by Robert Russo
In the movie The Patriot, Mel Gibson declares "Why should I agree to trade one tyrant three thousand miles away for three thousand tyrants one mile away?".* I thought this movie fell from historical grace at times, Mel looking like a postmodern Scotsman superimposed on a historic backdrop with both his fighting style and his neoconservative lines like "I'm a parent. I haven't got the luxury of principles.";* but this first line is surprisingly libertarian in an age where we've forgotten how strongly the public would object to current realities as recently as the eighties (like printing unbacked currency and increasing traffic fines for the purpose of revenue), let alone the outrage they would have felt two centuries ago when it was argued "a federal bill of rights might endanger liberties because it implied that the central government had the power to decide which rights to guarantee".**
I recently read "A Tub to the Whale: The Founding Fathers and Adoption of the Federal Bill of Rights" by Kenneth R. Bowling. This much-cited paper gives a combative history of the formation of the Bill of Rights and the role of James Madison, without the patriotic varnishings usually attributed to them, but as an unforeseen "tub" or ruse to bridge a political warzone between two parties, saying its role in the constitution today is "due less to the foresight of the Founding Fathers than to the vigilance of concerned citizenry".**
Basically when the question of human freedoms and how to preserve them coincided with the breakout of a new practical nation in the hearts and minds of our gifted, moral framers, the libertarian debate which we ourselves have sought the past 30+ years (in which the very definition of our rights is questioned) was haggled for the first time. Federalists and anti-federalists alike thought a prescribed bill of rights was a joke, one side believing the subject unworthy of the constitution, the other the reverse (in the words of Noah Webster, "paper declarations of rights are trifling things and no real security to liberty").** What became the Bill of Rights was a compromise furnished by Madison to preserve the union.
"…his colleagues let him know quickly that they did not consider the matter as urgent as he. They were not expressing opposition to the protection of civil liberties. On the contrary, almost all… held advanced libertarian ideas for their times."**
We libs today struggle just to get the nation to abide by its own constitution. The Bill of Rights is the basis for proposals we still have not achieved, such as a student bill of rights for the classroom. The concept that rights should be unwritten, laws unnecessary is beyond the comprehension of this society. They are all trained Madisons, but without his unimpeachable morals and effort. Freedom has been reduced to the words of his writing, which does not honor him. Libertarianism has become the defense of what was once federalism, which makes our opposition the new British Empire.
This raises the question of exactly how are our rights supposed to be preserved without dictation and how do we agree on what they are? The colonists understood this better than we because they were accustomed to living off their own toil, a government of one; regulation and taxation were foreign intrusions they were fighting to stop. Nowadays people believe we are mere siblings in a much larger house, requiring dictation in triplicate to know how to act, make legal decisions and what we are entitled to, decisions men used to make on their own.
The purpose of establishment is to settle disagreement, which begins with establishing the facts. They have no political agenda, they require no courting, they just have to be accepted as limiting factors:
1. The true battle behind the formation of the Bill of Rights was Federal vs. State. Authority in that debate had to rest with one or the other. If a higher power is needed to keep states from infringing on our universal rights, it can represent either the authority of the citizen or a "bigger state". For the first choice, how could there be a common declaration of the will of the individual? Before the digital age this omnipotent manuscript would be unthinkable, but in this century it is possible to have such a living document, in place of the static text the Constitution has become.
2. The only true authority on human rights is the individual. This may be inconvenient but it can't be escaped. Simulation no matter how far it goes is not reality, nor is legislation the end of a debate. Take for example the world debate over whether Pluto is a planet. The first congresses convened and declared what something is, and the outcome has been taught from textbooks ever since, but it is the whole debate that is our heritage. A bill of rights that respects this would read "We hold these truths to be a written approximation, which government can neither dictate, amend or oppose".
"Federalists asserted that since all powers not delegated to the federal government remained with the states there was no need for a federal bill of rights because Congress had no power to interfere with personal liberties."**
Several proposed rights did not make it to the final cut, such as civilian control of the military, hunting/fishing rights, and no person can be forced to give up private property without just compensation, a proposal of Madison's own invention.**
*http://www.imdb.com/title/tt0187393/quotes
**http://www.jstor.org/pss/3123689
If you have opinions to add to this thread, send them to russo@richmondliberty.org and they will be posted. We welcome your input!