by:  Robert Meredith

This paper was awarded the Loyola University History Award for Outstanding History Senior Thesis for the 2000-2001 Academic Year.

    Introduction

Rights are a concept that most Americans do not need explained to them. America is a country that was founded on the idea that citizens have rights. It should come as no surprise, however, that something as fundamental as the public conception of rights has undergone some changes in the more than two centuries of American history. At the core of this change is the loss of the idea that rights have an aspect of balance to them. The modern conception of rights is so focused on the rights of the individual that it has abandoned the rights of the community as a whole. This way of thinking is fundamentally different from the conception of rights that the Founding Fathers held. To the framers of the Constitution, the very conception of rights involved balancing individual good with the good of the community. Their way of thinking is reflected in the documents they left behind and the philosophers who influenced their ideas. The modern  conception of rights, on the other hand can be heard every day in American courts. Lawyers for individuals, groups, and corporations routinely try to expand their clients’ “rights” at all costs. An example of this can be found in the legal arguments made by the American Civil Liberties Union in a 1990 Supreme Court case, Michigan Department of State Police v. Sitz. Their conception of individual rights as absolute and inviolable exemplifies the faults and shortcomings of the modern conception of rights. A conception of rights that does not include the idea of balance will lead to conflict, discord, and injustice.

    Chapter I
  The Sitz case and the Modern Conception of Rights

In 1982, Michigan legislators established the Michigan Drunk Driving Task Force, a committee which was charged with reviewing the aspects of the problem of drunk driving in Nfichigan. The Task Force released its final report in September of 1985, supporting thirty-five recommendations for reducing traffic accidents that involved intoxicated drivers. Among these recommendations were the implementation of a system of sobriety checkpoints on public highways. Michigan Governor Jim Blanchard then called on the State Police to establish a Sobriety Checkpoint Advisory Committee to draft guidelines, regulations, and procedures for such a program. Under the proposed program, the sobriety checkpoints were to be established at certain areas along state highways. All vehicles traveling through the checkpoint would be stopped and their drivers examined for signs of intoxication. If the examining officer found indications of intoxication, the officer would direct the vehicle to a location out of traffic, check the driver’s license and car registration, and conduct further tests of sobriety including a Breathalyzer test if necessary. If the sobriety tests detertnined that the driver was intoxicated, the officer could arrest the driver. Otherwise the driver was to be released. The guidelines established by the Sobriety Checkpoint Advisory Committee covered topics like site selection, publicity, checkpoint operation, safety considerations, motorist contact, and other aspects of the program.1
On May 17, 1986, the Michigan State Police began a seventy-five minute test of this new sobriety checkpoint program. During the operation, nineteen officers investigated 126 vehicles, detaining two drivers for field sobriety testing (one of whom was arrested) and arresting another who drove through the checkpoint without stopping. The average delay for each vehicle was approximately twenty-five seconds.2  In response to the program, some motorists in the state of Michigan petitioned the Circuit Court of Wayne County, Michigan for declaratory judgment of and injunctive relief from this program.
The petitioners saw the State Police’s program as an invasion of their Fourth Amendment rights which protected them against unreasonable searches and seizures. They were particularly resentful of the seizures’ lack of individualized suspicion and their intensely personal aspect. In addition, they felt that officers operating the roadblocks had an overwhelming amount of discretion in the searches in ways that differed from a warranted search. For this reason, the petitioners challenged the constitutionality of sobriety checkpoints in an action that would eventually culminate with a trial in the United States Supreme Court, Michigan Department of State Police v. Sitz.3
During the May 1986 trial, Judge Michael L. Stacey of the Circuit Court of Wayne County found that the program violated the freedoms guaranteed by the Fourth Amendment of the United States Constitution and art 1, § 11 of the Michigan Constitution. In June of 1987 the Michigan Department of State Police appealed the findings to the Court of Appeals of Michigan, where Judge Stacey’s ruling was affirmed. In February of 1990, the United States Supreme Court agreed to hear the case, after the Supreme Court of Michigan declined to. Thomas L. Casey, Assistant Solicitor General of Michigan, and Stephen Nightingale, an assistant to the U.S. solicitor general, who was representing the federal government as an amicus, argued for the petitioners, and Mark R. Granzotto of the American Civil Liberties Union (ALCU) argued for the respondents’ case.
The American Civil Liberties Union is a well-known entity in the legal arena of individual liberties. It was formed in 1920 by Roger Baldwin, Crystal Eastman, Albert DeSilver, and others for the purpose of securing individual rights against infringement. The ACLU does this through a variety of means. It frequently accepts legal cases where it feels a fundamental right of Americans is in question, providing legal services for individuals who feel discriminated against for any number of reasons. The ACLU is also a powerful interest group that lobbies Congress in areas where it feels individual rights are threatened. Despite the widespread acceptance of many once-controversial issues that they have supported, the ACLU frequently finds itself steeped in controversy because of the nature of the groups the ACLU defends. The ACLU handles nearly 6,000 cases annually, selecting the cases that it feels will have the largest impact, particularly those which have the potential to break new ground or establish new precedents.4
The arguments at the Sitz trial focused primarily on the applicability of the three-part Brown test established in Brown v. Texas. In this case, the Supreme Court listed three factors to be considered when balancing public and private interest of searches and seizures not based on probable cause. “The gravity of the public concerns served by the seizure,” “the degree to which the seizure advances the public interest,” and “the severity of the interference with individual liberty,” were the three factors that the Court said would determine whether or not a seizure violated an individual’s Fourth Amendment rights.5 This test weighs the subjective intrusion of searches and seizures on Fourth Amendment rights against the people’s interest in stopping a particular wrong and the program’s effectiveness in doing so. Neither side tried to argue that the roadblocks were not “seizures” in a Fourth Amendment sense, nor did either side contest Michigan’s interest in stopping drunk driving.
With these issues settled, Casey sought to demonstrate to the Court the lengths to which the Michigan State Police had gone to ensure the protection of the Fourth Amendment rights of Michigan motorists. He focused on the detailed instructions given to the officers operating the roadblock and on the actual guidelines of operating one of the roadblocks, hoping to demonstrate how seriously the privacy considerations of the motorists had been taken into consideration. He explained that the police were supposed to stop every incoming vehicle, to limit each stop to only twenty or thirty seconds, and, in the absence of any “articulable signs of intoxication,” to let the motorists go. The officers did not ask any questions, nor were drivers required to show identification. He also made note of the fact that the roadblock was set up to allow cars to turn off the road before entering the check lane, emphasizing the fact that six cars did either turn off or make u-turns before the checkpoint.6
Although Nightingale also stressed the severity of the drunk driving problem, his main focus was on the minimal intrusion of the seizures on the privacy of motorists. He emphasized this by contrasting traffic stops with an hypothetical “stop-and-frisk” pedestrian checkpoint system suggested by Justice O’Connor. He said when a police officer frisks a pedestrian it is “a much more intrusive form of interference with Fourth Amendment interests than a traffic stop. A traffic stop is a well-accepted form of intrusion .... Its utility had been accepted as an incident of travel on the roads, and it is a very, very minimal interference with Fourth Amendment interests.” 7 Motorists, by taking to the highway, surrender a good deal of privacy since the act of driving is one that is regulated and licensed by state governments. Thus, Nightingale argued that the sobriety checkpoints did not infringe upon Fourth Amendment rights because a driver’s right to privacy was already limited.
Mark Granzotto, the lawyer representing the ACLU, focused his argument on the attributes of the seizures that conflict with the Fourth Amendment and separated this kind of search from other types of government searches. The first one of these was the intrusiveness and personal aspect to the search. Professor Nadine Strossen, General Counsel of the ACLU, writing after the Court handed down its decision, described the search as “intensely personal in nature, involving a police officer’s close-range examination of the driver’s face, breath, voice, clothing, hands, and movements.”8 This kind of search differed markedly from searches in other areas where the government regulated activity. The ACLU claimed that this aspect of the seizures, combined with the amount of discretion officers had in determining whether or not to test a driver’s sobriety further, made the seizures unconstitutional.
The ACLU also took issue with the fact that the police stopped all drivers at the checkpoints regardless of the lack of individualized suspicion. Strossen criticized the interpretation of the Fourth Amendment that emphasizes its prohibition of arbitrary search and seizure while it deemphasizes its prohibition of unjustified search and seizure. She asserted that although the Fourth Amendment and other constitutional guarantees prohibited the government from making arbitrary distinctions among individuals in upholding their individual rights, that fact in no way justified arbitrary searches and seizures on the grounds that they were conducted uniformly. On the contrary, the Fourth Amendment explicitly prohibits any unjustified searches or seizures, even if they are conducted in a nondiscriminatory manner. She wrote:

