Carson Holloway attempts to offer a mix of original public meaning and original intent, which offers an imperfect foundation for originalism.
My 10-year-old, fruit of my own loins, came home from fifth grade on Constitution Day to announce that his teacher could no longer demand his homework because the Fourth Amendment entitled him to be “secure in his documents.” This, like all sensitive situations, was to be handled with a degree of delicacy: interest in the Constitution to be celebrated, fallacies about it to be clipped before flowering.
“Did you read the Constitution in school?’
“Yeah.” Pause. “Well, we read the Bill of Rights.”
Hamilton was right; Madison too. What has come to pass is what both men feared—that the Bill of Rights would become a separate edifice that seemingly trumped the preceding document—and what neither could foresee: that contemporary rights discourse, and the civic education that reinforces it, would sever rights from duties. The main body of the Constitution provides for one while demanding the other; the Bill of Rights read in isolation from it merely entitles. Hence its attraction to 10-year-olds.
There is, moreover, the fact that the exaltation of the Bill of Rights at the expense of the Constitution’s main body has obscured—indeed, eroded—the extent to which the latter is itself, in Hamilton’s words, “in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” It functions as such in at least three ways. The most obvious, as Hamilton says, is its explicit prohibition of ex post facto laws and the like. Far more important are the mechanical restraints on government imposed by, second and third, the separation and enumeration of powers. Yet these have eroded precisely as the Bill of Rights has ascended. It is no coincidence. In the first place, the Bill of Rights has simply distracted attention from the importance of the mechanics of the regime. As Americans have relied more on the courts to protect their rights, they have paid less attention to such imperatives as a muscular and independent Congress. In the latter case of enumeration, the simple beauty of Federalist 84—every use of power requires a specific warrant; to prohibit the exercise of authorities never licensed implies the license was unnecessary in the first place—has given way to a creeping or, if one prefers, galloping ethos in which the national government can more or less do anything that does not violate the Bill of Rights. Except when it can, since the courts are often powerless to stop an encroaching executive; Congress, had it not neutered itself, might not be.
The fact that this national government oversteps its bounds with no check is evident in such episodes as NSA snooping—my 10-year-old is to be congratulated, his exaggerated sense of his homework privilege notwithstanding, for having correctly interpreted the Fourth Amendment and therefore using as his email signature the watch-list-worthy “stop following me, NSA”—yet a Bill of Rights divorced from the main body of the Constitution is unable to stop it. It is, in Madison’s phrase, a “paper barrier.” The institutional mechanics of the Constitution—as initially conceived—might well prove more robust: might.
Far more troubling than these mechanical defects, which both Hamilton and—this fact is under-appreciated—Madison too foresaw, is the collapse of the ancient link between rights and duties. The fetishization of the Bill of Rights read in isolation from the main body of the Constitution elevates the individual over the community in a precise inversion of the classical problem of political thought. The Constitution proper both empowers and limits government and, in so doing, delineates the rights and responsibilities of citizens. A fifth-grader reading solely the Bill of Rights might be excused for thinking he had only the former. The problem is that we now live in a society of such fifth-graders rampantly asserting rights divorced from responsibilities.
Now, if said fifth-grader had a crotchety father whose days were sunk in scholarly toil thinking about such matters, he might object that children of that tender age probably ought not be subjected to all the intricacies of the supremacy clause and the amendment process and the guarantee to the states of a republican form of government. Fair enough. But the Bill of Rights ought not to be read in isolation, nor ought it to be taught as a substitute for the Constitution. Lest there be any doubt, perhaps next year’s lesson—harrumph again—should be Federalist 84