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Noah Webster, On the absurdity of a Bill of Rights (Review)

March 26, 2017

Noah Webster

By James Herring (1794 – 1867) [Public domain], via Wikimedia Commons

If you’ve read my last post you may have guessed from the title why I’ve chosen Noah Webster’s “On the absurdity of a Bill of Rights” as my next Library of America (LOA) Story of the Week to discuss. For those of you who haven’t read that post, or who, like me, have a memory like a sieve, I discussed the play adaptation of Frank Moorehouse’s Cold light, and protagonist Edith Campbell Berry’s desire for government (or, those governing) to act according to the Universal Declaration of Human Rights.

Now, before I briefly share Webster’s arguments, a little background to this clearly very tricksy man! I’ll start by admitting that my main knowledge of Noah Webster was as the creator of America’s best known dictionary, Webster’s of course. It wasn’t initially, or even in his lifetime, called that, though. He published his first dictionary in 1806 under the title, A compendious dictionary of the English language, but his first big, comprehensive dictionary, An American Dictionary of the English Language, wasn’t published until 1828.

All this, though, came after the writing I’m talking about here, but it is related because it was through his writing and publishing work that he became interested in federation, and thus the Bill of Rights issue. You see, as LOA’s notes tell us, in 1783, when he was a twenty-five-year-old schoolteacher, Webster “began publishing his Grammatical Institute of the English Language, the first part of which became The American Spelling Book”. A spelling book leading to the Bill of Rights? How, you might wonder? Well, here’s LOA again:

Less familiar to many readers is the pivotal role Webster played in the founding of the American republic and the adoption of its new constitution—and his advocacy was very much related to the success of his publications. The difficulty of securing copyrights from thirteen separate state governments for each subsequent edition of his spelling book convinced him of the need for an effective national government, and he became an advocate for the Federalist cause.

He started campaigning for the federalist cause in 1785, and here comes the particularly “tricksy” bit because when the new constitution was proposed in 1787, he wrote articles supporting its ratification under various pseudonyms! One of these was Giles Hickory under which he wrote the article I’m discussing here. As LOA writes,

One of the main objections to the new constitution was that it did not include a bill of rights, an argument Webster dismisses in his first Hickory letter by responding that such documents are only needed as protection against tyrants and would become unnecessary in a government elected by the people.

This is one of the main arguments he puts in “On the absurdity of a Bill of Rights”. He argues that a Bill of Rights [like the “Magna Charta”] against “the encroachment of Kings and Barons, or against any power independent of the people, is perfectly intelligible” but that a Bill of Rights in a democracy would essentially be the people guarding against the people. In other words, in an elected legislature “the rulers have the same interest in the laws, as the subjects have” so, he argues, “the rights of the people will be perfectly secure without any declaration in their favour”. Hmm, that sounds perfectly good in theory, but in practice, well, it doesn’t always seem to quite work out that way does it?

Anyhow, as it turned out, those in favour of a Bill of Rights won the argument, as Massachusetts, for example, only agreed to ratify the Constitution with the addition of “ten amendments”. These became known as the “Bill of Rights“, and were adopted in 1791.

Webster’s second argument, which he calls his “principal point”,  is also, given how the Bill of Rights has played out in the US, very interesting:

I undertake to prove that a standing Bill of Rights is absurd, because no constitutions, in a free government, can be unalterable. The present generation have indeed a right to declare what they deem a privilege; but they have no right to say what the next generation shall deem a privilege.

He argues, in other words, that times change, and what one generation might see as a right may not be appropriate to another generation, and that it is therefore inappropriate to set such rights in stone. He uses, as an example, “trial by jury”:

The right of Jury-trial, which we deem invaluable, may in future cease to be a privilege; or other modes of trial more satisfactory to the people, may be devised. Such an event is neither impossible nor improbable. Have we then a right to say that our posterity shall not be judges of their own circumstances? The very attempt to make perpetual constitutions, is the assumption of a right to control the opinions of future generations; and to legislate for those over whom we have as little authority as we have over a nation in Asia.