 The Fourth Amendment . . . prohibits the government from subjecting any individuals to unjustified searches or seizures, even if it conducts the searches or seizures on an equal or nondiscriminatory basis. By overemphasizing the Fourth Amendment’s protection against discriminatory government intrusions and minimizing its protection against unjustified government intrusions, the Court substantially constricts Fourth Amendment rights. 9

Strossen criticized the government’s position for justifying the sobriety checkpoint program on the grounds that the seizures were administered uniformly and applied to all motorists crossing the checkpoint. She admitted that the Supreme Court had previously authorized certain searches and seizures that were not based on individualized suspicion. However, in each of these cases the Supreme Court emphasized how limited the searches were, and what special features distinguished them from other types of searches and seizures. In addition to other features, the few types of suspicionless searches and seizures the Supreme Court had approved were designed to promote “special governmental needs, beyond the normal need for law enforcement.” 10
This crucial distinction is the third part of the ACLU’s argument, that the sobriety checkpoints were designed to serve the needs of ordinary law enforcement and to enforce criminal laws. They argued that the Fourth Amendment and legal precedent required any search or seizure which is designed to enforce criminal laws or results in criminal charges to be based on some degree of reasonable individual suspicion.  The instances in which the Supreme Court has upheld suspicionless searches or seizures were all exceptions rather than the general rule.11
In two cases decided in 1967, Camara v. Municipal Court and See v. City of Seattle, the Supreme Court declared that administrative agents could conduct routine building inspections to enforce health and safety codes even if they did not have reason to suspect that the particular building they were search had violated any codes.12  The Supreme Court relied on the fact that these inspections were not personal in nature, that they were not designed to discover evidence of a crime, and that there was a “special governmental need” for these searches to justify their departure from the probable cause requirement. Strossen pointed out that since the Camara case was decided, the Supreme Court had allowed additional, limited categories of searches and seizures that lacked individualized suspicion and evaluated them under a balancing test only when it has found that they shared these special factors with the Camara searches. In each of these cases the Supreme Court emphasized that waiving the individualized suspicion requirement and applying instead the balancing test is an exception to the rule that requires searches and seizure to be based on individualized suspicion.
The ACLU used their three-part argument in an attempt to show that the Brown v. Texas balancing test was not appropriate in the case of sobriety checkpoints. Searches and seizures which are not based on probable cause or individualized suspicion had special factors that justified using the Brown test. In these exceptions there was either a non-personal aspect to the search, a non-criminal aspect, a “special governmental need” for such searches and seizures, or a combination of all three. By contrast, the sobriety checkpoints in the Sitz case were intensely personal searches, designed to enforce criminal laws, and resulting in criminal penalties. In addition, although the state’s interest in stopping drunk drivers was uncontested, the fact that there are other ways of apprehending drunk drivers precludes the sobriety checkpoints from being a “special governmental need.” Thus, sobriety checkpoints the ACLU argued were not subject to the balancing test, but rather to the stricter requirements set by the Fourth Amendment: probable cause and individualized suspicion.
 Underlying the ACLU’s argument is an understanding of Fourth Amendment rights that needs to be made explicit. The balancing test that the Supreme Court established in Brown v. Texas was not designed to measure whether or not a public program conflicts with an individual’s Fourth Amendment rights. It was to be used in cases where that conflict was already established and a balance needed to be struck between public interest and the intrusion of a program on Fourth Amendment rights. It accomplished this by taking into account the subjective intrusion on the Fourth Amendment rights and the public’s right to be free from a particular wrong. In arguing that the Fourth Amendment rights of motorists were so paramount that the balancing test did not apply, the ACLU not only puts individual rights above the public good, but out of the reach of public good. From the ACLU’s perspective, the controversy in the Sitz case was not about how much the sobriety checkpoints infringe on Fourth Amendment rights but whether or not sobriety checkpoints were allowed to interfere with an individual’s rights. It was their conception of individual rights as absolute and inviolable that led to the conclusion that sobriety checkpoints should be prohibited by the Fourth Amendment.

