Judges on Judging: Views from the Bench

By David M. O'Brien | Go to book overview

PART V
Our Dual Constitutional System: The Bill of Rights and the States

THE VERY purpose of a bill of rights, Justice Robert Jackson observed, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts. One's right to life, liberty, and freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no election."1

The Bill of Rights, like the Constitution, emerged from considerable debate and numerous compromises. A bill of rights, Alexander Hamilton argued in The Federalist, was "not only unnecessary . . . but would even be dangerous." Any enumeration of rights was unnecessary because "the Constitution itself, in every rational sense, and to every useful purpose, is a bill of rights." 2 Parchment guarantees might also prove dangerous, he thought, by prohibiting the exercise of powers for which no express authority was granted to the national government. In our dual constitutional system, Hamilton reasoned, the national government possesses only limited, expressly delegated powers, and thus civil liberties are secure and subject to state constitutions enforced by state courts. By contrast, James Madison and Thomas Jefferson advanced libertarian arguments for adopting a federal bill of rights, but even they differed in their understanding of the rights to be secured. Madison, like Hamilton, worried about the potential problems arising from a declaration of rights. In a letter to Jefferson, he explained:

My own opinion has always been in favor of a bill of rights; provided it be so framed not to imply powers not meant to be included in the enumeration. . . . I have not viewed it in an important light . . . [however, because] there is a great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. 3

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