Limits on the National Government

While we are accustomed to thinking of the Bill of Rights strictly as an enumeration of the rights of the people, most of the rights included therein are stated more in the form of governmental “thou shalt nots” than they are as guarantees of individual freedom. The Bill of Rights, therefore, is most accurately thought of as a list of individual rights that the national government guarantees it will not infringe upon.

These rights are not granted to the people because they are rights that people naturally possess. This distinction might seem unimportant, but the implications are, in fact, significant. For example, the First Amendment does not grant to the people the freedoms of speech, religion, the press, assembly, and petition. In the minds of the Framers, as most eloquently expressed in the Declaration of Independence, there exist “certain unalienable Rights,” which can neither be created nor destroyed by governments. The Declaration states, it is “to secure these rights, [that] Governments are instituted among Men, deriving their just powers from the consent of the governed.” Moreover, when a government acts in ways “destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.”

The Bill of Rights, then, can be read as a list of things the government will not do. The Bill of Rights states that “Congress shall pass no law” limiting the freedom of expression or religion. The Second Amendment states that the right to bear arms “shall not be infringed” by the government. The Bill of Rights also prohibits the housing of soldiers in the homes of private citizens without their consent, the search or seizure of private property without a warrant, charging people with crimes without convening a grand jury, trying an individual twice for the same crime, taking property without “just compensation,” and requiring excessive fines or bail or inflicting “cruel and unusual” punishments.

Not only were the authors of the Bill of Rights motivated by the view that the rights of the people were to be protected — not created — by the government, they were also mindful of the excesses of a government that was not limited by the provisions they included in it. During the colonial period and the Revolutionary War, the British government had done many of the things that are now prohibited by the Bill of Rights. As the Framers created a new government, they and the people were anxious to insure that such excesses were not soon repeated. Consequently, they established a government that derived its powers from the people and that was explicitly limited in its abilities to infringe on the rights and liberties of the people.