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'Rights' and the Constitution

On September 25, 1789, Congress submitted to the states for ratification ten amendments to the 1787 Constitution, known as the Bill of Rights. Seldom is there much serious reflection on the issues involved in a "Bill of Rights," but there was a great deal in 1787-1789. Those Americans were highly informed political thinkers, versed in the entire Western tradition. The author most frequently cited in the federalist-antifederalist debates was Livy, the historian of the Roman Republic; and they knew their Locke and Montesquieu.

To dig right into the major question: does a "Bill of Rights" violate the theory that is at the core of the 1787 Constitution? You will note that the famous Preamble mentions no rights at all in defining the goals of the new government. The goals set forth are specific and severely practical. If the question arises, as surely it would, of how to choose between the goals of "justice" and "domestic tranquillity," the Constitution answers with the deliberative mechanism of government it then proceeds to set up. In other words, the "deliberate sense of the people"—what this mechanism is sometimes called—operates to make the decision. It operates through Congress, the President, and the courts. Under the 1787 Constitution, the "deliberate sense of the people" is absolute, and in its due operation brooks no opposition. Indeed, the Constitution itself...

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