The new states proceeded to act like independent countries—toward each other. “They wrangled over boundaries and navigation rights. They flouted provisions of the peace treaty with Britain to restore confiscated loyalist property . . .”² They issued fluctuating paper money, and passed conflicting trade restrictions, sometimes imposing duties and other trade restrictions—sometimes higher on fellow states than on Britain.

A number of people, especially James Madison, determined to do something about these problems. Convinced that a new form of government was required, they convinced the Continental Congress to issue a call for a convention to be held in Philadelphia during the summer of 1787 to amend the Articles of Confederation.

The convention worked throughout a long, hot, humid Philadelphia summer and, in what George Washington declared to be “little short of a miracle,” produced the Constitution of the United States. Under Article 7, “The ratification of the Conventions of nine States, shall be sufficient for the establishment of this Constitution between the States so ratifying the same.” In practice, however, the government would very likely fail unless all the larger states ratified.

There were, as always, those who were opposed. These opponents worked to defeat the Constitution in the state conventions. Chief among the arguments against the Constitution was a complaint that the Constitution did not contain a Bill of Rights.³

The Constitution’s proponents divided their reply into several parts.⁴ First, they pointed out that some of the state constitutions had no bills of rights, and that freedom in those states had not suffered. Second, they referred to some protections already in the Constitution.⁵

Their primary position was that a bill of rights is unnecessary in the kind of government provided for in the Constitution. Two arguments were advanced for this position. The first distinguished between a monarchy and a republic. In the words of Alexander Hamilton:

It has been several times truly remarked that bills of rights are, in their origin,
stipulations between kings and their subjects, abridgements of prerogative in
favor of privilege, reservations of rights not surrendered to the prince. . . .
It is evident, therefore, that, according to their primitive signification, they have
no application to constitutions professedly founded upon the power of the people,
and executed by their immediate representatives and servants. Here, in strictness,
the people surrender nothing; and as they retain every thing they have no need
of particular reservations. “WE, THE PEOPLE of the United States, to secure
the blessings of liberty to ourselves and our posterity, do ORDAIN and
ESTABLISH this Constitution for the United States of America.” Here is a
better recognition of popular rights, than volumes of those aphorisms which
make the principal figure in several of our State bills of rights, and which would
sound much better in a treatise of ethics than in a constitution of government.

The second argument was based on the fact that the new government was one of delegated powers: its only powers were those mentioned in Article I of the Constitution. And none
of the granted powers allowed the government to violate rights. Indeed, it was argued, a bill of rights would be dangerous: should any right be overlooked, this would give the government a pretense to violate that right. Hamilton further states:

I go further, and affirm that bills of rights, in the sense and to the extent in which
they are contended for, are not only unnecessary in the proposed Constitution,
but would even be dangerous. They would contain various exceptions to
powers not granted; and, on this very account, would afford a colorable pretext
to claim more than were granted. For why declare that things shall not be done
which there is no power to do? Why, for instance, should it be said that the
liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?
I will not contend that such a provision would confer a regulating power; but it
is evident that it would furnish, to men disposed to usurp, a plausible pretense
for claiming that power. They might urge with a semblance of reason, that the
Constitution ought not to be charged with the absurdity of providing against
the abuse of an authority which was not given, and that the provision
against restraining the liberty of the press afforded a clear implication, that a
power to prescribe proper regulations concerning it was intended to be
vested in the national government.⁷

As a summary, Hamilton argued:

The truth is, after all the declamations we have heard, that the Constitution is
itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS . . . .
Is it one object of a bill of rights to declare and specify the political privileges of
the citizens in the structure and administration of the government? This is done
in the most ample and precise manner in the plan of the convention;
comprehending various precautions for the public security, which are not to
be found in any of the State constitutions. Is another object of a bill of rights
to define certain immunities and modes of proceeding, which are relative to
personal and private concerns? This we have seen has also been attended to,
in a variety of cases, in the same plan.⁸

Finally, the proponents pointed out that a bill of rights could be added to the Constitution by amendment.