Would the US be different now, if, for example, they did not have the “perpetual”, enshrined right to “bear arms”?

Webster suggests that:

There are perhaps many laws and regulations, which from their consonance to the eternal rules of justice, will always be good and conformable to the sense of a nation. But most institutions in society, by reason of an unceasing change of circumstances, either become altogether improper or require amendment …

He makes some excellent points, but I’d like to believe there are some rights which stem from “the eternal rules of justice”. However, I can also see how temporal and cultural it all is. Australia, rare for a western democracy, does not have a federal bill of rights – the issue arises occasionally – but my state (well, territory) did pass one in 2004, and was followed by Victoria in 2006.

What do you think?

Noah Webster (as Giles Hickory)
“On the absurdity of a Bill of Rights”
First published: American Magazine, December 1787
Available: Online at the Library of America

20 Comments leave one →
  1. March 26, 2017 23:12

    It’s a very complex philosophical argument. I think there are some inalienable rights which don’t change, and one way in which these are protected are through the UN and the conventions countries sign up to. But that doesn’t cover everything. On our last trip (to the Netherlands we met some really nice people including a couple of gays. We got chatting about holidays but it transpired that although they were great art lovers and enthusiastic travellers they felt they could not visit Russia because of the homophobia there. They felt it would be unsafe, and this seemed terrible to me because I could tell from talking to them how much they would have loved the art treasures in Moscow and St Petersburg.

    • March 26, 2017 23:25

      It sure is a complex argument Lisa, I agree – one I couldn’t explore in a post without writing a long essay, but I thought it was worth raising the issue. Even the UN Declaration is questioned and seen as being Western-culture specific, while Amnesty want more rights added like the right to not have to kill (conscientious objection). BUT I agree with you, I think there are some inalienable rights too.

  2. March 26, 2017 23:56

    Another absurdity is that not all Americans are familiar enough with the bill of rights to be able to argue about it. I was at a weekly (since the last election) demonstration on my town square yesterday, and one of guys who shout at us about their religion from across the street (we have a permit to be on the square) came over and started to argue that separation of church and state isn’t in the constitution. We argued that it is in the bill of rights, and then had to look it up to be able to say it’s the very first amendment. Next time I’m going with a copy of the US constitution and bill of rights in my pocket.

    • March 27, 2017 00:01

      Good for you Jeanne! If you have the Bill use it, I say.

      Trouble is, there are people who only “know” or “remember” what suits their beliefs. Human nature rather proves the wrongness of Webster’s first argument I think, even though it makes sense in theory. There, I’ve managed to continue my ramble willy-nilly a bit I think.

  3. March 27, 2017 03:27

    Rights or Wrongs? Have thought about this in the past… Rights is a rather nebulous concept vs. the reverse practical view defining what is abuse or unfair or unjust. The expression of rights is typically in the form of proscriptions on the latter conduct by authorities and governments.

    • March 27, 2017 08:32

      Ah yes, interesting perspective, twhite. I certainly think the angle from which to approach rights is to look at what’s just or fair, though even there it gets murky as you say when it’s the powerful who are deciding.

  4. March 27, 2017 05:17

    I misread the title of the post and thought it said Norah Webster which made me wonder what the heck did Colm Toibin’s novel have to do with the Bill of Rights!

  5. March 27, 2017 06:15

    then and now: getting all the news and prevailing opinions from the local tavern, versus, sampling the input of thousands over the internet… what difference? well, ego would be more of a motivator then as compared to now, one would surmise, as writers didn’t have access to much more than their own thoughts… today, with universal communication, veritably, mass anger seems more infectious, leading to who knows what?
    just saying, we live, unfortunately, in interesting times…

    • March 27, 2017 08:27

      We sure do, mudpuddle , though probably, when I think about it, most times are “interesting” for one reason or another?

  6. March 27, 2017 08:46

    I wish we’d got a Bill through when public opinion was more liberal. Pointless to even try in these polarised times. I doubt we’d even get agreement on imprisonment without trial, and don’t get me started on universal surveillance. Our leaders maintaining a state of perpetual war means civil rights have gone out the window.

