The Founding of the American Republic 19; C. Carson

31 32 THE FREEMAN January reasons might be, the omission ran counter to American tradition and the predilections of the bulk of the populace. The belief in the necessity of a bill of rights went deeper than the American tradition, too. Britons traced their liberties to restraints on government. That was the les son, Americans thought, of Magna Charta, of the Petition of Right, and of the Bill of Rights. That government should be restrained by documentary prohibitions was deeply ingrained in Americans with a British background. Statements of rights, too, drew much force from natural law theory which under lay so much of American constitutional theory. The doctrine of natural rights not only held that man has certain rights in the nature of things but that government which is charged with protecting them tends, if not restrained, to invade and diminish them. The accepted means for in trod ucing protections of such rights into practice was by way of distinct bills of rights. By natural law theory, they do not become rights because attention is caned to them in fundamental instru ments of government - they inhere in the nature of things; but many believed that there was greater likelihood of their being observed if they were written into funda mental law.

The example of the states ap peared conclusive to many. If state governments which were much more closely dependent upon popu lar support had to be restrained, then how much more necessary would be restraints on a general government which was remote from the people both in physical distance and by the manner in which its branches were to be chosen. Conventions proceeded state by state to the consideration of and debate over ratification following the submission of the Constitution to the states in September of 1787. The Constitution provided for ratification by conventions made up of delegates chosen by elector ates within states. For it to go into effect, it was mandatory that two-thirds of the state conventions approve the Constitution. Ap proval required only a majority vote. Whether a state which failed to ratify would be excluded from the union was not stated in the Constitution, but presumably the state would have to take some kind of affirmative action to come into it. Most of the states acted with dispatch to hold elections followed in short order by conventions, but Rhode Island refused to hold a convention until 1790, and the North Carolina convention ad journed without acting on ratifica tion in July of 1788.

1973 THE BILL OF RIGHTS 33 "The Federalist" The debates over ratification within the states have retained considerable historical interest. Perhaps the most important rea son for this is that during these debates a thorough examination and exposition of the principles of the Constitution took place. Its strengths, weaknesses, and nature were thoroughly explored. The greatest brief in support of the Constitution was The Federalist, a book which was first published as newspaper articles for the express purpose of getting New York to ratify the Constitution. The arti cles were published under pseu donyms, but the bulk of them have since been attributed to Alexander Hamilton, a goodly number of the others to James Madison, and a few to John Jay. They are gen erally considered to be the most authoritative exposition of the original Constitution, despite the fact that they must have been com posed in considerable haste for a specific occasion. Their success is a tribute not only to the brilliance of Hamilton and Madison particu larly but also to the superiority of the analytical tools and rhetoric of an age. Though papers in opposi tion to ratification were published in a losing cause, some highly per ceptive ones were brought forth; of these the most important were by George Mason, Richard Henry Lee, and Elbridge Gerry. In sev eral of the conventions, spirited and lengthy debates took place.

The debates in the Virginia con vention were the most thorough, as befitted the leading state in America, followed by those in Mas sachusetts and New York. L.oopholes Feared The other matter to come out of the debates to make them lastingly important was the demand for, promise of, and eventual adoption of a Bill of Rights. There were many objections raised to the Con stitution in the debates. Some saw it as establishing a general gov ernment of such powers that as they were augmented over the years would tend to extinguish the independence of the states. The powers of the President were much too great, critics declared, and since there was no barrier to re election, he might become, in effect, a ruler for life. The Senate, too, came in for much criticism, since it was remote from the peo ple, the terms of its members were long, and its powers were inter twined with those of the President.

