Might Versus Right (Powers Versus Rights)
Sometimes, I see or hear highly-intelligent, highly-educated, well-informed people writing or speaking about “states’ rights” or the “right” that some government employee purportedly has to perform an official act. When I do, I see something very wrong.
There’s something fundamentally and egregiously wrong with misleading people (intentionally or inadvertently) to think that governments have rights. This is an extremely important issue for purposes of understanding our Constitution and how to defend Americans’ rights. Getting it wrong is why we have some very bad so-called precedent in judicial decisions.
Governments have power. People have rights. Government employees have power. Citizens and other persons have rights. This concept is far from novel. An outstanding historian of the American Revolution wrote about this issue long ago—because Americans of the Revolution wrote about it (a lot) hundreds of years ago.
Bernard Bailyn wrote a book that everyone interested in really understanding our Constitution should study: The Ideological Origins of the American Revolution. There are multiple editions. I’d recommend the most recent because Bailyn wrote multiple prefaces, and each is worth reading.
In the 2017 preface and in a chapter on “Power and Liberty: A Theory of Politics,” Bailyn emphasized and explained how the founding generations’ “essentualization and personification of power . . . came to suffuse their thinking.” Bailyn clearly and emphatically identified the common cause of the people who wrote and ratified our Declaration of Independence, our original Constitution, our Bill of Rights and the Fourteenth Amendment (at the very least). Their common cause and primary purpose was to address “Americans’ obsession with power.” Power “was their central concern. Power and its ravages engrossed their minds.” The founding generations “wrote” (including in our Declaration and our Constitution) “about the specific agencies of power they feared--[standing] armies [during peacetime]; [the] prerogatives [assumed by executive authorities]; [legislative] mandates;" and "arbitrary magistrates” and the many other “usurpations” of “power” listed in the “Declaration of Independence.”
The founding generations “wrote often” and “eloquently of power itself: power in its essence, in its nature” as a “dark, independent, primordial force, pervasive and malign.” “Power, they wrote” is “like the ocean, not easily admitting limits to be fixed in it.” It is like “jaws” that were always “open to devour.” It is “like cancer, it eats faster and faster every hour.”
The overarching point of Bailyn’s book is captured at the top of the first page of Chapter I. It is a quote from a letter between the two people who led the Committee of Five that prepared the version of the Declaration of Independence that was presented to the Second Continental Congress (which Congress proceeded to revise radically). John Adams wrote the following in a letter to Thomas Jefferson in 1815:
What do We mean by the Revolution? The War? That was no part of the Revolution. It was only an Effect and Consequence of it. The Revolution was in the Minds of the People, and this was effected, from 1760 to 1775, in the course of fifteen years before a drop of blood was drawn at Lexington. The Records of thirteen Legislatures, the Pamphlets, Newspapers in all the Colonies ought be consulted, during that Period, to ascertain the Steps by which the public opinion was enlightened and informed concerning the Authority of Parliament over the Colonies.
It’s natural that Adams would emphasize writing over fighting. During the Revolutionary War, Adams demonstrated heroic courage and accomplished herculean feats by speaking and writing, and America is indebted to him for his words and deeds. Still, Adams did no fighting. In his old age, he seems to have forgotten that fighting for liberty was as important as writing for liberty.
Adams was exceedingly wrong when he contended that the Revolutionary War “was no part of the Revolution. It was only an Effect and Consequence of it.” But that’s a subject for a subsequent post. The point here is that Adams was right that the essence of the Revolution was not merely the fighting. It also was the writing. The significance of the Revolution was not merely in the fact that people fought, but in why they fought. So Bailyn’s book focused on what people thought. Bailyn’s book is an outstanding study and explanation of what Adams rightly said “ought to be consulted.”
The point here (the distinction between rights and powers) was encapsulated at the top of the first page of Chapter III of Bailyn’s book. It was a quote by James Madison. Madison was widely considered to be “the father of the Constitution” (although like many fathers, he was deeply disappointed in some of the less-commendable qualities of that child). Madison was one of the primary forces behind, as well as at, the Philadelphia Convention that produced the original Constitution.
Madison also was the primary congressional author of the Bill of Rights (the first 10 amendments). Promptly after all his thinking, writing and speaking about the original Constitution and the Bill of Rights, in 1792 Madison wrote this to (again) emphasize that the rights in our Bill of Rights (and more) already were implicit in the original Constitution:
In Europe, charters of liberty have been granted by power. America has set the example [ ] of charters of power granted by liberty. This revolution in the practice of the world, may [ ] be pronounced the most triumphant epoch of its history, and the most consoling presage of its happiness.
Madison (and writers of the American Revolution before Madison) clearly saw power as exceedingly different from what they called liberty and what we commonly call rights.
