It has been a while since I posted in this series. (The first two posts can be found in April)The last post discussed the checks on government power in the Constitution. The second set of checks on government power was the Bill of Rights. The original Bill of Rights is technically the first set of amendments to the Constitution, and even though there are now twenty seven amendments, only the first ten are called the "Bill of Rights."
Some states, mainly Virginia and New York, were not fully satisfied with the Constitution in the form that it left the Constitutional Convention. The delegates had been working long hours in a hot stuffy room for many months and were not really interested in continuing to do so. But without some sort of additional guarantees of individual rights the Constitution would not have been ratified and they would have needed to hold another convention and start all over again. It was promised that if the Constitution was ratified, the Bill of Rights would be drafted and ratified later. So it was.
While James Madison gets the credit for drafting the Bill of Rights, and he certainly did do that, he borrowed heavily from fellow Virginian George Mason who authored the Virginia Declaration of Rights in 1776. Many people today view the word "right" as implying some sort of benefit which is known as a "positive right." However, at the time these documents were written the most commonly held connotation of the word "right" was what is termed a "negative right." Positive rights do confer something, either tangible or intangible, to the right's bearer. Negative rights, on the other hand, provide the right's bearer to be free from some sort of real or perceived interference. Take for example the First Amendment which states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
It is most clearly seen in the language of this amendment how a negative right is supposed to work. It clearly states that Congress cannot pass laws that prohibit the free exercise of one's religion, of which establishing a state religion would do. It does not guarantee that government will provide a place to worship, funds for your church, or keep you from seeing anything religious if you are an atheist and are offended by religious insignia and displays. It provides the same protections to the press, individual speech, assembly and petition of the government. It does not provide for channels to exercise this right, nor does it imply that anything is given to the right's holder. It only states that the government will not interfere in these areas. Note also that it only applies to the government, and that private institutions may infringe on the right to free speech, which is a common misconception of the First Amendment. An employer, for example, could ban employees from blogging about the company. The freedom of speech, as it is called, is not absolute in any way, shape or form--even in public arenas--as has been demonstrated in some Supreme Court cases over the years, although limits have been few and reasonable (such as the "fire in a crowded theater" rule, as it is known).
Or take for example the Second Amendment, which reads:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
We'll skip over the "militia" part as it is very hotly debated and not really relevant to the point I am trying to make specifically. The Second Amendment prohibits the government from passing laws that prevent people from "keeping and bearing arms." Now, what this means and how it relates to the pare about militias is relevant in the big picture, but again, to illustrate what a negative right is versus a positive right, all you have to see is the second half of the statement. Simply put, you can own a gun and the government cannot prohibit that. That is a negative right. Spun to a positive right, the government would have to give you a gun if you wanted one, and I think most reasonable people would agree that is not even close to the intent of the amendment.
The reason the distinction between positive and negative rights is so important is that because the modern connotation leans toward the positive but that is not what was intended by the Founders. Remember, they were trying to LIMIT the power of the government, not enumerate a list of things that the people of the United States were guaranteed to have (other than freedom from government interference in these areas). It was assumed that listing specific rights would leave open a great debate about all of the things that were not listed, and they were correct in that assumption. It was agreed, still, that some listing of specific limits on government power was better than none, so we have the Bill of Rights.
It is at the margins, in those areas left open to debate because they were not enumerated, that most modern conflict arises. Some debate over the "spirit of the law" or intent of the Framers takes place over the enumerated rights, as well, but nothing has been more crucial to the expansion of Federal power than what was NOT listed combined with modern interpretations of how a "right" should be truly defined.
Up next...the Ninth and Tenth Amendments...