Bills of Rights Alone Never Saved a Republic, Ask the Soviet Constitution

Here is a document that guaranteed freedom of speech, freedom of the press, freedom of assembly, the inviolability of the person, the privacy of the home and the secrecy of correspondence. It promised that judges would be independent and subject only to the law. It promised that no one could be arrested except by decision of a court or with the sanction of a prosecutor. It was adopted on December 5, 1936. It was the Constitution of the Union of Soviet Socialist Republics, and within months of its adoption the secret police were filling mass graves.

That is not a gotcha. It is the most important lesson in comparative constitutional law, and it is one our civics classes almost never teach. A list of rights is a promise. Whether the promise is kept depends on who holds power, how that power is divided, and whether anyone with power of their own has a reason to say no. The Soviet text had the promises. It did not have the machinery. Let me show you the difference, side by side.

Define the terms before we compare

Two words get used loosely, so let me pin them down.

A parchment right is a right that exists because a document says so. It is enforced, if at all, by the goodwill of whoever controls the government. Madison used the phrase "parchment barriers" in Federalist 48 to describe exactly this kind of protection, and he did not mean it as a compliment.

A structural protection is a feature of how power is arranged that makes abuse hard to carry out. Separation of powers, bicameralism, federalism, an independent judiciary with real tenure, elections that can actually remove people, and limits on what the central government may do at all. A structural protection does not depend on anyone's goodwill. It depends on rival officeholders with their own ambitions and their own bases of power.

The claim of this post is simple. One: rights on paper are worth what the structure behind them is worth. Two: the Soviet Constitution of 1936 had generous paper and no structure. Three: the American Constitution was built structure first, rights second, and that ordering is why the rights held. Four: a people that wants to stay free should guard the structure at least as jealously as it guards the list.

What the 1936 Soviet Constitution actually promised

The 1936 document, often called the Stalin Constitution, was not a crude piece of propaganda with three lines on it. It was long, detailed and, read cold, generous. It promised the right to work, the right to rest and leisure, maintenance in old age and sickness, and education. Article 124 promised freedom of religious worship (alongside freedom of anti-religious propaganda, which tells you which side the state was on). Article 125 promised freedom of speech, of the press, of assembly and of street processions and demonstrations. Article 127 promised the inviolability of the person and said no one could be arrested except by a court decision or with a procurator's sanction. Article 128 protected the home and the privacy of letters. Article 112 declared judges independent and subject only to the law. Article 17 even gave each union republic the right to secede freely.

Now look at the fine print, because the fine print is the whole story.

Article 125 granted those freedoms "in conformity with the interests of the working people" and in order to strengthen the socialist system. Who decided what the interests of the working people were? Article 126 answered that, too: it named the Communist Party as the leading core of all organizations of the working people, both public and state. One party, written into the charter as the guide of everything, with no rival allowed.

So the document gave you free speech, provided you used it to agree.

What happened while the ink dried

The timing is the indictment. Sergei Kirov was assassinated in Leningrad on December 1, 1934, and the regime used the killing as the pretext for a widening campaign against supposed enemies. The first of the great Moscow show trials, of Zinoviev and Kamenev, was held in August 1936, before the new constitution was even adopted. The second came in January 1937. The third, in March 1938, put Nikolai Bukharin in the dock. Bukharin had worked on the commission that drafted the 1936 Constitution. He was convicted and shot.

Between 1937 and 1938, in the period historians call the Great Terror, the NKVD arrested well over a million people and executed hundreds of thousands, by the regime's own later-opened records. Every one of those arrests was, in theory, governed by Article 127. Every one of those people had, on paper, the inviolability of the person.

Ask yourself what the right was worth. The answer is not "nothing because the words were bad". The words were fine. The answer is "nothing because nobody with independent power could enforce them". The courts answered to the Party. The legislature, the Supreme Soviet, met briefly and voted unanimously. The republics with their paper right to secede were run by Party organs that took orders from Moscow. The press that enjoyed its Article 125 freedom was owned by the state. There was no opposition party, no independent bar, no free election, no rival center of power anywhere in the system.

Even the left should concede this. The Soviet case is not a story about too few rights. It is a story about too much power in too few hands.

The comparison, side by side

Now set three documents next to each other: the English Bill of Rights of 1689, the U.S. Constitution as ratified in 1788 with the Bill of Rights added in 1791, and the Soviet Constitution of 1936. Judge them on the four things that actually stop a government from abusing its people.

Read the last row twice. The English list is short, yet English liberty grew, because Parliament controlled the money and could tell the Crown no. The Soviet list is long, yet Soviet liberty was a fiction, because no one could tell the Party no. The American design is the one that tried to answer that last row on purpose, and it answered it several times over.

Why the American design put structure first

The Framers did not forget a bill of rights in Philadelphia. They argued about it and, for a while, declined it. In Federalist 84 Alexander Hamilton argued that the Constitution itself was a bill of rights, because it granted only listed powers and fenced in the government that held them. That argument lost the political fight, and Madison's amendments followed in 1789, ratified on December 15, 1791. But notice the order. The structure came first. The rights were added to a machine that was already built to protect them.

Madison explained the machine in Federalist 47:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

Look at that phrase, "whether of one, a few, or many". It covers a king, a junta and a party. It covers the Soviet arrangement exactly: a few men, self-appointed, holding legislative, executive and judicial power together under the banner of the working class.

Then Federalist 51 supplies the mechanism:

Ambition must be made to counteract ambition.

