Limited Government and the Bill of Rights

Limited Government and the Bill of Rights

Limited Government and the Bill of Rights

Limited Government and the Bill of Rights


What was the intended purpose and function of the Bill of Rights? Is the modern understanding of the Bill of Rights the same as that which prevailed when the document was ratified? In Limited Government and the Bill of Rights, Patrick Garry addresses these questions. Under the popular modern view, the Bill of Rights focuses primarily on protecting individual autonomy interests, making it all about the individual. But in Garry's novel approach, one that tries to address the criticisms of judicial activism that have resulted from the Supreme Court's contemporary individual rights jurisprudence, the Bill of Rights is all about government--about limiting the power of government. In this respect, the Bill of Rights is consistent with the overall scheme of the original Constitution, insofar as it sought to define and limit the power of the newly created federal government.

Garry recognizes the desire of the constitutional framers to protect individual liberties and natural rights, indeed, a recognition of such rights had formed the basis of the American campaign for independence from Britain. However, because the constitutional framers did not have a clear idea of how to define natural rights, much less incorporate them into a written constitution for enforcement, they framed the Bill of Rights as limited government provisions rather than as individual autonomy provisions. To the framers, limited government was the constitutional path to the maintenance of liberty. Moreover, crafting the Bill of Rights as limited government provisions would not give the judiciary the kind of wide-ranging power needed to define and enforce individual autonomy.

With respect to the application of this limited government model, Garry focuses specifically on the First Amendment and examines how the courts in many respects have already used a limited government model in their First Amendment decision-making. As he discusses, this approach to the First Amendment may allow for a more objective and restrained judicial role than is often applied under contemporary First Amendment jurisprudence.

Limited Government and the Bill of Rights will appeal to anyone interested in the historical background of the Bill of Rights and how its provisions should be applied to contemporary cases, particularly First Amendment cases. It presents an innovativetheory about the constitutional connection between the principle of limited government and the provisions in the Bill of Rights.


Under the leadership of Chief Justice Earl Warren in the 1950s and 1960s, the United States Supreme Court adopted an aggressive brand of individual-rights jurisprudence, interpreting the Bill of Rights as setting out mandates for achieving a certain vision of individual autonomy. But this individual autonomy was defined in isolation, apart from the larger social or political landscape occupied by individuals.

Under the modern view of the Bill of Rights, as taken by the Warren Court, individual autonomy has become a primary if not exclusive focus. According to this view, the Bill of Rights was included in the Constitution for the purpose of preserving individual autonomy through insulating the individual from various democratic outcomes. It is a view that has constitutional roots in the Court’s New Deal period, reflected in the infamous footnote 4 of United States v. Carolene Products Co., in which the Court suggested that it would no longer strictly scrutinize structural provisions of the Constitution, such as federalism and separation of powers, but would instead give heightened scrutiny to individual rights, such as those contained in the Bill of Rights. Unfortunately, this change in the Court’s orientation served to distort the meaning of the Bill of Rights. It cast the Bill of Rights as focused primarily or exclusively on individual autonomy. It also served to separate the Bill of Rights from the structural orientation of the Constitution as a whole. Both these effects contradicted the original intent behind the Bill of Rights.

During the New Deal constitutional revolution, the Court, in order to accommodate the New Deal legislation, retreated from enforcing the Constitution’s structural provisions. In this retreat, the Court suggested that it would concentrate its attentions on individual-rights matters. However, since the Bill of Rights is essentially structural in itself, the Court was simply choosing one set of structural provisions to enforce while ignoring other structural provisions. The mistake was compounded when the Court began interpreting the Bill of Rights as exclusively concerned with individual rights and autonomy, rather than with providing structural limitations on government power and authority.

There is much debate among scholars as to the intent and purpose behind the Bill of Rights. One argument is that it serves to protect and nourish certain fundamental individual rights. Under this argument, the Bill of Rights seeks . . .

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