The Bill of Rights: A Little History
By Patricia Gillenwate
"[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."
--- Thomas Jefferson December 20, 1787
The notion held by many that the new Constitution itself was not sufficient in upholding the pre-existing, natural and God-given and the inalienable rights that all people had expectation to enjoy without government attempts to trample.
Alexander Hamilton, one of the leading founding Federalists, articulated in Federalist No. 84. “Why should a Bill of Rights, Hamilton asked, "declare that things shall not be done which there is no power to do?" For instance, Hamilton said it was unnecessary for a Bill of Rights to protect the freedom of the press when the federal government is not granted the power to regulate the press. A provision "against restraining the liberty of the press," Hamilton said, "affords the clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government."
Alexander Hamilton is probably “turning in his grave” since we are witnessing attempts by the federal government to regulate the press inspite of the power not granted in the unamended constitution and the First Amendment of the Bill of Rights expressly stating claiming prohibition to “abridging the freedom of speech, or of the press”.
The response by the Antifederalist, Brutus to Hamiltons assertion in Federalist No. 84 was in short “When a building is to be erected which is intended to stand for ages, the foundation should be firmly laid. The Constitution proposed to your acceptance is designed, not for yourselves alone, but for generations yet unborn. The principles, therefore, upon which the social compact is founded, ought to have been clearly and precisely stated, and the most express and full declaration of rights to have been made. But on this subject there is almost an entire silence.
If we may collect the sentiments of the people of America, from their own most solemn declarations, they hold this truth as self-evident, that all men are by nature free. No one man, therefore, or any class of men, have a right, by the law of nature, or of God, to assume or exercise authority over their fellows. The origin of society, then, is to be sought, not in any natural right which one man has to exercise authority over another, but in the united consent of those who associate.”
From the University of Missouri, “ In the end, we owe opponents [Antifederalist] of the Constitution a debt of gratitude, for without their complaints, there would be no Bill of Rights.
Thomas Jefferson wrote, "There has just been opposition enough" to force adoption of a Bill of Rights, but not to drain the federal government of its essential "energy." George Washington agreed: "They have given the rights of man a full and fair discussion, and explained them in so clear and forcible manner as cannot fail to make a lasting impression."
The Virginia Declarations of Rights, authored by George Mason in 1776, were the model that James Madison would use for his submission for consideration and debate of the Bill of Rights.
The Virginia Declaration of Rights were drawn upon by Thomas Jefferson for the first paragraph of the Declaration of Independence. Other Colonies copied from George Masons declarations.
Scholastic News points out that “Major portions of the First, Fourth, Fifth, Sixth, and Eighth amendments can be traced directly to the Virginia Bill of Rights.
The origins of many of the other rights and liberties contained in the Bill of Rights can be found in the English tradition, dating as far back as Magna Carta (1215), a document that marked the first step toward constitutional law in England. For example, the clause in the Fifth Amendment, which declares that individuals cannot be deprived of their "life, liberty, or property, without due process of law" is rooted in Chapter 39 of Magna Carta.”
States [Colonies] were passionate with respect to securing a Bill of Rights for its people. Madison home state of Virginia refused to ratify the new constitution until Madison pledged to deliver a Bill of Rights after its ratification. Nine states initially ratified and the remaining four did so either on Madison’s promise or after the rights were set to go.
In 1788, Patrick Henry was quoted “Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt.”
Thomas Jefferson, a leading Anti Federalist of the day, in advocating for the Bill of Rights stated “that no Bill of Rights could ever be exhaustive, and commented that "half a loaf is better than no bread. If we cannot secure all of our rights, let us secure what we can."
The fear was those rights not written within the constitution that everything omitted is given to the general government. James Madison after reconsidering the arguments against a Bill of Rights authored the original Bill of Rights and he did so using the Virginia Declaration of Rights as the model.
