The Bill of Rights has become a bulwark of American liberty. Although the U.S. government was supposed to have only those powers specifically delegated to it by the Constitution, it has gained enormous arbitrary powers never dreamed of by our Framers, and protecting fundamental liberties has increasingly involved appeals to the Bill of Rights, as the first ten amendments are known.
"The federal Bill of Rights," wrote constitutional historian Bernard Schwartz, "is the culmination of the of the idea of law as a check upon governmental power. If Americans live under a constitutional polity, it is only because we enjoy the fruits of a successful struggle to bridle public authority by constitutional guarantee. Our liberties today are based upon the words originally written into Colonial Charters and enactments, and, even earlier, into the great Charters of English history. From a historical point of view, the federal Bill of Rights is...a virtual magic mirror, wherein we see reflected not only our own lives, but the whole pageant of Anglo-American constitutional development and all that it has meant in the history of freedom."
An ironic story
The story of the Bill of Rights abounds with irony. The idea was opposed by most of those who worked for almost four months in Philadelphia, secretly drafting the Constitution. Defenders of the Constitution, known as Federalists, claimed that a bill of rights wasn't necessary. Connecticut's Roger Sherman thought a federal bill of rights was irrelevant, since the Constitution didn't repeal the state bills of rights.
Nonetheless, at the Constitutional Convention Elbridge Gerry of Massachusetts made a motion calling for a committee to draft a bill of rights, and the motion was seconded by George Mason. But a proposed clause aimed at protecting freedom of the press was defeated, and the Convention adjourned. The campaign got underway to have the Constitution ratified by the legislatures in three quarters of the states.
This didn't end the debate about a bill of rights, however. There had never been a central government before in America, and many people were worried about how it might gain unprecedented power over people's lives. One David Redick wrote William Irvine in September 1787: "I may venture to Say that in my opinion the day on which we adopt the present proposed plan of government, from that moment we may Justly date the loss of American liberty.... My dear sir why is not the liberty of the press provided for? Why will the Congress have power to alter the plan or mode of chusing Representatives? Why will they have the power to lay direct Taxes?"
Centralized power was the principal concern of individuals known as Anti-Federalists, who opposed ratification of the Constitution. Most, like the Virginian Patrick Henry, feared the central government would undermine the power of the states. The federal government's power to tax people directly—which made possible the later development of the Internal Revenue Service—seemed a good bet to be abused.
Yet it appeared that Federalists would succeed in getting the Constitution ratified without a bill of rights. Biographer Ralph Ketcham observed that "the figure of General Washington looming in the background was to many the basic argument for ratification.... The powers of the new government, and especially the office of the President, had been framed in part according to what would suit Washington, and the people judged the Constitution with the same thought in mind. His presence and universally admired patriotism gave the plans and debates of 1787 and 1788 a specific, personal quality that had an immense influence on the results. Though some leaders raised the disquieting question of what would happen after Washington passed from the scene, by and large the Federalists managed to keep attention on what powers of government could safely be entrusted to the hero of the revolution."
The most important Anti-Federalist battle cry was for a bill of rights. As Virginia's George Mason wrote in his Objections to This Constitution, October 1787, "There is no declaration of rights, and the laws of the general government being paramount to the laws and constitutions of the several States, the declarations of rights in the separate States are no security. Nor are the people secured even in the enjoyment of the benefits of the common law, which stands here upon no other foundation than its having been adopted by the respective acts forming the constitutions of the several States.... There is no declaration of any kind, for preserving the liberty of the press, or the trial by jury in civil cases; nor against the danger of standing armies in time of peace" Mason insisted that the Constitution shouldn't be ratified unless it was going to include a bill of rights.
Superfluous, even dangerous?
Alexander Hamilton, writing in The Federalist No. 84, claimed that the government was the same as the people and therefore the people didn't need a bill of rights: He noted that bills of rights had developed in England to protect people from the king, but "they have no application to constitutions, professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations [a bill of rights]....
"I go further," Hamilton continued, "and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power."
