The Founding of the American Republic: 18. The Bill of Rights

Though the debates over ratification of the Constitution do provide valuable insights into it — and opponents did make some telling points — it is easy to make too much of them. Some twentieth-century historians have alleged that the Constitution was unpopular, that its ratification was accomplished by underhanded maneuvers, and that had a larger electorate been consulted it might not have been adopted. This is not only speculative but also argumentative, for it assumes that uninformed opinions should be given equal weight with the opinions of those who had studied the questions carefully. In fact, in most places the Constitution had the support of the bulk of men of learning and substance as well as most of the leading characters in the country. Most of the more thoughtful opponents of ratification of the Constitution as it stood were by no means wholehearted in their opposition.

Besides, the vote in favor of ratification in most states was not close. Delaware ratified the Constitution December 7, 1787, by a vote of 30-0; Pennsylvania followed on December 12, by a vote of 46-23; New Jersey was unanimous for ratification a few days later, 39-0; Georgia unanimous on January 2, 1788, 26-0; Connecticut overwhelmingly approved, 12840, on January 9. The vote was close in Massachusetts, 187-168, but ratification was achieved on February 16. The Maryland vote in favor of ratification was not even close; it was 63-11, despite the fact that several Maryland delegates to the Constitutional Convention at Philadelphia opposed it. Those in favor of ratification in South Carolina won handily, 149-73, on May 23; New Hampshire followed on June 21, 57-47. Nine states had now ratified it, and the Constitution could be put into effect. But the chances of succeeding without Virginia and New York were slim. Attention now focused on their conventions.

The Debate in Virginia

In the Virginia convention which met for most of June, both sides were most reluctant to take a vote for fear of losing. This was one of the reasons the debates were so prolonged and the examination of the Constitution so thorough. James Madison was the leading exponent of the Constitution, ably assisted by John Marshall among others. Patrick Henry was the most tenacious opponent of ratification. When the vote was finally taken, it was 89 to 79 for ratification. The New York vote was even closer; that state ratified the Constitution by a vote of 30-27 on July 26. Thereafter, Americans turned to the task of organizing and getting the new government underway. North Carolina finally ratified the Constitution in November 1789 by a vote of 194-77. With all the other states in, and under the threat of a boycott, Rhode Island finally held a convention in 1790 which proceeded to the ratification of the Constitution by the narrowest possible margin, 34-32.4 There were some close votes, then, but the composite picture is one of widespread willingness to try the new Constitution and almost universal acceptance of it when it had been amended. The fact that opposition dwindled into insignificance once it was ratified shows the limited nature of that opposition; the opponents could accept its adoption as a condition of political life which they found tolerable. The main questions about the Constitution now concerned how it should be amended and interpreted.

Of course, the opposition did not melt away until the Bill of Rights was made a part of the Constitution. Moreover, North Carolina’s (and probably Rhode Island’s) ratification of the Constitution was given impetus by the fact that such amendments were in the process of being adopted. Thus, while other things of great moment for the founding of the American Republic were taking place between 1788 and 1791, it is appropriate to complete at this point the discussion of the Bill of Rights.

Madison’s Role

Whether James Madison was the Father of the Constitution may remain debatable, but that he was the Father of the Bill of Rights is as near indisputable as such things can be. He examined the proposals as they had come from the state conventions, pondered the question of what rights were generally in greatest need of protection, and as a member of the first House of Representatives kept bringing the matter up until the House consented to act. Moreover, Madison served on the committee which brought forth the proposals as well as on the joint House-Senate committee which worked out the final form of the amendments. There were suggestions at the time that he was less than enthusiastic about a bill of rights — as well as suggestions since that he deliberately made them vague and imprecise —, but the record shows him working diligently to get something done when many of those who had been called Federalists were dragging their feet and some of the anti-Federalists were more inclined to niggling criticism than to working toward what could be achieved. Madison did oppose going into intricacies in the amendments; let us, he said, "confine ourselves to an enumeration of simple, acknowledged principles," for by doing so, "ratification will meet with but little difficulty."5 Surely this was wise counsel.

