Today in History
MYTHS AND REALITIES
2, 3 and 4
by Stephen Markman
Justice, Michigan Supreme Court
This is a continuation of excerpts from a dissertation on the
Constitution "reprinted by permission from Imprimis,
the national speech digest of Hillsdale College, www.hillsdale.edu."
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:
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
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
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.
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
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
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.
installment is Constitutional Myths and
Realities Myths 5 & 6
to comment on this article? We value your input
send us your comments and if you wish, a link to your site or a link to another
page that supports your views and we'll post your valued input here.
The Governor's Story
You, Your Child and the
Siege of Shah Island
The Pilgrims Came
Guide to Teaching Grammar using the Principle Approach
Liberty and Justice for All
Writing and the Essay