Hardly a phrase or idea or provi sion of the Constitution that did not somewhere by somebody come under biting criticism. Even the phrase, "We the people," in the preamble was found to be offen sive: reference should have been 34 THE FREEMAN January to the states rather than the peo ple, they thought. Much of the cri ticism was frivolous, some of it was entirely off the mark, and part of it was arrived at by simply mis construing what was provided in the Constitution. The heart of the criticism, however, was that a gov ernment was being set up unre strained by sufficient protections of traditional and natural rights. Until this deficiency should be made up, there were a great many who simply could not accept the Constitution. Hamilton's Ingenious Argument Alexander Hamilton attempted to make as full answer as could be made to the proponents of a bill of rights in The Federalist number 84. He noted, first of all, that certain rights were protected within the Constitution, such as the right toa writ of habeas corpus, to trial by jury, and so forth. So far as particular bills of rights are concerned, he pointed out that they were, in their incep tion, instruments to restrain mon archs, hence, of doubtful appro priateness in a republic. Perhaps the most ingenious part of his ar gument is contained in the follow ing, however: I go further and affirm that bills of rights, in the sense and to the extent in which they ·are contended for, are not only unnecessary in the proposed Constitution but would even be dan gerous. They would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?

Why, for instance, should it be said that the liberty of the press shall not . be restrained, when no power is given by which restrictions may be im posed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power ... This may serve as a speci men of the numerous handles which would be given to the doctrine of con structive powers, by the indulgence of an injudicious zeal for bills of rights.! Patrick Henry probably made as good answer to Hamilton as could be made when he spoke on the sub ject in the Virginia convention: Mr. Chairman, [he said] the neces sity of a bill of rights appears to me to be greater in this government than ever it was in any government before. I have observed already, that the sense of the European nations, and particularly of Great Britain, is against the construction of rights be ing retained which are not expressly relinquished. I repeat, that all nations have adopted this construction - that all rights not expressly and unequiv ocally reserved to the people are im pliedly and incidentally relinquished 1973 THE BILL OF RIGHTS 35 to rulers, as necessarily inseparable from the delegated powets. It is so in Great Britain; for every possible right, which is not reserved to the people by some express provision or compact, is within the king's prerog ative ... It is so in Spain, Germany, and other parts of the world.

Demand for Specific Limitations Whatever the merits of the ar guments on either side, feeling was strong for a bill of rights and opposition was great to a Con stitution which did not contain one specifically. As one recent ac count says, many were "sincere in deploring the failure of the Con stitution to defend basic freedoms in so many words. At worst these prohibitions would do no harm, and might be expected to work much safety. America had re cently, in the Revolution, freed it self from certain concrete oppres sions by a distant government, and these should not be allowed to creep in again by any eventu ality."2 Richard Henry Lee penned a poignant plea for just this dur ing the debates: ... Fortunate it is for the body of a people, if they can continue attentive to their liberties, long enough to erect for them a temple, and constitutional barriers for their permanent secur ity: when they are well fixed between the powers of the rulers and the rights of the people, they become visible boundaries, constantly seen by all, and any transgression of them is immediately discovered: they serve as sentinels for the people at all times, and' especially in those un avoidable intervals of inattention. 3 Indeed, so strong was the senti ment for some sort of bill of rights that the Constitution received rati fication in several crucial states only after the promise that one would be added.

Broad Support for Constitution Despite Criticism Though the debates over ratific cation of the Constitution do pro vide 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 unpopu lar, that its ratification was ac complished by underhanded ma neuvers, and that had a larger electorate been consulted it might not have been adopted. This is not only speculative but alsoargumen tative, for it assumes that unin formed opinions should be given equal weight with the opinions of those who had studied the ques tions 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 36 THE FREEMAN January thoughtful opponents of ratifica tion of the Constitution as it stood were by no means whole hearted in their opposition.