A Happy Choice

Two pitfalls were avoided by the manner in which the Bill of Rights was made a part of the Constitution. It was passed by two-thirds majorities in the House and Senate and ratified by legislatures of the states, with concurrence by three-fourths of the states being necessary for adoption. The method used was one of amendment rather than of inserting these protections of rights within the body of the original Constitution. The first pitfall would have been the calling of another constitutional convention to produce a bill of rights. Those who wanted to get on with establishing a general government were most desirous of avoiding any such gathering, for it would most likely get out of hand and proceed to the undoing of the work of the first convention. To have the amendments advanced by Congress not only avoided that danger but also utilized the legislative branch of the new government in one of its more important functions, thus enhancing the prestige of the new government. Madison had at first thought that protections of rights should be placed within the original Constitution, but the House decided that they should be added as amendments. This, too, was a happy decision, for it avoided the spectacle of Congress tampering with the Constitution and setting the precedent for its being rewritten from time to time by the legislature.

The Bill of Rights was submitted to the states in September of 1789 and acquired a sufficient number of state votes of approval to go into effect in December of 1791. Twelve amendments were submitted, but two were not approved. The first of the two dealt with apportioning representatives in the House and would have fitted poorly in a bill of rights. The second laid down rules about determining the pay of members of Congress and would have been equally ill-placed at the head of an enumeration of rights and privileges. Madison had hoped to include an amendment which would have restricted the states as well as the general government from violating basic rights, but this proposal was turned down in the Senate.

A Bill of Prohibitions

The first ten amendments to the Constitution contain a list of restrictions, some specific, others more general, on the United States government. It would not be incorrect to call them a Bill of Prohibitions instead of a Bill of Rights, for they are in the nature of prohibitions. They are not so much a list of rights as they are a series of protections of rights. The phraseology is generally negative: "Congress shall make no law," "the right of the people to keep and bear Arms, shall not be infringed," "no Warrants shall issue," "No person shall be held," "no fact tried by a jury shall be otherwise re-examined," "Excessive bail shall not be required," "shall not be construed," and "powers not delegated."

The meaning of this negative formulation and restrictive character can be succinctly stated. Some constitutions have contained declarations of rights which were more or less extensive lists of the rights supposed to belong to the people. Such lists tend to be ineffective and to amount to little more than pious wishes of those who state them. If one has a right, who is it against, and how is it to be enforced? For example, suppose it be declared that the people have the right to free speech. This is a noble sentiment, but unless there is a prohibition against someone who would violate it, it is of no use. Moreover, even if such a general right were enforced, it might well be done so as to limit someone else’s speech.

Fear of Government

The Founders were generally of the opinion that once law and order had been established the greatest danger to rights came from government itself. The movement for a bill of rights to be added to the United States Constitution came specifically from those who feared that the government it established would violate them. For example, Richard Henry Lee was involved in the debates in the Senate over whether a bill of rights was necessary. Some said that they needed more experience to determine which and if amendments were necessary. Lee indicated in a letter that he thought there had been experience enough "to prove the propriety of those great principles of Civil liberty which the wisdom of the Ages has found to be necessary barriers against the encroachments of power in the hands of frail Man."’ Wherever government power was lodged, there must be a variety of restrictions and limitations on its exercise if men’s rights were to be protected; so thought most Americans of that day.

