How the death of federalism has affected understanding of the Bill of Rights

Debate over the Constitution has devolved over the past couple of centuries from an eloquent discourse, sometimes sophistic, to petty academic quibbling over whether emphasis on the Bill of Rights belongs to the powers denied the federal government or to those unenumerated and left in the hands of the states and people.

The context of this latter position has been further obliterated since New Deal days as a shift in Constitutional interpretation has emphasized the omnipotence of the federal government’s jurisdiction in nearly every matter of public, and many those formerly considered private, in America. This shift from “layer cake federalism” to “marble cake federalism” as political science wonks describe it has had the unfortunate effect complicating an already contentious issue.

James Madison, primary author of the Constitution, was opposed to a Bill of Rights because he believed the enumerated powers outlined in Article I, Section 8 sufficiently restricted the actions of the federal government and because he feared that a convention where amendments were proposed threatened to undo the hard-fought victory for ratification.

Madison, it must be remembered, was primarily focused on strengthening the executive, and believed that by doing so he was providing a check against abuse of a weak legislative system which had allowed dishonest and self-interested actors to exploit the Articles of Confederation to the point of impending national ruin.

With the hindsight of history, and the increasingly expansive interpretations which all three branches of government grant to federal power, it is easy to see how well-laid the fears of Anti-Federalists who believed fervently that a Bill of Rights which explicitly restricted the federal government’s actions was necessary.

However, this early political division, which is often cast too narrowly as being a fight for and against a Bill of Rights, masks a fundamental lesson about the structure of American political power.

There is a sense today that American political power devolves, and in some senses it does. The ruling of the Supreme Court is final and applicable to matters of state and local brought before it. But, crucially, legislatures also have the power to change law in response. And this highlights how, in reality, power begins at the lowest level and flows upward, hence the emphatic argument made by the Anti-Federalists for more substantive checks on power, most notably the Ninth and Tenth Amendments.

This is significant to contentions surrounding how to interpret the Bill of Rights. The obviously negative liberties which comprise the first part of the Bill of Rights- which deny specific powers to the federal government- should not be viewed as being the same sort of political mechanism as the latter amendments.

Yes, all Americans have the right to freedom of speech. But all the First Amendment does is forbid Congress from abrogating that right. It does not guarantee the right to be heard or taken seriously. To suggest that First Amendment rights guarantee a given individual the right to publicly post their thoughts on a privately-owned platform and to do so without backlash or criticism is totally fallacious.

To equate the enshrinement of those liberties enumerated in the Bill of Rights- speech, religion, assembly, etc.- with the broader and unnamed liberties reserved for the people is equally problematic.

The language of the Bill of Rights clearly delineates between protection of liberty against federal government intrusion and its treatment at state and local levels, where citizens have a greater say in policy and are able to participate more directly in the decisions that affect their lives.

States are the “laboratories of democracy”, a concept inextricably intertwined with a federalist model where power is understood to emanate from the bottom and go upwards, not vice versa. It is no coincidence that the erosion of this belief has marked a similar lack of understanding of how to treat civil liberties and their protections in the Bill of Rights.

Also published on Medium.

All content protected by copyright. The Politics of Discretion, 2016.
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