Besides, the vote in favor of ratification in most states was not close. Delaware ratified the Con stitution December 7, 1787, by a vote of 30-0; Pennsylvania fol lowed on December 12, by a vote of 46-23; New Jersey was unani mous for ratification a few days later, 39-0; Georgia unanimous on January 2, 1788, 26-0; Connecti cut overwhelmingly approved, 128 40, 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 op posed it. Those in favor of ratifi cation 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 exami nation of the Constitution so thor ough. J ames Madison was the leading exponent of the Consti tution' ably assisted by John Marshall among others. Patrick Henry was the most tenacious op ponent 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 Con stitution 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 pos sible margin, 34-32. 4 There were some close votes, then, but the composi te picture is one of wide spread willingne~s 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 op ponents could accept its adoption as a condition of political life which they found· tolerable. The 1973 THE BILL OF RIGHTS 37 main questions about the Consti tution 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 Con stitution 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 re main 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 con sented 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 delib erately made them vague and im precise -, but the record shows him working diligently to get something done when many of those who had been called Feder alists 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 enumera tion of simple, acknowledged prin ciples," for by doing so, "ratifica tion will meet with but little diffi culty."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 Consti tution. It was passed by two-thirds majorities in the House and Senate and ratified by legisla tures of the states, with concur rence by three-fourths of the states being necessary for adoption. The method used was one of amend ment rather than of inserting these protections of rights within the body of the original Constitu tion. The first pitfall would have 38 THE FREEMAN January been the calling of another consti tutional convention to produce a bill of rights. Those who wanted to get on with establishing a gen eral government were most de sirous of avoiding any such gather ing, for it would most likely get out of hand and proceed to the un doing of the work of the first con vention. To have the amendments advanced by Congress not only avoided that danger but also util ized the legislative branch of the new government in one of its more important functions, thus enhan cing the prestige of the new gov ernment. Madison had at first thought that protections of rights should be placed within· the origi nal 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 rewrit ten from time to time by the legis ture.

The Bill of Rights was submit ted to the states in September of 1789 and acquired a sufficient num ber of state votes of approval to go into effect in December of 179l. Twelve amendments were submit ted, but two were not approved. The first of the two dealt with ap portioning 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 gov ernment 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 re strictions, some specific, others more general, on the United States government. It would not be in correct to call them a Bill of Pro hibitions 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 nega tive: "Congress shall make no law," "the right of the people to keep and bear Arms, shall not· be infringed," "no Warrants shall is sue," "No person shall be held," "no fact tried by a jury shall be otherwise re-examined," "Exces sive bail shall not be required," "shall not be construed," and "pow ers not delegated." The meaning of this negative formulation and restrictive char acter can be succinctly stated. Some constitutions have contained 1973 THE BILL OF RIGHTS 39 declarations of rights which were more or less extensive lists of the rights supposed to belong to the people. Such lists tend to be inef fectiveand 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 gen eral right were enforced, it might well be done so as to limit someone else's speech.

Fear of Government The Founders w~re generally of the opinion that once law and order had been established the greatest danger to rights came from government itself. The move ment for a bill of rights to be added to the United States Con stitution came specifically from those who feared that the govern ment 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 amend ments were necessary. -Lee indi cated 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."G 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 peace ably to assemble, and to petition the Government for a redress of grievances." An established reli gion 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 pro hibiting the free exercise of reli gion would appear to mean that Congress should not concern itself with either prescribing or pro scribing religious practices. (This prohibition did not extend to state governments, since they were left free to prescribe or proscribe reli gions, limited only by their own 40 THE FREEMAN January constitutions.) The right to be lieve and practice any or no reli gion 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 pre vent criticism of themselves or in fluences 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 in fluence 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 as semble as the right to intimidate. It is true, of course, that govern ments may restrict speech, the press, and assembly on other grounds than protecting those who govern from citicism and influ ence, but it is not clear what the incentive would be except for some public, as opposed to per sonal, reason. Be that as it may, the first amendment provides pro tections for several traditional rights generally most prized and often standing in need of protec tion.

