The Conservative Case Against The Bill Of Rights

Paul Moreno Dr. Paul D. Moreno holds the William and Berniece Grewcock Chair in Constitutional History at Hillsdale College and is the director of academic programs at the College’s Allan P. Kirby Jr. Center for Constitutional Studies and Citizenship. He received his B.A. from the State University of New York and his M.A. and Ph.D. in history from the University of Maryland. In addition to teaching at Hillsdale for 13 years, he has held visiting professorships at Princeton University and the University of Paris School of Law. He is the author of Black Americans and Organized Labor: A New History and The American State from the Civil War to the New Deal: The Twilight of Constitutionalism and the Triumph of Progressivism.
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There are many grounds on which the U.S. Supreme Court ought to overturn compulsory unionism in the case it heard on January 11. But the First Amendment argument that the teachers involved in the case made — that compulsory union dues violate their free-speech rights — is not the primary one. In fact, framing the argument in this way confirms key founders’ fears that the Bill of Rights would eventually do more harm than good.

Alexander Hamilton and James Madison, among others, warned during the debate over ratification of the Constitution that the Bill of Rights was unnecessary and potentially harmful, because it teaches a wrong view of the nature of the Constitution.

The framers of the Constitution assumed that the new federal government’s powers would be limited to those enumerated in the Constitution’s text, principally in Article I, section 8 (the power to tax, raise armies, regulate commerce among the states, and so forth). If the power was not granted here, we should assume that it belonged to the states, or to no government at all. This would be reiterated in the Tenth Amendment.

In one of the last of the Federalist Papers (No. 84), Hamilton explained why a Bill of Rights was not necessary. Historically, bills of rights, like Magna Carta, were grants of liberties from a ruler who was assumed to possess absolute power. But under the U.S. Constitution, Hamilton wrote, “the people surrender nothing; and as they retain every thing they have no need of particular reservations.”

Adding a list of (necessarily incomplete) rights, he added, “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?” Moreover, no right could be adequately defined to prevent violation. “What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion?” This is precisely what occurred in 1798, when Congress enacted a Sedition Act, claiming that the First Amendment prohibited only prior restraint censorship, not punishment for libel after publication.

For well into the twentieth century, the Bill of Rights was of almost no significance in protecting American rights. This was principally because Congress for the most part kept within its enumerated bounds, so alleged violations were few. And they were not applied to the states until the twentieth century, most not until the 1960s. So when Jefferson and Madison denounced the Sedition Act of 1798, they did so primarily because the Constitution gave no power to Congress to enact such a law, and only secondarily because it violated the First Amendment.

What the case now before the Court shows is that once Congress slipped the leash and began to exercise powers that the Constitution did not grant it, the Bill of Rights becomes more important. We saw this in the Hobby Lobby case. The founders would never have dreamed of giving Congress the power to enact the Affordable Care Act, not least because it was likely to infringe religious liberties.

Private-sector workers have been forced to pay dues to unions against their will ever since the National Labor Relations (Wagner) Act of 1935. This was done under the guise of Congress regulating interstate commerce. Public employee unions only gained that power in the 1960s. It is commonly understood that if Elrich wins his case, it will not affect workers in the private sector, because the First Amendment applies only to governments.

But private-sector workers are being forced to contribute to unions just as much as public-sector ones. And private-sector unions like the United Autoworkers or the United Steelworkers depend as much on the power of the federal government as government unions do.

Over 70 years ago, the Supreme Court recognized that putatively private unions must be prevented from violating the civil rights of their members. Many American unions had refused membership to and otherwise discriminated against black workers, and the Wagner Act gave them the power to compel employers to abide by their prejudices. As a result, in 1944 the Supreme Court held that federal labor laws imposed a “duty of fair representation” on unions. The Court said, correctly, that unions had become quasi-governmental bodies, and were thus bound to abide by the restraints that the Constitution imposed on American governments.

The Court should return to that principle in Harlan Elrich’s case, and extend it to all American workers.

Paul D. Moreno holds the William and Berniece Grewcock Chair in Constitutional History at Hillsdale College and is the director of academic programs at the College’s Kirby Center in Washington, D.C.

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Paul Moreno