Limited Government and the Bill of Rights

What was the intended purpose and function of the Bill of Rights? Is the modern understanding of the Bill of Rights the same as that which prevailed when the document was ratified? In Limited Government and the Bill of Rights, Patrick Garry addresses these questions. Under the popular modern view, the Bill of Rights focuses primarily on protecting individual autonomy interests, making it all about the individual. But in Garry’s novel approach, one that tries to address the criticisms of judicial activism that have resulted from the Supreme Court’s contemporary individual rights jurisprudence, the Bill of Rights is all about government—about limiting the power of government. In this respect, the Bill of Rights is consistent with the overall scheme of the original Constitution, insofar as it sought to define and limit the power of the newly created federal government.

Garry recognizes the desire of the constitutional framers to protect individual liberties and natural rights, indeed, a recognition of such rights had formed the basis of the American campaign for independence from Britain. However, because the constitutional framers did not have a clear idea of how to define natural rights, much less incorporate them into a written constitution for enforcement, they framed the Bill of Rights as limited government provisions rather than as individual autonomy provisions. To the framers, limited government was the constitutional path to the maintenance of liberty. Moreover, crafting the Bill of Rights as limited government provisions would not give the judiciary the kind of wide-ranging power needed to define and enforce individual autonomy.

With respect to the application of this limited government model, Garry focuses specifically on the First Amendment and examines how the courts in many respects have already used a limited government model in their First Amendment decision-making. As he discusses, this approach to the First Amendment may allow for a more objective and restrained judicial role than is often applied under contemporary First Amendment jurisprudence.

Limited Government and the Bill of Rights will appeal to anyone interested in the historical background of the Bill of Rights and how its provisions should be applied to contemporary cases, particularly First Amendment cases. It presents an innovative theory about the constitutional connection between the principle of limited government and the provisions in the Bill of Rights.

Reviews of Limited Government and the Bill of Rights

The great contribution of Limited Government and the Bill of Rights is to conceive what the Bill might look like if courts were to treat its guarantees as provisions limiting the scope of governmental power. Garry displays a wide command of prior scholarly work that is quite impressive. His entire book is an ambitious exercise that pushes the boundaries of the conversation about the function and content of the individual rights provisions of the Bill of Rights.”
-Professor Calvin R. Massey, Hastings College of Law, author, American Constitutional Law: Powers and Liberties

In his book, Patrick Garry correctly argues that the Framers sought chiefly to preserve liberty through limiting government rather than through listing individual rights (in addition to expressing reservations about mere “parchment barriers,” the authors of The Federalist argued that the entire Constitution was a Bill of Rights), and I share his concern that modern interpretations of the Bill of Rights arguably over empower federal judges and end up privileging some parts of the Constitution over others — the Court’s “double standard” when it comes to provisions in the Bill of Rights and structural features is well known.
-John Vile, Professor and Dean, Middle Tennessee State University, author of Proposed Amendments to the U.S. Constitution and Constitutional Law in Contemporary America

This is a stimulating and quite interesting, book. It contains a significant amount of careful description and analysis of the text, history, and modern precedent relating to the Bill of Rights, much of which I found both interesting and persuasive. I share Professor Garry’s somewhat skeptical view of what is quite popular in the legal academy—especially the academy’s vigorous defense of an expansive, activist role for the Supreme Court to the end of developing a body of “rights law” that secures an expansive protection of “personal autonomy.” The analysis and critique of this view as a general approach to interpreting and applying the Bill of Rights, and especially as a means of explicating an open-ended concept of unenumerated rights, secured by the Due Process Clause or the Ninth Amendment, is a very strong treatment. This is a great strength of the book and its basic argument. The second strength of the manuscript is that, in addition to providing a very useful critique of the quite open-ended commitment of many judges and commentators to developing a body of law securing “personal autonomy,” there is also considerable strength, as well as real subtlety, to the treatment of particular cases, and the development of particular legal doctrines. The treatment of the religion clause case law was particularly strong; the analysis of First Amendment doctrine by reference to the concept of equal protection is also very strong.
-Thomas McAffee, William S. Boyd Professor of Law, University of Nevada-Las Vegas, author of Powers Reserved for the People and the States: A History of the Ninth, and Tenth Amendments and Inherent Rights, The Written Constitution, and Popular Sovereignty: TheFounders’ Understanding

