No Consitutionally-Entrenched Bill of Rights in the USA

I put this in Before 1900 although it would have consequences After 1900 as well.

What if the USA had no constitutionally-entreched Bill of Rights? There would still be a Bill of Rights but it would be statutory (created by Congress) and be able to be overridden by a complex process if the government were determined to. Or alternatively the Bill of Rights could still be constitutionally-entrenched BUT it could have a Notwithstanding clause like in Canada allowing the courts to be overriden in rare circumstances.

Just for information sake, in the UK for instance (well, this is my understanding of it) with their Human Rights Act, the judiciary can declare a law to inconsistent with the Act. The government then has to either change the law to be consistent with the Act or has to re-pass the legislation throught Parliament and explicitly declare that it violate the Human Rights Act.

Also all new legislation must declare that it is either consistent or inconsistent with the Human Rights Act.

The idea of all this being that in democratic societies such as the UK or USA, even relatively authoritarian governments are loathe to be seen as openly violating human rights even when they are technically able to. This gives the courts a defacto power to quash legislation.

How would such an ATL alter US political history?

What POD would be needed for this to occur. Admittedly this is the hard bit of this ATL, as the reason for statutory Bills of Rights and Notwithstadning clauses in other nations is actually a reaction to what are perceived as excessive judicial power in the USA, so it would be hard to see how the idea would first arise in the USA. Any ideas?
 
It would be very difficult to manage that change with a PoD that didn't go a good ways back before the Constitutional Convention; half the states that approved the Constitution (including most of the big ones) only did so on the condition that a bill of rights be incorporated into the Constituion as soon as possible after the new government formed.
 
It would be very difficult to manage that change with a PoD that didn't go a good ways back before the Constitutional Convention; half the states that approved the Constitution (including most of the big ones) only did so on the condition that a bill of rights be incorporated into the Constituion as soon as possible after the new government formed.

Agreed; perhaps back even before 1759, England's "wonderful year" of glory in North America.
 
I agree with the points made by Lord Grattan and Chengar Qordath that the lack of a constitutional Bill of Rights might fundamentally change whether and how the states combined to form the union in the first place.

That said, let's separate out some separate questions of constitutional structure that are implicit in the question.

(1) The Bill of Rights itself only restricted the federal government until the Reconstruction Amendments (specifically, the Fourteenth). Even following that, guarantees in the Bill of Rights have only been applied against the state governments selectively.

(2) We don't really depend on the Bill of Rights for the right of courts to review and invalidate legislation or other government actions on grounds of constitutionality. This is instead a matter of the federal constitution as a basic law that can't be contradicted by other layers of government actions that are built on its foundations. That said, because of the nature of the Bill of Rights' guarantees, a lot of this invalidating gets done when the Bill of Rights are involved.

(3) Frequently in American history there's been a kind of hydraulic principle to the way constitutional debates get played out: when the constitutional bases of the powers of the state get interpreted most expansively, the same courts will most jealously begin guarding the constitutionally ennumerated rights of individuals (the classic example being the Warren Court), and when the powers of the state are being circumscribed, then the ennumerated liberties seem not to need as much defending.

(4) Finally, American government is all about redundancy. Even in the absence of a federal constitutional Bill of Rights, there's the Bill of Rights of the various states. So if the federal Bill of Rights vanished, individuals could have recourse to their state's Bill of Rights. This introduces a lot of complexity, because on one hand obviously these state constitutions are going to be more responsive to the pecadilloes of each state's electorate, and the practical effect of that is obvious once you imagine individual state supreme courts deciding desegregation cases. At the same time though, individual state constitutions are sometimes more generous than the federal constitution in protecting individual rights, and this has led to the guarantees in these state constitutions to be the language cited in suits trying to win recognition of same-sex marriage.

So, with this in mind, I want to say that if we were to imagine an American constitutional order similar in all other respects but lacking a Bill of Rights, the result would be not a stronger federal government but a weaker one. Because the courts and successive electorates would have thrown themselves into the breach to create those limits that the constitutional text would have lacked, for whatever reason.

Now as to whether in practical terms this means that in 2008 this would still be the sort of country where we could buy Ulysses, get an abortion, sue the government for racial discrimination or be read Miranda rights when we get arrested is hard to say.

