Originally Posted by
wombat2u2004
James Madison, who wrote the US Bill of Rights, had earlier been opposed to the inclusion of any Bill of Rights in the Constitution. His reasons for not wanting it are also the reasons usually given by opponents of the inclusion of a Bill of Rights in the Australian Constitution.
One of the chief arguments against a constitutional Bill of Rights is that it gives judges too much power. The courts interpret the constitution, and from the highest court there is no appeal (though the Constitution can be amended -- a difficult process). As Americans sometimes say, "The US Constitution is whatever the Supreme Court says it is". In many cases the Supreme Court has interpreted the Bill of Rights by means of wire-drawn reasoning, reflecting the judges' political and social views.
The Supreme Court's power to interpret the constitution has made the appointment of judges a political issue, and in 1937 President Roosevelt sought to appoint additional judges (to "pack" the Court) so as to change the court's attitude (the US Constitution does not fix the number of judges). A President is expected to nominate judges ideologically acceptable to his supporters, and the Congress scrutinises these nominations in a partisan way. Since judges hold office for life, a President's nominations may make a long-term difference to the interpretation of the constitution.
To many it seems better to keep the courts free of politics and leave rights issues to the ordinary political process, in which politicians can be held responsible by the electorate -- on this view the best safeguard of basic rights is the political culture of a democratic country. However, this does not protect very well the interests of any group or groups who are regularly in a minority (e.g. racial or religious groups). The main argument in favour of a constitutional Bill of Rights is that it will protect the rights of minorities more effectively than the democratic process will. On the other hand (and this was one of Madison's original objections), people hostile to some minority will try to restrict and narrow the definition of rights when the Bill of Rights is being drawn up -- and the more explicit the definitions the narrower they are likely to be.
A good arguement. And indeed Madison was originall opposed to a BOR.
I am grateful he changed his mind and had the first 10 Amendments added.
It is a shame that what we have for government today barely pays the Constitution any mind anymore.
"Unlike most of you, I am not a nut."
- Homer Simpson
"If the enemy opens the door, you must race in."
- Sun Tzu - Art of War
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