TWO HUNDRED years ago, when the Constitution was drafted and presented to the people for ratification, a bill of rights was conspicuously missing. Its absence was no mere oversight; Alexander Hamilton and James Madison, among others, believed that the liberty and rights of the people might just be safer without one. The collected wisdom has had it that they were wrong--that the initial lack of a bill of rights was the Founder's one big mistake. Yet no one has done more to challenge this position and vindicate Madison and Hamilton than Supreme Court nominee Robert H. Bork.
According to Judge Bork and the administration which nominated him, judges should heed the original intent of the Founders of the Constitution and should "find" rather than "make" law. Rights not specifically enumerated in the text of the Constitution or the Bill of Rights, they argue, were not intended by the Founders and therefore do not exist; only the rights they mentioned really count. A good judge, consequently, must resist the temptation to create new ones.
Thus Bork criticizes Griswold v. Connecticut, the Supreme Court decision which held that a law banning birth control violated a constitutional right to privacy. Since privacy is not mentioned in the Bill of Rights, how can a judge find such a right without subjecting the Constitution to a never-ending spiral of subjectity based more on personal views than on the Constitution's text? Only the most niggardly construction, Bork feels, can be based on truly neutral principles.
In construing the Bill of Rights so strictly, however, Bork does a disservice to the very Founding Fathers he purports to honor, reading the Bill of Rights precisely as they feared future generations might. Seen in light of Madison's and Hamilton's original worries over the effects of a bill of rights upon liberty and justice, Bork's neutral principles emerge as no principles at all.
THE RIGHTS the people possess, Madison and Hamilton felt, were so numerous that it would be impossible to avoid omitting many in a bill of rights. Worse still, the government and the courts might very well consider the rights specifically enumerated as the only ones the people possessed. Sound familiar?
Further, a bill of rights was fundamentally at variance with the spirit of the Constitution. A bill of rights implied that the government itself had granted certain rights to the people. Under the Constitutional system, however, the people never surrendered their rights to the government in the first place; in fact, it was the government which was to be limited to specific and enumerated powers.
A bill of rights, then, would simply grant rights to the people which they already possessed. It would "contain various exceptions to powers which are not granted," Hamilton wrote, harping on the irony of the situation. Unfortunately, such double protection might do more harm than good, as Hamilton pointed out in The Federalist #84. "Why declare that things shall not be done which there is no power to do?" he wrote. Such a declaration could only afford overzealous rulers "a colorable pretext to claim more [powers] than were granted."
IN A letter to Jefferson in 1788, Madison expressed another danger inherent in a bill of rights--that it would be interpreted statically, preventing the gradual expansion of people's rights with the passage of time. As a result, the rights of future generations likely would be constrained by the stinginess of past ones. "A positive declaration of some of the most essential rights," he felt, "could not be obtained in the requisite lattitude." Far better to avoid specific guarantees and let rights evolve with the passage of time. For a bill of rights would in essence be cannon fodder for people such as Bork, who could use it to restrict the scope of the people's rights.
Without a bill of rights, however, judges would have no choice but to assess the rights of the people against the malleable concepts set forth in the Constitution's preamble--to establish justice and to secure liberty. They would almost have to be activists, basing their decisions on continually evolving standards of justice.
And this was what Madison wanted. A friend of religious toleration, he felt that "the rights of conscience in particular, if submitted to public definition, would be narrowed much more than they are likely ever to be by an assumed power." As time went on and civilization and its standards of justice progressed, society gradually would come closer and closer to true justice--which was "the end of government" and "the end of civil society."
Madison and Hamilton, of course, ultimately failed to persuade their countrymen. But their worst fears need not come true as a result. Madison sought to overcome the potential dangers of a bill of rights with the Ninth Amendment--which declared that the rights enumerated in the first eight amendments were not to be construed as the only legitimate ones. And many Constitutional commentators throughout the antebellum period continued to take for granted that the intent of the Constitution could be garnered only by examining the broad phrases in the preamble.
Judge Bork and his proponents in the Reagan Administration now pretend to look to history, only to destroy its promise. Although the Bill of Rights has in general performed admirably, the fact that it is neither entirely broad and general (like the preamble) nor entirely specific and detailed, subjects it to misuse by those such as Bork. Our only recourse now, almost 200 years after the Bill of Right's ratification, is to deny those who would misuse it the chance to sit on Dike's throne.