In recent columns I've argued that a free society depends ultimately on people having a proper sense of just conduct. This means more than the words they recite or put on paper. Most crucial is how they act and expect others to act. For this reason it is futile to put undue emphasis on written constitutions as the key to liberty. The real constitution is within — each of us. If the freedom philosophy is not inscribed in the actions of people, no constitution will help.
The 1977 Soviet Constitution proclaimed, In accordance with the interests of the people and in order to strengthen and develop the socialist system, citizens of the USSR are guaranteed freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations. . . . Citizens of the USSR are guaranteed freedom of conscience, that is, the right to profess or not to profess any religion, and to conduct religious worship or atheistic propaganda. The 1936 Constitution contained some of the same guarantees.
How much were those words worth?
I am reminded of the weak protection afforded liberty through mere words by Richard Labunski's new book, James Madison and the Struggle for the Bill of Rights (Oxford University Press). Labunski provides a well-written, gripping account of how James Madison kept his promise to have the first U.S. Congress amend the new Constitution in order to add a bill of rights. The Virginia ratifying convention, along with several other state conventions, was unhappy that the Constitution had no bill of rights. Madison and other champions of the new charter thought a declaration of rights was unnecessary and even dangerous; a government of limited, enumerated powers would already be restrained from violating rights, they said.
But the Anti-federalists, who opposed a strong central government, and even some supporters of the Constitution disagreed. Many members of the Virginia ratifying convention, to which Madison was a delegate, wanted approval of the Constitution to be contingent on the adoption of amendments to safeguard individual rights. They would have had Virginia stay out of the union until a bill of rights was added. The proposal for contingent approval was defeated, but a majority of the delegates approved 40 amendments that they wanted the new Congress to include. One of them would have denied the national government the power to tax, as the Articles of Confederation had. Madison disliked many of the proposed amendments, including the one on taxation, but he saw the handwriting on the wall. Desperate to have his state ratify the Constitution, Madison promised to propose the amendments once the new government was set up. The Virginia convention ratified the Constitution.
Now Madison had to get into Congress to keep his promise. That wouldn't be easy. As Labunski reports, Madison's bid to be one of the senators from Virginia (state legislatures elected senators in those days) was opposed by the leading Anti-federalist Patrick Henry, who had headed the effort for amendments at the ratifying convention. [N]o person who wishes the constitution to be amended should vote for Mr[.] Madison to be in the senate, Henry said. When a Madison backer claimed that Madison would oppose elimination of the national taxing power, Henry pounced, There gentlemen, the secret is out: it is doubted whether Mr. Madison will obey instructions.
In the legislative vote for senators Madison finished third in a field of three behind Richard Henry Lee and William Grayson, Anti-federalists both. (Lee had been the sixth of ten presidents of the United States under the Articles.)
Turns to the House
Madison's only chance now was to get into the House of Representatives. But that election wouldn't be easy either. Patrick Henry was still determined to keep Madison out of the Congress. Labunski writes, The term 'gerrymandering' was not added to the nation's political vocabulary until 1812, when Massachusetts government Elbridge Gerry was accused of contriving an election district to favor his party. In that respect, Patrick Henry was ahead of his time. He assembled — in the nation's first congressional election — a district for the primary purpose of keeping one candidate, James Madison, out of office.
Madison's opponent was his friend James Monroe, who, writes Labunski, had serious reservations about the proposed Constitution. He primarily objected to the authority of the federal government to directly tax citizens. . . . He vowed to support a bill of rights if elected.
Labunski portrays Madison as initially . . . lukewarm to the idea of a bill of rights or even opposed. At best he thought it was unnecessary because the national government's powers were already limited and that (in Labunski's words) the new government should have a chance to operate for a while before changes were made. Madison doubted whether amendments — which he described as 'parchment barriers' — would really restrain the government if it was determined to abridge the liberties of citizens, but he saw little harm in offering a declaration of rights, Labunski writes.