“The book’s theoretical foundations are sound and compelling; its main argument is thoroughly developed, and it provides and discusses numerous examples both in favor and against the main argument’s application to several instances, especially First Amendment jurisprudence.”
– Raul Sanchez-Urribarri, Professor of Legal Studies, LaTrobe University, Australia

The Framers of our Constitution created a unique document, one that both provides for democracy but also limits democratic rule by protecting “individual freedom and the natural rights of the individual.” Professor Patrick Garry offers a fresh and lucid discussion of the intention of the Framers and their focus on creating a structure to protect the people. The separation of powers between the three branches of the federal government is one important part of that structure. The division of powers between the federal government and the states offers another structural protection. Professor Garry builds on that learning to offer a fresh evaluation of the Bill of Rights, as part of that structural protection for the people. The proponents of the Bill of Rights, called Anti-Federalists, created the Bill of Rights to prevent the new central government from overstepping its allotted powers. Professor Garry demonstrates that the Framers wanted a stronger central government but not a centralized government. They valued the Bill of Rights as essential to limiting the grown of the central government. Everyone who prizes our liberty will benefit from reading his book. As he points out, the Bill of Rights maintains a check on government and ensures that “government remains vibrant in energy yet limited in scope, just as the original Constitution seeks to do.”
-Ronald D. Rotunda, The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, author of Modern Constitutional Law: Cases and Notes, and Treatise on Constitutional Law: Substance and Procedure 

“Patrick Garry’s Limited Government and the Bill of Rights is a powerful, ground-breaking attempt to view the Bill of Rights through the lens of a limited government model rather than through the lens of substantive individual autonomy. In particular, Garry’s rigorous analysis of familiar First Amendment jurisprudence from this new perspective forced me to re-examine everything I know about the law of free speech and religious liberty. I cannot wait to share many of this book’s ideas with my students.”
-Richard F. Duncan, Sherman S. Welpton, Jr. Professor of Law, University of Nebraska College of Law

How should we read the Bill of Rights?  In this powerful book, Patrick Garry challenges the conventional view that the Bill of Rights is best understood as a set of personal freedoms grounded in individual autonomy and advances a compelling alternative view: The first ten amendments articulate limits on the power of government which are designed to complement and reinforce the original structural plan of the Philadelphia Constitution. Drawing on a wide array of historical, theoretical, and doctrinal sources, Garry incisively argues that the “limited government” model of the Bill of Rights can provide a sounder foundation for judicial decision-making in a democratic society than the present “individual autonomy” model. The book is a masterful addition to the literature on the Bill of Rights and should enrich debate over the original meaning of the Constitution for years to come.
-Jack W.Nowlin, Jessie D. Puckett, Jr., Professor of Law, University of Mississippi School of  Law

“In Limited Government and the Bill of Rights, Patrick Garry delivers the boldest articulation of a limited government model of the Bill of Rights.  Professor Garry skillfully ties this model to the Bill of Rights’ original meaning, and he explains how this interpretation of the Bill of Rights promises to avoid many of the problems caused by the dominant individual autonomy model.”
-Lee J. Strang, Professor of Law, University of Toledo College of Law

Courts and commentators routinely view the first 10 amendments to the Constitution as a rather arbitrary set of libertarian rights grafted onto the main text. In this refreshing work, Patrick Garry convincingly argues that the Bill of Rights is more properly interpreted as an integral part of the broad, constitutional, structural limitations on government power. Better defining and limiting government power, rather than providing special protection for a discrete set of individual liberties, says Garry, strengthens democratic decision-making and actually increases the security of individuals from potentially oppressive majorities. An important work of government and constitutional theory.
-Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School, and former Chairman, Federal Elections Commission

There is little question that the framers of the Bill of Rights and the Fourteenth Amendment designed those provisions primarily to limit the power of government to act in ways deemed destructive of the basic liberties of all Americans.  These original purposes contrast markedly with the Supreme Court’s current emphasis on construing constitutional rights to empower individuals to resist democratic rule, even in cases posing no serious threat to such freedoms.  In this book, Professor Garry makes powerful and compelling arguments for returning to this original vision of constitutional rights, and for how this vision ought to be implemented in cases raising claims of constitutional entitlement.  This book is essential reading for any thinking person concerned about the Court’s individualistic approach to rights at the expense of the community interests and values that gave rise to them.
-Barry P. McDonald, Professor of Law, Pepperdine University School of Law

