Bill Of Rights: Placing Limits On Congressional Governing – Part 2 – Guest Essayist: Gary R. Porter

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A Bill Of Rights Is What The People Are Entitled To … — The People Limit Their Government

“In questions of power,… let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” Thomas Jefferson, 1798.

Sunday, 8 April 1787

Young “Jemmy” Madison, frustrated by what he had observed over the last six years, sat down at his writing desk in his New York City boarding room. After an unseasonably severe winter, the spring of 1787 was finally becoming pleasant. But Madison had little time to reflect upon the fair weather.

A new design for the government of the “united” states was needed – imperative really; the decrepit confederation, weakened beyond hope even before it was put to ratification, was showing its manifold defects. “[N]o money comes into the public treasury, trade is on a wretched footing, and the states are running mad after paper money,” Madison wrote. Shay’s Rebellion had exposed the impotence of both the Confederation Congress and the state militias; the “perpetual league of friendship” was a mess; talk of reforming the states into several new confederacies was heard in the city taverns.

Madison had seen the problem from both sides these last six years, three as a delegate to the Confederation Congress followed by three as a Virginia Assemblyman. The states simply enjoyed too much power, they had to be brought under tighter control; yet consolidating the states into a single republic was unacceptable. Madison sought middle ground.

Through careful pushing and prodding he had been able to obtain sufficient support for a meeting at Annapolis the previous September, which, though failing to meet its primary goals — owing to the absence of several key states — was nevertheless able to call for a convention of the states to be held the following May in Philadelphia. Madison finished his essay, added the title “Vices of the Political System of the United States,” set down his pen and began packing for the trip to Philadelphia.

Wednesday, 12 September 1787

As the delegates neared the end of four long months of vigorous argument and compromise, George Mason of Fairfax County, Virginia, rose to address the delegates. Madison recorded in his notes: “[Col. Mason] wished the [Constitution] had been prefaced with a Bill of Rights…. It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours.”

Roger Sherman of Connecticut spoke next. He “was for securing the rights of the people where requisite.” But he pointed out that “The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient.” A motion to create a committee to draft a Bill of Rights was defeated and the convention went on to sign the document five days later without one.

Madison was nonplussed. As he later explained to his friend Jefferson:

“My own opinion has always been in favor of a bill of rights; provided that it be so framed as not to imply powers not meant to  be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I suppose it might be of use, and if properly executed could not be of disservice.”

These “parchment barriers” had proved ineffective wherever they encountered a “popular current.” Could the rights in question even be described with the “requisite latitude,” particularly the rights of conscience?

Hamilton had been even more blunt as “Publius:” “[W]hy declare that things shall not be done which there is no power to do?” In other words, why declare there shall be freedom of the press when no power to infringe upon the rights of the press has been provided this new government?

But Jefferson had been insistent. The previous year he had written: “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, or rest on inferences.”

At the Virginia Ratifying Convention in June 1788, Madison began to see the political necessity of a Bill of Rights. Although a bill of rights had been mentioned occasionally in the first two weeks of the convention, it received great attention in the final days. Federalists repeatedly argued that it was unnecessary. George Mason reprised his remarks of the previous September: The Virginia Constitution contained a Declaration of Rights (drafted by none other than Mason himself), “why should it not be so in this Constitution?” Patrick Henry, once Madison’s friend, now his nemesis, stoked the fires against ratification. Even wavering delegates like William Dawson expressed their reluctance to vote for ratification without, among other things, protection for “[t]hat sacred palladium of liberty, the freedom of the press.” Madison reminded the delegates of the process in Article V to amend the Constitution. His friend and neighbor, James Monroe, repeated the called for conditional ratification, ratification predicated on acceptance of proposed amendments. Henry wondered why the Philadelphia Convention had dismissed a Bill of Rights; “would it have consumed too much paper?” Without a Bill of Rights, he insisted, federal agents would “go into your cellars and rooms, and search, ransack and measure, everything you eat, drink and wear.” Back and forth it went.

The central question was this: could government be trusted to protect individual rights without being explicitly required to do so? As they all knew: “the essence of government is power, and power, lodged as it must be in human hands, will ever be liable to abuse.”

It finally came time to vote: would Virginia ratify with or without conditions, or not at all? Unbeknownst to the Virginians, New Hampshire had voted to ratify four days earlier, putting the Constitution into effect. In Richmond, the motion to ratify with conditions was defeated, 88 to 80. It was next moved that Virginia ratify with amendments recommended but not required; this passed 89 to 79.

On the last day of the convention, the delegates approved a final motion, asking their future representatives in Congress “to exert all influence and use all reasonable and legal methods” to obtain ratification of their recommended Bill of Rights articles “in the manner provided by the fifth article of the said Constitution.” But who would be Virginia’s first representatives under the new Constitution?

