A Constitution cannot provide absolute protection for individual rights for the simple reason that rights are not absolute

Why the Bill of Rights Is a Failure

by Bruce Frohnen

"...order is the first need of all. And order, if it is not to come from the barrel of a gun, must come from law. For us that law once was rooted in our constitutional frame of government. Without that frame of government, without respect for the legitimacy and integrity—whatever the occasional abuses—of our constitutional order, all will be chaos and the pursuit of unjust power."


I have often thought that Americans believe the Framers of their Constitution actually bequeathed to them a bill of rights, with a frame of government attached as an appendix, in the form of a few general suggestions. Constitutional lawyers, judges, and especially academics have been among the worst offenders, here. Jesse Choper, for decades a prominent scholar of constitutional law, built an entire career around the notion that Supreme Court justices should see their job as protecting individual rights. Other supposedly lesser issues of mundane law such as contract disputes, wrongful death, and fraud that are at the center of law and what it can do for (and to) regular people should fend for themselves, on this view. As Mr. Choper would have it, the Supreme Court only has so much institutional capital and should use it where it is most needed.

The crybullies lately rampaging around Yale, the University of Missouri, and other campuses have shown how well that strategy works. Bewailing “microaggressions” that make them feel bad, increasing numbers of college students are dismissing civility, fairness, and especially free speech rights in the name of their “right” to emotional comfort. The Vice President of the University of Missouri student government, one Brenda Smith-Lezama, even said in a television interview, “I personally am tired of hearing that first amendment rights protect students when they are creating a hostile and unsafe learning environment for myself and for other students here.” The astonishing ignorance, selfishness, and contempt for American constitutional values packed into this one statement constitute proof that our constitutional rights are no longer valued or even vaguely understood by a wide swath of American college students.

How did this happen? It is too easy to stop at pointing out Ms. Smith-Lezama’s clear limitations. She is parroting the radical agitprop fed to her by the radical professors and community organizers infesting our universities. But her cynical mentors did not come from nowhere. They and their ideology are products of the limp liberalism of their own upbringing, of a liberalism rooted more than anything in an ideology of individual rights. The rights talk in which liberals for decades insisted we all engage to the detriment of the actual structure and language of our Constitution has only undermined respect for the rights themselves. As important, it has left us without the tools or the knowledge needed to combat the new intolerance that pervades, not just college campuses, but increasing swaths of our society. Remember Brendan Eich, forced to resign as CEO of Mozilla for having donated money to a campaign favoring traditional marriage? He is far from alone, and will have much more company in coming years.


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