Anti-Federalists pointed out that the Constitution already protected several rights in Article 1, Section 9. It banned bills of attainder. A bill of attainder was a legislative act declaring the guilt of an individual and imposing criminal penalties, even thought he individual hadn't had a jury trial. Similarly, ex post facto laws were banned. An ex post facto law made an individual guilty and liable for criminal penalties although the action in question was legal at the time it was taken. The right of habeas corpus was also protected. This ancient right, which developed in English law, required that an individual who was imprisoned must be formally charged with the crime, so that he or she would have an opportunity to prove their innocence in a jury trial. Moreover, Article 3, Section 1 protected the right of trial by jury in criminal cases. Since the Constitution already protected these rights, why shouldn't it protect other fundamental rights?
Federalists countered that states already had bills of rights. But not every state did. New York, for example. Nor did every state with a bill of rights protect what many would consider to be the most important rights. The Virginia Bill of Rights, which George Mason had drafted, didn't protect freedom of speech, freedom of assembly, the right to be represented by a lawyer, separation of church and state or freedom from ex post facto laws.
Anti-Federalists picked on the Constitution's clause, in Article 1, Section 8, that "No title of nobility shall be granted by the United States; And no person holding office of profit or trust under them, shall, without the consent of Congress, accept any of present, emolument, office, or title, of any kind whatsoever, from any king, prince, or foreign state." If it wasn't necessary to have prohibitions against things which the government wasn't empowered to do, then why did the Federalists include this prohibition against creating titles of nobility?
Vigorous and anonymous
Vigorous debate was carried on in newspapers, often via unsigned pieces. The best known series was The Federalist, with contributions by Hamilton, Madison and John Jay, but Anti-Federalist articles filled the newspapers, too. For example, "Letters from the 'Federal Farmer' to 'The Republican,' " November 8, 1787, asserted: "There are certain unalienable and fundamental rights, which in forming the social compact, ought to be explicitly ascertained and fixed—a free and enlightened people, in forming this compact, will not resign all their rights to those who govern, and they will fix limits to their legislators and rulers, which will soon be plainly seen by those who are governed, as well as by those who govern; and the latter will know they cannot be passed unperceived by the former, and without giving a general alarm—These rights should be made the basis of every constitution; and if a people be so situated, or have such different opinions that they cannot agree in ascertaining and fixing them, it is a very strong argument against their attempting to form one entire society, to live under one system of laws only...."
The Federalists blundered in opposing a bill of rights, and popular support grew for it. Historian Leonard W. Levy observed that "Their single-minded purpose of creating an effective national government had exhausted their energies and good sense, and when they found themselves on the defensive, accused of threatening the liberties of the people, their frayed nerves led them into indefensible positions."
From Paris where Thomas Jefferson served as American representative, on December 20, 1787, he wrote his friend James Madison, who had taken the lead in making the Constitution. After mentioning aspects of the Constitution that he liked, Jefferson talked about "what I do not like. First the omission of a bill of rights providing clearly & without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal & unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land & not by the law of nations.... Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, & what no just government should refuse, or rest on inferences."
Jefferson discussed a bill of rights with many of his correspondents. He wrote Alexander Donald on February 7, 1788: "By a declaration of rights I mean one which shall stipulate freedom of religion, freedom of the press, freedom of commerce against monopolies, trial by jury in all cases, no suspensions of habeas corpus, no standing armies. These are fetters against doing evil which no honest government should decline."
As late as October 17, 1788, when Madison wrote Jefferson, he was still resisting the idea of a bill of rights. "I have never thought the omission [of a bill of rights from the Constitution] a serious defect," Madison told his friend, "nor have been anxious to supply it even by subsequent amendment, for any reason other than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and if properly executed could not be of disservice. I have not viewed it in an important light."
Jefferson (still in Paris) replied in a March 15, 1789 letter, with a clinching point: "the legal check which it [a bill of rights] puts in the hands of the judiciary. This is a body, which if rendered independent & kept strictly to their own department, merits great confidence for their learning & integrity." A bill of rights gives judges the closest thing to an absolute standard for determining whether a law is permitted by the Constitution. With an amendment prohibiting restrictions on free speech, for example, a bill might have been passed by a majority in Congress and signed into law by a president, fulfilling the procedural requirements of the Constitution, but if it suppressed free speech, judges could strike it down for violating this amendment.
