December 15th is National Bill of Rights Day. The holiday was established in 1941 to commemorate the 150th anniversary of the ratification of the first ten amendments to the Constitution. It is of a deep irony that the President who authorized the holiday, Franklin Roosevelt, was one of the most prolific violators of the document.

This observation ties in rather well to the larger question of this post: was the Bill of Rights a good idea? I know what you’re thinking, “Of course it was! We need the Bill of Rights to protect us from government infringement on our rights.” Certainly this is a noble goal, and all of the items within the Bill of Rights are worthy of such protections. But in a world of campaign finance reform (violates First Amendment), drug wars (Ninth and Tenth) and their enforcement (Fourth), eminent domain abuse (Fourth and Fifth), coercive “plea bargaining” tactics (Sixth), gambling laws (Ninth) and social security (Tenth), it seems quite reasonable to me to consider whether the Bill of Rights has accomplished its goal, or even done more harm than good.

There was strong debate over the Bill of Rights before the ten amendments were added. The Anti-Federalists thought that the Constitution provided for a central government that would be too big and would take power from the states. History has shown that their concerns were warranted. As a check on the federal government, they demanded a Bill of Rights be included. But the arguments of the Federalists opposing the Bill of Rights have also proven prescient.

In Federalist No. 84, Alexander Hamilton argued that a bill of rights “would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?” Given that the enumerated powers of the Constitution are now all but ignored, this argument has gained historical weight.

It was also worried that a listing of rights would imply that those rights not mentioned had no protections, or were less important. In the infamous footnote 4 of United States v. Carolene Products Co. (1938), Justice Stone (actually, it was written by his law clerk Louis Lusky) articulated a distinction between different rights, stating that some would get “more exacting judicial scrutiny,” while others, like our now eroded economic rights, would not. The Footnote Four framework would remain in effect until the Supreme Court found a right to privacy in Griswold v. Connecticut, where Justice Goldberg cited the Ninth Amendment in his concurrence. Despite this, the current framework (Footnote Four-Plus) still treats the ninth and tenth amendments largely as afterthoughts. At present judges simply pick and choose which unenumerated rights deserve a presumption of constitutional protection. This is exactly the opposite of what the Constitution intended, where government would be forced to justify its actions from the list of enumerated powers, rather than being able to do anything that wasn’t expressly prohibited.

The Federalists were able to foresee this outcome, yet went along with the Bill of Rights anyway. The popular historical account is that this was a purely political concession designed to ensure enough states ratified the Constitution. This is not entirely accurate. James Madison, a Federalist, acknowledged that, “My own opinion has always been in favor of a bill of rights, provided it be so framed as not to imply powers not meant to be included in the enumeration.” In other words, a bill of rights would be desirable if it could be constructed to avoid the negative outcomes Federalists predicted. Taking the lead in authoring the amendments, Madison attempted to accomplish just such a feat. Unfortunately, we are left to conclude he was not successful. Our economic rights remain in exile, while the Ninth and Tenth amendments are all but ignored by the federal government and the courts.

Yet it is not altogether clear to me that we’d be better off without the Bill of Rights. It’s plausible that things might otherwise be worse, that even more rights would be ignored by the government. Still, it seems equally plausible that, if not for the enumerated rights (and the contrast it creates with unenumerated rights), government might have found less legal justification to stray from its enumerated powers. In either case, it’s hard to imagine a set of amendments more clear in their protections, thus suggesting little hope that better crafted amendments would better constrain government. Though if I were to offer one modest suggestion, I’d reword the Ninth amendment to say: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. And this time we mean it!“