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Antony Davies & James Harrigan: Bill of Rights' unintended consequence

| Saturday, Dec. 15, 2018, 8:03 p.m.
FILE - In this March 23, 2016 photo, the Constitution is held by a member of Congress on Capitol Hill in Washington. President Donald Trump says he wants to order the end of the constitutional right to citizenship for babies of non-citizens and unauthorized immigrants born in the United States.  (AP Photo/J. Scott Applewhite)
FILE - In this March 23, 2016 photo, the Constitution is held by a member of Congress on Capitol Hill in Washington. President Donald Trump says he wants to order the end of the constitutional right to citizenship for babies of non-citizens and unauthorized immigrants born in the United States. (AP Photo/J. Scott Applewhite)

Dec. 15 marked the 227th anniversary of the Bill of Rights, which became part of the U.S. Constitution in 1791. What we know today as the Bill of Rights were the final 10 of 12 proposed amendments. The originally proposed First Amendment would have resulted in a House of Representatives with more than 7,000 members instead of the 435 it has. Mercifully, it failed. The second, which determined how Congress could raise its pay, passed 201 years later as the 27th Amendment in 1992.

While most Americans are unaware of these originally proposed amendments, they are not without strong opinions regarding the Bill of Rights more generally. And, those opinions are overwhelmingly positive. In fact, when asked what they think their rights are, Americans tend not to mention voting, health care, education or any other thing that defines the present-day political climate. Instead, they work their way through what became the First, and occasionally Second, Amendments, listing the rights to free speech, free exercise of religion, peaceable assembly, and even the right to keep and bear arms.

But, just as they have little idea the first amendments to the Constitution were intended to number 12 rather than 10, they are similarly in the dark regarding what the Founders thought about the idea of a bill of rights in the first place. Most would be surprised to learn that the Founders were not in universal agreement regarding the desirability of a bill of rights. Some, the most famous being Alexander Hamilton, went so far as to call the idea dangerous.

More than three years before the ratification of the Bill of Rights, Hamilton warned against a bill of rights generally in Federalist 84, the penultimate essay in a series dedicated to convincing the people of New York to vote in favor of the proposed Constitution. A bill of rights could be destructive, he warned, because people might come to assume that the listed rights were the only rights they had. But, the greater danger Hamilton feared was that in listing exceptions to limitations on government’s power, a bill of rights could offer a pretext for the government to claim more power.

In short, Hamilton saw a bill of rights as a foot in the door by which politicians would twist the meanings of the Constitution’s words to curtail people’s rights, and to exert more power than the Constitution allowed. A cursory glance at our “protected” rights proves the point. Fewer than 10 years after the Bill of Rights was ratified, Congress passed the Alien and Sedition Act, which disallowed criticism of the government. In the 220 years since, Congress has gone on to regulate every one of the things that the Bill of Rights specifically prohibits it from regulating.

As the anniversary of the Bill of Rights comes and goes, consider the possibility that its ratification in 1791 had an unintended consequence: It caused politicians to regard the Constitution as a document that carves out people’s rights from the universe of governmental power, rather than one that carves out governmental power from the universe of people’s rights. In the end, the people are the only effective counterweight to this view.

Antony Davies is associate professor of economics at Duquesne University. James Harrigan teaches in the department of Political Economy and Moral Science at the University of Arizona.

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