The influence of law professors like Tribe shows why it is so necessary to confirm justices who will read the Constitution according to its text.
The Constitution's Structural Limitations on Power Should Be the Focus of the Bill of Rights
Ever since the Warren era of expansive individual rights jurisprudence, leading to the Court’s substantive due process jurisprudence culminating in Roe v. Wade, jurists, as well as the public at large, have grappled with the issue of judicial activism in the individual rights area. At the same time, by the time of the Warren Court, constitutional law had evolved to the point of denying the courts any meaningful role in enforcing the limited government principles incorporated in the Constitution. This essay, recognizing the continuing controversy over the Court’s individual rights jurisprudence, attempts to reconcile these two different strains in constitutional development in a proposed limited government model of the Bill of Rights.
The vitriolic reaction to the fairly recent injection of limited government principles into the nation’s political dialogue demonstrates how marginalized the notion of limited government has become since the 1930s. Furthermore, the widespread conviction that the Supreme Court would never strike down the Affordable Care Act on limited government principles likewise shows how unaccustomed the legal and political systems have become to judicial enforcement of those principles. However, not only are limited government principles among the most important aspects of the U.S. Constitution, but they are key to understanding the provisions in the Bill of Rights regarding individual liberty. Indeed, the decline of limited government principles during the New Deal era, combined with the rise of an individual autonomy jurisprudence during the Warren Court era, has distorted the originally-intended meaning of the Bill of Rights.
Under the leadership of Chief Justice Warren, the Court adopted an individual rights jurisprudence that interpreted the Bill of Rights as existing for the purpose of achieving a certain vision of individual autonomy. This view gained a footing during the New Deal period, when the Court retreated from enforcing the limited government structural provisions of the Constitution, such as federalism and separation of powers, while at the same time heightening its scrutiny of substantive individual rights, such as those contained in the Bill of Rights. But this shift in the Court’s orientation cast the Bill of Rights as concerned exclusively with individual autonomy, rather than with providing structural limitations on government power, thereby separating the Bill from the structural orientation of the Constitution as a whole. This modern view sees individual rights in isolation, as if the Constitution was primarily focused on protecting individual autonomy, not on creating a frame of government.
Under a limited government model, the Bill of Rights can be understood within the context of a larger goal—namely, ensuring the maintenance of limited government within the constitutional scheme. As the primary advocates for the Bill of Rights, the Anti-Federalists sought to achieve not particular substantive protections of a finite list of specific individual rights, but rather an assurance that the new federal government would indeed be a government of limited powers. The Anti-Federalists feared that the original Constitution had not adequately prevented the new government from overstepping its allotted powers. To further secure a limited government, the Bill of Rights specified certain areas in which the government expressly had no power to act. Whereas the rest of the constitutional scheme set out structural provisions for the overall maintenance of limited government, the Bill of Rights articulated specific substantive areas in which the principle of limited government was to prevail. Nonetheless, the impetus for the Bill of Rights arose from the same limited government concerns that were incorporated in the original Constitution, and in this way the Bill of Rights is consistent with the original Constitution.
As James Madison put it, a Bill of Rights was added “for greater caution” to ensure a limited government. When he introduced his proposal for a Bill of Rights in the First Congress in June of 1789, Madison explained that the purpose of this Bill was “to limit and qualify the powers of government.” It would provide a second limitation on the power of government. The first limitation arose from the enumerated powers doctrine, prohibited the federal government from exercising any power not explicitly granted to it by the Constitution. But the Bill of Rights placed limits on even those enumerated powers, forbidding the federal government from using its delegated powers to encroach on areas outlined by the Bill of Rights. By carving out particular areas that might possibly be regulated by the government under the Necessary and Proper Clause, the Bill of Rights sets out more specific standards enabling the people to better judge whether government had exceeded its power. 
What is often ignored about the Bill of Rights is that it was drafted and ratified with a view toward integrating it into the overall scheme of the original Constitution, which was structural. And the most important structural aspects of the Constitution were those aimed at ensuring limited government. As a whole, the Constitution is primarily one of “powers, structures and procedures, not of values.”
According to Akhil Amar, the Bill of Rights is each “part of a single coherent constitution; and are reflective of a deep design; aimed at limiting government power.” But if consistent with the constitutional scheme and its emphasis on structure, then the Bill of Rights should not be viewed in terms of individual autonomy, but in terms of employing the language of rights to limit government power. As Gary Lawson argues, the meaning of the Bill of Rights lies primarily in the structure and history of the original Constitution, rather than in the specific wording of each of the amendments.
In The Federalist, Hamilton makes a clear distinction between a free government and a republican government. Whereas free government focuses on securing specified individual rights, republican government tries to achieve a more general political freedom as a means to securing individual freedom. In choosing the latter, the framers saw the structure of government as the best protection of individual rights. For this reason, the Constitution’s primary focus is not on providing a finite list of individual rights, but on creating structural features that protect against systemic government abuses and overreaching.
