I am honored to be a part of this debate on the Bill of Rights with such accomplished and knowledgeable scholars. The three responding essays by Dr. Bowling, Professor Erler and Professor Ramsey provide keen insights on constitutional law and history. Indeed, the historical discussions in the three essays are more detailed than is my lead essay. And for this, I give my highest compliments to the responders. Their discussion demonstrates the vital importance of history in constitutional interpretation. More than just demonstrating the importance of history, however, the responders also reveal the kind of inquiry and perspective needed for an…

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The revolution of 1787-1791 overthrew a constitution that strictly limited the federal government in favor of one with general welfare and necessary and proper clauses that allowed the federal government to absorb state powers over time. It also tossed out the dogma of separation of powers in favor of a more sophisticated balance of powers. When the states proposed to put that dogma back in the Constitution by Amendment and James Madison convinced the House of Representatives to include it in its Amendment package, the Senate, with its extensive executive powers, disagreed to it.1 Almost all Federalists claimed the Constitution was…

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Patrick Garry’s essay “The Constitution’s Structural Limits on Power Should Be the Focus of the Bill of Rights” contains many valuable insights. In particular, it re-affirms the proposition – lost for many years but perhaps gaining some new currency – that the so-called “structural” provisions of the Constitution are, and were intended to be, not merely matters of mundane and perhaps outdated institutional design but core protections of individual liberty. Further, it rightly emphasizes that the antifederalist-inspired Bill of Rights amendments work together with the Constitution’s structural provisions to limit government and promote individual liberty by reducing the federal government’s…

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There is much to commend Professor Garry’s essay. He is eminently correct in saying that the Constitution contemplated a limited government. Whether it adhered to a “limited government model” is a different issue. What is more than curious, however, is Professor Garry’s statement that the “the overall scheme of the original Constitution” is primarily concerned with structure and process and not “values.” In other words, the Constitution merely provides a process for making decisions and is wholly indifferent to the results. The Constitution is thus process without purpose. This view that the Constitution is unconcerned with “values”—or ends or purposes—is utterly alien…

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We are grateful to Richard Epstein for taking the time to reply, but are disappointed that he attributes to us positions we do not hold, indeed ones that are the reverse of our positions. We will first clear up some mistaken attributions and then consider in a spirit of engagement what might be a real difference in perspective. Epstein seems to understand us to say that any supermajoritarian process is likely to lead to good results. He thus begins his essay by observing that the existence of the Fugitive Slave Clause is a refutation of our position. But he completely misunderstands…

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