Specified Rights

The first two amendments deal with certain specified rights. The first reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." An established religion is one which is supported by government, i.e., by tax money, by requiring attendance or other such aids and privileges. To say that Congress should make no law prohibiting the free exercise of religion would appear to mean that Congress should not concern itself with either prescribing or proscribing religious practices. (This prohibition did not extend to state governments, since they were left free to prescribe or proscribe religions, limited only by their own constitutions.) The right to believe and practice any or no religion was usually described at the time as the "right of conscience." Free speech, free press, peaceful assembly, and the right to petition did not mean so much as one might suppose. The historical problem had been that those who governed had used such restrictions to prevent criticism of themselves or influences upon their actions. What the Founders were primarily, probably exclusively, interested in protecting was the right of the people to speak, write, assemble, or petition so that they might freely characterize, criticize, or influence those who governed them. It is most doubtful, for example, that they any more conceived of the right to a free press as a right to publish pornography than that they thought of the right to assemble as the right to intimidate. It is true, of course, that governments may restrict speech, the press, and assembly on other grounds than protecting those who govern from criticism and influence, but it is not clear what the incentive would be except for some public, as opposed to personal, reason. Be that as it may, the first amendment provides protections for several traditional rights generally most prized and often standing in need of protection.

The Right to Bear Arms: Argument for a Trained Militia

The second amendment is the most peculiarly phrased of all of them, and for that reason its import is somewhat obscure. It says, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The first two phrases are surely rhetorical flourishes rather than prohibitions on government. The only rights involved are those of keeping and bearing arms. There is no mystery about the right to keep arms; it means simply the right to store them on one’s property. The right to bear arms is subject to two interpretations. It might mean simply the right to carry them about from place to place. But in the context of the opening phrases, it might mean also the right to serve in the militia. The larger purpose of the amendment appears to have been to tip the scales in favor of citizen armies. Few things were more feared at the time than armies composed of foreign mercenaries. Indeed, standing armies from whatever source were considered a grave danger. A government with these at its disposal could go far to impose its will on the people, as had occurred at many times in the past. The suggestion of the amendment, perhaps it should be called a hint, is that the military force should be assembled from part-time soldiers who composed the militia. The effectiveness of the militia would be greatly enhanced, they thought, if its members were practiced in the use of firearms. This would be greatly facilitated if they were permitted to keep as well as to bear arms. Arms in the hands of the citizenry would also be a safeguard against either foreign mercenaries or standing armies.

A Man’s Home Is His Castle

Amendments three and four deal with both rights and procedures. The primary right involved is the right to the use of one’s home in privacy and security. "A man’s home is his castle" is an ancient saying, and these amendments were aimed to make this so as against the United States government. The third amendment prohibits the quartering of soldiers in private houses, in time of peace without the consent of the owner, and in time of war only according to rules laid down by law. The fourth deals with searches and seizures and prescribes the procedures by which they may be done.

Amendments five through eight are concerned almost entirely with processes by which government may take life, liberty, and property. They constitute restrictions which government is supposed to observe when it is going about the business of taking one or more of these from a person. It may appear ironic that a government which is supposed to protect life, liberty, and property may also take these on occasion. Yet, it has been the considered judgment of most men through the ages that governments must take one or more of these from persons from time to time in order to protect the life, liberty, and property of the generality of people. It was also the view of the Founders that these are dread actions which must be hedged about with procedures and prohibitions to assure that men are not casually deprived. Article V declares, in part, that no person shall be "deprived of life, liberty, or property without due process of law." Most of these processes are set forth in amendments five through eight, such as, trial by jury, indictment by a grand jury, compulsory processes for obtaining witnesses by the accused, and the right to counsel.

To Protect the Innocent

The courts exist, however, to settle disputes and to discover and punish malefactors. The primary purpose of the criminal courts is to protect the life, liberty, and property of peaceful persons by dealing sternly with those who violate them. They do not exist for the purpose of protecting criminals; if this were their purpose, it is doubtful that society would be sufficiently concerned to establish courts. Those who attend only to the Bill of Rights might suppose that our constitution-makers were concerned only with the rights of the accused. They were not, of course; the basic business of government and of the courts was assumed — so apparent as hardly to be worth stating —, whereas, the supplementary matter of protecting the accused and the criminal was considered worthy of concentrated attention.

