After the Constitution was ratified in 1788, the states adopted the first
ten amendments, which became known as the Bill of Rights. Given the
importance of the provisions in those amendments, an obvious question
arises: Why didn't the Framers of the Constitution include those provisions
in the original Constitution, thereby obviating the need to amend the
document so soon after it was ratified?
The answer lies in the radical way in which our ancestors viewed the nature
of rights, government, and the Constitution.
A necessary starting point for understanding the perspectives of early
Americans is the Declaration of Independence, which triggered the American
Revolution against Great Britain in 1776. The Declaration expressed what the
overwhelming majority of British colonists in America (the revolutionaries
were British citizens, not Americans) embraced as a universal truth: that
such rights as life, liberty, and the pursuit of happiness do not come from
government but instead from "their Creator." In other words, such rights are
fundamental and inherent in human beings and therefore actually preexist
government.
What then is the purpose of government? Thomas Jefferson, the author of the
Declaration, explained that its purpose is to protect the exercise of those
fundamental rights. While most people in society are peaceful, there is
always the small minority that consists of murderers, robbers, thieves,
invaders, and others who violently interfere with how other people are
peacefully living their lives. Thus, we need government to arrest,
prosecute, and punish antisocial individuals and to have sufficient power to
effect such actions. That's what Jefferson meant when he wrote, "That to
secure these rights, Governments are instituted among Men."
But what happens if government uses its power to infringe upon or even
destroy people's rights, as our Founders feared it might do? As the
Declaration points out, in that case it is the right of the people to alter
or abolish their government and to institute new government that would be
more likely to protect their rights. What Jefferson was referring to was
peaceful change through political action as well as, in extreme cases,
violent change through armed revolution.
Undergirding the political philosophy of our ancestors was a severe distrust
of a strong central government, even (or perhaps especially) a
democratically elected one. (The Bill of Rights expressly restricts the
power of the majority.)
When the Constitutional Convention met in Philadelphia in 1787, it was for
the purpose of revising the Articles of Confederation, under which the
United States had operated for some eight years. The delegates to the
convention decided instead to propose a federal government to the American
people, but the challenge they faced was: How could they persuade the people
to accept such a proposal, given their strong distrust of a central
government?
James Madison, the author of the Constitution, resolved the dilemma by using
the Constitution to accomplish two things simultaneously: to call the
federal government into existence but, at the same time, expressly limit its
powers to those enumerated in the Constitution itself. The idea was this: We
the people, whose rights preexist you, call you, the federal government,
into existence with this Constitution; and given that your powers derive
from us, we have chosen to limit them to those enumerated in the
Constitution.
Thus, contrary to popular opinion, the Constitution does not grant any
rights whatsoever to the people but instead expressly restricts and
restrains government power.
The reason that the constraints on government power that are expressed in
the Bill of Rights were not included in the original Constitution was that
there was no need to do so given that the government's powers were expressly
limited to the few, limited powers that were enumerated. Since the
Constitution did not enumerate the power to regulate religion, for example,
the government could not exercise such a power. If a power wasn't
enumerated, it couldn't be exercised.
That didn't satisfy the American people, however, and especially not people
such as Patrick Henry and George Mason, who were among the anti-federalists
opposing the new form of government. They believed that government
officials, given their nature, could never be trusted to constrain
themselves within the Constitution's list of limited, enumerated powers.
Finally, as a condition of accepting the Constitution and the federal
government it brought into existence, people successfully demanded the
adoption of the express restrictions on government power that are listed in
the first ten amendments.
And that's how we got the Bill of Rights -- from our ancestors' fierce love
of liberty and their strong distrust of the federal government.
