A few folks have asked me to recap the lesson I gave to 3 classes of high school kids on constitution day, and in view of the great article shortage of 2020, I acquiesced.
This is, more or less, a transcription of what I said in those classes. I may over- or under-emphasize some unimportant/important points, but I hope I didn’t get anything factually wrong.
When I tried to think of a topic to discuss for Constitution Day, I reflected on my history classes in high school and what I learned in law school. A few topics stuck out as being taught quite differently in those two settings, but one stuck out more than most. Who does the Bill of Rights apply to? It seems like there’s a simple answer. Everybody! However, history tells a more complicated story, and we’ll investigate it.
Before we discuss the question, I think it’s important to ask and answer another question. Why should we care?
There are a few reasons why we should care about who the Bill of Rights applies to. There are two ways of restricting peoples rights. You can restrict the applicability of the right itself. For example, when you study the First Amendment, you learn about time, place, and manner restrictions. Courts don’t recognize any right to scream through a bullhorn at 2am in a residential area.
You can also restrict who the right applies to. For example, people under the age of 21 cannot drink alcohol. However, this isn’t a bucketized issue. It’s not a matter of putting all restrictions into the “restrict the right” or the “restrict the applicability” bucket. It’s a spectrum, and often courts and legislatures get around the negative reactions to restricting the applicability by framing their action as restricting the right. Middle Eastern immigrants are more likely to eat goat than European immigrants, so you target the Middle Easterners by targeting the goat eating. You’ll see real life examples of this spectrum at the end of this article.
Another reason why we should care is because populism takes rights away from people based on emotion. Mobs do not act rationally, and they don’t care about your rights. When populist movements spin up, they usually leave a wake of rights violations behind them.
Usually, populists target unpopular people or classes to strip of rights. It’s easy to see the impulse in yourself. Do serial killers, racists, rapists, etc. deserve due process? I bet there’s a first impulse within you saying “they deserve exactly what they get.” Often, populists let that first impulse prevail.
However the consequences to the mob mentality can be severe. For example, the case of Emmitt Till. Emmitt was a black teenager who lived in Chicago in the 1950s. He had family in Mississippi, and visited them for a summer. As you can imagine, things were very different for black teenagers in 1950s Chicago compared to 1950s rural Mississippi.
Anyway, Emmitt said something to a white girl behind the counter at a grocery store. Its unclear what he said, but he may have catcalled or flirted with her. Either way, she told her family, and they were highly offended. You simply didn’t do that thing in Mississippi at the time. Whether or not he did anything actually illegal, he had violated the “laws of the land”, and a mob took him out of his bed that night and beat him to death. He received no due process. His rights meant nothing to that mob.
Political mobs operate in a different context, but they operate much the same way, on emotion instead of reason. An example is terrorism. Do the terrorists in Guantanamo Bay deserve protection from the Bill of Rights? We’ll see a case later on that informed the discussion the supreme court had about this very issue.
Another reason why this is important is because of who are most often impacted by people restricting rights. Felons are often impacted. So are hated groups. Also, minors. There are obvious reasons why minors have a smaller portfolio of rights compared to adults, but the rights that vest at 15 or 16 or 18 or 21 or 26 are often arbitrarily decided.
So, now that we know the stakes, who was the Bill of Rights supposed to apply to? I think it’s important to recognize something first, and that is the is/ought problem. What ought to be, based on the principles involved, is often very different from what is actually achieved when the rubber meets the road. I’m reminded of James Madison in Federalist 51.
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
Imperfect people are trying to apply principles to an imperfect society that is often quite resistant to the results when you take those principles to their logical conclusions. The realities of the late 18th and early 19th century were not compatible with actual universal application of the Bill of Rights. The founders were well aware of the fact that they were leaving problems like slavery for future generations to solve.
So, who was the Bill of Rights supposed to apply to? Well, everybody. The Declaration of Independence supports this conclusion.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”
Take notice of important terms that show up here. Equality. Unalienable Rights. Government securing our rights. Just powers. Consent of the governed. These are all terms that are loaded with thousands of years of context and history.
One curiosity may strike you when you look at this preamble. Why are these truths self-evident?
Well… they’re not. That is, unless you assume the previous 2000 years of Western philosophy and theology. When you take that away, none of those truths are self-evident in the least.
What of equality? Is it self-evident? Look to the 20th century dystopian authors for their fears of cultures that didn’t value equality. Orwell’s Animal Farm, “Some animals are more equal than others.” There was a facade of equality hiding the fundamental inequality. Huxley’s Brave New World with the Alphas, Betas, Gammas, etc. You were genetically preassigned to a class, and you were stuck in it for life. But these are just some foreign concepts dreamed up for effect, right? History is rife with cultures that treat people differently based on class or caste. Inequality is the norm throughout history.
How about unalienability of rights? Even at the time when the founders were professing the unalienability of rights, utilitarian critiques abounded. In System of Moral Philosophy (1755), Hutcheson wrote “there can be no Right, or Limitation of Right, inconsistent with, or opposite to the greatest public Good.”
Even consent of the governed has come under attack. President Woodrow Wilson, before he attained the Presidency, wrote in The Study of Administration (1887),
Our success is made doubtful by that besetting error of ours, the error of trying to do too much by vote. Self-government does not consist in having a hand in everything, any more than housekeeping consists necessarily in cooking dinner with one’s own hands. The cook must be trusted with a large discretion as to the management of the fires and the ovens. … The problem is to make public opinion efficient without suffering it to be meddlesome.