The genius of that line is that it does not assume anyone is good. It assumes the President wants power, the Senate wants power, the House wants power, the states want power, and the judges want their independence. Set those ambitions against one another and each one becomes a guard on the others. A free press does not survive because a clause says so. It survives because a senator from the other party, a governor in another state, a judge with life tenure and a jury of twelve citizens each have their own reasons to protect it.

The same principle protects the unpopular in particular; see Structure Protects Minorities Before the Bill of Rights Ever Does. And the full text of Madison's argument is worth reading on its own in Federalist 47 Defines Tyranny as All Powers Gathered Into the Same Hands.

The best argument on the other side

Fairness requires the strongest version of the opposing view, so here it is in words its defenders would accept.

"The Soviet Union is an extreme case. Of course a totalitarian regime ignores its own constitution. That does not prove written rights are weak. In the United States, written rights have done enormous work. The First Amendment protected the civil rights movement's marches. The Fourth Amendment produced the warrant requirement we rely on. Brown v. Board of Education in 1954 enforced the Equal Protection Clause against segregated schools. Structure did not end segregation; a court reading a written right did. So rights matter, and conservatives who downplay them are making excuses for doing less."

That is a serious argument. Here is the answer, in four points.

1. The rights worked because the structure let them. Brown was enforced by federal judges who could not be fired for their ruling, backed by a President who sent troops to Little Rock in 1957, in a system where the federal government had real power over states that violated the Fourteenth Amendment. Remove the independent judge or the separate executive and the written right is as weak in Arkansas as it was in Moscow.

1. The failures came when structure failed. Segregation lasted for decades after 1868 because the structure was bent: one-party control in the Southern states, disenfranchised voters, and federal branches that looked away. When the structure was repaired, with the vote restored and the national branches pulling together, the written rights finally bit.

1. Rights lists are getting longer, not safer. Many modern national constitutions promise housing, health care, a clean environment and dignified work. Venezuela's 1999 constitution is long and generous on social rights. Its people still lost a free press and fair elections, because the executive captured the courts and the legislature. Paper inflation does not buy liberty. See Venezuela was once Latin America's success story, and then came socialism for how that happened.

1. Positive rights invite more power. A right to work, to housing or to a guaranteed income is a claim the state must satisfy, which means the state must control the resources to satisfy it. The Soviet promise of work came with a state that owned the factories. The more a constitution promises to provide, the more power it must hand to the government that provides. That is the opposite of a fence.

None of this means the Bill of Rights is decoration. It means the Bill of Rights is the second line of defense, and a wise people keeps the first line in good repair.

Which design suits a free people

So who is each design for?

The Soviet model suits a ruling party that wants international respectability without domestic accountability. Write every right the reformers ask for, keep all the power in one place, and the rights become a brochure. It also suits anyone who believes good intentions are a substitute for checks, which is to say it suits every central planner who ever lived. For why the planning itself fails even with perfect intentions, read Why Soviet shoppers stood in line, and the calculation problem behind it.

The English model suits a people with a long habit of self-government and a supreme legislature it trusts to restrain itself. It worked remarkably well for England, and the American colonists claimed its liberties as their birthright. But it rests on parliamentary supremacy, which means a determined majority in one body can change almost anything. Our Founders, having watched Parliament tax them without their consent, wanted something harder.

The American model suits a large, diverse, argumentative people who do not trust any single set of hands. It is slow. It is frustrating. It produces gridlock, and gridlock is a feature, as I argue in Gridlock Is the Constitution Working, Not the Constitution Failing. It forces anyone who wants to take your liberty to win the House, the Senate, the Presidency, the courts and, often, the states, all at once and all for long enough to matter. That is a high bar on purpose.

Here is the dry joke at the heart of it. The Soviets wrote a better-sounding constitution than ours. They promised more, in nicer words, with longer lists. They just forgot to give anyone the power to collect.

What this means for arguments we hear today

When someone proposes a new right, ask the structural question first. Who will enforce it, against whom, and what power will they need to do it? When someone proposes to remove a structural check, to abolish the filibuster for convenience, to pack a court, to let agencies write binding rules without Congress, or to centralize what the states do now, ask the same question in reverse. What protection disappears, and who gets the power it used to restrain?

Our Constitution's protections are sometimes mocked as technicalities. Bicameralism is a technicality. Federalism is a technicality. Life tenure for judges is a technicality. So were the procedural guarantees in Article 127 of the 1936 Soviet text, except those had nobody behind them. Our technicalities have rival officeholders behind them, and that is the entire difference between a promise and a protection.

The national Constitution page on this site lays the text out article by article. Read Articles I, II and III before the amendments. That is the order the Framers built it in, and it is the order in which liberty is actually defended.

The case in brief

1. The 1936 Soviet Constitution promised speech, press, assembly, independent judges and protection from arbitrary arrest, and the Great Terror of 1937 and 1938 went ahead under it anyway.
2. The promises failed because one party held every power and no rival institution could say no, which Madison called the very definition of tyranny in Federalist 47.
3. The American Constitution built separation of powers, federalism and independent courts first and added the Bill of Rights in 1791 to a machine already designed to protect it.
4. Written rights matter, but they bite only when an independent judge, a separate executive, a free legislature or a sovereign state has its own reason to enforce them.
5. A free people should guard the structure at least as fiercely as the list, and treat every proposal to concentrate power as a threat to the rights it claims to serve.

What you can do: read Articles I through III of the Constitution on the site's Constitution page and mark every place one branch can check another.