Although he acquiesced with the Anti-Federalists in order to secure passage of the Constitution — agreeing for no “other reason than that it is anxiously desired by others” — James Madison concurred with Hamilton in principle. It was exactly “by the manner in which the Federal powers are granted” that “the rights in question are reserved,” Madison wrote to Thomas Jefferson in October of 1788. In Philadelphia, James Wilson had warned that a Bill of Rights might lead to “everything not expressly mentioned . . . being presumed to be purposely omitted.” This would, as Madison put it in a 1792 essay for the National Gazette, contravene the central premise of the document, which was “a charter of power granted by liberty, not a charter of liberty granted by power.”
Some scholars suggest that the Ninth and Tenth Amendments squared this circle, as they were intended to do, by providing an effective guarantee that the natural rights of Englishmen still obtained in America. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” certainly appears to be clear enough. But there is still a logical flaw in this: Why, if natural rights are unalienable, were the first eight amendments deemed necessary at all? Are the rights they protect somehow even less alienable?
None of this is to say that, in the grand scheme of things, America is worse off for the Bill of Rights’ having been included. It is possible — perhaps probable — that, without the few “parchment barriers” that were carved out by the naysayers, the federal government would gradually have infringed upon all
aspects of American life, and that America would now be Britain. Perhaps Wickard v. Filburn-
esque decisions would have gutted free speech, the right to bear arms, privacy, and trial by jury, too. It is difficult to know.
Either way, the very fact that Rubio feels the need for a constitutional amendment to prohibit the federal government from forcing individuals to purchase private products is significant. Madison’s expressed fear that the government would end up doing “everything not expressly mentioned” has been realized. It seems that the Federalists were right that in a genuine system of limited government, free people do not need such specific guarantees of liberty, and the Anti-Federalists were right that when limited government withers, such guarantees are critical. Alas, neither development is good for liberty.
In theory at least, constitutional amendments designed to alter the power of government are supposed to go the other way around. “I had rather ask an enlargement of power from the nation where it is found necessary,” Thomas Jefferson wrote to William Nicholas in 1803,
than to assume it by a construction which would make our powers boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction.
Although our government has been expanded primarily by “construction,” our paper is not completely “blank.” But with each post-Wickard decision and the exponential gains afforded by the principle of stare decisis, it moves closer to being so. “Why declare that things shall not be done which there is no power to do?” asked a frustrated Alexander Hamilton in 1788. The maddening answer is that, as the Anti-Federalists predicted, the tendency is for governments to “enlarge their powers and abridge the public liberty.” “This principle,” wrote Brutus in Anti-Federalist No. 84, “which seems so evidently founded in the reason and nature of things, is confirmed by universal experience.”
America’s experience, too. Carry on, Senator Rubio.
– Charles C. W. Cooke is a staff writer at National Review.