While Jefferson was urging Madison to embrace a bill of rights, the Anti-Federalists were stirring up considerable opposition to the Constitution, and Madison was worried. The Pennsylvania legislature voted to ratify the Constitution, but a vocal minority protested that it didn't have a bill of rights like their own state constitution. Although Massachusetts ratified the Constitution, it recommended amendments. Without a bill of rights, Madison became convinced, Virginia would vote against ratification. Four states, including New York and Virginia, called for a second constitutional convention, and Madison was concerned that if there were a second constitutional convention, it might undermine the taxing power of the federal government.
Madison announced that he supported amending the constitution with a bill of rights. He pledged that if the constitution were ratified, he would lead the effort to get the amendments through the new Congress. Opposition to the Constitution fell away. Anti-Federalist Richard Henry Lee of Virginia was among those who supported ratification of the Constitution after being promised it would be amended to include a bill of rights. So the success of the tactic, demanding that a bill of rights be added, increased the likelihood that the Constitution would be ratified, which wasn't what the Anti-Federalists wanted.
James Madison was true to his word. On June 8, 1789, he rose on the floor of the House of Representatives and spoke about the need for a bill of rights. He urged the House "not to let the first session pass over without proposing to the state legislatures some things to be incorporated into the constitution, as will render it acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who have been friendly to the adoption of this constitution, may have the opportunity of proving to those who were opposed to it, that they were as sincerely devoted to liberty and a republican government, as those who charged them with wishing the adoption of this constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions, that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled."
Madison embraced Jefferson's point, that with a bill of rights, "independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution...."
"Madison's speech stirred no immediate support in Congress," noted historian Levy. "Indeed, every speaker who followed him, regardless of party affiliation, either opposed a bill of rights or believed that the House should attend to far more important duties. Six weeks later Madison 'begged' for consideration of his amendments, but the House assigned them to a special committee instead of debating them. That committee, which included Madison, reported in a week. It added freedom of speech to the rights protected against state abridgment, deleted Madison's reference to no 'unreasonable searches and seizures,' made some stylistic revisions, but otherwise recommended the amendments substantially as he had proposed them. The committee's report was tabled, impelling Madison on August 3 to implore its consideration."
Slow to approve
Why the resistance to Madison's proposals? Federalists still weren't interested in a bill of rights. Massachusetts Congressman Theodore Sedgwick suggested this was like declaring "that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper." Federalists focused on other issues, including a judiciary bill. Many Anti-Federalist members of Congress realized that if a bill of rights were enacted, many critics of the Constitution would be satisfied and drop their demands for a second convention, and consequently there wouldn't be any hope of challenging the taxing power of the new government. New Englanders, who had government-supported churches, didn't like the proposed first amendment about the separation of church and state.
Each of Madison's proposed amendments went through the tedious process of being discussed and redrafted in the House, discussed and redrafted in the Senate, and finally voted on by both houses, before going to state legislatures for ratification. Some of Madison's proposals weren't accepted, starting with his first two amendments: one would have prevented Congress from reducing the number of representatives, and the other would have banned Congressional pay raises between elections. Madison proposed saying "no state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." Madison urged that "No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases," but this was rejected apparently because Congressmen wanted a bill of rights applying only to the central government, not the states. The Bill of Rights didn't apply to the states until the Fourteenth Amendment, after the Civil War. Madison recommended that the Constitution be amended by inserting changes into the text, mostly in Article 1, Section 8. What happened, of course, is that amendments were added at the end of the Constitution.
Here's how the First Amendment evolved. Madison's proposal for the free speech and free press clauses, on June 8th: "The people shall not be deprived or abridged of their right to speak, to write or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."
On July 28th, the House Committee of Eleven changed this to read: "The freedom of speech, and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed."
This became a House Resolution on August 24th: "The Freedom of Speech, and of the Press, and the right of the People peaceably to assemble, and consult for their common good, and to apply to the Government for a redress of grievances, shall not be infringed."