Patrick Henry worked behind the scenes to ensure Madison was not nominated to fill either of the two new Senator positions. Madison would have been reluctant to accept in any case: the lifestyle expected of a senator was sure to stretch his meager income beyond its limits. Next came the election of Representatives. To oppose Madison for even a seat in the House of Representatives, Henry convinced Madison’s friend and neighbor, James Monroe, to run against him. Both men now had to convince the voters of Virginia’s newly-drawn 5th District that each was the better choice. By a margin of 336 votes, Madison prevailed. America was one step closer to its Bill of Rights. But Madison still had to convince a reluctant, Federalist-dominated Congress.

It was not until 4 May that enough new Congressmen had assembled in New York to provide a quorum.  The next day, Madison rose to announce his intention to introduce a Bill of Rights later that month.  The Federalist-dominated House was not keen on making changes to the Constitution right away.  James Jackson of Georgia compared the new Constitution to a newly christened ship:

“Our constitution, sir, is like a vessel just launched, and lying at the wharf; she is untried, you can hardly discover any one of her properties. It is not known how she will answer her helm, or lay her course; whether she will bear with safety the precious freight to be deposited in her hold. But, in this state, will the prudent merchant attempt alterations? Will he employ workmen to tear off the planking and take asunder the frame? He certainly will not.”

But Madison was persistent, as probably no one else could have been at that time; he had made a promise; a promise he would keep.  Slowly the other members began to see that they couldn’t just ignore this man, they would have to listen and consider the amendments he was proposing.  The House finally passed 19 of Madison’s proposals and sent them to the Senate, which wordsmithed and whittled them down to 12.  Back to the House they went for a final vote.  Finally, on 28 September 1789, these 12 proposed amendments, comprising a “Bill of Rights,” were forwarded to the states for ratification.  It would be a long two years before the requisite ¾ of the states approved them — some of them at least.

This time, Virginia would have the honor of being the key state whose ratification would put the ten of the amendments into effect.  The rest, as they say, is history.

Zipping forward to the present, let us consider the Bill of Rights. In hindsight, was it necessary?

Perhaps the greatest argument in support of the Bill of Rights arises from considering the state of our nation today.

Despite our squabbles, people from all over the globe still flock to America’s shores to savor the freedom provided by this Bill of Rights.  Although the freedoms it encompasses have sometimes been “discovered” by the courts instead of “We the People,” these first ten amendments stand yet today; un-repealed, un-modified, and un-bowed.

True, the courts have been called upon all too often to interpret and re-interpret the sparse meaning of those ten amendments, but they remain…

None of this, of course, answers the question of whether the Bill of Rights was necessary.  In a practical sense, it certainly was.  Without the tacit promise that proposed amendments would be considered, it is probable that the Constitution would not have been ratified by Massachusetts, Virginia, New York, North Carolina and Rhode Island.  Without the ratification of at least one of these states, the document would have fallen short of the necessary nine ratifications.

But in light of the massive growth of the federal government since 1787 and its intrusiveness into our individual lives, the Bill of Rights today seems well justified. The Constitution, which began as a document of limited and enumerated powers, no longer is. As James Madison warned in the Virginia ratifying convention:

“There are more instances of the abridgment of the freedom of  the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”

Even as early as 1825, Thomas Jefferson was able to observe:

“I see,… and with the deepest affliction, the rapid strides with which the federal branch of our government is advancing   towards the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers, foreign and    domestic; and that, too, by constructions which, if legitimate, leave no limits to their power…”

Was the Bill of Rights necessary?  Yes.  Was it appropriate?  Yes.  Is it still needed today?  Yes, yes, and…yes.  Three huzzahs for our Bill of Rights.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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4 replies
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Three huzzahs indeed for the BoRs and for this essay.

    One of the ironic peculiarities is that many the States had BoRs in their Constitutions, yet the delegates to the Federal Convention ,except a few, where like Madison – rather indifferent.

    The debate in the Virginia ratifying convention was as noted a rather drawn out, raucous affair. It put Virginia in the awkward position as the largest, most powerful State of following lesser States. But the debate served to bring the matter to the fore and as noted, Madison saw the light and made the promise.

    The promise was kept and we are the better for it.

    PSD

    Reply
  2. Ron Meier
    Ron Meier says:

    This statement by Madison pretty well reflects the current state of our freedoms:
    “There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”

    Over the decades since the 60s, we’ve observed this strategy in play. The individual encroachments by themselves appeared harmless at the time, so we the people didn’t object because we were told to pick our battles, meaning don’t worry about the small items but wait until something really big comes up. But hundreds of little encroachments over half a century certainly add up to something really big and suddenly we wake up and find that we can no longer pray in school, can kneel during the playing of the Anthem, can no longer call Christmas what it is and must call it a Winter Holiday, among many others. Now, many of these small encroachments may never have an opportunity to be reversed and when we try to do so, we are called a variety of names and told to shut up.

    Reply

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