But the Bill of Rights is more than just a way to generally limit the power of the federal government; the rights protected by the Bill of Rights were those that were most effective in empowering people to control and limit their government. Not only did the Bill of Rights create limitations on government, but it specifically identified areas of freedom which, when exercised, could further help to limit government. To the framers, the only real way to prevent government from violating the liberty of its citizens was to give those citizens the capacity to control government. For instance, the Anti-Federalists often contended that freedom of speech and press were invaluable bulwarks against tyranny, and that exercise of those rights was necessary to control and limit government. Freedoms of speech and press were seen as the essence of free government, through which people could be free to limit government by political means.
Unquestionably, the framers of the Bill of Rights were very much concerned about individual freedom and natural rights. Indeed, this concern had inspired the Declaration of Independence. There is no historical dispute as to the desire of the framers for a constitutional system that protected liberty, and there is no dispute that the Bill of Rights served the goal of protecting liberty. However, the Bill of Rights tried to secure that goal through a means other than strictly a judicial protection of certain specific rights that in turn defined a particular notion of individual autonomy. Instead, limited government became the means by which liberty would be protected.
The framing generation did not know how to go about the goal of using specific constitutional provisions to protect natural rights or specific understandings of individual autonomy. They did not have a sufficiently clear idea of the parameters and scope of those individual rights. To the framers, natural or individual rights were vague and highly abstract. As Philip Hamburger writes, theories of natural rights were not only so ambiguous and imprecise as to prevent broad consensus, but in fact were the subject of “substantial differences” among eighteenth-century Americans. Moreover, the framers were reluctant to give the judiciary the kind of unbounded power it would need to define and enforce individual rights, so they crafted a Bill that focused not on the substance of each right but on limiting the power of government in certain areas. For instance, Madison drafted the First Amendment in the hard language of denials of government power, not in more general statements aimed at defining the nature and value of particular individual rights. This language was in stark contrast to the softer kind of language in state constitutions, which focused on the moral value of liberty and individual rights and which were phrased more as obligations than as prohibitions.
Furthermore, if the Bill of Rights was meant to protect fundamental or natural rights, it is curious as to why those protections were not granted vis-à-vis the states. When the Framers did seek to protect a right or freedom on its own accord, rather than as a means of limiting power, they did so in a manner that would protect that right or freedom from all governments, including state governments. The Contract Clause, for instance, specifically applies to both the federal and state governments.
Not only was the Bill of Rights not applied to the states, but the constitutional generation tolerated significant state regulation of those rights, thus further undermining the notion that the Bill served primarily to protect individual autonomy. For instance, late eighteenth century Americans accepted highly restrictive state laws on speech and press.
The Ninth and Tenth Amendments in particular reflect the focus of the entire Bill of Rights as being limitations on the power of the federal government. The Tenth Amendment incorporated the rule of enumerated power, with all nondelegated power reserved to the states, whereas the Ninth Amendment limited the interpretation of the federal powers that were enumerated. As James Madison explained, the Tenth Amendment prohibited the federal government from exercising any source of power not specified within the Constitution itself, and the Ninth Amendment prohibited any interpretations of enumerated federal powers that would unduly expand federal power. According to Kurt Lash, the Ninth and Tenth Amendments reflected such a universal desire for limited government that they faced very little opposition.
The rise of the individual autonomy model of the Bill of Rights occurred in the wake of the New Deal demise of limited government principles. During the New Deal period, the notion of protecting liberty through the maintenance of limited and divided government gave way to the desire to ensure economic security through a powerful and activist central government. The framers’ view of political freedom requiring a limited government was largely abandoned by the New Deal reformers, who called upon an activist federal government to combat the problems of the Great Depression. Although the framers had sought political freedom by setting up structural features to prevent the concentration of government power, the New Dealers believed they could preserve liberty strictly through the judiciary’s enforcement of specified individual freedoms.
However, this abandonment of limited government provisions undercut a fundamental protection of liberty. To compensate for this loss of constitutional protection, the Court made a compromise: although it would retreat from reviewing structural issues, it would intensify its review of substantive individual rights issues. Larry Kramer calls this the New Deal “settlement.”
The Warren Court era solidified the transformation in constitutional approaches to the preservation of liberty—from relying on the limited government provisions of the Constitution to focusing almost exclusively on the judicial enforcement of substantive individual rights. In doing so, the Warren and Burger Courts effected a constitutional revolution in many areas of substantive individual rights. But this transformation essentially viewed the protection of individual rights as the primary purpose of constitutional law. It misinterpreted the nature of the Bill of Rights and how the Constitution went about protecting liberty. It looked on the Bill of Rights as an almost unlimited grant of power to the judiciary to enforce its view of individual autonomy, while at the same time attempting to reconcile individual liberty with a virtually unlimited federal government.
In seeking to protect liberty exclusively through judicial enforcement of specific individual substantive rights, the Court ceased protecting the kind of governmental structures designed to guard individual liberty. But when that happens, only the judiciary is left to act as the guardian of liberty—and it does so by exercising great power to define and enforce an array of specific individual substantive rights.
