The True Value of the Bill of Rights

One thing you can always count on here in the United States is that whenever a man made tragedy occurs, a sizable portion of the population will blame the Bill of Rights. Within my lifetime the most egregious example of this occurred after the 9/11 attacks. Citing the need to protect the citizenry, the United States government picked up its systemic campaign against the Bill of Rights with a renewed zeal. Although some of the actions taken during that campaign were later reversed, the citizenry ended up with fewer rights post-9/11 than it had pre-9/11. But this campaign against the Bill of Rights isn’t unique to tragedies similar in scale to the 9/11 attacks. It manifests after pretty much every man made tragedy that receives national attention.

I’ve made my opinions of the United States government, and every other government, very clear. I believe that government as a concept is awful and should be done away with. Anarchy, the state of not having a state, is far better than giving a handful of individuals absolute power and letting them do whatever they please to everybody else. I also hold a worldview that can be described as egoist. I don’t believe rights are god-given, self-evident, or in any way objective. To me rights are a concept that exist exclusively in the imaginations of individuals. With both said, I believe there is merit in many of the Enlightenment ideas upon which the United States was founded. The idea that a government should be subservient to its people, even if it is an impossible one, is meritorious as is the idea that individuals enjoy certain rights.

For those who haven’t read up on the history of the founding of the United States, the first federal governmental system was codified by the Articles of Confederation (which, despite the name, is unrelated to the Confederate States of America). The Articles of Confederation established a weak federal government and left most sovereignty to the individual states. It didn’t last long. The event that sealed the fate of the Articles of Confederation was Shays’ Rebellion. Even though Shays’ Rebellion was successfully put down by the existing governmental system (specifically Massachusetts’ state militia), power hungry politicians used the event to demand a stronger federal government. This sparked off a debate between two camps: those who wanted a stronger federal government, who are known to us as the Federalists, and those who opposed the idea, who are known to us as the Anti-Federalists.

The Anti-Federalists pointed out, correctly as we known with the benefit of hindsight, that the federal government then being proposed by the Federalists would eventually become tyrannical. While the Anti-Federalists weren’t able to stop the creation of a strong federal government, they did managed to get a concession: the Bill of Rights. As I’ve explained on this blog numerous times, the Bill of Rights failed to restrain the federal government. But that’s not to say it was a complete failure. The Bill of Rights at least slowed the rate at which federal power expanded. It accomplished this by requiring the federal government to address the Bill of Rights whenever it expanded its power over territory addressed by the Bill of Rights. Since the Constitution gave the federal government ultimate authority over interpreting the Constitution, those addresses usually ended with the federal government authorizing its own expansion of power. But once in a while a judiciary stomped down an attempted expansion or at least established a number of caveats. What so-called rights we enjoy today are the caveats established by those rare judiciaries that didn’t rubber stamp whatever the federal government was authorizing itself to do.

Fortunately, the legacy of the Anti-Federalists continues. Even today after most of the so-called rights mentioned in the Bill of Rights have been caveated into near nonexistence, debates about rights are still generally over degrees. Most debates about speech aren’t about whether an individual has a right to free expression; it’s taken for granted that the First Amendment guarantees the freedom of expression. Instead the debates are about how far free expression can go before it no longer falls under the protection of the First Amendment. While the difference is minor in the long run, the fact that the debate is framed in a way that free expression is guaranteed has kept it in a state of slow erosion instead of immediate annihilation.

Had the Anti-Federalists not managed to get the Bill of Rights included in the Constitution, we would likely live in a different political world.

Without the First Amendment, we would likely be subjected to an extensive list of prohibited forms of expression that ranged from criticism of the government to pornography. The question of who qualified as a journalist would likely be answered and the answer would be only individuals credentialed by the federal government (or maybe even the state governments if the federal government was feeling especially generous).

Without the Second Amendment, there would likely be no debate over what types of firearms an individual is allowed to own. All individual gun ownership would likely be prohibited.

Without the Fourth Amendment, law enforcers would likely be able to conduct random searches of your dwelling without even needing to make up probable cause to get a warrant. Civil forfeiture, where property can be seized if a law enforcer so much as suspects it’s related to a drug crime, would be the norm rather than the exception.

Without the Fifth Amendment, there would likely be no limit to the number of times an individual could be charged with the same crime. The state would be free to bring the same charges for the same crimes against an individual as many times as it needed to get a conviction.

But that wouldn’t matter because without the Sixth Amendment, individuals charged with a crime would likely not enjoy a trial by jury. While the jury system here in the United has flaws (many flaws), it’s still a step up from a Star Chamber.

The true value of the Bill of Rights is that it puts the federal government into an awkward position. In order to maintain the illusion that it is governed by a system of laws (which is the illusion upon which its legitimacy in the eyes of the masses is built), it cannot simply pass a law that curtails an enumerated right. Maintaining that illusion requires that any law curtailing a right must be accompanied by a lengthy campaign to convince the masses that the amendment or amendments that address that right don’t actually mean what they say. Furthermore, the illusion requires the federal government to entertain challenges to the law on constitutional grounds. Once in a while the federal government even needs to temporarily concede ground and wait for a more opportune time to curtail that right.

Had human imagination never conceived of the destructive force we call government or had the majority dismissed the it for the bad idea it is, the Bill of Rights and similar declarations of rights would be of little value. But we live in a world where the majority share a mass delusion, a delusion that says we need to vest power in a handful of individuals to prevent a handful of individuals from taking power. So long as the majority of people suffer from that contradictory delusion, the Bill of Rights and the concept of rights have value even if both are, like government, figments of our imaginations. When you find yourself in the Neighborhood of Make-Believe, sometimes the only way to survive is to play a game of make-believe yourself.

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