The Concept of Rights as Limits on Government

Extract

Most Americans take for granted the notion that the powers of government are circumscribed by individual rights. But this commonplace notion is, in fact, very complicated conceptually and poses difficult problems institutionally. This course explored both the conceptual and the institutional problems, from their origins to their contemporary manifestations. We began with the formation of the Constitution: the writing of the document in the Constitutional Convention of 1787, its ratification, the addition of the Bill of Rights in 1789, and the establishment of judicial review. As a starting point, I offered my own perspective through excerpts from my forthcoming book, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy. My central argument is that the Framers' concern with protecting the rights of property distorted both their understanding of constitutionalism and the institutions they designed to implement that understanding. The Framers wanted to design a republican form of government based on the notion of consent by the governed, and thus some form of democratic (as we would call it today) representation. But the Federalists, whose views dominated the convention, also wanted to ensure that civil rights would be secure in the new republic. Property became the focus of their efforts to make the political rights implicit in republican government compatible with the security of civil rights. Unfortunately, their focus on the protection of unequal property, the property of the minority as threatened by the (future) propertyless majority, distorted their vision of the basic problem of protecting individual rights in a democracy. Their fears of the propertyless bred a focus on containing the political power of the people.