By September 4th, the Senate had changed the wording as follows: "That Congress shall make no law, abridging the freedom of speech, or of the press, or the right of the People peaceably to assemble and consult for their common good, and to petition the Government for a redress of grievances."
The Senate Resolution was voted on September 9th: "Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition to the government for a redress of grievances."
Shall not be infringed
Then came "Further House Consideration" and "Further Senate Consideration" (September 21st) and the Conference Committee Report (September 24th). The Conference Committee Report endorsed the following: "Congress shall make no law respecting an establishment of Religion, or prohibiting the free exercise thereof; or abridging the freedom of Speech, or of the Press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances." With a few minor changes (dropping capitalization for "Religion," "Speech" and "Press") this became the version presented to the states for ratification. Alternative versions were considered at state conventions in Maryland, Massachusetts, New York, North Carolina, Pennsylvania, Rhode Island and Virginia, but they were voted down.
For what became the Second Amendment, Madison proposed: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person." Congress rejected Madison's effort to protect conscientious objection to military conscription, and the Second Amendment became: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
English and European governments had sometimes saved money by forcing private individuals to provide room and board for soldiers, and so Madison proposed this for what became the Third Amendment: "No soldier shall in time of peace be quartered in any house, without consent of the owner; nor at any time, but in a manner warranted by law." Congress weakened this by changing the last clause to read, "not in time of war, but in a manner to be prescribed by law."
The Fourth Amendment began with this proposal from Madison: "The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrant issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized." Congress actually strengthened this a bit by adding the "no warrants shall issue" phrase: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Here's the grand jury clause which Madison proposed, and which became the first part of the Fifth Amendment: "The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with a loss of life or member, presentment or indictment by a grand jury, shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same state, as near as may be to the seat of the offence. In cases of crimes committed not within any country, the trial may by law be in such country as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate." Congress condensed Madison's wording.
...without due process of law
Next, Madison's proposal for what became the Fifth Amendment clause about double jeopardy, self-incrimination, due process and takings: "No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation."
The final version of the Fifth Amendment: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for pubic use, without just compensation."
For what became the Sixth Amendment, Madison proposed: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense." Since the right to trial by jury was considered such an important bulwark of liberty, Congress made this an explicit element of its final draft: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."
As for civil cases, Madison suggested adding to the end of the second clause in article 3, section 2: "nor shall any fact triable by jury, according to the course of common law, be otherwise reexaminable than may consist with the principles of common law." Congress expanded this somewhat for the Seventh Amendment: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law."
Madison's proposal for what became the Eighth Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Congress accepted this exactly as it was.
No affirmation of separation
To those who expressed concern that protecting certain rights might undermine the protection of other rights not enumerated, Madison proposed: "The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution." By the time this made its way through the House and Senate, it became the Ninth Amendment: "The enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Madison's proposal for what became the Tenth Amendment: "The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial; nor the executive exercise the powers vested in the legislative or judicial; nor the judicial exercise the powers vested in the legislative or executive departments. The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively." Congress didn't think the affirmation of a separation of powers was necessary and opted to rework Madison's last sentence, adding the important phrase "to the people": "The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Altogether, Congress modified and voted for twelve of Madison's amendments, and on September 25, 1789, these were presented to the state legislatures for ratification. Nine voted for amendments three through twelve, rejecting the first two amendments, which established a minimum number of Congressmen and prohibited Congressional pay increases between elections, respectively. Connecticut, a Federalist stronghold, refused to ratify the bill of rights since it might be interpreted to mean that the original Constitution was flawed. Georgia wouldn't ratify, claiming that a bill of rights was unnecessary. The lower house of the Massachusetts legislature rejected amendments one (number of Congressmen), two (no Congressional pay raises between elections) and twelve (powers not delegated to the U.S. reserved to the states or the people), while the upper house rejected amendments one, two and ten (prohibited excessive bail, cruel & unusual punishments) amendments. The two houses couldn't agree on what to do, and Massachusetts didn't ratify the Bill of Rights until 1939, its 150th anniversary. Because Vermont entered the Union (February 18, 1791), eleven states were needed for ratification. Vermont became one of them in November 1789.
