Individual liberty and constitutional architecture: the Founders' prompt correction of their own mistake

Article Abstract:

The greatest error made by the Constitutional Convention, the omission of a Bill of Rights, was quickly corrected during the First Congress. Hamilton offered four arguments against the Bill of Rights in 'The Federalist Number 84,' but his arguments were refuted by Madison during the First Congress. In fact the promise that a Bill of Rights would be adopted was necessary to secure the Constitution's ratification. Therefore, the Bill of Rights should be regarded as an essential part of the constitutional system, not an afterthought, with judicial review as the intended means of enforcement.

History, Civil rights, The Federalist

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Federalism as a structural threat to liberty

Article Abstract:

The Supreme Court in City of Boerne v. Flores declared that the Religious Freedom Restoration Act was unconstitutional. The Court argued that Congress exceeded its powers under Section 5 of the 14th Amendment in enacting a definition of religious freedom broader than the Court's definition. However, the Court ignored that Congress had often before interpreted the Constitution more broadly than the Court itself. Under Boerne, federalism may endanger structural liberty.

United States, Laws, regulations and rules, Freedom of religion, Federalism

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Liberty and constitutional architecture: the rights-structure paradigm

Article Abstract:

The paradigms of structure and rights need to be unified in constitutional theory. Rights have been the main focus until recently, whereas structure was the major concern of the Constitution's Framers. To bring the two together, the impact of rights on structure and of structure on rights need to be considered, as well as the underlying concepts which unite them.

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