Many of the framers did not trust that the new federal government they were creating would not tyrannize the people or some faction of the people. The so-called Anti-federalists were especially concerned about this problem. Here is how Patrick Henry put it:
“Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt.”
The Anti-federalists insisted they would not support the Constitution unless it included a Bill of Rights. This was agreed in the form of the first ten amendments to the Constitution. The Bill of Rights contains a number of political and civil rights backed by prohibitions against government behavior that would infringe on those rights. If our republic is to be sustained, then citizens and political leaders need to trust that our system of government will honor their rights to participate in government, and protect their liberty even if they are on the losing side of a vote. These guarantees are at the core of the distinction between liberal republics, such as ours, and the bare-bones version of republics. (See our short civics course America: Republic or Democracy.)
State governments have rights too. Several clauses in the Constitution and its amendments refer to states’ rights. Among these is the 10th amendment which states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Interestingly, several states include rights in their constitutions that go beyond those found in the Bill of Rights.The Bill of Rights was not the last word on rights. Many subsequent amendments followed in an attempt to include more categories of people (formerly enslaved people of color and their descendants, women, and the indigenous population) and to deepen the implementation of many rights. Most notably, the Fourteenth Amendment has been interpreted by the Supreme Court to extend of the Bill of Rights to each of the state governments.
Let’s not forget that during the writing of the 10th amendment the word “expressly” was proposed and rejected twice as being too restrictive of the new and highly experimental government. Try telling this to todays Libertarians who hint that it is in there. Over our history, courts have interpreted it to be there, but if you REALLY want to be an originalist, you just can’t ignore this inconvenient reality.
Hi James, we can’t comment on what it means to be an originalist, but we are intrigued to see you raised the issue of the 10th Amendment in connection to our post focused on the Bill of Rights. We can imagine some areas of overlap but wonder what connection YOU had in mind?