There are rights which it is useless to surrender to the government, and which governments have yet always been fond to invade. These are the rights of thinking, and publishing our thoughts by speaking or writing, the right of free commerce, the right of personal freedom.
—Thomas Jefferson. Letter to David Humphreys, Paris, March 18, 1789.
A bill of rights is a list of rights which the higher law—the constitution—prohibits common legislation from violating. A bill of rights is the essence of constitutional government, which above all else requires that the power to make laws must itself be subject to law.
If alterable by the legislature it is worthless
Section 33 of Canada’s Bill of Rights allows its parliament to override its provisions, so long as the legislation invokes a special ‘notwithstanding’ formula. This renders the parliament supreme and the Bill of Rights a worthless gesture. As U.S. Chief Justice John Marshall observed:
The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. (Marbury v Madison, 5 U.S. 137 (1803).)
Vital during times of crisis or prolonged agony
During periods of crisis or national agony, the people can be expected to resort to radical experiments in government. At such times, a bill of rights acts as a failsafe to protect the people from tyranny and socialism which they themselves would unleash. Chief Justice Charles Hughes explained:
We are told that the provision of the statute … must be viewed in the light of the grave national crisis with which Congress was confronted … Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power. The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants. (Schechter Poultry Corp. v United States, 295 U.S. 495 (1935).)
It is worth noting that the official title of the legislation which suspended the German constitution and bestowed dictatorial powers on Adolf Hitler was the Law to Remedy the Distress of the People and the Nation. Those who voted for the legislation doubtless did so with the best of intentions. Yet the hundreds of thousands of German women and children who were burned alive in the firebombing of Dresden, Cologne, Hamburg, and Frankfurt, or millions of German men who were torn apart on the battlefield, or shivered and starved to death in Soviet gulags, or the women and girls of Berlin who were raped by the Red Army, or the survivors of the war, crippled and starving in the rubble, saddled with the national disgrace of the Shoah, cannot sincerely be said, by anyone, to have had their distress remedied.
It is precisely from the good intentions of those who want to ‘fix things’ using radical action that humanity has the most to fear. A constitutionally entrenched bill of rights, together with checks and balances safeguarding the manner and form of government, will prevent people like Adolf Hitler, Aneurin Bevan and Franklin Roosevelt from carrying out their grand experiments. It makes no difference whether they have the blessing of the majority, whether their demagoguery is supported by legions of marching Brownshirts, chanting unionists or benevolent fireside chats, constitutional safeguards will protect the people—even against their own passions.
