The liberty to govern ourselves is a great and precious good, in season and out of season. We would do well to cherish it more. I said that the Founders were mainly — which is not to say exclusively — interested in it. They were also keenly aware of the importance of individual liberties. Most of them affirmed the (limited) value of legal stipulations in favor of such liberties, most often called a “bill of rights.” Several states had them. The national government soon acquired one. The Founders were genuine pioneers of certain individual rights, religious liberty chief among them. They also recognized the unlikelihood that independent courts could be counted on to stand fast by a bill of rights. And the Founders had a more subtle, richer, and — all things considered – better conception of individual rights and how to embed them in a democracy than we do. We would do well to cherish this legacy, too.
Here are four of the many different ways in which the Founders understood and promoted individual liberty better than we do.
Let’s start with the many protections of individual rights that the Founders wrote into the original (that is, unamended) Constitution. Among these are the prohibitions on the following: religious tests for federal office; laws impairing the obligation of contracts; bills of attainder and ex post facto laws; and, perhaps most significantly, the guarantee in Article III (repeated in the Sixth Amendment) of a jury trial for crimes. Each not only protects the individual against a certain sort of government imposition (upon religious belief or vested contract expectations, for example) but is also a structural protection of limited and responsible self-government.
The ban on religious tests eliminated one source of “faction” — sectarian rivalry — in national politics. The ban on contract-impairing laws removed a temptation for legislators to enrich affiliated interests or to satisfy rent-seekers. The jury-trial guarantee established an indubitably democratic institution between the larger (and often more distant and sometimes ill-motivated) government and an accused individual. The constraints upon legislative targeting of individuals (bills of attainder) and retroactive legislation promoted what legal philosophers today call principles of legality: namely, that all legislative acts be general and prospective.
A few clauses in the Bill of Rights as the Court now interprets them might possess this dual character as democracy-reinforcing guarantees of individual rights. But not many do. And the Court’s dominant interpretive grid pits claims of individual rights against the stated requirements of collective security, public morality, and other social necessities or amenities.
Another way that the Founders joined together what the Court has since put asunder involves thinking of it as the people’s Constitution. The Founders were famously skeptical that courts could serve as bulwarks of constitutional liberties. They feared that bills of rights would rarely be more than “parchment barriers,” partly because (they further held) courts would often lack the political courage to stand fast. But bills of rights could still function effectively by educating the people and by providing a touchstone of popular resistance to unjust laws.