Without the foundation that 2000 years of Western philosophy and theology provide, the self-evident nature of the truths of the Declaration is lost. So, let’s take a whistlestop tour of 2000 years of Western thought. This is by no means comprehensive in any way, and is only meant to give a brief taste of some influencers of the American founding.
Around the year 50 BC, a Roman governor named Cicero wrote about a great many things. It would be impossible to summarize Cicero’s contributions to the modern West in a single article, but one quote of his is directly relevant to this article. “Let us remember that justice must be observed even to the lowest.” The equality espoused in this quote is quite ahead of its time. Rome, at the time, was a rather hirerarchical society. Classes defined daily life for people. Slaves lived differently from artisans who lived differently from thinkers and politicians. It was overwhelmingly popular to believe that those below you (slaves, especially) were less, and thus deserved less. Cicero’s universal application of justice turned this on its head.
Fast forwarding almost 500 years, Augustine of Hippo was a Christian bishop, philosopher and theologian. Writing on the essential intertwining of justice and legitimate authority in City of God, he wrote,
Remove justice, and what are kingdoms but gangs of criminals on a large scale?… A gang is a group of men… in which the plunder is divided according to an agreed convention. If this villainy… acquires territory, establishes a base, captures cities and subdues people, it then openly arrogates to itself the title of kingdom.
Skipping ahead another 800 years, Thomas Aquinas was a Christian monk, philosopher and theologian. He wrote on a wide array of topics, but he wrote on a few interconnected concepts that influenced the thinking on governance for hundreds of years after.
“Wherefore [the rational creature] has a share of the Eternal Reason, whereby it has a natural inclination to its proper act and end: and this participation of the eternal law in the rational creature is called the natural law.” Summa Theologiae
He outlines the concept of innate human dignity. The truth that no matter who you are, no matter what you have done, you have a certain level of inbuilt value because you are a rational being.
Moving again 250 years ahead, we come to Martin Luther, a Christian monk and pillar of the Protestant Reformation who also wrote on topics of secular governance.
“Since, then, belief or unbelief is a matter of every one’s conscience, and since this is no lessening of the secular power, the latter should be content and attend to its own affairs and permit men to believe one thing or another, as they are able and willing, and constrain no one by force.” Concerning Secular Authority
This concept of freedom of conscience quite strongly foreshadows the freedom of expression protected by the First Amendment. In fact, you can see many of the foundations of the Bill of Rights in these thinkers’ ideas.
Finally, we arrive at the Enlightenment, which wasn’t as unified of a movement as you may initially think. On one side of the movement was Thomas Hobbes (philosopher, ~1650). Hobbes wrote
[in a state of nature] Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of very man against every man. . . In such condition there is no place for industry, because the fruit thereof is uncertain . . . and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short. The right of nature . . . is the liberty each man hath to use his own power as he will himself for the preservation of his own nature; that is to say, of his own life; and consequently, of doing anything which, in his own judgment and reason, he shall conceive to be the aptest means thereunto [the best method to preserve his life]. . . and because the condition of man . . . is a condition of war of everyone against everyone, in which case everyone is governed by his own reason, . . . it followeth that in such a condition every man has a right to every thing, even to one another’s body
Hobbes drives a wedge between reason and natural law. The state of nature he describes is not high minded. It’s not connected to innate human dignity. It’s bestial and violent. Hobbes’ natural law is simple… might makes right.
As such, Hobbes presents civilization in the starkest contrast. The “Commonwealth” (government) prevents the state of nature, and individuals have an obligation to subordinate themselves to the government in order to avoid the state of nature. Reason compels them to do so.
John Locke (Philosopher, ~1680) had a very different view of the state of nature.
To properly understand political power and trace its origins, we must consider the state that all people are in naturally. That is a state of perfect freedom of acting and disposing of their own possessions and persons as they think fit within the bounds of the law of nature. People in this state do not have to ask permission to act or depend on the will of others to arrange matters on their behalf. The natural state is also one of equality in which all power and jurisdiction is reciprocal and no one has more than another. It is evident that all human beings—as creatures belonging to the same species and rank and born indiscriminately with all the same natural advantages and faculties—are equal amongst themselves. They have no relationship of subordination or subjection unless God (the lord and master of them all) had clearly set one person above another and conferred on him an undoubted right to dominion and sovereignty. – Second Treatise of Government
Locke’s statue of nature is much more stable than Hobbes’. The natural law includes the aforementioned virtues highlighted in the declaration: equality, just powers, and unalienable rights. However, Locke’s formulation still runs into the is/ought problem. People are not forced to do right by the natural law.
This is where government fits in. People consent to be governed in order to establish an arbiter (the government) to practically protect their lives, liberty, and property.
This philosophy lesson is great and all, but what’s the real difference? Well, these are the foundations of the French Revolution and the American Revolution, respectively. The American Revolution was Lockean, with principles like life, liberty, and property. The French Revolution was Hobbesian/Rousseauian, with principles like liberty, equality, fraternity. The French Revolution was based on a philosophy requiring people to submit and subordinate themselves to the government out of fear of the anarchy.
In part 2, we’ll examine the Bill of Rights itself and look at a few relevant Supreme Court cases.