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Myths 2, 3 and 4

by Stephen Markman

Justice, Michigan Supreme Court


Note: This is a continuation of excerpts from a dissertation on the Constitution "reprinted by permission from Imprimis, the national speech digest of Hillsdale College,"  Professor Markman has written an excellent article about some of the things folks have been told about our Constitution.  I think you will enjoy his insights which you could use to help neutralize the arguments of those who are trying to destroy it.  The first in the series is Constitutional Myths and Realities Myth 1.


Myth or Misconception 2: The Constitution principally upholds' individual rights and liberties through the guarantees of the Bill of Rights.  

It is not to denigrate the importance of the Bill of Rights to suggest that the Founders intended that individual rights and liberties would principally be protected by the architecture of the Constitution-the structure of government set forth in its original seven articles.  The great animating principles of our Constitution are in evidence everywhere within this architecture.

First, there is federalism, in which the powers of government are divided between the national government and the states.  To the former belong such powers as those relating to foreign policy and national defense; to the latter such powers as those relating to the criminal justice system and the protection of the family.

Second, there is the separation of powers, in which each branch of the national government-the legislative, the executive, and the judicial branch-has distinct responsibilities, yet is subject to the checks and balances of the other branches.

Third, there is the principle of limited government of a particular sort in which the national government is constrained to exercise only those powers set forth by the Constitution, for example, issuing currency, administering immigration laws, running the post office and waging war.  Together, these principles make it more difficult for government to exercise power and to abuse minority rights, and they limit the impact of governmental abuses of power.

Many of the Founders, including James Madison, believed that a Bill of Rights was unnecessary because the Constitution's architecture itself was sufficient to ensure that national power would not be abused.  As Alexander Hamilton remarked in Federalist 84, "the Constitution is itself, in every rational sense, and to every useful purpose, a Bill of Rights."  And practically speaking, until 1925, the Bill of Rights was not even thought to apply to the states, only to Congress; yet the individual rights of our citizens remained generally well protected.

Myth or Misconception 3: The national government and the state governments are regulated similarly by the Constitution.

The 10th Amendment makes clear, the starting point for any constitutional analysis is that the national, i.e., the federal, government can do nothing under the Constitution unless it is affirmatively authorized by some provision of the Constitution.  The states, on the other hand, can do anything under the Constitution unless they are prohibited by some provision of the Constitution.  Why then, one might ask, throughout the 19th century and well into the 20th century-before the Bill of Rights was thought to apply to the states-did Michigan and other states not generally infringe upon such indispensable freedoms as the freedoms of speech or religion?  How were individual rights protected?  Well, in two ways principally: First and most obviously, there was simply not majority sentiment on the part of the people of Michigan or other states to encroach upon such freedoms.  Second, Michigan and all other states had their own Constitutions that protected such freedoms.

Today the Bill of Rights has been construed by the U.S. Supreme Court to apply to the states, creating more uniform and more centralized constitutional policy.  It remains true, however, that the impact of the Constitution upon the national and state governments varies substantially.

Myth or Misconception 4: Federalism is the same thing as states rights.

"State's rights" in the constitutional sense refers to all of the rights of sovereignty retained by the states under the Constitution.  But in this sense, state's rights refers to only half of what federalism is, the other half consisting of those powers either reserved for the national government or affirmatively prohibited to the states.  In popular use, "state's rights" has had a checkered history.  Before the Civil War, it was the rallying cry of southern opponents of proposals to abolish or restrict slavery.  By the 20th century, it had become the watchword of many of those who supported segregation in the public schools, as well as those who criticized generally the growing power of the central government.

While I share the view that federal power has come to supplant "state's rights" in far too many areas of governmental responsibility, "state's rights" are truly rights only where an examination of the Constitution reveals both that the national government lacks the authority to act and that there is nothing that prohibits the state governments from acting.  There is no "state right," for example, for one state to impose barriers on trade coming from another; or to establish a separate foreign policy.  These responsibilities are reserved to the national government by the Constitution.


The next installment is Constitutional Myths and Realities Myths 5 & 6


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