Limited Government and the Bill of Rights sets forth a line of constitutional interpretation and analysis that purports to reconcile inconsistent outcomes in jurisprudence that have formed over time, due to differing values of the Supreme Court justices, and to some extent, the socio-economic backdrop against which a particular case was decided. Limited Government advances the notion that the Bill of Rights was created, not as a mechanism by which to enumerate explicitly areas of individual rights, but rather to set boundaries around areas not to be infringed upon by government action, a narrower interpretation meant to provide structural limitations on the government that would ultimately preserve implicit, unenumerated rights. Patrick M. Garry is a law professor and an expert in constitutional analysis, especially in the area of First Amendment jurisprudence.

Garry notes that the line of jurisprudence which had previously interpreted the Bill of Rights to limit government began to change as the federal Government acted in response to the economic decline that Americans were experiencing after the great depression (i.e. The New Deal era). During this time, the federal government was given great leeway to go beyond the prescribed bounds of its power, ultimately intruding in areas historically reserved for states, including individual rights. Moreover, the way that the Bill of Rights was interpreted changed under the Warren Court. This Court explicitly advanced individual rights as a way to limit government interference of those rights, rather than using those provisions to limit government that would have, in turn, secured those individual rights. Garry provides one statistical point of information to put this in perspective for his audience, citing a study by Arthur Hellman that found that in the six Supreme Court terms between 1971 and 1976, the court decided 383 decisions on issues addressing individual rights and only eight on issues concerning federalism, in contrast to a mere century ago, when Federalism was a more prominent concern.

In Garry’s view, the New Deal and due process shifts were a mistaken turning point. Garry spends some time discussing the language of the Bill of Rights, and to a lesser extent, that of the Articles of the Constitution – a structural interpretation, if you will. Garry explains the way the negative and positive intentions are outlined. The negative language of the Bill of Rights was intentionally written by the Anti-Federalists as a way to limit government interference in certain areas reserved to both the people and the States, whereas the positive language of the Constitution’s Articles outlines the bounds of governmental power. Garry argues that the contemporary existence of positive liberties was judicially created. These same liberties would still be protected, just not explicitly enumerated, had the Court chosen to limit government interference rather than to define the scope of those certain individual rights. Attempting to define the scope of each individual right that should entertain no government interference is a more cumbersome task than to simply limit the government action that might cause that intrusion.

Garry further explains that limited government is dictated by the public’s ability to limit and control government, thereby preserves state’s rights, and more importantly, individual rights. Merely allowing for a democratic process (the fact that citizens vote every year or two) is not sufficient to limit and control government; in order to limit and control government, citizens must not only be informed, but must understand both the information and their own rights so that they can understand the differences between what was intended by the founding fathers, and what has transpired in the Court’s history. This book is a good first step toward making people aware that their rights would not need to be outlined so long as they continue to control and limit government action, interference, and regulation.

The last few chapters address how the Limited-Government model would apply to the clauses of the First Amendment, specifically free speech and separation of church and state. The best part of this analysis was the discussion about the Fourteenth Amendment: “…section 5 of the Fourteenth Amendment does not give Congress the ability to affirmatively legislate in areas prohibited by the Bill of Rights; instead, it leaves to Congress, rather than exclusively to the courts, the duty of enforcing limitations on state government”.
-Law and Politics Book Review

In this thought-provoking and well-researched book, Patrick M. Garry rejects the modern Court’s view of the Bill of Rights – that it was included in the Constitution to preserve individual autonomy by insulating the individual from various democratic outcomes. He argues instead that it was “designed primarily to better ensure the maintenance of limited government within the constitutional scheme”.

Garry’s command of the relevant scholarly literature is impressive. His knowledge of case law and his ability succinctly to summarize complex decisions are admirable.  The Limited Government and the Bill of Rights is ambitious in what it sets out to do and successful in what it accomplishes.  It deserves the careful attention of all constitutional scholars.
-Political Science Quarterly

This book is extremely well researched and provides a valuable discussion of the framers’ understanding of the Bill of Rights. Recommended.
–Choice

A crucifix may ward away vampires, but should we believe that the Bill of Rights has the same effect on despotism? Americans are indeed a superstitious people in this respect, certain that what James Madison called “parchment barriers” can actually limit something so boundless as political power.  Yet political power is surprisingly responsive to the Bill of Rights, at least when it is interpreted by the US Supreme Court.  One ruling, and Congress, presidents, state governments, and almighty democracy itself come to a halt. But while this seems to work in practice, is it a realistic way to protect freedom?

