2016 saw the 225th anniversary of the ratification of the Bill of Rights, and also the election of Donald Trump, a man whose campaign, and whose public comments since getting elected, show a clear disregard for those rights.
Take, for example, one of his central campaign platforms: his proposal to ban Muslims from entering the country. While the President does have the power bar particular groups from entering the U.S., the targeting of a specific religious population could violate the First Amendment protection of freedom of religion, as well as treaties with other nations. He has threatened to sue news organizations whose coverage he doesn’t like, a clear challenge to the spirit of the First Amendment freedom of the press. (Trump has even claimed that he prefers England’s more open libel laws.) There’s also his support for “stop-and-frisk” policing, found to be a violation of the Fourth Amendment protection against unreasonable searches when carried out as a form of racial profiling, as was the case for the now-suspended New York City practice that Trump has touted as a model for other U.S. cities. Or take his post-election suggestion that flag-burning protesters should be jailed or lose their citizenship. This is understood by the Supreme Court to be a violation of the First Amendment protection of the freedom of speech, and Trump’s statement was condemned even by members of his own party.
To those provocations that specifically contradict the Bill of Rights we can add any number of anti-democratic actions and statements made by the President-Elect over the past year, such as running a campaign that singled out minority groups for contempt, mocked people for their gender or disability, suggested that he’d jail his opponent, and proposing cabinet secretaries with similar records of targeting minority groups. To Trump’s critics, this cartoonish laundry list of infractions belittles both the rights protected by the Constitution, and the American values they reflect.
Trump supporters might argue that he did, in fact, win the election. And he did so running on a populist campaign that appealed to the desires of everyday Americans (even if he lost the popular vote by a whopping 2.8 million votes). They might argue that the President-Elect reflects American values by definition; that Donald Trump represents the will of the people.
Does it make sense to see the Constitution to be a protection against the will of an electoral majority?
On this matter, a helpful guide is Carol Berkin’s recent book The Bill of Rights: The Fight to Secure America’s Liberties. One of the surprising things to emerge from The Bill of Rights is just how politically difficult it was to pass those first ten amendments. From today’s vantage point it may seem strange that something so important to American law, and so foundational to American character, wasn’t included in the Constitution from the start. But in fact the Bill of Rights emerged from a complex interchange of agendas in which the idea of federally protected rights was a pawn in a larger political rivalry.
The battle lines were drawn between the Federalists who supported the Constitution and an “energetic” national government, and the Antifederalists who favored more local political control and sought to limit the federal government’s powers of taxation and trade regulation. The Federalists had been the winners of the most important contests of the day, including their large majority of seats in the first elected Congress. Still, Federalists like James Madison, a representative in the first Congress, and George Washington, recently elected the first President, fretted about Antifederalist meddling. If Antifederalists like Patrick Henry and Samuel Adams had their way, then the powers of government would be slashed, and they might even call for a new constitutional convention to completely remake the whole national government. And the Antifederalists had one winning issue on their side: the Founders had failed to include a bill of rights in the Constitution.
Many Federalists thought the issue of a bill of rights was moot. Alexander Hamilton argued against the need for a bill of rights in Federalist Paper #84, suggesting that the conditions of a democracy are completely different from those under a king. He reasoned that since the U.S. Constitution was “professedly founded upon the power of the people… the people surrender nothing, and they retain everything.” In fact, he argued that a delineation of rights could even be dangerous since it could imply that only those listed were under protection. Antifederalist James Jackson, a congressional representative from Georgia, argued that it would be hasty for the first Congress to make any amendments. The Constitution was brand new, and only time would tell what its true defects were; any immediate changes proposed by the first Congress would be “merely speculative and theoretical.” (Although Berkin doesn’t mention it, Jackson is the figure mocked in the last satire ever written by Benjamin Franklin. As a part of his very-late-life work as an abolitionist, Franklin had a field day making fun of Jackson’s arguments in defense of slavery.)
But Madison soon recognized that he and his fellow Federalists had made a tactical error by failing to include a federal guarantee of rights in the Constitution. This was reflected in the ratification struggle. As the Constitution was being passed, many of the state ratifying committees requested or demanded amendments.
Madison collected all the amendments proposed by the state ratifying committees that related to issues of liberty—more than 100 of them—and distilled them to a short list. In The Bill of Rights, Berkin accessibly and succinctly chronicles the debates in Congress over the passage of these constitutional amendments. Her account of Madison’s own evolving thought process on the necessity of a Bill of Rights is relevant to our country’s current predicament.
No small part of Madison’s motivation for authoring and championing the Bill of Rights was straightforward political maneuvering; he wanted to knock the legs out from under the Antifederalist opposition. As Berkin writes, Madison “realized that the Federalists’ smartest move would be to take the offensive in the first Congress. They could steal the Antis’ thunder by proposing a bill of rights to the Constitution.” He thought that a bill of rights passed by a Federalist-dominated Congress would effectively break up the Antifederalist coalition. It would separate the popular support for federal protection of American liberties from the Antifederalist campaign to restrict and rewrite the government’s powers of taxation and the regulation of interstate trade.
To understand the President-Elect, it helps to understand Madison’s evolving views on the role and significance of the Bill of Rights. Berkin writes,
Here lay one of the chief differences between James Madison and the Antifederalists: they envisioned oppression arising from one or all of the branches of government; he saw it arising from the social and cultural majorities within the general population.
Where the Antifederalist call for a bill of rights sought mainly to protect the people from the kinds of government overreach Americans had previously experienced as colonial subjects of a monarchy, Madison recognized another imperative: the protection of minorities from the will of the majority. Berkin is clear to note that Madison did not have in mind the same minority groups at issue today, such as those targeted by the Trump campaign. (We shouldn’t forget that Madison himself owned around a hundred slaves.) He was thinking especially of religious minorities of the time, such as the Baptists or Moravians. But he intended the tolerance toward minority groups to be an enduring principle.
But Madison’s vision for the constitutional protection of minority rights went even further. On the one hand, he recognized the Bill of Rights to be only “a paper barrier,” something that could not by itself protect American liberties. But on the other hand, as Madison’s views evolved, “he came to see that a clear statement of principle had the potential to become an internalized credo, a standard for behavior that checked an impulse to abuse the rights of others.” Over time, the rights enshrined in these amendments to the Constitution could become part of the American character, part of the country’s self-conception. The nation could come to see itself as one that respects individual rights, and one that respects the rights of minorities in the face of the will of the majority.
Today we should ask ourselves just how much we think Madison’s plan has succeeded. Have the values reflected in the Bill of Rights have become a constitutive part of the contemporary American character?
Trump won the Presidency with a majority of the Electoral College, and his party has won majorities in both houses of Congress and maintains strong holdings in state-level government. Trump achieved these victories as part of a populist campaign that targeted women and minority groups. His comments since the election openly flaunt his desires to curtail American liberties. As the new administration moves forward with the promises that Trump made as a presidential candidate, we will see whether the American character has truly internalized the “credo” of the Bill of Rights and its commitment to the protection of the liberties of minorities against the impulses of the majority.