One reason for this was Madison's fear of the alternative: a second constitutional convention, which Anti-federalists favored. Amendments, then, were the lesser evil.
In the House race the Anti-federalists claimed Madison was opposed to any change in the Constitution, and he worried that the voters would be persuaded. Thus, Labunski writes, he offered what amounted to a campaign pledge to sponsor the amendments that would constitute a bill of rights. He also appeared all over the district to make this pledge known. As Labunski notes, some have regarded Madison's promise as a campaign necessity only; in an earlier letter to Thomas Jefferson he was less than enthusiastic about a bill of rights. I have favored it because it might be of use, and if properly executed could not be of disservice. Later he moved to a more favorable position, and in letters during the campaign he endorsed amendments to guarantee religious liberty, which he had long favored, and other freedoms. However, Madison appears to have played with the truth in one letter, when he said that at the Constitutional Convention he had supported several of the very amendments, since recommended by [Virginia] and other states. As Labunski remarks, This statement seems disingenuous.
To make a long story short, the results of the voting on that cold, snowy February 2, 1789, were Madison 1,308 and Monroe 972. Madison's vigorous campaign paid off with 57 percent of the vote. The turnout was 44 percent.
Keeps His Word
Madison kept his word and introduced the amendments during the congressional session. Labunski believes that by then Madison had become a sincere champion of a bill of rights. Others are not so sure. (It should be noted that the Anti-federalists' sincerity has also been questioned; specifically, did they campaign for a bill of rights to obscure their more fundamental objections to the nationalist Constitution? Maybe: after the amendments were adopted, some Anti-federalists denied their importance.) Nevertheless, Madison overcame obstacles and shepherded through the House a series of amendments. These were then modified in the Senate. (Revealingly, the one amendment Madison apparently really wanted — a prohibition on state violation of freedom of speech, press, and religion and the right to a jury trial — was removed by the senators, who were agents of the state legislatures.) Eventually the ten amendments we know as the Bill of Rights were ratified by the states.
The reason for this roundabout and admittedly incomplete story is that Madison made a revealing statement during the debate on what would become the Tenth Amendment to the Constitution. As introduced (and as eventually approved), it read, The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Thomas Tudor Tucker of South Carolina rose to add one word to this amendment: expressly. It thus would read: The powers not expressly delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Madison opposed the addition: [I]t was impossible to confine a government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae (SR's emphasis).
As Labunski notes, the change would have been dramatic: The Tucker amendment would have greatly diminished congressional authority under the 'necessary and proper' clause, which had granted Congress substantial discretion to carry out responsibilities assigned by the Constitution.
At least it would have created tension within the document. The necessary and proper clause was a source of great concern to Anti-federalists. The Anti-federalist known as Brutus wrote, No terms can be more indefinite than these, and it is obvious, that the legislature alone must be the judge what laws are proper and necessary for the purpose.
Tucker's amendment failed twice, first in the committee of the whole and then in the full House, by a vote of 32-17.
Few and Defined?
This incident raises interesting questions. In light of Madison's plea that there must necessarily be admitted powers by implication, what are we to make of his famous line in Federalist 45 that The powers delegated by the proposed Constitution to the Federal Government, are few and defined? When strict constructionists appeal to original meaning or intent, which meaning or intent have they in mind? And which counts more: what was said during deliberations over the text or what was said in newspaper articles designed to win public support for the Constitution? Is Madison a reliable ally to be cited with confidence?
Moreover, when the Constitution says Congress has the power To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof, where is the bright line that limits the scope of the national government? Why is it wrong on its face for the courts to defer to the Congress on what is necessary and proper?
Most important, how is something as malleable as language to protect our freedom from those who would read the phrases broadly? Such people, after all, are most likely to be attracted to government.
As Madison himself warned, parchment barriers inspire little confidence. For the sake of freedom there is no substitute for getting right the constitution within. And for that, there is no substitute for self-education and an articulate passion for liberty.