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

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