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OP-ED: The Founders Implemented Structural Provisions to Protect Liberty

June 28, 2013
Op-Ed and Speech

Though not specifically named in the document, the principles of "separation of power" and of "Federalism" were designed to insure individual liberty. 

By Rep. Rob Bishop 

Inside the House chamber in Washington, the upper wall is surrounded by the cameos of all the world's great lawgivers.  Hamarabi, Solon, Pope Gregory, Edward I, Sulyman, and even Napoleon are among those on the wall.  The only Americans included are Thomas Jefferson and George Mason, and, ironically, neither signed the Constitution.  Mason is one of three men who stayed for the entire Constitutional Convention and then refused his assent to the finished product.  He objected to the document because it did not contain a Bill of Rights.  Mason felt it was essential to have such a statement to guarantee the protection of individual liberties.  One wonders why Mason was so intransigent on this issue.  A more intriguing question is why would such patriots as Washington, Franklin, Hamilton, Madison, Dickinson, Wilson, etc. object to Mason's request.  The Constitutional Convention rejected adding a Bill of Rights by a unanimous vote (10 states to 0).  In reality the Founding Fathers were not opposed to the goal of protecting individual liberty.  They wanted the exact same goal, but had different ideas of how to best achieve that goal. The concerns of the framers of the Constitution fell along four basic lines.

First, the Founders thought a list of rights, such as the Bill of Rights, could just as easily become a ceiling that limited freedom even though it was intended to be a floor.  James Wilson worried that a Bill of Rights "would imply that whatever is not expressed was (not) given, which is not the principle of the proposed Constitution."  If a right was not listed, it was a legitimate question as to whether the right existed.

Second, the Founding Fathers viewed the Constitution as an empowering document.  If a power was not specifically granted to the new national government it was logically, and obviously, reserved to the states or people.  A listing of national prohibitions would have been at best redundant.  As Hamilton said, "Why declare that things shall not be done which there is not power to do?"  

Third, the states already had individual rights protection.  It would have been redundant on a national level.  No one had thought such a statement necessary in the Articles of Confederation; so why was it essential now?

The fourth argument of those who rejected Mason's request was the most significant.  The Founding Fathers chose a different tactic to insure personal liberty based on structural provisions.  Those at the Philadelphia convention thought an enumeration of rights would not prevent anyone from misusing power.  Madison called them "parchment barriers."  Only the structural balance of government could keep power in check and protect minority rights.  These inspired structures are essential to understanding the basis of constitutional government.  Though not specifically named in the document, the principles of "separation of power" and of "Federalism" were designed to insure individual liberty. 

Mr. Bishop represents Utah's First District in the United States House of Representatives.

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