How Not to Read the Constitution

Abstract

From its very creation, the Constitution was perceived as a document that sought to strike a delicate balance between, on the one hand, governmental power to accomplish the great ends of civil society and, on the other, individual liberty. As James Madison put it in The Federalist Papers, "[i]f men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." Although Madison initially opposed the inclusion of a Bill of Rights in the Constitution, as his correspondence with Thomas Jefferson shows, he became convinced that judicially enforceable rights are among the necessary "auxiliary precautions" against tyranny.