  7. March 30, 2017 06:06

    Oh that Webster, he was indeed a tricksy man! He had far more faith in government and humanity that I ever would to think a Bill of Rights is not needed. Trial by jury has become such an ingrained concept here that I shuddered at his argument that in future we might not want or need it! The Bill of Rights is not perfect but I am rather glad for it because it keeps the government, especially the current one, from doing pretty much whatever it pleases.

    • March 30, 2017 13:30

      Yes, Stefanie, that’s what I thought, ie more faith. I guess it was the ideal Sm if this “new” form of government. In theory, it makes sense.

      As for trial by jury, my sense was not so much that he was suggesting we may not need it but that we might come up with a better way? I did like his notion of not second-guessing the institutions you might want. The right, for example, could be a fair trial, with legislation, which is more easily changed describing how that might be? I’m not saying I agree, but just thinking about real rights that might be universal vs rights that are, perhaps, more culturally framed.

      • December 28, 2020 04:11

        The debate between what is universal and what is cultural was, during the colonial and revolutionary eras, framed as between natural rights as natural law (sometimes conflated with divine law) and legal positivism of the common law. The latter was an early understanding of something akin to social constructivism. The founders were heavily influenced by natural law arguments, but legal positivism was also an established tradition of English thought.

        Jefferson, although sometimes using the language of natural law, would regular bring question and doubt upon it by lodging dead hand complaints that justfied concentrated and corrupt power and privilege, not to mention wealth and land accumulation. It was on this basis that he challenged the invoking of past authority to uphold aristocracy and all that went with it.

        He wasn’t alone among the founders in seeking to undo inheritance laws like primogeniture, upon which the aristocracy was built and defended. Laws about inheritance, along with property and taxation, were deeply embedded in the issue of the living generation having the democratic right or even divine right to choose something different. This is the same basic logic that religious dissenters used to challenge the Catholic Church and state religions.

        The argument was that such proclamations on high or mandates from corpses were neither natural law nor divine law. This was a refutation that others could talk on behalf of God or Nature to enforce their views on others without consent. This was a radical attitude unleashed by the religious dissenters going back to the 1300s who argued that individuals could read the Bible for themselves and so discern the mind of God without need of an intermediary.

        All that Webster and others were suggesting is that we should take this sense of conviction with full seriousness. The moral right and responsibility invoked could not be denied nor dismissed. Even if we refused to act according to it, the basic moral imperative could not be destroyed. We are free, whether or not we choose to be free or act wisely in that freedom. No piece of paper could claim authority in usurping the human conscience before God, Nature, or Truth.

        • December 28, 2020 08:34

          Again thanks Benjamin for providing this historical perspective. The problem as I see it is finding the balance, or the way, between the ideal (we all act according to conscience) and the reality (most of us don’t, to various and varying degrees ).

        • December 28, 2020 08:50

          You are right. It is about balance, along with compromise. The founders fully realized perfection was not to be attained, but neither were they willing to lower their standards so far as to betray their ideals. With that in mind, they debated the possibilities to their dying days.

          If you want to get a better sense of their views on the consent of the governed, you can look at some of letters written between Anti-Federalist Thomas Jefferson and Federalist James Madison. There is a warmth of human concern, friendship, and mutual respect in their dialogue — not to mention much learned intelligence.

          Over time, Jefferson became became more forgiving in his criticisms and Madison became more suspicious of power. They both shared an opposition to Hamiltonian authoritarianism and imperialism. They may have disagreed about means to the end, but they agreed on the end, that of the greatest freedom possible.

        • December 28, 2020 08:56

          Oh yes, compromise, the Daddy of them all. I read a little about Jefferson and Madison when I lived in Northern Va for a couple of years, but not at this depth. Interesting men. I’d probably enjoy the letters if I could find time for them.

  8. December 28, 2020 03:48

    I was once again returning to the old debates between the Federalists and Anti-Federalists. Many of the Federalists like Webster argued against a Bill of Rights. But interestngly Webster was making an argument more akin to Anti-Federailism (i.e., true Federalism) in agreeing with the likes of Jefferson that the dead have no right to impose upon the living, that custom and convention should not be taken as divinely-ordained natural law.

