It seems to come as a surprise to many judges and lawyers that there was a serious argument, at the very beginning, about a Bill of Rights. The reservations did not come from people who were reserved about “rights,” but quite the contrary. The concern was that a Bill of Rights would misinstruct the American people about the ground of their rights. 

The concern is reflected in that line we hear so commonly, when people invoke “those rights of speech we have through the First Amendment” – as though in the absence of that Amendment we would not have those rights. As the skeptics asked in 1790, why would we suppose that, in a regime of freedom, we would not have the right to speak or assemble, or for that matter, to walk down the street? 

The concern among men like Alexander Hamilton and James Wilson was that people would come to think that they had rights only because they were set down, enacted in what was called the “posited” or positive law. As Wilson argued, the purpose of the Constitution was not to invent new rights, but to secure and enlarge the rights we already possessed by nature. It was perilous then to teach that we had only the rights set down in the positive law, and that the rights set down in the Constitution were somehow far more important than the rights that were left unmentioned.

I raise all of this now because of the curious teachings marked off these days by that otherwise quite engaging and right-headed woman, Michele Bachmann. She is the most sincere pro-lifer, devoted to the commitments of marriage and family. When she was faced in a debate with the question of same-sex marriage enacted in New York, she insisted that New York had a clear authority under the Tenth Amendment to enact such a policy. 

She insisted, further, that as President of the United States, that could not be her business or a matter that made proper any commentary of her own. The Tenth Amendment read in this way: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  

But was there no federalism, no authority of states to legislate before the Tenth Amendment was ratified in 1790? The Continental Congress had given guidance to the various colonies in adopting constitutions and forming themselves into states. But the standing of the states, with their powers to legislate, was built into the very structure of the Constitution. And nothing in that Tenth Amendment made any clearer the subjects that fell exclusively to the states, outside the reach of the national government. 

The question before Michele Bachmann was not whether New York had the authority to legislate on marriage. The question was whether New York had taken a step whose purpose and tendency was to dismantle an institution that has been bound up with the very matrix of the laws ever since there have been laws. The law in New York threatens to undermine even further the institution of marriage, with all of the destruction that portends. 

Why would a president be barred from speaking on an issue of moral consequence that portends serious effects, rippling through the country?  If New York instituted a one-child policy, with compulsory abortion, would a president have no occasion or rationale for speaking? Michele Bachmann was letting an infirm reading of the Constitution distract her from the constitutional and moral questions running deeper.

More recently, Michele Bachmann reacted when President Obama declared that his administration would not defend the Defense of Marriage Act (DOMA), because he thought the act was unconstitutional. DOMA sought to recognize in federal law, as a “marriage,” only the legal union of a man and woman. 

But Obama now thought this was as discriminatory and wrong as the laws that used to bar marriage across racial lines. Michele Bachmann objected. But not to the substance of Obama’s argument. She accused the president, rather, of  “usurping” the function of the courts as he presumed to announce a judgment on the constitutionality of a statute. 

Quite unwittingly, Bachmann seemed to be backing into the assumption of Judicial Supremacy. In the classic case of Marbury v. Madison, Chief Justice Marshall had never said that the courts possessed the sole, exclusive authority to reach judgments on the constitutionality of laws.

In judging a particular case, and dealing with a statute, the judges would of course have to consider whether the statute was compatible with the fundamental law of the Constitution. But in that respect Marshall claimed no obligation or authority for judges that would not fall to any member of Congress or the president. 

If a president were faced with a bill that sought to conscript into the military service only members of a minority race, would he be confined to the question of whether the measure would “work”?  Or would he too be obliged to consider whether this measure coming under his hand was compatible with the fundamental law of the Constitution?

I fear that Michele Bachmann, smart and spirited as she is, is channeling passions at work in the land; and as she makes herself the voice of a comic-book version of the Constitution, she is diverting herself more and more from the moral substance of the questions before her.