It stems from a sincere desire to expand liberty, and a misunderstanding of the Constitution and the Bill of Rights. This leads many folks to embrace the federal government as some kind of liberty enforcement squad. They take the basic restrictions on federal authority outlined in the Bill of Rights and insist the feds to use their power to ensure state and local governments adhere to them as well.
These folks stand on solid ground when they argue that NO government should trample the basic rights protected by the Bill of Rights. But they run off the rails when they insist that the federal government should police other political societies to “protect our rights.”
The problem lies in the fact that enforcement of rights necessarily entails defining those rights. And as we’ve seen throughout American history, the feds pretty much suck at this. In their earnestness to enforce a one-size-fits-all federal definition of “rights,” courts end up ignoring some and trampling on others. We can look down a long line of ill-conceived judicial opinions to see the reality of this – from federal prohibitions on the free exercise of religion, to infringements on property rights in the name of this or that “public good,” to violations of free speech rights to protect another person’s feelings. Sometimes the feds get it right. But most often, they fail miserably. It simply doesn’t make sense to centralize all power and entrust our basic liberties to the whim of a majority of nine black-robed federal employees.
Yes, states can violate basic rights. They do it all the time. But we don’t find an acceptable solution in centralizing power in Washington D.C. Decentralization, while fraught with its own risks, creates a much less dangerous environment for liberty than dumping all authority in the laps of a few federal judges. Competing jurisdictions serve the people more effectively than massive centralized states.
But even if you can make a case for centralized policing of rights, the Constitution doesn’t authorize the federal government to serve as a liberty enforcement squad.
Simply put, the people of the states delegated enumerated powers to the federal government through the Constitution. That document created a general government, and defines the powers and limits of the institution it created. The Bill of Rights was added to further prescribe the limits of federal power – NOT grant the federal government authority to enforce liberty at the state and local level. The Bill of Rights’ preamble clearly describes its purpose.
The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the [federal] Government, will best ensure the beneficent ends of its institution.
Perhaps an analogy will make this more clear.
Let’s say I enter into an agreement with several partners to open a restaurant. We all own adjoining property and place the restaurant in the middle of our shared acreage. We agree to delegate the authority for day-to-day operations to a general manager. The GM has the authority to develop the menu, hire, fire, and purchase ingredients within defined parameters. One stipulation requires that the GM must “use ingredients that are wholesome and nutritious.”
After all parties sign the agreement, we begin making more detailed plans, and several owners express the opinion that “wholesome and nutritious” necessarily means organic. Everybody agrees. But realizing the GM might not have the same understanding, we add a provision to the original agreement amending it to include “organic” in the definition of “wholesome an nutritious.” The GM now has the authority and the duty to insist that the restaurant uses only organic ingredients.
Now, would the GM have the authority to walk into my home and insist my wife only use organic ingredients in our kitchen? Clearly not. His authority only extends to the restaurant. Even though it might be really good to have somebody enforce the organic only rule in my home, the GM does not have that power. Even though the restaurant sits in the middle of shared property, the GM’s authority does not extend past the front door of the restaurant. He may only exercise his delegated powers within the prescribed sphere of his authority.
The Bill of Rights operates in the same way. It only limits the power of the federal government – the entity created by the original agreement (the Constitution). It does not authorize the creation to dictate the policies of the creator, not does it delegate federal enforcement power over the states.
Some will argue the 14th Amendment “incorporated” the Bill of Rights and bound the states by it. It did no such thing. You can read more about that HERE.
We need to resist the impulse to centralize power – even when we think it might serve our immediate ends. As most people understand, monopolies rarely serve the best interests of their customers in the long run.
Latest posts by Mike Maharrey (see all)
- Thomas Jefferson: Can the Dead Bind the Living? - May 24, 2017
- Constitution 101: To “Provide for the Common Defense” - May 5, 2017
- Mainstream Media Gets the Supremacy Clause and Nullification Wrong. Again. - April 29, 2017