    Chapter 2
     Understanding the Founding Fathers’ Conception of Rights

The conception of individual rights as inviolable is a modern one, shared by many Americans on both the right and left sides of the political spectrum. This view has evolved in the twentieth century and is markedly different than the conception of rights the Founding Fathers held. It is a view that they would have neither understood nor approved of. The influence of contemporary philosophers, the failures of the system of government that the Articles of Confederation established, and a changing conception of the purpose and nature of a constitution convinced the Founding Fathers that a good government must be able to strike a balance between individual and public good. Thus, establishing such a government became a priority of the delegates to the Constitutional Convention.
In trying to understand the conception of community and individual rights that the Founding Fathers would have held and compare it to the modem conception of rights as the ACLU argued in Sitz, it is useful to look at the philosophers of the late seventeenth and eighteenth centuries who influenced the views of the Founding Fathers. The ideas of John Locke, Jean Jacques Rousseau, Charles de Montesquieu, and others are found both explicitly and implicitly in the essays and documents that the Founding Fathers authored. The most important of these ideas was the idea that the relationship between society and its government should be based on a social contract. This idea was sometimes called the social contract theory and sometimes the social compact theory, and each philosopher developed a version of it that emphasized different aspects of the nature of the social contract.
Although John Locke, one of the most famous philosophers of the late seventeenth century, contributed much to philosophy as a whole, some of his best thinking was done in the area of political philosophy. In his Second Treatise of Civil Government (1690), Locke developed his version of the social contract which greatly influenced the Founding Fathers’ understanding of the theory. Locke argued that humans as they exist in nature are free and “absolute lord of [their] own person and possessions, equal to the greatest, and subject to no body.”13  However, once a person recognizes the tendency of others to occasionally invade and violate his natural freedoms, he is “willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.”14  Thus, Locke established what he and the Founding Fathers considered the ultimate end or goal of a political body. Its purpose is to preserve the “property” of each individual who makes up the political body: his life, liberty, and possessions. This goal emphasizes the individual good of the members of a community but does not stress the common good of the community.
Jean Jacques Rousseau was a philosopher of the eighteenth century whose ideas also had a great impact on the Founding Fathers. He explained his version of the social contract theory in his book, The Social Contract (1762). Rousseau claimed that the nature of forming such a contract determines the specific clauses of it, such that changing them in the slightest renders the contract ineffective. In explaining these clauses, Rousseau reduced them all to one fundamental principle: “the total alienation of each associate, together with all his rights, to the whole community ... no one has any interest in making them burdensome to others.”15  Rousseau’s position was that the very nature of a social contract requires that the rights of an individual be completely subject to the ends and aims of the political community. In later chapters he wrote that “the right which each individual has to his own estate is always subordinate to the right which the community has over all,” and “the general will alone can direct the State according to the object for which it was instituted, i.e., the common good. . . .”16  Rousseau’s version of the social contract theory involves the total submission of the individual along with his rights and properties to the political community. The community is then directed by the general will towards the purpose of the common good. This version of the social contract theory lies at the opposite end of the spectrum from the version Locke advanced. Whereas Locke saw the principle goal of the political community as the protection of the individual good, Rousseau saw the ultimate end as the protection of the corporate good.
Locke’s version of the social contract theory combined with Rousseau’s version help illustrate a conception of the relationship between a political community and the individuals which comprise it that was prevalent during the Founding Fathers’ era. Locke’s idea was that the end or goal of any political community was to protect the freedoms, rights, and property of the individuals in it, and Rousseau contended that the only way for this goal to be accomplished was for each individual to subject his rights, freedoms, and property to the general will. The combination of these two ideas forms the basic elements in the social contract theory as the Founding Fathers would have understood it. Locke established the goal of a political body and Rousseau established the conditions which are required to accomplish that goal.
 This dualistic and nearly absolute understanding of the social contract theory was tempered a bit by the influence of another philosopher, Charles de Secondat, Baron de Montesquieu. In his work, The Spiiit of the Laws (1752), he addressed the relationship between principles on which laws are based, their spirit, and those who are subject to the laws, their objects. He writes, “I do not pretend to treat of laws, but of their spirit; and as this spirit consists in the various relations which the laws may bear to different objects, it is not so much my business to follow the natural order of laws as that of these relations and objects.”17 The Spirit of the Laws focused, as the other philosophers’ texts did, on the relationship between the laws of a society and the members of it, and placed great emphasis on balancing public and individual goods, offering, according to Anne M. Cohler, “a comparative politics in which a variety of goods and the governments that embody them must be carefully considered.” 18
Montesquieu’s chief contribution to the Founding Fathers’ understanding of the social contract theory was in the idea that there must be a balance in both the powers of government and its aims. In writing about the powers of individuals he wrote, “it is necessary from the very nature of things that power should be a check to power. A government may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits.”19 The idea that power should be a check on power is clearly reflected in the construction of the national government in the Constitution of the United States. The second idea concerns individual freedom in the sense that a government should seek to balance the freedom of the individuals in a political body between the things which the law obliges them to do and the things which the law does not prohibit.
The Founding Fathers’ understanding of a good society and its goals, aims, conditions, and construction, thus reflected portions of all three philosophers--Locke, Rousseau, and Montesquieu. Locke contributed an understanding of the purpose of constructing a government, Rousseau outlined the conditions for doing so, and Montesquieu offered the idea that there must be balance in a government’s construction. The balance between the powers of a government is struck by the idea that power should be a check against power. The balance between the common good and the individual good is struck by what the law requires an individual to do (common good) and what the law does not prohibit to an individual (individual good). The influence of these three philosophers can be seen in the Founding Fathers’ belief that a balance must be struck between the good of an individual and that of a community.
The documents produced by the Founding Fathers reveal how important they believed it was to strike a balance between the common good and individual rights. Madison, in number 10 of the Federalist Papers, rails against the evils of factions, groups of citizens concerned with only their own self-interest. In describing the problem he writes, “Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”20  In expressing this complaint, Madison pointed out one of the most recognized and serious faults of the Articles of Confederation. The government that the Articles established did not strike a good balance between individual rights and public rights, what Madison called “public and personal liberty.”21
Madison recognized that the faction is inherently an enemy of this balance because it is “united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”22  However, Madison recognized and called attention to the fact that the “latent causes of faction are ... sown in the nature of man.”23  The freedom that is so essential to personal liberty is also what allows factions to emerge. He explained that because every person has different abilities, each individual gamers different amounts and kinds of property. Although personal liberty consists of being able to exercise those faculties to their fullest extent, protecting these liberties results in the accumulation of different amounts of property, which in turn influences the views and opinions of each individual. These opinions divide society into different groups, which seek to gain at the expense of others and the community as a whole. “From the protection of different and unequal faculties of acquiring property,” Madison wrote, “the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.24  Although personal liberty is ultimately responsible for dividing society into factions, the principle aim of government is the preservation of personal liberty; it cannot deny individuals freedom simply because it  contributes to the rise of factions. Therefore, Madison reached the conclusion that the government must not only protect personal liberty but also control the effects that factions have on society.
In Federalist number 51 Madison again stated this two-fold responsibility of government.  He argued that a republic must guard society from government. This expresses Rousseau’s extreme that a government must above all protect the public good. Madison also stressed the Lockean view that the rights of the individual must be protected, even against the majority. He wrote, “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.”25  In charging a govennment with both duties, Madison expressed the need for the government to find a balance between public and individual good.
In order for a government to protect both kinds of rights, Madison believed it had to control the effects of factions on society, a task whose method depends on the nature of the selfinterested group. If a faction is less than a majority, then the principles of republican government will prevent the faction from gaining the upper hand. If, on the other hand, the majority is part of a faction, then the ideal of popular government will require it to give up its factional interest in the interest of the public good and individual rights. “To secure the public good and private rights against the danger of such a faction,” Madison argued, “and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.”26  Madison claimed that balancing these two goods is the task of government. In protecting the people against the abuses of a faction, a government will protect the public good that Rousseau thought was so important. However, in preserving the “spirit and form of popular government,” a government will protect the freedom and personal liberty that Locke thought was so crucial. And in protecting both the rights of the public and the individual, a government will achieve the balance that Montesquieu. thought was central to good government.
Alexander Hamilton also recognized the need for something to balance the public’s influence on government. He understood that a governinent was not a perfect institution and that people would make errors in their judgments. Public opinion, he believed, was by its nature in constant change, and a government based solely on public opinion is likely to sometimes run counter to public interest. Thus, he emphasized the responsibility of public officials whose duty was to balance out the changing flux of public opinion. “When ... the interests of the people are at variance with their inclinations,” wrote Hamilton, “it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection.”27  Hamilton recognized that in order for a system of government to balance public and individual good, it would have to have some counterweight to balance public opinion. The proposed System of government provided that counterweight to public opinion in the form of persons whose job it would be to resist public inclination. In balancing public inclination against public interest, the system of government the framers of the Constitution proposed could achieve the balance between public and individual good that they deemed necessary.
In writing about the powers that the proposed Constitution conferred to the national government Madison again stressed the need for balance. Although it was understood that the national government created by the Constitution would be responsible for ensuring both public and individual good, Madison explained that the choices the government had to make involved an amount of discretion. “The choice,” he wrote,

must always be made, if not of the lesser evil, at least of the greater, not the perfect, good; and that in every political institution, a power to advance the public  happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good ......28

Madison understood that in order for a government to be able to balance public and individual good, it was necessary to have the power to make the decision of what the balance should be. Making this decision requires a certain amount of discretion, which meant that a government will have to decide sometimes in the favor of the public good and other times in the favor of the individual good.
 Locke also understood that in order to find a balance between public and individual good a government required the power to make such a decision. He referred to this power as “prerogative.” “This power,” he wrote, “to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative.... This power, whilst employed for the benefit of the community, and suitably to the trust and ends of the government, is undoubted prerogative.”29  Madison agreed with Locke and argued that in order for a government to achieve its ends it must have not only the authority to make decisions concerning the balance between the public and individual good but also the power.
Hamilton made a similar point in defending the amount of power that the proposed Constitution gave to the national government. “The powers,” he wrote in Federalist number 23, “44are not too extensive for the objects of federal administration, or, in other words, for the management of our national interests; nor can any satisfactory argument be framed to show that they are chargeable with such an excess.”30 Hamilton felt that if the public charged the federal government with a certain duty, it had to entrust it with the powers necessary for executing such a charge. Since the goal of a good government is to strike a balance between the public and individual good, it must have the power to decide between, in favor of, and against both.
The idea of balance also finds expression in the debate over the national versus the federal characteristics of the proposed government. In showing how the proposed Constitution conformed to the principle of a republic, Madison argued that the Constitution proposed a government which was neither wholly national, as the opponents of the Constitution contended, nor wholly federal, as they desired. After examining the national and federal tendencies in the foundation, source of power, and operation of the government, he then concluded that on the whole, the government proposed by the Constitution was neither wholly national nor wholly federal. If the proposed government was only national, then there would be no limits on the power of the majority. If, on the other hand, the proposed government was only federal, then every decision made by the government would have to be in agreement with the states. “The proposed Constitution,” Madison wrote,
therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.31

Madison argued that the proposed government was neither an entirely national government nor an entirely federal one because it had aspects belonging to both. By identifying both the national and federal aspects of the proposed constitution, Madison illustrated how the Founding Fathers sought to establish a government that could balance individual and public good.

    Chapter 3
     Modern Scholars and the Intentions of the Founding Fathers
The balance of federal and national characteristics of government that the Founding Fathers argued for mirrored the balance of individual and public good. The critics of the Constitution claimed that it should have proposed a federal form of government, one that functioned as a confederacy of sovereign individual states. Instead, they argued that it established a national form of government, one that functions as if the states had been consolidated into one body. Clearly the national form of government lay at one extreme, where only the public good would be accounted for. The federal form of government lay at the other extreme, where the public good would be sacrificed to the individual good. In constructing a Constitution that had some elements of both, the Founding Fathers sought a balance between public and individual goods that Montesquieu. thought governments should seek.
Modem scholars also point out that the Founding Fathers were trying to establish a balanced government. Gordon Wood concludes that Americans in 1776 had thought their society so unique and egalitarian that it was unnecessary to include provisions to protect the rights of property in addition to the rights of persons. They believed that the rights of property were included in the rights of persons.32  However, the experience of living under the government established by the Articles of Confederation called into question the ability of Americans to subject their individual interests for the public good. Historian Jack N. Rakove explains that events like Shay’s Rebellion in Massachusetts, debtor-relief laws, and other examples of the faults of the Articles led Madison to the conclusion that

 If the multiplicity and mutability of laws prove a want of wisdom, their injustice betrays a defect still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments are the safest Guardians both of public good and private rights. 33

Madison expressed apprehension and doubt about the ability of the public to protect both public and individual rights. He understood the dangers that arbitrary government posed to both individual and public good and felt that the majority was just as capable of tyranny as was any individual. The faults and defects of the system of government based on the Articles of Confederation betrayed a fundamental weakness in the principles on which they were based: protection of the rights of individuals is not also an adequate protection for the rights of the public. This problem is what prompted the Founding Fathers to search for a new system of government that would balance both public and individual rights better than the Articles of Confederation did. Rakove explains how they came to the conclusion that a new system of government was necessary in establishing a better balance between individual and public good. At first, Americans felt that the greatest threat to personal liberty came from the arbitrary acts of the Crown and colonial officials like judges of the higher courts. Therefore, in constructing their first system of government, they sought to limit the power of individuals in government through representation and trial by jury. A decade of experience under the Articles of Confederation and state constitutions, however, convinced Madison of what Rakove refers to as the “triple danger.” “First, that the abuse of legislative power was more ominous than arbitrary acts of the executive; second, that the true problem of rights was less to protect the ruled from their rulers than to defend minorities and individuals against factious popular majorities acting through government;  and third, that agencies of central government were less dangerous than state and local despotisms.”34 The ex-colonists’ experiences with absolutist government, Rakove argues, convinced them of the need to protect personal liberty and freedom. Thus, the newly-patriated Americans produced the Articles of Confederation, whose Lockean-like endorsement of the individual good led to the abuses and faults of that system of government. Having seen the defects of both extreme kinds of government, the Founding Fathers looked to establish a system of government that would protect both the public good and the individual good. Although they understood that abuses of arbitrary government did threaten the individual good, the threat to public good from abuses of legislative power-whether from the majority or a factious minority-made it necessary to find some balance between the two. Recognizing this fact, the framers’ purpose for meeting in Philadelphia was to establish a government that could protect both.
Another modern scholar, Lance Banning, also concludes the goal of the Founding Fathers as the idea of a “balanced government.” For evidence, he points to the change of opinion of Jefferson, Madison, and the other Founding Fathers underwent in coming to the conclusion that the popular assemblies had become a threat to liberty instead of its guarantor. They traced this problem to “a fundamental weakness in the basic structures of the revolutionary polities.” The early constitutions of the revolutionary period were democratic to a fault, and the system of government they had created threatened to destroy the promise of the ideas behind the American Revolution. Therefore, the framers of the new Constitution, “set their minds ... on a reform which might correct the first mistakes, restore the strength of government, and give the laws the character to lead people back to the republican ideal.”35 The framers of the Constitution realized that the problems of the Articles of Confederation stemmed from their initial overcompensation for the good of the individual. They therefore set out to fix the error by establishing a more balanced government, one that mixed elements from their own distinctive governmental  theory and the British eighteenth-century theory of balanced government.
The Founding Fathers recognized that in order to establish a government that balanced public and individual interests, they needed to “divide the powers of government in such a manner that no part of society could seize the state for partial ends.” The product of the deliberations in Philadelphia established a government that “was without real precedent in Western thought. Wholly elective, neither national nor federal, it could not be fully understood or justified in ... older terms.” Banning claims that the political philosophy of the Founding Fathers underwent a transformation so gradual that once thinkers had crossed the indistinct line that separated the new ideology from the old, they still had as much in common with the old assumptions as not.36
Convinced of the need to establish a balanced government, the Founding Fathers sought to do so without losing the spirit of popular government that had sustained the American Revolution. Banning explains that the delegates to Philadelphia were all accomplished politicians under no illusions about the compromises they would have to accept. Thus, they traded separate interests and combined techniques of government that had already proven useful. They were also, however, devout political theorists who wanted a republican variety of a balanced government. Having lived under British rule they recognized the value of a mixed governmental system, but having lived through the American Revolution, they understood the dangers that faced such a government. The delegates understood that “the equilibrium of balanced constitutions is a delicate and fragile thing,” and “sought to guard against political decay.”37 Banning believes that the Founding Fathers intended to construct a government that could strike a balance not only between individual and public good, but also between balanced and republican government. They recognized the precarious position that such a government would occupy because of the historical cycle of degeneration of government, and sought to counteract that tendency with safeguards that fell under two main principles: “the independence of the several branches of the government,” and “the continuation of the equipoise between them.”38
Explaining why the delegates to the Constitutional Convention sought to balance the two systems of government, Banning writes that two examples provided evidence that the framers intended to protect their fledgling government from degeneration. First, the delegates carefully distributed the powers of government among its different parts, paying close attention to the tenet of separation of powers. Secondly, they intentionally gave each of the three branches “46sufficient agency in the exercise of the others’ functions to assure it the means to protect its own share of the balance--sufficient agency, no more.”39  The Founding Fathers’ attempts to establish a delicate balance in framing their system of government mirrored their attempts to balance the good of the individual and the good of the public within it. They established an original equilibrium between mixed and republican government and sought to protect it from decaying into either of the extremes by giving it parts of both. By separating the powers of government and making the public the source of those powers, the Founding Fathers established a government that included parts of both systems. During the debate over ratification, the framers often stressed the safeguards they instituted to protect the government and the public from degenerating into one form of government or the other.
Bernard Bailyn, also shows how the delegates’ idea of balance found expression in the very construction of the Constitution itself. Bailyn explains that during the colonial period, the word “constitution” and the conceptions behind it were very important to the American colonists, and underscored the entire political crisis between England and America. As the pressure between the two countries increased “in the course of a decade of pounding debate,” the English and American conceptions of a constitution split “along the seam of a basic ambiguity, to form the two contrasting concepts of constitutionalism that have remained characteristic of England and America ever since.”40  With two different understandings of what a constitution is composed of present in the minds of the Founding Fathers, they sought to establish a balance between these different conceptions just as they did between individual and public good.
Bailyn describes the first understanding of the nature of a constitution as traditional. It was part of the eighteenth-century English understanding that was transmitted to the colonists, who, like their English counterparts, understood a constitution as the arrangement of government as it existed. This idea included governmental institutions, laws, customs, traditions, along with the principles and goals it embodied; it was the government as it was constituted. Bailyn quotes John Adams, who writes that a constitution is “a frame, a scheme, a system, a combination of powers for a certain end,” and later Charles Inglis, who wrote that a constitution “is, as I conceive, that assemblage of laws, customs, and institutions which form the general system according to which the several powers of the state are distributed and their respective rights are secured to the different members of the community,” as examples of the prevalence of this conception.41  This conception makes almost no distinction between a government and a constitution.
Bailyn then identifies the second understanding as it emerged during the pre-revolutionary 1770s. “Finally,” he writes, “in 1776 there came conclusive pronouncements.” He refers to two pamphlets released that year, Four Letters on Important, and The Genuine Principles of the Ancient Saxon or English Constitution, as examples of this new conception. The author of Four Letters makes clear his distinction between a constitution and a government. All nations have a government, although few, if any, have a true constitution. A constitution’s primary purpose is one of demarcation, defining and confining the actions of government. It should function as a limit on government, clearly defining which rights of men are sacrificed to the necessity of government and indicating the powers the government should have. The second pamphlet explains further the idea that a constitution is a set of rules by which even the supreme power of the state is governed. Such constitutions, it claims, should be formed by delegates appointed for that express purpose and should not be altered by any power other than that which first forms them. These constitutions “are to remain permanent and so to have the most profound effect on the lives of people.” 42
Clearly, the United States Constitution has aspects of both understandings. In many ways it is a document like the first, establishing a government and the laws, customs, and institutions that make up our system of government. In other ways it is a document expressing the second conception, one that paints a clear picture of the limits of that system’s power and authority. It clearly functions as a framework for government, yet it was formed in a manner consistent with the second understanding. This balance, whether the result of the compromises necessary in constructing such a document or of specific intentions by the Founding Fathers, illustrates the balance that the Founding Fathers sought.

    Conclusion

Over the past two centuries, the public’s conception of rights has evolved further and further away from this idea of balance. The goal of an individual in asserting his or her rights has become one of pushing those rights to their limits, even if this comes at the expense of the common good. This understanding of rights, displayed by the ACLU in Sitz conflicts with the conception of rights held by the Founding Fathers. The modern view of rights has lost the conception of balance between individual and community interests and instead presumes that the Constitution protects individuals and their rights from any and all infringement. Rights have become a method of granting power to one group over another, even if that other group is the general public. Phillip K. Howard discusses the problem of balance under this view of rights saying,

Rights ... leave no room for balance, or for looking at it from everybody’s point of view as well. Rights, as the legal philosopher Ronald Dworkin has noted, are a trump card. Rights give open-ended power to one group and it comes out of everybody else’s hide .... Rights cede control to those least likely to use them wisely, usually partisans ... ‘who have devoted their lives to remedying their own injustices. Government, for all its flaws, at least has an interest in a balanced result.43

Rights in the sense they are used today are not attempts by lawmakers to establish balance. Instead, the lawmakers who enact and distribute rights often view them as measures which confront injustice and satisfy constituents yet cost nothing from a budget. While those who are awarded new rights certainly gain extra protection of their individual freedom, these rights often provide for particular groups at the cost of public good.
A distinction between rights and obligations is important to understand. Early in the twentieth century, the business of government was done with the language of legal obligation. Howard points out that all of the social reforms of the New Deal, the creation of jobs, welfare, and social security, were not done by creating any broad-based rights, but through specific governmental programs instead. The distinction is important because the term legal obligation, as it was used in New Deal programs, implies a specific and limited sense of what is legally required. Rights, in the sense that the modern public uses them, are open-ended powers that impose no limit on those bound to respect them.44
Although this conception of rights is typically attributed to liberals, conservatives have abused the notion of rights as well. In 1905 the Supreme Court decided the case of Lochner v. New York, declaring unconstitutional a law that prohibited bakeries from employing bakers to work more than sixty hours per week. In Lochner, the Court argued that the bakers had a property right in their “right to contract” for longer working hours. The conception of property rights that the Lochner Court relied on had the same fimdamental assumptions about rights that the ACLU would use in Sitz. In this example, property owners brought the Lochner case to the Supreme Court, determined to push their property rights to the limit in order to gain as much as possible, even if such gain came at the expense of public good. The Supreme Court’s acceptance of this conception of rights in the Lochner decision is what allowed them to put in place the constitutional structure that modern-day liberals rely on. It was the Lochner Court who set the role of the judiciary as a censor on state legislation and guardian of the individual’s rights. The purposes of the principles of federalism and division of power, which the Founding Fathers envisioned as measures to ensure the protection of both individual and corporate rights, were subsumed by the judiciary, whose emphasis on the rights of the individual superseded even the sovereignty of the states. “Thus,” writes Michael J. Sandel , this case “offered the first sustained constitutional expression of the priority of the right over the good, in at least the sense that certain individual rights prevailed against the legislative policies enacted in the name of the public good.” 45
A second crucial turning point in the evolution of the modern conception of rights occurred when they attained the status of property. Howard points to Charles Reich, a political thinker in the 1960s, as the pioneer of this idea. Reich argued that governmental decisions should be considered property of the people who were affected by them. This view, however, creates a dilemma in that authority no longer rests in the decisions of the government but ultimately with the people affected by the decision--those least likely to use the rights conferred by a governmental decision fairly. The people affected by these decisions are mostly partisan activists interested in their own agenda, not in a balanced administration.46  In Goldberg v. Kelly (1970), the Supreme Court supported this view of rights in saying that the decision to provide welfare benefits was a property that the beneficiaries owned and that the decision to confer those benefits could not be taken away without due process.
As property, rights have been continually handed out by lawmakers and courts to groups who can present evidence of past discrimination and abuses. An essayist in 1988 calculated that all of the protected categories added up to some 374 percent of the American population.47  Rights cannot serve well as a method for balancing the individual good with the good of society as a whole. Inherently, rights as they are used and understood today invest power in the hands of a small group of citizens who are not disinterested parties. Although rights have in the past been used to bring equality to excluded groups, they have now become the vehicle for the social “leapfrogging” of one group over another.
A conception of rights that does not include a conception of balance can only lead to conflict. A contemporary example is the “wise use” land movement in western United States. This movement, whose members advocate near absolute rights over private property, bases its ideas on this modern conception of rights. The rights of individuals to use property they own in any way they see fit (often to the greatest economical benefit) is held to be more important than laws that limit their ability to profit from land use in the name of environmental responsibility. The bitter debate this position has raised in the American West is based on two different conception of rights with different goals. The “wise use” movement supports the individuals’ right to dispose of land they own to the exclusion of the common good, and the other side supports the common good to the exclusion of private property rights. As one observer noted, “In fact, common sense suggests that in the real world, where resources are limited, unchecked exercise of property rights will eventually become incompatible with the common good.... This does not mean the death knell of private property rights, but underscores the need for a true balance.”48  What is needed are laws that balance the interests of conservation groups that urge environmental responsibility (public interest) with the rights of individuals to use and profit from land that they own (private interest).
Michigan Departrnent of State Police v. Sitz is an excellent example of the conception of the priority of individual rights carried to such an extreme that the public good suffers. The  position that the ACLU took so favored individual rights that they ended up denying the fact that the balancing test established in Brown v. Texas even applied. The Supreme Court eventually rejected their argument, ruling in favor of the Michigan State Police. Writing for the majority, Chief Justice Rehnquist explained that the balancing test established in the Brown case was the relevant authority, and on applying this test to the sobriety checkpoint system the Michigan State Police implemented, the Court found that it did not violate the protections of the Fourth Amendment.
This one aspect of the Sitz case is far more important than the final ruling because the positions taken on the issue embody the understanding of rights each side has. The position the ACLU took exemplifies the more modern  understanding of rights and views them as constitutionally protected extremes, property of the individuals who wield them. They asserted these rights were so inviolable that when these rights and the public interest conflict, the public interest must give way. The Sitz Court could have taken an exact opposite position that would have viewed public rights as preeminent instead of individual rights. Thus, when these two interests conflict it would be individual rights that must give way. However, the Court ruled instead that the balancing test was the correct method for determining the extent that public and individual interests must compromise. When the Court applied the test, they found that the sobriety checkpoints are a legitimate way of combating the drunk driving problem. This finding, however, is not as important as the affirmation of the balancing test. Even if the Court had found that sobriety checkpoints do not pass the test, in using the test to determine the extent that public and individual interests must compromise, the Court shows its acceptance of the idea of balance that the Founding Fathers thought was crucial to good government.
It is my belief that the Founding Fathers’ views on rights and balance need to reenter our public discourses. The idea of balance which the modern conception of rights has abandoned is absolutely essential in the operation of goverm-nent. The dangers of any other conception of rights threaten the very liberty and freedom on which they are based. Without a conception of balance, the United States Government stands in danger of degenerating into either of the two extreme forms of government that the Founding Fathers endeavored to avoid. The modern conception of rights has lost its sense of public virtue. Instead, this conception of rights seeks maximum personal benefit, even if it comes at the expense of the common good. Individuals push their rights to the limits for individual gain and profit, concerned only with what they are due. Less than forty years ago, John F. Kennedy touched a chord in Americans when he said, “Ask not what your country can do for you, but what you can do for your country.” Today, such a statement seems like an example of foolish patriotism. But although the modern conception of rights has abandoned the idea of balance, the American situation is nowhere near hopeless. The freedoms and liberties of Americans stand in no greater peril than they did on May 25, 1787 at the first meeting of the Constitutional Convention in Philadelphia. The conceptions and ideas that the Founding Fathers held can easily serve as positive examples and can supplement modern conceptions and ideas. Perhaps their example can offer American democracy the same things it lacked in 1787 and is missing now: compromise and balance.

Notes
1 170 Mich. App. 433 (1988).
2 Some of the 19 officers were observers.  Standard operating porcedure called for having at least eight and as many as twelve officers on detail (Brennan dissent, footnote1).  The average delay of twenty-five seconds did not take into account any buildup of traffic from lane closings (Mich remanding, footnote4).
3 496 U.S. 444 (1990)
4 Samuel Walker, In Defense of American Liberties:  A Histiry of the ACLU (New York:  Oxford University Press, 1990), 4.
5 443 U.S. 47 (1979) 50-51
6 Lyle Denniston, “Too Many Detours In Sobriety Checkpoint Case,” The American Lawyer May (1990):  91.
7 Denniston, 92.
8 Nadine Strossen, “Michigan Department of State Police v. Sitz:  A Roadblock to Meaningful Judicial Enforcement of Constitutional Rights,” Hastings Law Journal January (1991): 287.
9 Strossen, 289-90
10 National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384, 1390 (1989).
11 Strossen, 301-2
12 387 U.S. 523 (1967); 387 U.S. 541 (1967)
13 John Locke, Second Treatise of civil Government, ed. C.B. McPherson  (Indianapolis, IN:  Hackett Publishing Co., 1980), Chapter ix, section 123.
14 Ibid.
15 Jean-Jacques Rousseau, The Social Contract, trans. and ed. G.D.H. Cole (New York:  Everyman’s Library, 1993), Book 1 Section 6.
16 Rousseau, Book 1 Section 9 and Book 2 Section 1.
17 Charles de Secondat de Montesquieu, The Spirit of the Laws, trans. and ed. Thomas Nugent (New York:  William S. Hein & Co., 1991), Book 1 Section 3.
18    Anne M. Cohler, Montequieu’s Comparative Politics and the Spirit of American Constitutionalism (Lawrence, KS:  University Press of Kansas, 1988), 6.
19 Montesquieu, Book 11 Section 4.
20 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Clinton Rossiter (New York:  New American Library, 1961), Madison, The Federalist No. 10.
21 Ibid.
22 Ibid.
23 Ibid.
24 Ibid.
25 James Madison, The Federalist No. 51.
26 James Madison, The Federalist No. 10.
27 Alexander Hamilton, The Federalist No. 71.
28 James Madison, The Federalist No. 41.
29     Locke, Chapter xiv, Sect. 160-161.
30 Alexander Hamilton, The Federalist No. 23.
31 James Madison, The Federalist No. 39.
32 Gordon S. Wood, The Creation of the American Republic, 1776-1787, (New York:  W.W. Norton & Company, Inc., 1972), 410.
33 James Madison, Papers of Madison, IX, 353-54.  Quoted by Jack N. Rakove in Original Meanings:  Politics and Ideas in the Making of the Constitution (New York: Knopf, 1996), 314.
34 Rakove, 289-90.
35 Lance Banning, The Jeffersonian Persuasion:  Evolution of a Party Ideology (Ithaca: Cornell UP, 1978), 89-90.
36 Banning, 98-9.
37 Banning, 102.
38 Banning, 104
39 Ibid.
40 Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Belknap Press of Harvard UP, 1967), 67.
41 John Adams, Works, III, p 478-9 and Charles Inglis, The True Interest of America...Strictures on a Pamphlet Intitled Common Sense...(Philadelphia, 1776), 18, quoted Bailyn, 68 and 175.
42 Bailyn, 182-4
43 Phillip K. Howard, The Death of Common Sense:  How Law Is Suffocation America (New York: Warner Bros, 1994), 117-8.
44 Howard, 122-3.
45 Michael J. Sandel, Democracy’s Discontent:  America in Search of a Public Philosophy. (Cambridge: Belknap Press of Harvard UP, 1996) 42.  See also: Paul Kens Lochner v . New York:  Economic Regulation on Trial. (Lawrence, KS: University of Kansas, 1988).
46 Howard 188/124-5
47 Aaron Wildavsky, “The Secret of Safety Lies in Danger,” The Constitution and the Regulation of Society, ed. Gary C. Byrner and Dennis L. Thompson (Provo:  Brigham Young, 1988). Quoted by Howard, 126.