A point that I’ve developed in my new draft and that I’ll be discussing further in the next book is that the Bill of Rights does more to expand the power of government that to limit power.
How can that be? While the provisions in the Bill of Rights are about limiting government, the use of the “Bill of Rights” brand to describe those provisions is rather different. In practice, people refer to the Bill of Rights to justify government action. It’s OK to do something, the argument goes, because there is a bill of rights.
Consider some examples:
1. When people want to justify the exercise of emergency powers or special national security powers, they say “The Bill of Rights is not a suicide pact.”
2. When the United States acquired colonies after the Spanish-American War, opponents of imperialism were mollified when Congress extended a “bill of rights” to the Philippines, even though that bill of rights was not the same as ours and was not observed all that much.
3. When Franklin Roosevelt defended the New Deal, he often did so by observing that the government’s new initiatives did not violate the Bill of Rights. Therefore, he said, those extensions of authority were perfectly fine.
In these example, the Bill of Rights is mainly a symbol. Consider the following thought experiment. Suppose a country were drafting a new constitution and I said that it would not include a bill of rights. Would you be skeptical? Probably. Suppose, though, that this draft included all of the things you would want in a bill of rights but just called them something else or didn’t use that term. What does the term add?