If we focus exclusively on the risks we are most concerned about, we can miss the other risks that obtain should our demands be met.
Patrick Garry’s essay “The Constitution’s Structural Limits on Power Should Be the Focus of the Bill of Rights” contains many valuable insights. In particular, it re-affirms the proposition – lost for many years but perhaps gaining some new currency – that the so-called “structural” provisions of the Constitution are, and were intended to be, not merely matters of mundane and perhaps outdated institutional design but core protections of individual liberty. Further, it rightly emphasizes that the antifederalist-inspired Bill of Rights amendments work together with the Constitution’s structural provisions to limit government and promote individual liberty by reducing the federal government’s power even in areas in which it is granted authority.
Nonetheless I have two friendly objections. First, I think Professor Garry has too narrow a view of the Bill of Rights, reflected in his rejection of individual autonomy as a motivating value. To the framers, I would argue, the Bill of Rights Amendments were about a particular kind of individual autonomy – autonomy from government control and direction. Professor Garry says that the framers did not know what rights to include to assure autonomy, but I think to the contrary they had a coherent list. An individual with the freedom of belief, expression and conscience (First Amendment), the means of self-defense (Second Amendment), protection against government harassment and oppression (Third, Fourth, Fifth, Sixth and Eighth Amendments), and security in property (Fifth Amendment and elements of the Seventh and Eighth Amendments) is an autonomous individual, not dependent on nor in fear of the government.
Thus the Bill of Rights is not only about, as Professor Garry describes it, “empowering people to control and limit their government.” It is about that, to be sure, but it is also about preventing the government from controlling the people – or, put another way, allowing the people to be, to a significant extent, independent of government. It is true that this version of autonomy is achieved by limitations on government. But the concepts are complementary, not in opposition. As the antifederalists recognized, constitutionalizing rights that promote autonomy protect against the overreaching that even a structurally limited government threatens. Of course, this idea of autonomy is quite different from another that looks to government to protect the individual from otherwise-uncontrollable and dominating social forces. The latter is indeed the enemy of limited government, but it was not the framers’ version and is not the Constitution’s.
Consider one set of rights that runs through the 1791 amendments: the Third Amendment’s limit on quartering soldiers in private homes, the Fourth Amendment’s limitation on police intrusions into private space (especially into the home), and the Fifth Amendment’s limitation on taking of private property. These amendments may be somewhat difficult to explain simply as measures “empowering people to control and limit their government.” Instead, taken together they seem more about creating private space for the individual, beyond (to some extent) the government’s reach. Entrenching these rights does limit government – but with a particular purpose to protect individual autonomy.
I am not sure what specific conclusions Professor Garry would draw from his structural description of the Bill of Rights, but it might lead to deemphasizing Bill of Rights protections that are not directly connected to the idea of the people controlling and limiting government. The Second Amendment is one example. In terms of controlling government, one might think of the Amendment only as protecting a way to resist a tyrannical central government – a power more easily located with state militias than with individuals. In contrast, an autonomy-based view might think of the Amendment as including – as the Supreme Court found in District of Columbia v. Heller – a right of personal self-defense. The latter view of the Amendment, while not easily connected to controlling government, ties directly to the idea of autonomous and less dependent individuals. Without advancing a definitive view of the Second Amendment here, I think it would be a mistake to reject Heller’s conclusion on the basis of a generalized structural view of the Bill of Rights.
Professor Garry is especially concerned about the Warren Court’s expansion of rights as a misuse of autonomy. I agree that the idea of protecting liberty through rights crowded out the idea of protecting liberty through constitutional structure. In particular, the Court (and the country as a whole) lost sight of the idea that limited government protects liberty as much as rights do. The solution, though, is not to marginalize rights but to embrace both strategies. I also agree that the Court’s pursuit of autonomy led it to find rights not based on the Constitution’s text and history. But I think the solution here is not to abandon the protection of autonomy but to temper it with faithfulness to the autonomy rights actually found in the document. It is likely true, of course, that the framers did not identify all of the rights needed to protect autonomy, but the Constitution can be amended (in the proper way) to add them.
My second concern is that Professor Garry neglects the Fourteenth Amendment and to some extent the complicated question of federal limitations on powers of the states. On the latter point, he says that the original non-application of the Bill of Rights to the states indicates it was not “meant to protect fundamental or natural rights.” (Notably, though, Madison’s initial draft did extend several of its core provisions to the states; Congress deleted the language). I think instead the founders’ basic idea was that the state constitutions, and the close proximity of state governments to the people, would limit state governments and protect individual autonomy; the new national government posed threats not mitigated by these factors.
Events before and after the civil war demonstrated (at least to Northerners) that this idea was mistaken: states too could be oppressors, and action at the national level might be necessary as a remedy. Hence the Fourteenth Amendment (which Professor Garry does not discuss) was both an enhancement of individual rights against the states and an enhancement of national power against the states to protect individuals. As a result, whatever the Bill of Rights’ role before the war, after the Reconstruction Amendments the Constitution became substantially more rights-oriented, especially as against the states.
Unfortunately the Fourteenth Amendment’s drafters used extraordinarily opaque language, leading to wide-ranging and (so far) irresolvable disputes about their meaning. Most of the Warren and Burger Court autonomy jurisprudence that Professor Garry rejects comes from the Fourteenth Amendment and only indirectly (if at all) from the Bill of Rights. There is much to criticize in that jurisprudence, but I would not place the criticism so heavily on the limited government/individual autonomy divide.
Instead, I would tell the story of the post-New Deal settlement a little differently. It is true that in the post-war era the Court became interested in rights at the expense of structure. But I think that is because it became especially interested in limiting and overseeing state governments. To the Warren Court and its jurisprudential successors the threats to liberty came from the supposedly parochial and backward states. These Courts generally embraced the New Deal era’s conclusions about the lack of threat from the supposedly progressive and enlightened federal government; indeed, they thought the federal government would and should act as a rights-protector. Correspondingly, the Court’s focus was not on structural limits (which only worked against the federal government) but on autonomy rights, which came through the Fourteenth Amendment and mostly applied (as the Court interpreted them) to limit things that the states were doing. (True, the rights the Court found or invigorated also applied against the federal government, but it is hard to think of many instances in which they materially impeded what the federal government wanted to do).
The Warren-era errors were twofold – neglect of structure (a continuation of the New Deal approach, as Professor Garry says), and assertion of rights that were not plausibly traced to the relevant texts (whether of the Bill of Rights directly or of the Fourteenth Amendment). I would not blame either on individual autonomy, however. Individual autonomy rightly remained a goal, just pursued in the wrong way and to the exclusion of structure. There seems no reason that autonomy rights could not be pursued in conjunction with structure, or that the pursuit of autonomy rights could not be tied to constitutional text.
In sum, I welcome Professor Garry’s emphasis on limited government but I am not sure why it should be set up in opposition to individual autonomy. To me, they are complementary. Indeed, I would go further. Professor Garry does not say much about why limited government is or should be a constitutional goal. I would say (and perhaps he would agree) that it is a goal because limited government promotes individual autonomy. Individuals have more room to shape their own lives, without fear of or dependence on government, when government is structurally limited as well as when autonomy-reinforcing rights are protected. Autonomy, then, is an ultimate objective, to be pursued both by structural limitations and rights protection. The wisdom of the Constitution – the combined wisdom of the federalists, the antifederalists, and the framers of the Reconstruction Amendments – was to put the two strategies together.