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My Liberty Forum Response to Patrick Garry
Michael Ramsey

Liberty Forum has posted two responses to Patrick Garry's interesting essay The Constitution’s Structural Limitations On Power Should Be the Focus of the Bill of Rights -- one by Edward Erler (California State University San Bernardino -- Political Science) and one by me. 

Professor Erler's contribution is Natural Rights and the Limited Government Model of the Constitution: A Response to Patrick Garry.  From the introduction (footnotes omitted):

This view [expressed by Professor Garry] that the Constitution is unconcerned with “values”—or ends or purposes—is utterly alien to the framers’ understanding. Madison famously wrote in The Federalist that “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” The end of government is justice, the quintessential political “value.” Justice was understood by the framers to mean the protection of rights and liberties under the rule of law. And the first object of the rule of law was simply the equal protection of equal rights. In The Federalist, Madison also wrote that the purpose of the Constitution was grounded in “the transcendent law of nature and nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.” Everyone, of course, recognizes this statement as a paraphrase of the Declaration of Independence. Madison clearly says here and other places in The Federalist that the principles of the Declaration supply the ends or purposes of the Constitution and that institutions—structures—are subordinate to the ends. There can be little doubt that this was the understanding of the Founding generation.

My contribution, Limited Government and Individual Autonomy [I had intended the "and" to be italicized] makes some related points, though more focused on the Constitution's text than on the framers' intent.  An excerpt:

To the framers, I would argue, the Bill of Rights Amendments were about a particular kind of individual autonomy – autonomy from government control and direction. Professor Garry says that the framers did not know what rights to include to assure autonomy, but I think to the contrary they had a coherent list. An individual with the freedom of belief, expression and conscience (First Amendment), the means of self-defense (Second Amendment), protection against government harassment and oppression (Third, Fourth, Fifth, Sixth and Eighth Amendments), and security in property (Fifth Amendment and elements of the Seventh and Eighth Amendments) is an autonomous individual, not dependent on nor in fear of the government.

Thus the Bill of Rights is not only about, as Professor Garry describes it, “empowering people to control and limit their government.” It is about that, to be sure, but it is also about preventing the government from controlling the people – or, put another way, allowing the people to be, to a significant extent, independent of government. It is true that this version of autonomy is achieved by limitations on government. But the concepts are complementary, not in opposition. As the antifederalists recognized, constitutionalizing rights that promote autonomy protect against the overreaching that even a structurally limited government threatens. Of course, this idea of autonomy is quite different from another that looks to government to protect the individual from otherwise-uncontrollable and dominating social forces. The latter is indeed the enemy of limited government, but it was not the framers’ version and is not the Constitution’s.

Consider one set of rights that runs through the 1791 amendments: the Third Amendment’s limit on quartering soldiers in private homes, the Fourth Amendment’s limitation on police intrusions into private space (especially into the home), and the Fifth Amendment’s limitation on taking of private property. These amendments may be somewhat difficult to explain simply as measures “empowering people to control and limit their government.” Instead, taken together they seem more about creating private space for the individual, beyond (to some extent) the government’s reach. Entrenching these rights does limit government – but with a particular purpose to protect individual autonomy.

I conclude:

In sum, I welcome Professor Garry’s emphasis on limited government but I am not sure why it should be set up in opposition to individual autonomy. To me, they are complementary. Indeed, I would go further. Professor Garry does not say much about why limited government is or should be a constitutional goal. I would say (and perhaps he would agree) that it is a goal because limited government promotes individual autonomy. Individuals have more room to shape their own lives, without fear of or dependence on government, when government is structurally limited as well as when autonomy-reinforcing rights are protected. Autonomy, then, is an ultimate objective, to be pursued both by structural limitations and rights protection. The wisdom of the Constitution – the combined wisdom of the federalists, the antifederalists, and the framers of the Reconstruction Amendments – was to put the two strategies together