A Reconsideration of the Original Case against the Bill of Rights

Hadley Arkes, Amherst College
September 18, 2004

The advent of the new Constitution was marked, almost immediately, by a debate on the meaning and necessity of a Bill of Rights. The original case against the Bill of Rights was offered not by people who were reserved in any way about rights or principles of right and wrong, but rather by those men who were concerned that the logic of the Bill of Rights would misinstruct the American people about the ground of their rights. This seminar will return to this original debate, and to state anew, the issues that were raised by the skeptics among the Founders.

Hadley Arkes has been a member of the Amherst College faculty since 1966. He was the William Nelson Cromwell Professor of Jurisprudence, and was appointed, in 1987, as the Edward Ney Professor of American Institutions. He has written five books with Princeton University press: Bureaucracy, the Marshall Plan, and the National Interest (1972), The Philosopher in the City (1981), First Things (1986), Beyond the Constitution (1990), and The Return of George Sutherland (1994). His most recent book, Natural Rights and the Right to Choose, was published by Cambridge University Press in the fall of last year (2002). His articles have appeared in professional journals, but apart from his writing in more scholarly formats, he has become known to a wider audience through his writings in the Wall Street Journal, the Washington Post, the Weekly Standard, and National Review, where he has been a contributing editor. Professor Arkes has been a contributor, also, to First Things, a journal that took its name from his book of that title. For eight years he wrote a column for Crisis magazine under the title of “Lifewatch,” and he resumes that column occasionally with pieces for National Review Online.

Professor Arkes has been the founder, at Amherst, of the Committee for the American Founding, a group of alumni and students seeking to preserve, at Amherst, the doctrines of “natural rights” taught by the American Founders and Lincoln. With the same mission, he has preserved his connection to the Madison Program at Princeton University, and served last year as Visiting Professor of Public and International Affairs in the Woodrow Wilson School, and Vaughan Fellow in the Madison Program.

Readings:

Focus: In the original debate on the Bill of Rights, the irrepressible Theodore Sedgwick challenged the proponents of a Bill of Rights over a certain confusion about the logic of principles. He asked in a sardonic way just why they didn’t specify that “a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper?” Congressman Page later took the bait and remarked that there were instances in the past in which people were compelled to remove their hats in the presence of insolent authority. Professor Arkes imagined then the possibility of adding, as another, early amendment to the Constitution, a provision on hats: namely, that “the government may not require people unreasonably to remove their hats in public or to wear them under compulsion.” Arkes went on to consider just what difference that kind of an amendment might have made in the way that questions were framed over the freedom to wear hats, or the kinds of reasons that would come into play for the judges in adjudicating cases involving hats or headgear (e.g., motorcycle helmets, hoods for the Ku Klux Klan).

That problem could have been presented in the case of Goldman v. Weinberger, on the question of whether Captain Goldman, a clinical psychologist in the Air Force, would be permitted to wear his yarmulke. And so, in testing Arkes’s argument, we should consider:

What difference would it have made to the judgment of the case if there had been, as part of the Constitution, an amendment on the wearing of “hats”: Would it have made any difference to the way in which the judges framed the case? Would there have been any difference in substance in the reasons that were finally decisive in reaching a judgment on the case?

Hamilton in the Federalist #84

The Federalist #84 stands among the most important of the Federalist papers, and it touches on several subjects beyond the argument over a prospective Bill of Rights. Hamilton does not expend all of this efforts then in registering his dubiety about a Bill of Rights, and yet he touches some of the arguments running to the root. Could you fill out the larger argument that could be made in explaining these points of Hamilton’s:

“Here, in strictness, the people surrender nothing” [i.e., none of their rights]……
“……the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.”

“I contend, that whatever has been said about [the liberty of the press] in [the constitution] of any other State [apart from New York], amounts to nothing. What signifies a declaration that “the liberty of the press shall be inviolably preserved”? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.”

James Wilson on natural rights

In his classic lecture, or essay, on natural rights (“Of the Natural Rights of Individuals”), Wilson argued that the purpose in founding the new Constitution was not to invent new rights, but to secure and enlarge the rights we already possessed by nature. He was not, at the time, offering an argument on a Bill of Rights, but in making this argument he was suggesting an understanding of (a) the purpose of the government, and (b) the source of rights that has been at odds with the understanding of these things that seems to have been absorbed with the Bill of Rights. The differences could be read at once in that phrase so commonly heard: “We can appeal to those rights we have through the First Amendment. ” What are those differences? How would you state them if you sought to explain them?

Another critical strand in the argument over the Bill of Rights and the logic of natural rights could be found in that passage in which Wilson recalls Blackstone. In book I of his famous Commentaries, Blackstone insisted that “the law, which restrains a man from doing doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind….…” To that observation Wilson responded with a simple question: “Is it part of natural liberty,” he asked, “to do mischief to anyone?”

In that simple, rather talmudic question, one could unfold a larger argument that came into play in opposition to a Bill of Rights. Could you fill in some of that argument?

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