What Role Does the Bill of Rights Play? [No. 86]

September 30, 2019

The Anti-Federalists used the absence of a
Bill of Rights as an argument for why people should not agree to ratify the US Constitution. They said, “A bill of rights is what every
free people is entitled to.” For this reason, the Federalists promised
that they would in fact adopt amendments to the Constitution, some of which would comprise
a bill of rights, should the Constitution be ratified as it currently was. The Bill of Rights are like lifeboats on a
ship. The structural Constitution provides the structure
of the ship. It’s the structure that prevents the ship
from sinking. You want to get on a soundly designed ship
that has an appropriately structured hull and other mechanisms that’s going to keep
it afloat. The anti-federalists, demanded that there
be a Bill of Rights attached to the Constitution, as there was in England and as there were
with respect to some of the state constitutions. They demanded that lifeboats be put on the
ship before they would board, before they would agree to ratify it. And the lifeboats are the amendments you’ll
never use because you want the structure to do all the work, but if the structure should
fail and you find yourself in the water, you’ll be very grateful for the fact that those lifeboats
are there. And in that sense, the first ten amendments,
or what we call the Bill of Rights, are a fallback protection of individual liberty
when the structure isn’t working the way the structure is intended to work.

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