The American Political and Constitutional Context

Abstract

Textually, the Constitution on positive rights is “voiceless as fear in a wide wilderness” (Keats, 281). Indeed, the original Constitution—what Gladstone famously called “The most wonderful work ever struck off at a given time by the brain and purpose of man” (Gladstone, “Kin”, 185)—made no mention of rights at all. Rights appearednot among the six justifications in the Preamble nor in any subsequent article. Nor did the original Constitution contain a bill of rights, which in any case, some of the Framers opposed. One might agree with Hamilton that the Constitution, with its intricate checks and balances, rendered a bill of rights “unnecessary” (Hamilton et at., 557);¹ or one might conclude that the existence of the Constitution presupposes a belief in the right of the people to rule themselves. Still, the literal silence of the Constitution speaks volumes. Had they so chosen, the Framers could have instructed the national or state governments to secure certain positive rights, naming them, describing them vaguely or precisely, leaving no doubt that their existence was intended. Many state constitutions have taken this path;² the United States Constitution, which is clearly not averse to imposing obligations of other kinds on the national government,³ did not. Instead, the Bill of Rights is expressed mostly in a series of prohibitory commands⁴—as is the Fourteenth Amendment⁵—which are classic statements of negative rights.