From Colonial Williamsburg, Debating the Bill of Rights “We cannot assume that those who fought against a bill of rights were reactionary, undemocratic, or anti-American, for some of the fiercest opposition came from the most passionate civil libertarians. Some said a bill of rights would not guarantee but restrict freedoms—that a list of specific rights would imply that they were granted by the government rather than inherent in nature. They also remembered a maxim of common law, expressio unius est exclusio alterius—the mention of one thing amounts to the exclusion of others.”
Madison was convinced that such concerns of the impossible task of enumerating all rights could be overcome. It was still plausible, Madison believed, that the enumeration of particular rights might disparage other rights that were not enumerated. Yet Madison told Congress that he had attempted to guard against this danger by drafting the Ninth Amendment, which he submitted in the following original form:
“The exceptions [to power] 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 on such powers, or as inserted merely for greater caution.”
The Bill of Rights became effective on December 15, 1791.
The Bill of Rights as ratified were thought to apply only to the laws and activities of the national government. It was not until after the Civil War that the Bill of Rights' provisions were applied to the states. The 14th Amendment (1868) was the first to declare that no state "shall…deprive any person of life, liberty, or property without due process of law."
Supreme Court rules, In Barron v. Baltimore, that Bill of Rights applies only to U.S. government, not to states.
The 14th Amendment was the first to declare that no state "shall…deprive any person of life, liberty, or property without due process of law."
From The Free Dictionary, “By the end of the twentieth century, nearly all provisions of the Bill of Rights had been declared binding on the states. Only five provisions of the Bill of Rights had not been applied to the states: (1) the Second Amendment's right to bear arms; (2) the Third Amendment's prohibition against involuntary quartering of troops; (3) the Fifth Amendment's requirement of Grand Jury indictment in capital cases; (4) the Seventh Amendment's provision for trial by jury in civil cases; and (5) the Eighth Amendment's prohibition of excessive bail and fines”
Stay vigilant Patriots for it seems to this day that the Supreme Court has not definitively decided if the entire Bill of Rights should always be applied to all levels of government.
In todays climate in Washington where individual liberty, freedoms, seem under constant attack the common good dictum, in the compelling interest of government and not unlimited will be used as trade-offs to the peoples rights.
Americans, the individual and the community of business’, will be asked and required in the name of national security interest to relinquish more freedoms.
The Bill of Rights were a binding contract -- government power will erode when viewed in their compelling interest.
Since 1791 the only amendment to the original ten to not be challenged before the U.S. Supreme Court is the Third Amendment, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
This is not to say that the Third has not been violated. It was violated during the War of 1812, the Civil War and WWII when U.S. Military took occupation of Native Americans homes in Alaska. In recent history, 1979, the National Guard of New York during a correctional officers strike were ordered to take over the residences of prison guards. The case Engblom vs Carey was decided by the Second Circuit and the Court found a violation of the Third.
Of the original ten amendments it is the First that is most often heard in a challenge before the Supreme Court followed only by the the Fourteenth amendment of 1868.
In the wake of the Boston bombing and school attacks Mayor Bloomberg in a press conference was quoted as saying “The people who are worried about privacy have a legitimate worry,” Mr. Bloomberg said during a press conference in Midtown. “But we live in a complex world where you’re going to have to have a level of security greater than you did back in the olden days, if you will. And our laws and our interpretation of the Constitution, I think, have to change.”
Government will redefine the constitution and its amendments to protect its power to control society. Government introduced the threats and government will take away our freedoms to save itself.
In a letter to William S. Smith (November 13, 1787) Thomas Jefferson wrote “ What country before ever existed a century & half without a rebellion? & What country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon & [and] pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is its natural manure.”
Resistance by arms at this point in time – too early for consideration. Resistance by other means a must.
We are all guilty of pacifying government.
“In Europe, charters of liberty have been granted by power. America has set the example . . . of charters of power granted by liberty.”
Our national government has now adopted the European model.
For the Opening Article Discussion by Hugh Akston click here