See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012), where five Justices affirmed the limited government principles of the Constitution, specifically that Congress’ commerce power is limited, even though the Court upheld the Affordable Care Act based on Congress’ taxing power, and where the Court enforced federalism principles in striking down Congress’ attempted expansion of Medicaid.
See U.S. v. Caroline Products, 304 U.S. 144, 152 n.4 (1938). For a discussion of the Court’s New Deal jurisprudence, see Patrick M. Garry, An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court102-08 (2008).
See Patrick M. Garry, Liberty Through Limits: The Bill of Rights as Limited Government Provisions, 62 SMU L. Rev. 1745 (2009).
 James Madison, Speech in Congress Proposing Constitutional Amendments (June 8, 1789), in 12 The Papers of James Madison 196, 202 (Charles F. Hobson and Robert A. Rutland eds., 1979).
 James Madison, Speech to House of Representatives (June 8, 1789), in Creating the Bill of Rights: The Documentary Record from the First Federal Congress 81 (Helen Veit et al. eds., 1991).
See Michael Dorf, Incidental Burdens on Fundamental Rights, 109 Harv. L. Rev. 1175, 1189 (1996) (arguing that by “juxtaposing affirmative powers with negative limits, the Constitution’s architecture assumed that, even when the government pursues a permissible goal, the government might sometimes violate individual rights—and thus, the negative limits prohibit otherwise valid exercises of power”).
 Michael McConnell, Natural Rights and the Ninth Amendment, 5 N.Y.U. J.L. & Liberty 1,18 (2010); Jack Rakove, Original Meanings, 336 (1997).
 Robert Delahunty, 1 Univ. of St. Thomas Journal of Public Law and Policy, 1, 68 (2007). In The Federalist No. 38, James Madison argued that the Bill of Rights “ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the states in their political capacity.” The Federalist No. 38, at 235 (James Madison) (Clinton Rossiter, ed., 1961). Likewise, in The Federalist No. 84, Alexander Hamilton argued that “one object of the Bill of Rights is to declare and specify the political privileges of the citizens in the structure and administration of the government.” Id. at 515 (Alexander Hamilton).
 Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 814 (1999).
 Gary Lawson, A Truism with Attitude: The Tenth Amendment in Constitutional Context, 83 Notre Dame L. Rev. 469, 471 (2008) (arguing that the Bill of Rights was effectively redundant because federal laws abridging rights contained in the Bill of Rights had not been delegated to the federal government).
See, e.g., The Federalist Nos. 9, 51 (A. Hamilton) (Jacob E. Cooke ed., 1961) (referencing the distinction between free governments and republican governments).
 Bradford P. Wilson, Separation of Powers and Judicial Review in Separation of Powers and Good Government 68 (Bradford P. Wilson & Peter W. Schramm eds,, 1994).
 Gary Lawson, Prolegomenon to Any Future Administrative Law Course: Separation of Powers and the Transcendental Deduction, 49 St. Louis U. L.J. 885 (2005).
 Thomas McAffee, Restoring the Lost World of Classical Legal Thought, 75 U. of Cin. L. Rev. 1499, 1572 (2007).
See Letters of Centinel No. 2, in 2 The Complete Anti-Federalist 143-144 (Herbert J. Storing ed. 1981); Speech of Patrick Henry in Virginia Ratifying Convention in 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 449 (Jonathan Elliott ed., 2d Ed. 1836).
See James Madison, Report on the Virginia Resolutions (January 1800, reprinted in 5 The Founders’ Constitution 145 (Philip B. Kurland and Ralph Lerner eds., 1987).
 John Phillip Reid, Constitutional History of the American Revolution 10-11 (1986).
 Philip Hamburger, Natural Rights, Natural Law and American Constitutions, 102 Yale L.J. 907, 926, 955 (1993).
 Thomas McAffee, Inalienable Rights, Legal Enforceability, and American Constitutions, 36 Wake Forest L. Rev. 747, 777 (2001). Indeed, despite all the First Amendment case law, for instance, there is still much disagreement over the scope and application of individual autonomy boundaries within the Free Speech Clause, fulfilling the Framers’ fears that speech freedoms could not be adequately defined or expressed within one clause of the Constitution.
 Hamburger, Natural Rights, 102 Yale L. J. at 911.
 James Madison, Speech in Congress Opposing the National Bank (February 2, 1791), in James Madison, Writings 480, 481 (Jack Rakove ed., 1999).
 Kurt Lash, James Madison’s Celebrated Report of 1800, 74 Geo. Wash. L. Rev. 165, 171 (1006).
 M.J.C. Vila, Constitutionalism and the Separation of Powers 14 (1969).
 Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 219-20 (2004). Because of this “settlement,” federalism became a dead doctrine until the Rehnquist Court. David Walker, The Rebirth of Federalism, 96 (1995).
 Daryl Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. 915, 971 (2005).