It's a fascinating question, though.
 
I agree with the points made by Lord Grattan and Chengar Qordath that the lack of a constitutional Bill of Rights might fundamentally change whether and how the states combined to form the union in the first place.

That said, let's separate out some separate questions of constitutional structure that are implicit in the question.

(1) The Bill of Rights itself only restricted the federal government until the Reconstruction Amendments (specifically, the Fourteenth). Even following that, guarantees in the Bill of Rights have only been applied against the state governments selectively.

(2) We don't really depend on the Bill of Rights for the right of courts to review and invalidate legislation or other government actions on grounds of constitutionality. This is instead a matter of the federal constitution as a basic law that can't be contradicted by other layers of government actions that are built on its foundations. That said, because of the nature of the Bill of Rights' guarantees, a lot of this invalidating gets done when the Bill of Rights are involved.

(3) Frequently in American history there's been a kind of hydraulic principle to the way constitutional debates get played out: when the constitutional bases of the powers of the state get interpreted most expansively, the same courts will most jealously begin guarding the constitutionally ennumerated rights of individuals (the classic example being the Warren Court), and when the powers of the state are being circumscribed, then the ennumerated liberties seem not to need as much defending.

(4) Finally, American government is all about redundancy. Even in the absence of a federal constitutional Bill of Rights, there's the Bill of Rights of the various states. So if the federal Bill of Rights vanished, individuals could have recourse to their state's Bill of Rights. This introduces a lot of complexity, because on one hand obviously these state constitutions are going to be more responsive to the pecadilloes of each state's electorate, and the practical effect of that is obvious once you imagine individual state supreme courts deciding desegregation cases. At the same time though, individual state constitutions are sometimes more generous than the federal constitution in protecting individual rights, and this has led to the guarantees in these state constitutions to be the language cited in suits trying to win recognition of same-sex marriage.

So, with this in mind, I want to say that if we were to imagine an American constitutional order similar in all other respects but lacking a Bill of Rights, the result would be not a stronger federal government but a weaker one. Because the courts and successive electorates would have thrown themselves into the breach to create those limits that the constitutional text would have lacked, for whatever reason.

Now as to whether in practical terms this means that in 2008 this would still be the sort of country where we could buy Ulysses, get an abortion, sue the government for racial discrimination or be read Miranda rights when we get arrested is hard to say.

It's a fascinating question, though.

I agree with a lot of what you say. However an interesting question is also whether the federal government would be less likely to enforce court ruling against a statutory Bill of Rights in the case of the court ruling against the states. I think it still would. For instance in the 1950's and early 1960's a statutory Bill of Rights IMHO would still be sufficient to make the Federal Government pass civil rights legislation.

I think it would considering that even in OTL if the Congress had really be pro-segregation it could just have not passed legislation in this area (ie it was really the fact that Congress and the Executive were willing to pass and enforce Civil Rights legislation, not the fact that segregation was declared unconstitutional that led to progressive changes. An uninterested Congress could just have ignored the issue).
 

Thande

Donor
Even 1759 was too late - this aspect of the American Constitution is derived directly from the British Constitution of the day, or to be more exact the Anglo-Scottish Constitution, as it was set up after the Glorious Revolution in 1689. The English Bill of Rights was the basis for the Constitution, and that attitude was clearly inherited in America despite influences from elsewhere. Besides, America was in a similar position to England at that point, having just gone through a revolution about being free from "foreign" influence and draconian social laws, so it makes sense that their constitution would also have a central role for a bill of rights.
 

burmafrd

Banned
Pretty much a ASB. Virtually every small state made a Bill of Rights a condition to ratifying the Constituition. Truly a non starter for that time.
 
Even 1759 was too late - this aspect of the American Constitution is derived directly from the British Constitution of the day, or to be more exact the Anglo-Scottish Constitution, as it was set up after the Glorious Revolution in 1689. The English Bill of Rights was the basis for the Constitution, and that attitude was clearly inherited in America despite influences from elsewhere. Besides, America was in a similar position to England at that point, having just gone through a revolution about being free from "foreign" influence and draconian social laws, so it makes sense that their constitution would also have a central role for a bill of rights.

But the English Bill of Rights isn't constitutionally-entrenched (especially given the United Kingdom's lack of a written constitution!).
 
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