Why are the Bill of Rights failing?

Walter Williams of the Capitalism Magazine talks about the reasons why the founding fathers included the Bill of Rights along with the Constitution. Wasn't the Constitution enough to guarantee us those rights? Why did they feel the need to explicitly state those rights and was it enough to protect those right? Unfortunately in this current political scenario, even those explicitly stated rights have failed to stand up to the assault of the American politicians.

In fact the rot had started a long time ago and one of the first and most important contributors to start it was Justice Oliver Wendell Holmes Jr. of the Supreme Court. In his article in The Objectivist Standard "Justice Holmes and the Empty Constitution" Thomas A. Bowden mentions the April 17, 1905, dissenting opinion of the Justice Holmes in the case of Lochner v. New York. The New York law setting maximum working hours for bakers was struck down by the majority but what really made this a landmark case was Holmes dissenting opinion.

The majority interpreted the Constitution as if it embodies a principled commitment to protecting individual liberty. But no such foundational principle exists, Holmes asserted, and the sooner judges realize they are expounding an empty Constitution—empty of any underlying view on the relationship of the individual to the state—the sooner they will step aside and allow legislators to decide the fate of individuals such as Joseph Lochner.

Health has been offered as one of the prime reason for violating the individual rights, like smoking in recent times. Its origins lie in the last century which can be seen in this case when the first New York appellate court held public’s power to promote health more important than the parties’ right to make employment contracts. The court held that the state held the "police power" as a part of its sovereignty to regulate for health reasons (even though there is no mention of police power in the Constitution.) It failed to define this power and pronounced it as proper for the purpose of the public benefit.

The New York court at least used the excuse of health as the reason for violating the individual rights, Justice Holmes's in his dissenting view didn't bother to use any excuses. He simple stated the Constitution placed no limits on this police power of the state and made no reference to protecting the individual rights. What was the basis for this argument which challenged the view of Constitution as placing limits on the power of the government? Amazingly it was supported by Justice Holmes's examples of other violations which routinely took place even in those days to further violate the individual rights.

How could liberty of contract possibly be a principle capable of yielding a decision in Lochner’s case, Holmes asked, when violations of such liberty are routinely permitted by law? “The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same,” Holmes observed, “is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.” For good measure, he cited several cases in which the Court had recently approved laws prohibiting lotteries, doing business on Sunday, engaging in usury, selling stock on margin, and employing underground miners more than eight hours a day—each law a clear interference with contractual liberty.

That wasn't true, of course.

Holmes had to evade large swaths of evidence tending to show that the Constitution indeed embodies a substantive commitment to individual liberty. In the Declaration of Independence, the Founders clearly stated their intent to create a government with a single purpose—the protection of individual rights to life, liberty, and the pursuit of happiness. Consistent with the Constitution’s Preamble, which declares a desire to “secure the blessings of liberty to ourselves and our posterity,” every clause in the Bill of Rights imposes a strict limit on government’s power over individual liberty and property.

Holmes's dissenting view had a profound effect. His denial of Constitution as a protector of liberty was eagerly grasped by those who would have settled for any excuse to deny it.
Paul Rahe: Obama's tyrannical ambition:

Back in 1912, when Woodrow Wilson successfully ran for the presidency, he told his compatriots, "We are in the presence of a new organization of society." Our time marks "a new social stage, a new era of human relationships, a new stagesetting for the drama of life," and "the old political formulas do not fit the present problems: they read now like documents taken out of a forgotten age." What Thomas Jefferson once taught is now, he insisted, quite out of date.

Holmes's dissenting view become his most damaging and lasting legacy. According to Bowden, Ayn Rand once observed that Justice Holmes “has had the worst philosophical influence on American law.”

In his bleak universe, there exists no principled limit on government power, no permanent institutional barrier between ourselves and tyranny—and the government can dispose of the individual as it pleases, as long as procedural niceties are observed. This pernicious Holmesian influence is reflected in the declining stature of America’s judiciary

Today the rot has reached the level where the debate between the main parties is about the extent that the government violate the individual rights and not whether the Constitution allows it to or not. Thomas Bowden does a masterful job of refuting Holmes's case for the "empty Constitution" and shows it to be full of content which without a doubt protects the individual rights. Read the full article.