Umbrella of Protection

The ninth and tenth amendments provide the general protections of rights; they were drawn as an umbrella over the whole to protect the individual and the states from encroachment by the general government. The ninth specifies that "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." Opponents of a bill of rights had pointed out that it would be impossible to spell out all the rights which men might justly claim. The listing of a few of them might set up the presumption that those not listed did not belong to men as rights. This article was intended to make it as clear as could be that all manner of rights still belonged to the people, though no mention was made of them in the listing.

The tenth amendment puts the roof on the edifice, so to speak. It proclaims that "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." The language derives its impact from the natural law philosophy. On this view, rights belong to individuals in the nature of things. The powers of government are justly derived from the people, and since these governmental powers place some limit on individual rights they must be acquired by delegation (or by usurpation, which would be unjust, of course). The powers not delegated, then, whether it be to the general government or to the states, are reserved.

Room for Flexibility

There were those who would have attached the modifier "specifically" to "delegated," but they were defeated in their efforts to do so. This raised the specter of endless wrangling over whether the power to perform acts in order to exercise the powers delegated had been granted or not. More deeply, the inclusion of the modifier would have posed the problem whether this government could exercise powers that are said to be inherent in government or not. Perhaps there was no need to retain the notion of powers inherent in government, but men who have just been engaged in the business of drawing up a constitution may be forgiven for being uncertain as to whether they had covered the whole ground or not. They might have, for aught they knew, failed to grant powers specifically which would shortly be necessary to the performance of functions which they had readily conceived. At any rate, the tenth amendment can be accurately construed as restrictive — that is surely its purpose — but not as confining as it would be if "specifically" were added to it.

A Unique Position

Any amendment to the Constitution occupies a unique position in the American system. It supersedes anything preceding it which is contrary to it; that is, it becomes the governing article in the matters with which it deals. The first ten amendments, however, occupy an even more prominent place in the Constitution than their position as amendments would perforce give them. They were conceived as and quickly became known as the Bill of Rights. They were thought of, in part, as taking their place alongside Magna Charta, the Petition of Rights, and the British Bill of Rights. But the American Bill of Rights is significantly different from and more than these great British guarantors of the rights of Englishmen. For the British bethought themselves only to guarantee themselves against encroachment by the monarch. Whereas, the American Bill of Rights draws a line between the whole government and the citizenry which the government is not to transgress. In doing this, it differs somewhat from the original Constitution. That instrument generally grants and restricts powers in terms of branches. This mode was continued in the first amendment, then abandoned in the rest, so they may be interpreted as restraining the whole Federal government. The American Bill of Rights is informed by the idea that it is not just the executive, not only the courts, but also the legislature that must be restrained. Government itself — in all its branches and so far as it may reach — is a potential threat to the people under it. If they are to be secure in their rights, if they are to enjoy their lives and possessions, that government over them must be kept to its appointed tasks and observe the procedures prescribed for it.

The adoption of the Bill of Rights reconciled most of the opponents of the Constitution to the new government. With it as a bulwark of defense against consolidated government, all the states could come into the union. The Bill of Rights did not yet reach through to all the inhabitants of the United States, but the provisions were such that all could desire to be covered by them.   

Next: Establishing the Government.

 

FOOTNOTES

1 Alexander Hamilton, et. al., The Federalist Papers (New Rochelle: Arlington House, n.d.), pp. 513-14.

2 Broadus and Louise Mitchell, A Biography of the Constitution (New York: Oxford University Press, 1964), p. 189.

3 Forrest McDonald, intro., Empire and Nation (Englewood Cliffs: Prentice-Hall, 1962), pp. 134-35.

4 See Merrill Jensen, The Making of the American Constitution (Princeton: D. Van Nostrand, 1964), pp. 141-46.

5 Mitchell and Mitchell, op. cit., p. 196.

6 Quoted in Robert A. Rutland, The Birth of the Bill of Rights (New York: Collier Books, 1962), p. 215.