A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.
— Thomas Jefferson, Letter to James Madison, December 20, 1787
The holidays are upon us, and people across the nation are scrambling to finish up Christmas shopping, preparing for Hanukkah, and making plans for New Year's Eve. Unbeknownst to most, however, there is another holiday this month that deserves equal importance. December 15 is Bill of Rights Day, and Friday marks the 215th anniversary of the ratification of the first ten amendments to the Constitution. Though many of the rights contained in the bill are now taken for granted, they are the bedrock of our nation's founding and the freedoms we continue to enjoy, so they warrant an appropriate measure of reverence.
The amendments that were eventually to be known as the Bill of Rights were drafted by James Madison and modeled closely after the Virginia Declaration of Rights (1776), written by fellow Founder George Mason. They came about as a response to criticisms leveled by the "Anti-Federalists" that the Constitution created too powerful a central government, one that would encroach upon fundamental individual liberties. As Mason argued in his Objections to This Constitution of Government (1787), "There is no Declaration of Rights, and the Laws of the general Government being paramount to the Laws & Constitutions of the several States, the Declaration of Rights in the separate States are no Security." Other Anti-Federalists included Founding Fathers Thomas Jefferson, Patrick Henry, Samuel Adams, and Richard Henry Lee.
The Constitution was ratified only after acceptance of the Massachusetts Compromise, under which Massachusetts, New Hampshire, New York, and Virginia agreed to ratify the Constitution with the understanding that it would be amended to explicitly protect our most basic rights.
New Jersey became the first state to ratify the Bill of Rights on November 20, 1789. Virginia was the final state to ratify them. Three of the original thirteen states—Connecticut, Georgia, and Massachusetts—did not "ratify" the Bill of Rights until 1939. In 1941, on the 150th anniversary of the Bill's passage, President Franklin Delano Roosevelt declared December 15 "Bill of Rights Day," a national holiday. That he was the one to do so is rather ironic, considering that FDR ignored the Bill of Rights and promoted the encroachment of the federal government on individual rights—through his unconstitutional expansion of government programs and powers and the internment of Japanese-Americans during World War II—perhaps more than any other in American history.
Nowadays, some of the Bill of Rights amendments are highly venerated, while others have been essentially relegated to the scrap heap of history. Chief among these neglected declarations are the Ninth and Tenth Amendments. The Ninth Amendment was intended to clarify that the Bill of Rights was not intended to limit the rights of the people to only those rights contained within it: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Tenth Amendment, while equally ignored, is arguably the most important of them all. As Thomas Jefferson wrote in 1791, "I consider the foundation of the Constitution as laid on this ground: That 'all powers not delegated to the Unites States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people' [Tenth Amendment]. To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible to any definition."
The Anti-Federalists were, sadly, prescient in their criticisms of government power under the Constitution and the tendency of men and women of ambition to find ways to expand that power at the expense of the governed. While they are to be credited with the inclusion of the Bill of Rights in the Constitution, even this action only delayed the inevitable erosion of individual liberties.
The Founders must be spinning in their graves. Nearly everything the government does today is unconstitutional under the system they instituted. Governmental powers were expressly limited; individual liberties were not. Now it seems it is the other way around. If the Bill of Rights is to regain its meaning, we must rededicate ourselves to the principles it asserts and be mindful that a government powerful enough to give us all we want is powerful enough to take away everything we have.
Adam B. Summers is a policy analyst at Reason Foundation. An archive of his work is here and Reason's government reform research and commentary is here. This column was originally written for The Libertarian Perspective.