The Madisons: A Biography
by Virginia Moore
(McGraw-Hill, 1221 Ave. of the Americas, New York, N.Y. 10020) 1979 • 568 pages • $15.00 cloth
The Great Rights of Mankind: a History of The American Bill of Rights
by Bernard Schwartz
(Oxford University Press, 200 Madison Ave., New York, N.Y. 10016) 1977 • 279 pages • $11.95 cloth
James Madison firmly believed that human beings possessed certain rights; inalienable, ungrantable rights that emanate not from the generosity of society or the government but, rather, from the hand of God. The duty of government, then, is to preserve and protect these God-given rights.
Madison had a trenchantly realistic view of human nature. If men were angels, he said, government would not be necessary. But human nature is a mixture of good and evil. The faculties belonging to man’s higher nature—conscience, sense of justice, capacity to love, the ability to subordinate his private, selfish interests to the common good, and the inherent capacity to make free choices and judgments—are traits which make self- government possible; but characteristics of man’s lower nature such as envy, hatred, greed, selfishness and violence require a government of law to curb those who offend against the rights of others. And to further safeguard the individual Madison advocated the addition of a Bill of Rights to the Constitution to provide legal safeguards against both a “tyrannous majority” and abuses of government power.
When the first Congress convened in Old City Hall on Wall Street in New York, in April, 1789, Madison was at his peak, physically and intellectually, a slender, short- statured and soft-spoken man of thirty-eight, but a giant, morally and intellectually.
President George Washington, in his first message to Congress, had mentioned the widespread popular demand for amendments to the Constitution, but had declined to make “particular recommendations on the subject,” leaving that responsibility to Congress. In an Address to the President drafted by Madison, the House responded that the question of amendments “will receive the attention demanded by its importance.”
The story is well told in the second book under review, written by New York University Professor of Law, Bernard Schwartz.
Madison addressed the first Congress on the 8th of June, 1789, to explain his nine amendments. He defended the bill as a much-needed check on a potentially tyrannous majority, and concluded that a bill of rights would have “a salutary effect against the abuse of power,” because “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights.” Madison emphasized his fifth amendment, which forbade the states to violate the rights of conscience, freedom of the press, or jury trial, because, as he put it, “It is proper that every Government should be disarmed of powers which trench upon those particular rights.”
Significantly, as Professor Schwartz points out, the Madison amendments cover all the articles that eventually became the Federal Bill of Rights. Four of Madison’s amendments, though, were eliminated during the congressional debates: the first, containing the general declaration of the theory of popular government; the fifth, pro hibiting state violations of freedom of conscience, freedom of the press and trial by jury; the sixth, which limited appeals; and the eighth, which dealt with the separation of powers. Two of Madison’s amendments failed to achieve ratification: the second and third, concerning congressional size and compensation. The other Madison amendments, though, survived substantially as the Bill of Rights itself: a very remarkable achievement indeed.
The rights protected by the Bill of Rights can be grouped under five general classifications: (1) freedom of religion; (2) the rights of expression and of association; (3) the right to privacy; (4) the right to due process; and (5) freedom from punishment that is cruel and unusual and from arbitrary restraint.
Does the Bill of Rights have popular and widespread support among the American people today?
A 1970 national survey conducted by CBS Television revealed that three-fourths of those polled said they would restrict the right of peaceful assembly for protests against the government; a majority would abridge the right to free speech and free press for criticisms of government, and the right of criminal defendants to confront the witnesses against them, as well as the guarantee against double jeopardy and the privileges against self-incrimination. One-third of those questioned would permit the police to search homes for drugs, guns, or other criminal evidence without warrants, and one- fifth would permit secret criminal trials.
The survey should cause those who still value the Bill of Rights to redouble their efforts to protect their rights, and to recognize just how much Madison and his colleagues accomplished for this nation.