The Bill of Rights and Federalism: An Interpretation in Light of the Unwritten Constitution
According to conventional understanding, the primary purpose behind the framing and ratification of the Constitution was to preserve liberty through a form of government that provided for a highly structured system of federalism and separation of powers. The primary purpose behind the framing and ratification of the Bill of Rights was to allay Anti-Federalist fears that the Constitution did not sufficiently secure individual rights. For that reason, the original Constitution is frequently contrasted with the Bill of Rights. Yet distinguishing between the Constitution and the Bill of Rights obscures more about the nature of the Bill of Rights than it discloses. It is agreed that one of the primary Anti-Federalist objections to the Constitution was the absence of a bill of rights. A close examination of the debate over the absence of a bill of rights reveals that the first ten amendments to the Constitution occupy a much more complex place in the constitutional scheme than is commonly assumed. While individual rights did constitute an important theme during the ensuing debate concerning the importance of a bill of rights, they were not the only theme or even the prevailing theme. A historically, philosophically, and textually informed examination of the Bill of Rights reveals that it was attentive to constitutional structure and was intended to reinforce the commitment to federalism in the original Constitution. The Federal government could not intrude upon the subtle and often fragile social and legal arrangements pertaining to such matters which evolved over a long period of time at the state level. These prerogatives were protected by the several state constitutions, state statutes, and the unwritten common law. This study challenges the conventional wisdom and decades of constitutional jurisprudence, which have assumed that the purpose of the Bill of Rights was to guarantee individual rights. If properly interpreted, the Bill of Rights would serve to decentralize authority, leaving many more decisions to the states and what Robert Nisbet described as "autonomous associations."
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