    Webster is less familiar to me. His view here doesn’t seem all that strange for the time in which it was written. It expressed a certain kind of radical faith in representative government as effective self-governance. That was at a time when it would’ve been hard to imagine how his country was to become a banana republic. Webster apparently believed that democracy actually was not only possible and viable but desirable and necessary.

    He is making a valid point, specifically what is being implied. If your government institutes and enforces an unalterable constitution such as with a bill of rights, that might be taken as evidence that your government is far less representative than some think. This is the dead hand of the rule of law that the American revolutionaries sought to throw off. To reinstate this kind of entrenched ideology is a betrayal of republicanism, signaling a loss of faith in the promise of revolutionary ideals.

    That is what makes him sound more like an Anti-Federalist. The Federalists had like Hamilton sought more centralized power in a ruling elite. They had little faith in fully functioning representative government and often had outright fear of democratic self-governance. It was the Anti-Federalists, in alignment with the original Federalist vision of the Articles of Confederation, who held most strongly to principles of independence, freedom, and liberty.

    Webster apparently believed in the more Anti-Federalist vision of the moral right of living generations as expressed through living constitutions. This radical notion came out of the religious dissenter traditions, such as the Quakers who advocated for a constitution as a living compact between a living generation of people and the living God. Interestingly, the first draft of the Articles of Confederation was written by another Federalist, John Dickinson who was raised a Quaker.

    The Quakers had long had one of the most morally strident anti-authoritarian streaks in all of the colonies. They are the only ruling elite who established a colony, welcomed and tolerated diverse views, and then willingly stepped down from power. Dickinson, in following the moral demands he came to hold, freed the slaves he had inherited before the American Revolution.

    Today, American conservatives think of a living constitution as a modern liberal conception that undermines the authority of original intent. But the fact of the matter is there never was a single original intent. Those like Webster and Jefferson assumed there would always be different understandings and that constitutions must change with public opinion, needs, and demands in order to uphold a public mandate of moral self-governance in a free society.

    This living constitutionalism is not a new idea. One can trace it back before modernity. Some religious dissenters had been advocating long before the revolutionary era. But it actually can be found prior to that. The basic emphasis on living generations, living gods, and living compacts originated in the ancient world. The idea of a piece of paper holding authoritarian power over endless generations didn’t become common and widespread until books were invented and literacy became more common.

    During Protestant Reformation and Enlightenment, living constitutionalism was adopted into modern liberal thinking. It’s interesting that such a conviction has maybe come to seem more radical today than how it was taken centuries ago. We’ve lost much of the orignal inspiring faith, optimism, and promise the early modern revolutionaries and the religious dissenters among them and before them. Instead, many of us have grown cynical and fearful.

    • December 28, 2020 08:25

      Thanks so much Benjamin. This makes a lot of sense, and fills in some gaps for me. What you are saying about Anti-Federalists and the idea of living constitutionalism accords a little with my way of thinking which is that we should live by principles rather than rules. To bring it to the mundane, take the calls for a “new” etiquette for mobile phones. If you understood that etiquette is based on things like courtesy and respect you could not need someone to tell you how to behave with your phone. A silly example, in a way, but just to say I prefer that open way of thinking which accommodates change to the other.

      • December 28, 2020 08:30

        Many of the idealistic founders believed in republican civic virtue. In modern terms, I’d express this as saying democracy is first and foremost a culture of trust, a sense of communal solidarity, and a commitment to the public good. Democracy as a political system, representative government, and elections follows from that but cannot cause it. We mix up cause and effect.

        • December 28, 2020 08:50

          Makes sense to me. Makes me think about all the Covid discussions recently about loss of liberty. The idea of communal solidarity and public good seems to be lost in many places. It is though something that was heavily invoked by our Australian leaders early on. Not always universally accepted but these ideas were I believe the principal. I like your cause and effect explanation.

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