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Tuesday, December 15, 2015

Happy Bill of Rights Day!

Celebrate the Antifederalists' greatest victory

Thank goodness Bill of Rights Day isn’t an official government holiday. Can you imagine what they’d do with it?

“On this day, December 15, in 1791,” wrote Larry Reed in “The Holiday That Isn’t,” “The United States formally adopted the first ten amendments to the Constitution, securing, for a while at least, greater checks on the power of the new central government.”

It’s not an official holiday as far as our government is concerned, but as Larry points out, “a free people don’t have to wait for Congress to declare a holiday to celebrate one.”

And a free people (or at least a people yearning to be free) are better off without the declaration from Congress. Just look at what July 4th has become.

What the original Founders declared independence from in 1776 was not just Britain but the very foundations of the modern state. And yet anywhere I’ve ever lived in the United States, Independence Day is a flag-worshipping celebration of government power — a state holiday that is somehow about both militarism and “freedom.” (At least that’s the word they keep using.)

While some of us may celebrate a time when American colonists decided to declare independence from empire, from mercantilism, from taxes and regulations, and then fight for that declaration under the banner of natural rights, that understanding of the Fourth will never be the official one in a system that treats rights as government-granted privileges; taxes and regulations as the assumed solutions to every problem, real or invented; and economic nationalism as the predictable policy of patriotism.

On December 15, we celebrate a different declaration of independence: independence, in theory, from the arbitrary power of an ever-growing national government — and, if we side with the Antifederalist tradition, from the document the Federalist centralizers crafted first to usurp and then to legitimize their power.

That was how the Antifederalists saw the Constitution: not as an affirmation of liberty but rather of power. Listen to libertarian hero Robert LeFevre talk about the Constitution from his own very Antifederalist perspective:

It is a remarkably short and concise instrument. The word “right” does not appear in it, although many people suppose that it is an instrument designed to protect their rights. As a matter of fact, the omission is so glaring that the Bill of Rights had to be added. And of course the word “right” does appear there, in the first ten amendments. But in the body of the Constitution, it is totally lacking.

LeFevre somewhat overstated the case. The Constitution doesn’t use the word “right,” but scattered throughout it are protections for contract, habeas corpus, and “privileges and immunities,” as well as prohibitions on direct taxes, fiat money, bills of attainder, and ex post facto laws. 

Yet his broader point is salient. The Constitution is an instrument to empower the national government, not to secure our rights against it. It is not terribly concerned with liberty. Rather, it is concerned with power. And the purpose, as is clearly shown in the instrument itself, was that it be an infinitely elastic instrument of power whenever they wanted to use it that way.

LeFevre cites Patrick Henry, the leader of the Virginia Antifederalists, on his resistance to the new Constitution:

This proposal of altering our federal government is of a most alarming nature! … You ought to be extremely cautious, watchful, jealous of your liberty; for, instead of securing your rights, you may lose them forever. If a wrong step be now made, the republic may be lost forever.… If this new government will not come up to the expectation of the people, and they shall be disappointed, their liberty will be lost, and tyranny must and will arise.

What happened between the 1787 document and its 1791 amendments? Larry explains:

A great debate ensued and people lined up in one camp or the other — the Federalists or the Antifederalists. The former favored the Constitution and in most cases, at least at first, without any amendments. The latter either opposed it altogether or conditioned their approval on adoption of stronger protections for individual liberties.

“Keep in mind,” Larry adds, “that virtually all the leading figures in this great debate were libertarians by today’s standards. They believed in liberty and limited government. Even the least libertarian among them would be horrified if he could see how later generations have ballooned the size and intrusiveness of the federal establishment.”

Even Federalist James Madison, remembered as the “Father of the Constitution” and someone who initially opposed amending the Constitution with a specific inventory of protected rights, took the position he did for a very libertarian reason: “being of the view that enumerating some rights in the form of amendments would open the door to government violations of any that were not listed.”

Similarly, Alexander Hamilton, another Federalist, asked, “Why declare that things shall not be done which there is no power to do?”

From our perspective in the 21st century, these Federalist arguments can seem naïve. We now know that Thomas Jefferson was right when he said, “The natural progress of things is for liberty to yield and government to gain ground.”

But the context of the debate between Federalists and Antifederalists was an assumed classical liberalism, a shared belief in natural rights (however much we may wish they had applied such rights more universally), and a profound distrust of unchecked government power.

If we have an extra couple of centuries of history to show us just how right Jefferson was about “the natural progress of things,” we also have that much more reason to be grateful that the Founders’ constitutional debate resulted in a list of explicit checks on the central government gaining ground against liberty.

December 15, unsullied by official recognition as a holiday, offers us the opportunity to ask, “What if?” — to imagine an America without Leviathan, yes, but also to acknowledge those who saved us from a darker version of history in which the Bill of Rights’ check on centralized power never existed. 

For further information on the Bill of Rights, see: