A short his­tory of the Bill of Rights

The Washington Times Daily - - CELEBRATING FREEDOM - By Julie Sil­ver­brook Julie Sil­ver­brook is ex­ec­u­tive di­rec­tor of The Con­sti­tu­tional Sources Project (ConSource.org), a non­profit or­ga­ni­za­tion de­voted to in­creas­ing un­der­stand­ing, fa­cil­i­tat­ing re­search, and en­cour­ag­ing dis­cus­sion of the U.S. Con­sti­tu­tion by

Acen­tral part of my work as ex­ec­u­tive di­rec­tor of The Con­sti­tu­tional Sources Project (ConSource) is ed­u­cat­ing Amer­i­can cit­i­zens about the United States Con­sti­tu­tion. When I speak to cit­i­zens around the coun­try about the Con­sti­tu­tion, and ask them what they view as the most im­por­tant part of that doc­u­ment, they in­evitably cite a pro­vi­sion of the Bill of Rights.

Why is this so? It’s likely be­cause the Bill of Rights ar­tic­u­lates our na­tional val­ues and ideals, in­clud­ing: the guar­an­tee of free­dom of speech, re­li­gion and the press; the right to as­sem­ble; the prom­ise of a speedy trial by jury; the pro­tec­tion against dou­ble jeop­ardy and un­rea­son­able search and seizure; and the recog­ni­tion of the right to bear arms. The Bill of Rights strikes a per­sonal chord, the way the Dec­la­ra­tion of In­de­pen­dence does, and the struc­tural pro­vi­sions of the Con­sti­tu­tion do not (at least, not for most).

And, yet, too few Amer­i­cans know the his­tory of our Bill of Rights. In honor of the 225th an­niver­sary of the rat­i­fi­ca­tion of the Bill of Rights, I’m pro­vid­ing here a brief his­tory of the doc­u­ment.

On Sept. 12, 1787, five days prior to the end of what came to be known as the Con­sti­tu­tional Con­ven­tion, Ge­orge Ma­son from Vir­ginia pro­posed that the del­e­gates pref­ace the new Con­sti­tu­tion with a Bill of Rights.

Ma­son’s pro­posal was re­jected al­most unan­i­mously. The pre­vail­ing view, as ex­pressed by Roger Sher­man of Con­necti­cut, was that “The State Dec­la­ra­tions of Rights are not re­pealed by this Con­sti­tu­tion; and be­ing in force are suf­fi­cient.”

Alexan­der Hamil­ton in Fed­er­al­ist 81 ex­plained, “I go fur­ther, and af­firm that bills of rights, in the sense and in the ex­tent in which they are con­tended for, are not only un­nec­es­sary in the pro­posed con­sti­tu­tion, but would even be dan­ger­ous. They would con­tain var­i­ous ex­cep­tions to pow­ers which are not granted; and on this very ac­count, would af­ford a colourable pre­text to claim more than were granted. For why de­clare that things shall not be done which there is no power to do?” James Madi­son de­scribed bills of rights as “parch­ment bar­ri­ers.”

And so the Con­sti­tu­tion, signed on Sept. 17, 1787, was sub­mit­ted to the states for rat­i­fi­ca­tion with no Bill of Rights.

But that was clearly not the end of the story.

Ma­son went on to list the lack of a bill of rights as one of his chief ob­jec­tions to the new Con­sti­tu­tion. Thomas Jef­fer­son, writ­ing to James Madi­son from Paris, said that “a bill of rights is what the peo­ple are en­ti­tled to against ev­ery gov­ern­ment on earth, gen­eral or par­tic­u­lar, and what no just gov­ern­ment should refuse, or rest on in­fer­ence.”

Rat­i­fi­ca­tion of the new Con­sti­tu­tion was not guar­an­teed. And, while the bill of rights be­came a ral­ly­ing call for An­tifed­er­al­ists in­ter­ested in lim­it­ing the reach of the new fed­eral gov­ern­ment, there was a more clam­orous group who fa­vored amend­ments that would al­ter the struc­ture and pow­ers of the new fed­eral gov­ern­ment.

For Fed­er­al­ists like James Madi­son, the lat­ter was un­ac­cept­able. Madi­son un­der­stood that the An­tifed­er­al­ists wanted gov­ern­ment authority to re­side with the state gov­ern­ments, be­liev­ing that the peo­ple’s lib­er­ties would be best pro­tected un­der a de­cen­tral­ized sys­tem. It’s im­por­tant to un­der­stand Madi­son’s de­ci­sion to draft and push Congress to pass the Bill of Rights in the con­text of this strug­gle: Madi­son’s amend­ments were in­tended, in the words of his­to­rian Carol Berkin, “to weaken, if not crush, the con­tin­u­ing op­po­si­tion to the new fed­eral gov­ern­ment [that Madi­son] was in­stru­men­tal in cre­at­ing.”

That op­po­si­tion was real. The rat­i­fy­ing con­ven­tions in New York, Vir­ginia, North Carolina, South Carolina, Mas­sachusetts, New Hamp­shire and Rhode Is­land all pro­posed amend­ments to the Con­sti­tu­tion for the First Congress to con­sider af­ter the Con­sti­tu­tion was rat­i­fied. The amend­ments pro­posed by Mas­sachusetts and, to some ex­tent, New Hamp­shire fo­cused on al­ter­ing the struc­ture and pow­ers of the gov­ern­ment and only in­ci­den­tally in­cluded or men­tioned the need for a bill of rights. Vir­ginia, New York, North Carolina and later Rhode Is­land, on the other hand, each pro­posed a prefa­tory bill of rights, sep­a­rate from and prior to any pro­posed struc­tural amend­ments to the Con­sti­tu­tion.

Once the Con­sti­tu­tion was adopted, newly elected Rep­re­sen­ta­tive James Madi­son urged the First Congress to re­ject amend­ments that would change the struc­ture of the Con­sti­tu­tion, and in­stead adopt a bill of rights as sug­gested by Vir­ginia and New York. By 1788, Madi­son had come to see the broader value of a Bill of Rights. He wrote to Thomas Jef­fer­son, say­ing that “the po­lit­i­cal truths de­clared in that solemn man­ner ac­quire by de­grees the char­ac­ter of fun­da­men­tal max­ims of free Gov­ern­ment, and as they be­come in­cor­po­rated with the na­tional sen­ti­ment, coun­ter­act the im­pulses of in­ter­est and pas­sion.”

Madi­son pro­posed to in­sert his pro­posed amend­ments into the text of the Con­sti­tu­tion it­self. In his first pro­posal, he in­tended to ex­pand the Pre­am­ble to in­clude prin­ci­ples drawn from the Dec­la­ra­tion of In­de­pen­dence. In his sec­ond pro­posal, he moved to change Ar­ti­cle I, Sec­tion 2, Clause 3, to re­vise the rules by which Congress could ex­pand its mem­ber­ship. His third pro­posal, which was to be in­serted in Ar­ti­cle I, Sec­tion 6, Clause 1, was to re­strict when mem­bers of Congress could vote to raise their salaries. He also rec­om­mended that the rep­re­sen­ta­tives in­sert into Ar­ti­cle I, Sec­tion

9 of the Con­sti­tu­tion spe­cific rights lim­it­ing the pow­ers of Congress. Seven of these lim­i­ta­tions be­came part of the 10 amend­ments rat­i­fied by the state leg­is­la­tures in 1791.

Of that list, the lan­guage Madi­son viewed as, per­haps, the most im­por­tant was this: “The ex­cep­tions here or else­where in the con­sti­tu­tion, made in fa­vor of par­tic­u­lar rights, shall not be so con­strued as to di­min­ish the just im­por­tance of other rights re­tained by the peo­ple; or as to en­large the pow­ers del­e­gated by the con­sti­tu­tion; but ei­ther as ac­tual lim­i­ta­tions of such pow­ers, or as in­serted merely for greater cau­tion.”

Madi­son also sug­gested the in­clu­sion of this lan­guage in Ar­ti­cle I, Sec­tion 10: “No State shall vi­o­late the equal right of con­science, free­dom of the press, or trial by jury.” In ad­di­tion, he pro­posed mod­i­fi­ca­tions to Ar­ti­cle 3, in­clud­ing a guar­an­tee of tri­als by ju­ries for suits at com­mon law. He also drafted a new Ar­ti­cle 7, read­ing: “The pow­ers del­e­gated by this con­sti­tu­tion, and ap­pro­pri­ated to the de­part­ments to which they are re­spec­tively dis­trib­uted: so that the leg­isla­tive depart­ment shall never ex­er­cise the pow­ers vested in the ex­ec­u­tive or ju­di­cial; nor the ex­ec­u­tive ex­er­cise the pow­ers vested in the leg­isla­tive or ju­di­cial; nor the ju­di­cial ex­er­cise the pow­ers vested in the leg­isla­tive or ex­ec­u­tive de­part­ments.”

Madi­son’s at­tempt to in­cor­po­rate the Bill of Rights into the main body of the Con­sti­tu­tion was ul­ti­mately re­jected by Congress. The House, in­stead, voted on 17 sup­ple­ments to the Con­sti­tu­tion and sent them to the Se­nate for con­sid­er­a­tion. The Se­nate, in turn, re­duced the num­ber to 12, ex­clud­ing in the process Madi­son’s re­stric­tions on state gov­ern­ment. A con­fer­ence com­mit­tee of the House and Se­nate rec­on­ciled the two ver­sions and sub­mit­ted 12 amend­ments to the states for rat­i­fi­ca­tion.

On De­cem­ber 15, 1791, Vir­ginia be­came the 10th of 14 states to ap­prove 10 of the 12 amend­ments, and thus the 10 amend­ments that came to be known as our Bill of Rights were rat­i­fied. Two hun­dred and two years later, the sec­ond of the list of 12 amend­ments sub­mit­ted to the states — re­gard­ing con­gres­sional com­pen­sa­tion — was rat­i­fied and be­came the 27th Amend­ment to the United States Con­sti­tu­tion. The first pro­posed amend­ment – re­gard­ing con­gres­sional ap­por­tion­ment — was never rat­i­fied.

You can ex­plore the leg­isla­tive his­tory of the Bill of Rights at www.ConSource.org.

“When I speak to cit­i­zens around the coun­try about the Con­sti­tu­tion, and ask them what they view as the most im­por­tant part of that doc­u­ment, they in­evitably cite a pro­vi­sion of the Bill of Rights.

Why is this so? It’s likely be­cause the Bill of Rights ar­tic­u­lates our na­tional val­ues and ideals .... ”

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.