Patrick Garry's Reply to Responders

I am honored to be a part of this debate on the Bill of Rights with such accomplished and knowledgeable scholars. The three responding essays by Dr. Bowling, Professor Erler and Professor Ramsey provide keen insights on constitutional law and history. Indeed, the historical discussions in the three essays are more detailed than is my lead essay. And for this, I give my highest compliments to the responders. Their discussion demonstrates the vital importance of history in constitutional interpretation.

More than just demonstrating the importance of history, however, the responders also reveal the kind of inquiry and perspective needed for an historical study of the Constitution. It is an inquiry and perspective that is so often absent from judicial opinions.

Dr. Bowling’s excellent discussion on the constitutional period illustrates the founding generation’s views on the scope of federal power. He asserts that popular understandings of “limited” – as in the constitutional notion of limited federal power – varied widely, even among Federalists. In my book Limited Government and the Bill of Rights, on which my essay was based, I explore the constitutional history and application of limited government notions. However, an entire book could be written on Dr. Bowling’s suggestion of the various understandings of “limited” that existed during the founding period.

Professor Erler likewise discusses the historical context of the Bill of Rights. He does a great service by reminding us of the natural rights view that prevailed among the ratifying generation and how that view influenced political and constitutional developments. As he explains, this natural rights tradition influenced what rights were included in the Bill of Rights; clearly, for instance, the First Amendment freedoms of speech and religion were seen to be rooted in natural law principles.

My argument, however, relates to the manner in which those rights were included in the Constitution. I argue that they were included as limited government provisions, since the parameters and application of limited government notions were more agreed upon than were the parameters and application of substantive natural rights. Indeed, when one examines the voluminous and sometimes confusing ways in which the Supreme Court has attempted to define free speech and its parameters, considering at the same time the striking paucity of debate surrounding the adoption of the First Amendment, one can see that during the late eighteenth century there was not a clear understanding of how courts would apply a substantive individual right of free speech based on natural right principles.

The limited government model I propose is very much related to notions of natural rights and individual freedom. The whole purpose behind limited government is to prevent infringement on individual freedoms and thus preserve a wide spectrum of liberty within society. But to argue that the Constitution is structural in nature is not to say that it is all process without purpose, because the reason for the structural provisions is to preserve the substance of liberty, vis a vis the regulation of government power.

Although the natural rights philosophy may have dictated what was to be in the Bill of Rights, the limited government model was to govern how the Bill was to be judicially applied. The rights in the Bill were to be protected, as was all of liberty, by applying them as limited government provisions

The fact that the rights outlined in the Bill of Rights relate to what the framers saw as natural rights explains why they are included in the Bill and why there was so little dispute or debate about those rights being included. Given the natural rights tradition that Professor Erler documents so well, there could hardly have been a better tool with which to limit government. But of course, there were many natural rights not explicitly mentioned in the Constitution.

I agree with Professor Erler that the framers “grounded the American regime in the principles of natural right.” The Declaration , which set America on a course of independence from Britain, established that general grounding. But a document of rebellion is much different than a document of governance. And in the Constitution, the framers turned their attention to government structure and power, which in turn became the barometer for the protection of liberty. While the substance of free speech, to the framers, was that of a natural right, the way it fit into the Constitution, as well as the model for its application, was as a limited government provision, seeking to limit government so that liberty could flourish.

An interesting point raised by Professor Erler involves the ways in which modern autonomy rights are the invention of Progressivism. Although I discuss in my book the aftermath of the New Deal and the jurisprudence of the Warren Court, it would be interesting to further explore how Progressivism sought to inject autonomy values into the Constitution and how such values (or fundamental rights or generalized notions of liberty) relate to natural rights, as well as how Progressives saw the relation between government power, constitutional structures and individual autonomy.

In a way, Professor Ramsey finds a kind of middle ground between Professor Erler and myself. Professor Ramsey claims I take too narrow a view of the Bill of Rights and that individual autonomy is what the Bill is all about; but he argues that the kind of autonomy at the heart of the Bill is an autonomy from government power or control. Thus, while my model looks at one side of the equation – using the provisions of the Bill of Rights as constitutional tools of the people to control and limit their government – Professor Ramsey includes a dual or complimentary purpose of achieving individual autonomy through limitations on government. In this way, Professor Ramsey expands the focus and meaning of the Bill. He argues that both purposes need to be embraced and that a focus just on limited government may marginalize individual rights. This is a forceful argument.

My limited government model seeks to protect liberty from the outside-in. By limiting government power on the outside, it tries to protect individual liberty on the inside. But Professor Ramsey proposes to also protect liberty from the inside-out, by starting with and enforcing notions of individual autonomy on the inside against government power on the outside. Clearly, this appears to be a more liberty-protective approach – and perhaps judicial application of this dual approach, if done correctly, may in fact prove to be a more protective approach. And I say “may” because perhaps an underlying difference between Professor Ramsey and myself – and here I am speculating on Professor Ramsey’s part — lies in the trust we have of the courts to conduct such an “inside-out” approach.

My limited government model incorporates a distrust of the judiciary that I believe the framers held. And it is a distrust, I believe, that the historical experience of the past half-century has vindicated. Therefore, my model seeks to place on the courts a more objective and constrained focus when applying the Bill of Rights, and hence perhaps to leave more “breathing room” to democratic society. But as the past half-century of personal history has taught me, I could very well be wrong in my theories – and I appreciate and respect the way Professor Ramsey offers a different viewpoint.

Professor Ramsey also presents an insightful discussion on the role of the Fourteenth Amendment, and I agree with him that most of the Court’s “autonomy jurisprudence” stems from the Fourteenth Amendment. Although I did not discuss the Fourteenth Amendment in my essay, I did address it in my book Limited Government and the Bill of Rights. I completely agree with Professor Ramsey that the Fourteenth Amendment reflected the Reconstruction realization that states could be oppressors of individual liberty, just as the federal government could be. Unlike some constitutional scholars, however, I do not see the Fourteenth as transforming the nature of the Bill of Rights; instead, I see the Fourteenth as doing to the states what the Bill of Rights did to the federal government – e.g., acting as limitations on government power, making various provisions in the Bill of Rights applicable to the states in the same way they were applicable to the federal government.

One final point regarding Professor Ramsey’s essay: his story of the New Deal constitutional settlement, and the federalism issues it raises, is a fascinating topic within itself. And of course, when one talks about federalism concerns, one should not discuss only the distribution of political and lawmaking powers, but the distribution of judicial power as well. A question Professor Ramsey raises, in my mind, is whether federalism lies at the heart of the New Deal constitutional settlement, and whether everything else, including individual rights and the other structural provisions of the Constitution, were side-effects.

I will conclude with a reiteration of my gratitude for being included in this enlightening exchange. I feel honored just to have been the springboard for the ideas and discussions of these esteemed scholars. And I express my admiration to Richard Reinsch for sponsoring and facilitating the kind of online forum that gives rare testimony to the most optimistic visions of the role of the Internet.