The Constitution was ratified by 11 states. A number of the ratifying states, concerned over the issue, proposed that a bill of rights be added by amendment. At the first Congress, James
Madison offered nine resolutions to amend to the Constitution as requested by the hesitant states. He addressed the objections to a Bill of Rights as follows:

I admit that these arguments are not entirely without foundation; but they
are not conclusive to the extent which has been supposed. It is true, the
powers of the General Government are circumscribed, they are directed to
particular objects; but even if Government keeps within those limits, it has
certain discretionary powers with respect to the means, which may admit of
abuse to a certain extent, in the same manner as the powers of the State
Governments under their constitutions may to an indefinite extent; because
in the constitution of the United States, there is a clause granting to
Congress the power to make all laws which shall be  necessary and proper or carrying into execution all the powers vested in the
Government of the United States, or in any department or officer thereof, this
enables them to fulfil every purpose for which the Government was established.
Now, may not laws be considered necessary and proper by Congress, for it
is for them to judge of the necessity and propriety to accomplish those
special purposes which they may have in contemplation, which laws in
themselves are neither necessary nor proper; as well as improper laws could
be enacted by the State Legislatures, for fulfilling the more extended objects
of those Governments. I will state an instance, which I think in point, and proves
that this might be the case. The General Government has a right to pass all
laws which shall be necessary to collect its revenue; the means for enforcing
the collection are within the direction of the Legislature; may not general
warrants be considered necessary for this purpose . . . .

As to the problem that certain rights may be overlooked, Madison said:

It has been objected also against a bill of rights, that, by enumerating
particular exceptions to the grant of power, it would disparage those rights
which were not placed in that enumeration; and it might follow, by implication,
that those rights which were not singled out, were intended to be assigned
into the hands of the General Government, and were consequently insecure.
This is one of the most plausible arguments I have ever heard urged against
the admission of a bill of rights into this system; but, I conceive, that it may
be guarded against. I have attempted it, as gentlemen may see by turning to
the last clause of the fourth resolution [which read:]

The exceptions here or elsewhere in the constitution, made, in favor of particular
rights, shall not 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; but either as actual limitations of such powers, or as inserted
merely for greater caution.

Congress modified Madison’s resolutions and sent them to the states for ratification. The last clause of Madison’s fourth resolution became the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Thus, it is clear that the Constitution was designed to advance the sole purpose of government: “to secure . . . rights.”⁹ And that no rights should be omitted. Given this history, why do American governments today think their main function is to violate rights?

Answer to follow.
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References and Notes:
1. Declaration of Independence

2. William Peters, A More Perfect Union, Crown Publishers 1987
3. This complaint arose early in the debates on ratification. One typical example came from one “Z”: “Those among us who cannot entirely approve the new Constitution as it is called, are of opinion, in order that any form may be well administered, and thus be made a blessing to the people, that there ought to be at least, an express reservation of certain inherent unalienable rights, which it would be equally sacrilegious for the people to give away, as for the government to invade. If the rights of conscience, for instance, are not sacredly reserved to the people, what security will there be, in case the government should have in their heads a predilection for any one sect in religion? what will

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hinder the civil power from erecting a national system of religion and committing the law to a set of lordly priests, reaching, as the great Dr. Mayhew expressed it, from the desk to the skies? An Hierarchy which has ever been the grand engine in the hand of civil tyranny; and tyrants in return will afford them opportunity enough to vent their rage on stubborn hereticks, by wholesome severities, as they were called by national religionists, in a
country which has long boasted its freedom. It was doubtless for the peace of that nation [England], that there should be an uniformity in religion and for the same wise and good reason, the act of uniformity remains in force to these enlightened times.” “Z”, in the Independent Chronicle (Boston), December 6, 1787 (italics in original).

4. The arguments are associated primarily with James Wilson and Alexander Hamilton. The latter was the author of The Federalist Number 84 which is extensively quoted below.
5. These include limitation on impeachment powers and treason prosecutions, the protection of the Writ of Habeas Corpus, prohibition of bills of attainder and ex post facto laws, the prohibition against titles of nobility, and preservation of the jury trial in criminal cases.
6. The Federalist Number 84 (capitals in original)
7. Id.
8. Id. (capitals in original)
9. Declaration of Independence. See, Ayn Rand, “The Nature of Government” in The Virtue of Selfishness and Capitalism: The Unknown Ideal

Copyright © The Association for Objective Law. All rights reserved. Republished in Capitalism Magazine by permission of TAFOL.