8/19/13 - we almost had no bill of rights

In today's selection -- by 1789, a majority of states had ratified the new United States Constitution, elections had been held, and the newly minted Congressman, Senators and President proceeded to New York to begin the business of governing the United States. But not all of the states had ratified the Constitution, in no small part because it had no Bill of Rights. And some states had ratified it with the presumption that a Bill of Rights would be added. But the omission of the Bill of Rights had been no accident. The Federalists, believing in a strong central government, did not believe a Bill of Rights was needed as it had been in England to protect against the King. Yet the Anti-Federalists, wary of a strong central government, thought having one was imperative. It took the influence of Thomas Jefferson and the energy of James Madison to bring about a Bill of Rights. After passage, most Americans promptly forgot about these rights, and they remained judicially dormant until the twentieth century -- at which point they became as crucial to Americans as the originally ratified Constitution itself:

"Many of the states had ratified the Constitution on the understanding that some changes would be made in order to protect people's rights, and popular expectation was high that amendments would be added as soon as possible. ... It thus came as something of a surprise to many Americans to discover that the new federal Constitution contained no bill of rights. It was not that members of the Philadelphia Convention were uninterested in rights; to the contrary, the Constitution had been drafted in part to protect the rights of Americans.

"But the Constitution was designed to protect the Americans' rights from the abusive power of the state legislatures. ... In fact, the members of the Philadelphia Convention had not seriously considered adding to the Constitution a bill of rights that would restrict the power of the national government. As delegate James Wilson said, a bill of rights had 'never struck the mind of any member,' until George Mason, author of the Virginia Declaration of Rights of 1776, brought the issue up almost as an afterthought in the last days of the Convention, when it was voted down by every state delegation.

"But the idea of a bill of rights was too deeply embedded in the Americans' consciousness to be so easily passed over. George Mason and other opponents of the new Constitution immediately stressed the absence of a bill of rights as a serious deficiency, and they soon came to realize that this was the best argument they had against the Constitution.

"Because the Federalists believed that the frenzied advocacy of a bill of rights by the Anti-Federalists masked a basic desire to dilute the power of the national government, they were determined to resist all efforts to add amendments. Over and over again they said that the old-fashioned idea of an English bill of rights had lost its meaning in America. A bill of rights, they said, had been relevant in England where the ruler had rights and powers distinct from those of the people; there it had been used, as in the case of the Magna Carta of 1215 and the Bill of Rights of 1689, 'to limit the king's prerogative.' But in the United States rulers had no pre-existing independent governmental power; all rights and powers belonged to the sovereign people who parceled out bits and pieces sparingly and temporarily to their various delegated agents. Since the federal Constitution implied that every power not expressly delegated to the general government was reserved in the people's hands, a declaration reserving specific rights belonging to the people, said James Wilson, was 'superfluous and absurd.'

"The Anti-Federalists were puzzled by these arguments. No other country in the world, said Patrick Henry, looked at government as a delegation of express powers. ...

"The Federalists might have eventually been able to carry their case against such conventional thinking about government, had it not been for the intervention of Thomas Jefferson from his distant post as minister to France. Jefferson was not unsympathetic to the new Constitution and to a somewhat stronger national government, but he had little or no comprehension of the emerging and quite original political theory of the Federalists that underlay the new federal political system. For Jefferson, ... '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 inference.' ...

"[Jefferson's close friend James Madison had been against a Bill of Rights, but] in his hard-fought electoral campaign for the House of Representatives in the winter of 1788-1789, [he] had been compelled to make a public pledge, if elected, to work in the Congress for the adoption of a bill of rights.

"[Though Madison was a Federalist], this promise made all the difference. If the Federalists, who dominated both houses of Congress in 1789, had had their way, there would have been no bill of rights. But once Madison's personal honor was involved, he was stubbornly bent on seeing it enacted. ... There is no question that it was Madison's personal prestige and his dogged persistence that saw the amendments through the Congress."


Gordon S. Wood


Empire of Liberty


Oxford University Press


Copyright 2009 by Oxford University Press, Inc


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