On The Bill of Rights

The Bill of Rights almost did not exist. The Constitution was drafted without one, and several framers thought a bill of rights unnecessary or even dangerous, on the theory that listing some rights might imply the government held power over everything not listed. It exists because the Anti-Federalists refused to ratify without the promise of one, and because James Madison, once skeptical, kept his word and wrote the amendments into being. The first ten amendments are a concession won by the losing side of the ratification fight, and the country is immeasurably better for it.

Read them in this library and the first surprise is their brevity. The freedoms that define so much of American life, speech, press, assembly, religion, the protection against unreasonable search, the right to counsel and a fair trial, the limits on punishment, are stated in a handful of plain sentences. There is no elaboration, no list of exceptions, no fine print. The First Amendment disposes of the most contested questions in public life in a single sentence that begins, simply, Congress shall make no law.

That spareness is deliberate and consequential. The amendments draw lines the government may not cross and then leave the working-out to the future. Two centuries of argument, legislation, and court decisions have been spent deciding what those few words mean in practice, and the arguing is not close to done. The text is short because it was meant to state principles, not settle cases.

The deepest thing to notice is the grammar of the document. It is written almost entirely as a series of prohibitions on government. Congress shall make no law. The right shall not be infringed. No person shall be held. Excessive bail shall not be required. The Bill of Rights does not grant rights to the people, as if they were the government's to give. It assumes the rights already belong to the people and forbids the government from violating them. The freedoms are treated as prior to the state, and the amendments simply fence the state out.

That is the whole American theory of rights in miniature, the idea Locke argued and the Declaration asserted, now turned into binding law. Read the ten amendments whole, hosted here with notes on the clauses that carry the most weight. They take five minutes and they are the lines the machine of the Constitution may not cross, the reason the most powerful government on earth is told, in plain words, what it is forbidden to do.