Patrick M. Garry, Professor of Law at the University of South Dakota, has written a book that compels us to reconsider this “rights-alone” approach to liberty.  He reminds us that the Constitution’s protection of liberty does not rest on the Bill of Rights but on the mechanisms designed to make government limit itself.  The modern emphasis the Bill of Rights is in fact a radical departure from the Founders’ intent, a danger to American democracy, and an unworkable system fraught with trouble for the courts.

The Founders took rights seriously, to be sure. But when it came to framing a government, they found these rights “so vague and general” that they could not be incorporated in the original Constitution (12).  Everyone knew that the meaning of rights could change over time, and it was impossible to list them all.  The goal was not to boldly state the rights of citizens, but to establish a strong central government consisting of institutions with the legal and political authority to limit each other, “thereby indirectly protecting individual freedom”(2).  The Founders knew that if government power was the greatest threat to personal freedom, the only way to check it was by establishing opposing powers, so no single branch could come to dominate the whole system.  Hence, the superior value of Articles I-VI, which were all about “striving to limit the power and reach of government, which in turn would serve the cause of liberty”—a much better protection than anything a judicial reading of the Bill of Rights could offer (4).

So why have a Bill of Rights?  Garry argues that it was there to do what the rest of the Constitution did: limit government by vesting a checking power in the people themselves.  That was the central question in the Ratification Debate—not “Should we list our rights?” or “How can we empower the Court to protect them?” but “What checks are left if institutions fail?” …

So why the tremendous emphasis on the Bill of Rights today? Like most scholars, Garry places the blame on the New Deal.  As the regulatory state became a radical new presence in American life, the meaning of personal freedom changed from the exercise of self-government to individual rights per se.  With a growing, ever-present, and all-invasive regulatory state, this was the last bit of liberty we could enjoy—a tiny alcove of personal privacy, which government, thanks to the judiciary, mercifully respects.

In our time, that freedom is no longer political, Garry claims, but part of a “therapeutic culture, in which the central moral question is individual fulfillment.”  Here, personal autonomy is the principle behind all rights, “and the development of the self is among the highest goals of society” (15). The fundamental freedom is, of course, sexual privacy and reproductive rights, along with “freedom of belief” in religion, and free speech reduced to nothing more than “self expression.”  All freedoms, though, are rooted in the absolute freedom of choices that create “the self.”

It is easy to view such protections as cost free. But they instead have the effect of radically aggrandizing the role of the judiciary, which is now entrusted with policing democracy, examining the content of religious belief and free speech, inventing new tests and applying new judge-made rules.  The court burdens itself with “a kind of political-moral reasoning process to determine whether a particular interest deserves protection as a constitutional right” (52). Conservatives look to rights that are “deeply rooted in history and tradition,” while liberals appeal to “evolving standards of decency.”

But none of this would be necessary if the Court simply focused on checks and balances, Garry argues.  “When the Court ceases to protect the kind of government structures designed to guard individual liberty, then only the judiciary is left to act as the guardian of liberty—and it does so by defining and strictly enforcing individual substantive rights” (29).  Garry proposes that the Court relieve itself of this burden by simply devoting attention to institutions rather than philosophic hair-splitting and theories of justice; meanwhile, the public could be reassured that all rights, even the most exotic and sacred kinds would indeed be protected because government would be too limited to infringe on them in the first place.

Garry’s Limited Government and the Bill of Rights is an exceptional challenge to modern judicial supremacy, a fine reminder of a path not taken, and perhaps an opportunity to recover a better way for American constitutionalism.
—The Review of Politics

-Featured in the Chronicle Review, July 20, 2012.

-Noted as Selected Book in “Research Links” by the Acton Institute.

-The Federalist Society chose Limited Government and the Bill of Rights as one of the books it features through its book podcast program.  The podcast, featuring a conversation between Professor Garry and constitutional law scholar and professor, Lee Strange, can be accessed here.

-Named as a Top-Ten post of 2014 by Law & Liberty

Book Awards

Grand Prize Finalist, Eric Hoffer Book Award

Winner, NABE Pinnacle Book Achievement Award

2015 Natl. Ind. Excellence (NIEA) Book Award

 2014 USA Best Book Award