Virginia was the last state to vote on the amendments, and Anti-Federalists were strong there. They controlled the state senate, while Federalists controlled the lower house. Richard Henry Lee was among those who opposed passage of the amendments since this would satisfy a lot of people who would otherwise demand a second constitutional convention, intended to "secure against the annihilation of the state governments." Patrick Henry tried to delay discussion of the amendments. Initially, George Mason belittled the amendments as "Milk and Water Propositions," but he came around and declared that the amendments gave him "much satisfaction." Aiming to undermine Anti-Federalist support for a second constitutional convention, the Federalist lower house voted for the amendments. The state senate rejected amendments three (freedom of religion, speech, press, assembly and petition), eight (right to a jury trial in criminal cases), eleven (enumeration of certain rights not to deny others) and twelve (powers not delegated to the U.S. reserved to the states or the people). Madison, who championed religious liberty and the separation of church and state, tangled with senators who supported government-financed churches. Jefferson made his influence felt, too. In an unrecorded vote on December 15, 1791, the Virginia senate approved the amendments, making Virginia the eleventh state to ratify amendments three through twelve, and they became the first 10 amendments to the Constitution.
"But for Madison's persistence," observed Leonard W. Levy, "the amendments would have died in Congress. Our precious Bill of Rights, at least in its immediate background, resulted from the reluctant necessity of certain Federalists to capitalize on a cause that had been originated, in vain, by the Anti-Federalists for ulterior purposes [defeating the Constitution]. The party that had first opposed the Bill of Rights inadvertently wound up with the responsibility for its framing and ratification, whereas the people who had at first professedly wanted it discovered too late that it not only was embarrassing but disastrous for their ulterior purposes."
True, there has been much debate about the meaning of certain terms in the Bill of Rights, like "due process of law." Historian Irving Brant remarked, "freedom of speech and press cannot be abridged, except—and what a mammoth exception this is—except by punishing such speech and writings as were punishable under the common law of England. For, say they, the framers had read the assertion of Blackstone that freedom of the press meant only freedom from prior restraint, and that if any man offended the law by what he said or wrote, he was to be punished for his temerity." And of course, the Supreme Court has periodically disregarded various provisions in the Bill of Rights. From the New Deal until recent years, for instance, the Supreme Court has largely ignored provisions protecting property rights, such as the takings clause.
Nonetheless, the Bill of Rights was a momentous breakthrough in the history of liberty. It went well beyond English precedents from the 17th century. Those had limited the power of a king but granted unlimited power to Parliament; England still doesn't have a Supreme Court that could strike down an act of Parliament for violating protected individual rights. England's Petition of Right (1628) protected the right of trial by jury. The Habeas Corpus Act (1679) assured that individuals could not be imprisoned without being formally charged and given the opportunity to prove their innocence in court. The Toleration Act (1689) left standing laws which penalized religious dissidents, while exempting most from penalties. The government continued to finance the Church of England. The Bill of Rights (1689) was the agreement accepted by William of Orange as the condition for being crowned king of England. This Bill of Rights established the supremacy of Parliament, and it said that the government "ought not" to impose excessive bail or cruel and unusual punishments; the English Bill of Rights lacked the clear-cut prohibitions in the American Bill of Rights. Freedom of speech was protected for members of Parliament. Protestants had the right to bear arms.
The U.S. Bill of Rights, by contrast with English precedents, became a fundamental law of the land. It protected more liberties than were protected in England. It applied to every branch of the federal government, not just the executive. Judges could strike down an act of Congress, signed into law by the President, if it violated the Bill of Rights. Checks and balances built into the structure of the Constitution have failed to prevent the dramatic expansion of federal government power during the 20th century, but thanks to the Bill of Rights it is still possible to challenge the government in court and sometimes win.
Reprinted by permission of the author from libertystory.net. Jim Powell is a former editor of Laissez Faire Books and a prolific author.