THE BLOG
12/16/2014 01:03 pm ET Updated Feb 15, 2015

Three Things You (And Judges) Need to Know About the Bill of Rights

This Monday, the Bill of Rights turned 223. It is an occasion for celebration and reflection. Celebration, because the Bill of Rights has proven a sturdy shield for protecting individual freedom. Reflection, because the Bill of Rights is often misunderstood, even by judges. The result? We do not enjoy the full measure of freedom that the Constitution promises us.

Here are three features of the Bill of Rights that can aid us in understanding its significance and content, as well as the work that the Supreme Court and lower courts have to do in order to secure all of our constitutional rights.

1.) The Bill of Rights did not create rights.

The Bill of Rights was ratified two years after the original Constitution. Federalists who supported the ratification of the Constitution in 1789 contended that a bill of rights was unnecessary. They argued that if the powers of the federal government were enumerated and kept "few and defined," the people would remain free from an overbearing federal government. The Anti-Federalists disagreed, believing that a bill of rights was necessary to protect individual freedom. Notably, both sides agreed that adding a bill of rights would not "create" rights that did not already exist. Although they considered it superfluous, the Federalists ultimately promised to add a bill of rights in order to ensure ratification of the Constitution.

2.) The Bill of Rights is not exhaustive.

The Framers emphatically rejected the idea that one could create an exhaustive list of individual rights. To ensure that the inclusion of certain individual rights in the Bill of Rights would not be taken to imply that the government was free to deprive people of others not listed, James Madison drafted what would become the Ninth Amendment. The Ninth Amendment provides: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." As Professor Randy Barnett has shown, this is a reference to natural rights--rights that we possess by nature, not by grace of government. They include the right to pursue an honest living in the occupation of one's choice; the right to acquire, use, and enjoy property; the right to direct the upbringing of one's own children; and the right to engage in any number of other activities in peaceful pursuit of one's happiness, as long as one respects the equal rights of others.

3.) The Bill of Rights has never been consistently enforced.

In 1833, the Supreme Court in Barron v. Baltimore held that the Bill of Rights did not apply against the states. The shocking and widespread deprivations of individual liberty by state and local governments in the years leading up to and following the Civil War ultimately led to the introduction of the Fourteenth Amendment. Senator Jacob Howard, one of the leading authors of the Fourteenth Amendment, explained that the Privileges or Immunities Clause of the Fourteenth Amendment would protect "the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety," as well as "the personal rights guaranteed and secured by the first eight amendments of the Constitution."

But in the Slaughter-House Cases (1873), the Supreme Court held that the Privileges or Immunities Clause protected only a handful of insubstantial guarantees, like access to navigable waters. Legal commentators who seldom agree on anything agree that the Court butchered the Privileges or Immunities Clause. Since the Slaughter-House Cases, the Court has relied upon the Due Process Clause of the Fourteenth Amendment to prevent the states from violating individual rights.

The results have been inconsistent at best, disastrous at worst. In cases that implicate supposedly "fundamental" rights, like most of those listed in the Bill of Rights, and a handful of other rights that the Supreme Court has recognized on an ad hoc basis, judges make a genuine effort to determine the truth concerning the constitutionality of the government's actions, while remaining strictly neutral and making the government prove its case with record evidence. We call this judicial engagement. In all other cases, however, judges apply something called the "rational basis test," which in fact is not rational, has no constitutional basis, and is not a meaningful test of anything but judicial willingness to rationalize the government's actions. The result? Ordinary citizens are subjected to a bewildering array of arbitrary restrictions on their life, liberty, property, and peaceful pursuit of happiness.

We should count the blessings of liberty that the Bill of Rights has secured. It is difficult to imagine that we would be better off without explicit protections for individual rights in the Constitution. But we should demand also that courts protect all of our constitutional rights, including those that have long been disparaged and denied in direct violation of the Ninth Amendment.