“Power” Bailyn wrote “to them meant dominion of some men over others, the human control of human life: ultimately force, compulsion.” “Most commonly the discussion of power centered on its essential characteristic of aggressiveness: its endlessly propulsive tendency to expand itself beyond legitimate boundaries.” “What gave transcendent importance to the aggressiveness of power was the fact that its natural prey, its necessary victim, was liberty, or law, or right.” “The public world these writers saw was divided into distinct, contrasting, and innately antagonistic spheres: the sphere of power and the sphere of liberty or right. The [former] was brutal, ceaselessly active, and heedless; the [latter] was delicate, passive, and sensitive. The [former] must be resisted, the [latter] defended, and the two must never be confused.”
In The Federalist No. 48, James Madison emphasized a principle that was common knowledge among Americans of 1776 through 1787, which underlay both the Declaration of Independence and our Constitution. All “power is of an encroaching nature,” and it is constantly seeking means of “passing the limits assigned to it.” Americans cannot “trust to” mere “parchment barriers” (in our Constitution) “against the [constantly] encroaching spirit of power.” We must beware actions that “mask, under complicated and indirect measures, the encroachments” of power. Any “mere demarcation on parchment of the constitutional limits of” any branch of federal government “is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”
Madison (echoing Montesquieu), fairly famously highlighted in The Federalist No. 47, that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many” is “the very definition of tyranny.”
Madison (quoting Montesquieu) emphasized, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers.” "[T]here can be no liberty, because apprehensions may arise lest the same [executive] or [legislature] should enact tyrannical laws to execute them in a tyrannical manner.” Where “the power of judging” is “joined with the legislative, the life and liberty of the [people] would be exposed to arbitrary control, for the judge would then be the legislator.” Where the power to judge is “joined to the executive power, the judge might behave with all the violence of an oppressor.”
As a result, Madison emphasized that “the preservation of liberty requires that the three great departments of power” must be as “separate and distinct” as our Constitution made them. The Framers devoted considerable effort to limiting and separating powers. That is exactly why every state and federal Constitution separates powers among three distinct co-equal branches.
In The Federalist No. 78, Alexander Hamilton (quoting Montesquieu) also emphasized that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” Hamilton further emphasized the danger of our current circumstances: “liberty” will “have every thing to fear from [any] union” of the power to judge “with either of the other departments” (executive or legislative).
In The Federalist No. 84, Hamilton re-emphasized that “[t]he magistrate” (the president “in whom the whole executive power resides cannot of himself make a law, [even] though he can put a negative on every law [veto it]; nor” did we vest power in the president to “administer justice in person, [even] though he has the [power of] appointment of those who do administer it.”
It's important to keep all this in mind because it’s an egregious and dangerous error to search our Constitution for the limits of our rights or limit our understanding of our rights to those that were written into the Constitution (as SCOTUS justices too often trick us into doing). The whole point of two separate amendments (the Ninth Amendment and the Tenth Amendment) was that we should not (and judges cannot) construe our Constitution (or restrict our rights) in that manner.
The Preamble and the Ninth Amendment shine a spotlight on the fact that any “enumeration in the Constitution” of any “rights” cannot be construed as defining or limiting all the rights “retained by the people.” The Preamble and the Tenth Amendment shine a spotlight on the fact that the People created the Constitution to “vest” limited “powers” in Congress, the president and courts. That principle was stated explicitly and prominently in the first sentence of Articles I, II and III. Such public servants have only whatever “powers” actually were “delegated to the United States by the Constitution.” The Tenth Amendment also emphasizes that only “powers” (not rights) were “reserved to the States.”
Madison (and everyone else involved in writing the Constitution) made clear (and every SCOTUS justice knows) that our Constitution was not written for government to grant us rights. “We the People” created the “Constitution” (and Congress and the Supreme Court) to “establish Justice” and “promote the general Welfare, and secure the Blessings of Liberty” by restraining people in power and restraining people with power.
It is well worth viewing the massive, bold font that the Framers used to emphasize that the Constitution was written by and for “We the People.” Those three words were not merely written, they were depicted, and given pride of place at the top of the Constitution. In the Constitution, they are not mere words. They are an illustration. Consider the actual effort required to depict those words (by hand, with a quill) in that massive font. The picture of those words is worth more than a thousand words.
In 2022, SCOTUS issued an important decision about this very issue, N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). SCOTUS in 2022 quoted to a considerable extent from SCOTUS in 2008 in District of Columbia v. Heller, 554 U.S. 570 (2008).
Both Bruen and Heller emphasized crucial aspects of our Constitution that too many judges cover up or ignore. “Amendment[s]” in the Bill of Rights merely “codified” parts of “pre-existing right[s].” (emphasis in Heller). Rights were written into and ratified as part of the Constitution not “to lay down a novel principle but rather” purely because they “codified a right” (or parts of rights) that Americans “inherited” from our “ancestors,” many generations of whom earned and sacrificed for such rights in many ways.
The 2008 Heller justices, however, included important emphasis that the 2022 Bruen justices omitted: The rights in our Constitution clearly were not “granted by the Constitution.” Such rights clearly are not “in any manner dependent upon” the Constitution for their “existence.” We should wonder why SCOTUS in 2022 chose to omit those vital words.