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So many people get this backwards, although I think some of this is the Constitution's fault. Originally it was a list of rights the government had, with the un

So many people get this backwards, although I think some of this is the Constitution's fault. Originally it was a list of rights the government had, with the understanding that the states retained the rest. Then the bill of rights added a few civil liberties, i.e. rights the government specifically did not have. Theoretically this shouldn't make a difference, because anything not listed in the constitution was already unconstituional. Of course in practice we've read between the lines a lot with the original constituion, so it makes some sense that we also set some hard limits to what we can't do. But still, it makes it really confusing and leads to a lot of "interesting" legal beliefs by people who aren't familiar.

marcoperaza 9y ago
>Then the bill of rights added a few civil liberties, i.e. rights the government specifically did not have. Theoretically this shouldn't make a difference, because anything not listed in the constitution was already unconstituional. I don't think this is true even for the strictest originalist interpretation possible. Without the Bill of Rights, Congress and the President would have much more expansive power in their creation and especially enforcement of law. The Constitution does not establish a process for the federal government to investigate, detain, try, and punish people for violating its laws, though it is clear that it must have those powers. The major function of the Bill of Rights is to draw lines around those powers, lines that perhaps existed in the common law, but that could have been altered by Act of Congress in the absence of a constitutional provision. There are also parts of the Bill of Rights which do constraint Congress's enumerated powers. For example, even under a strict originalist interpretation, the Commerce Clause would allow Congress to take actions that abridge the freedom of speech, religion, and assembly. It could prohibit the publishing of certain newspapers across state lines, for instance. The First Amendment prevents that kind of thing.
- jacobolus 9y ago
  If I recall correctly, Madison’s original position was that the content of the Bill of Rights (and more besides) was already implied by the Constitution, and that the document was superfluous and possibly harmful if it led to people considering rights not explicitly mentioned to not also be part of the Constitution. He changed his mind, however, as a pragmatic gesture toward unity and compromise with the Anti-Federalists.
  - Spooky23 9y ago
    He was very wrong. The sedition acts made it pretty clear that without explicit protection, the government can and will abuse its powers.
  - marcoperaza 9y ago
    The position that he and Hamilton took was somewhat incoherent in my opinion, since the Constitution did list rights, like the prohibition on ex post facto laws and bills of attainder, and the guarantee of habeas corpus except in times of insurrection. Hamilton made an interesting argument in Federalist 84, that rights like freedom of the press and of speech are too vague to belong in a legal document, since their interpretation would necessarily be determined solely by political winds. Compare to the more concrete prohibition of ex post facto laws, for example. Nevertheless, the majority of the Bill of Rights turned out to be more like those concrete provisions. The First and Second Amendments are the most notable exceptions, and his predictions have partially panned out. Thankfully, it's been for the better anyway: freedom of speech as we know it would not exist without the First Amendment.
- hexane360 9y ago
  >For example, even under a strict originalist interpretation, the Commerce Clause would allow Congress to take actions that abridge the freedom of speech, religion, and assembly. >The Constitution does not establish a process for the federal government to investigate, detain, try, and punish people for violating its laws, though it is clear that it must have those powers. These are great examples, and I think they cut straight to the heart of the issue. Would the ideal solution be to rewrite the Constitution as a truthful, detailed, and exhaustive list of the powers the government does have, or would it be best to list only restrictions to the government's power? Or is a mix necessary, despite the inherent contradictions?
goialoq 9y ago
People seem to forget this all the time, even though it's obvious. The Constitution is an atrociously written document, by modern standards of technical writing. The 18th Century predates the modern notion of technically precise writing. Look at Newton's writings, for example.

marcoperaza 9y ago

>Then the bill of rights added a few civil liberties, i.e. rights the government specifically did not have. Theoretically this shouldn't make a difference, because anything not listed in the constitution was already unconstituional. I don't think this is true even for the strictest originalist interpretation possible. Without the Bill of Rights, Congress and the President would have much more expansive power in their creation and especially enforcement of law. The Constitution does not establish a process for the federal government to investigate, detain, try, and punish people for violating its laws, though it is clear that it must have those powers. The major function of the Bill of Rights is to draw lines around those powers, lines that perhaps existed in the common law, but that could have been altered by Act of Congress in the absence of a constitutional provision. There are also parts of the Bill of Rights which do constraint Congress's enumerated powers. For example, even under a strict originalist interpretation, the Commerce Clause would allow Congress to take actions that abridge the freedom of speech, religion, and assembly. It could prohibit the publishing of certain newspapers across state lines, for instance. The First Amendment prevents that kind of thing.

jacobolus 9y ago
If I recall correctly, Madison’s original position was that the content of the Bill of Rights (and more besides) was already implied by the Constitution, and that the document was superfluous and possibly harmful if it led to people considering rights not explicitly mentioned to not also be part of the Constitution. He changed his mind, however, as a pragmatic gesture toward unity and compromise with the Anti-Federalists.
- Spooky23 9y ago
  He was very wrong. The sedition acts made it pretty clear that without explicit protection, the government can and will abuse its powers.
- marcoperaza 9y ago
  The position that he and Hamilton took was somewhat incoherent in my opinion, since the Constitution did list rights, like the prohibition on ex post facto laws and bills of attainder, and the guarantee of habeas corpus except in times of insurrection. Hamilton made an interesting argument in Federalist 84, that rights like freedom of the press and of speech are too vague to belong in a legal document, since their interpretation would necessarily be determined solely by political winds. Compare to the more concrete prohibition of ex post facto laws, for example. Nevertheless, the majority of the Bill of Rights turned out to be more like those concrete provisions. The First and Second Amendments are the most notable exceptions, and his predictions have partially panned out. Thankfully, it's been for the better anyway: freedom of speech as we know it would not exist without the First Amendment.
hexane360 9y ago
>For example, even under a strict originalist interpretation, the Commerce Clause would allow Congress to take actions that abridge the freedom of speech, religion, and assembly. >The Constitution does not establish a process for the federal government to investigate, detain, try, and punish people for violating its laws, though it is clear that it must have those powers. These are great examples, and I think they cut straight to the heart of the issue. Would the ideal solution be to rewrite the Constitution as a truthful, detailed, and exhaustive list of the powers the government does have, or would it be best to list only restrictions to the government's power? Or is a mix necessary, despite the inherent contradictions?

goialoq 9y ago

People seem to forget this all the time, even though it's obvious. The Constitution is an atrociously written document, by modern standards of technical writing. The 18th Century predates the modern notion of technically precise writing. Look at Newton's writings, for example.