The Right to Sear Arms: Argument for a Trained Mi/itia The second amendment is the most peculiarly phrased of all of them, and for that reason its im port 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 gov ernment. 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 inter pretations. 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 mer cenaries. Indeed, standing armies from whatever source were con sidered a grave danger. A govern ment 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 sug gestion of the amendment, per1973 THE BILL OF RIGHTS 41 haps it should be called a hint, is that the military force should be assembled from part-time soldiers who composed the militia. The ef fectiveness 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 permi tted to keep as well as to bear arms. Arms in the hands of the citizenry would also be a safe guard against either foreign mer cenaries or standing armies.

A Man's Home Is His Castle Amendments three and four deal with both rights and proce dures. 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 an cient saying, and these amend ments were aimed to make this so as against the United States gov ernment. The third amendment prohibits the quartering of sol diers 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 pre scribes 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 resrictions 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 govern ments must take one or more of these from persons from time to time in order to protect the life, liberty, and property of the> gen erality 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 a,re not casually deprived. Article V declares, in part, that no per son shall be "deprived of life, liberty, or property without due process of law." Most of these processes are set forth in amend ments five through eight, such as, trial by jury, indictment by a grand jury, compulsory processes for obtaining witnesses by the ac cused, 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 42 THE FREEMAN January dealing sternly with those who violate them ..They do not exist for the purpose of protecting crimi nals; 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 gov ernment and of the courts was as sumed - so apparent as hardly to be worth stating -, whereas, the supplementary matter of protect ing the accused and the criminal was considered worthy of concen trated attention. Umbrella of Profec:f;on The ninth and tenth amend ments provide the general protec tions 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 presump tion 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 peo ple, 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 govern ment are justly derived from the people, and since these govern mental powers place some limit on indiyidual rights they must be ac quired by delegation (or by usur pation, which would be unjust, of course) . The powers not dele gated, 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 "speci fically" 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 1973 THE BILL OF RIGHTS 43 deeply, the inclusion of the modi fier 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 re tain the notion of powers inherent in government, but Inen 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 re strictive - that is surely its pur pose - but not as confining as it would be if "specifically" were added to it. A Unique Position Any amendment to the Consti tution occupies a unique position in the American system. It super sedes anything preceding it which is contrary to it; that is, it be comes 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 signifi cantly different from and more than these great British guar antors of the rights of English men. 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 govern ment 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 i.n 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 Bin of Rights is in formed by the idea that it is not just the executive, not only the courts, but also the legislature that must be restrained. Govern ment itself - in all its branches and so far as it may reach - is a potential threat to the people un der 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 atid 44 THE FREEMAN January observe the procedures prescribed for it.

The adoption of the Bill of Rights reconciled most of the op ponents of the Constitution to the new government. With it as a bul wark of defense against consoli dated 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 provi sions were such that all could de sire to be covered by them. ~ • FOOTNOTES • 1 Alexander Hamilton, et. al., The Fed eralist Papers (New Rochelle: Arlington House, n.d.), pp. 513-14. 2 Broadus and Louise Mitchell, A Biog raphy 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. ;) Mitchell and Mitchell, Ope cit., p. 196. 6 Quoted iri Robert A. Rutland, The Birth of the Bill of Rights (New York: Collier Books, 1962), p. 215.

lDEASON LIBERTY Next: Establishing the Government. Government of the People GOVERNMENT, as has been before observed, is in the very nature of it a Trust; and all its powers a Delegation for gaining particu lar ends. This trust may be misapplied and abused. It may be em ployed to defeat the very ends for which it was instituted; and to subvert the very rights which it ought to protect .... Nothing, then, can be more absurd than a doctrine which some have taught, with respect to the omnipotence of parliaments. They possess no power beyond the limits of the trust for the execution of which they were formed. If they contradict this trust, they betray their constituents, and dissolve themselves. All delegated power must be subordinate and limited. If omnipotence can, with any sense, be ascribed to a legislature, it must be lodged where all legislative authority originates; that is, in the PEOPLE. For their sakes government is instituted; and theirs is the only real omnipotence.

RICHARD PRICE Observations on the Nature of Civil Liberty, 1776.