Loyola University of Chicago Law Journal
Summer, 1992, Page 631
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES: A COMMENTARY *
George Anastaplo **
Thus says the Lord of hosts, the God of Israel, "Amend your ways and your doings, and I will let you dwell in this place. Do not trust in these deceptive words: 'This is the temple of the Lord, the temple of the Lord, the temple of the Lord.' For if you truly amend your ways and your doings, if you truly execute justice one with another, if you do not oppress the alien, the fatherless or the widow, or shed innocent blood in this place, and if you do not go after other gods to your own hurt, then I will let you dwell in this place, in the land that I gave of old to your fathers for ever."
Jeremiah 7:3-7
TABLE OF CONTENTS1. THE INTENTIONS OF THE FEDERAL CONVENTION OF 1787 . . . . . 632
2. THE FEDERAL CONVENTION AND A BILL OF RIGHTS . . . . . . . . . . . 642
3. PREDECESSORS TO THE AMERICAN BILL OF RIGHTS . . . . . . . . . . . 653
4. THE PURPOSES AND EFFECTS OF THE BILL OF RIGHTS OF 1791 . . 663
5. AMENDMENT I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 676
[Page 632]
6. AMENDMENTS II, III, AND IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 687
7. AMENDMENTS V, VI, VII, AND VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
8. AMENDMENTS IX, X, XI, AND XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717
9. EDUCATION IN THE NEW REPUBLIC . . . . . . . . . . . . . . . . . . . . . . . . . . 731
10. THE CONFEDERATE CONSTITUTION OF 1861 . . . . . . . . . . . . . . . . . 747
11. THE EMANCIPATION PROCLAMATION OF 1862-1863 . . . . . . . . . . . 757
12. AMENDMENTS XIII, XIV, AND XV . . . . . . . . . . . . . . . . . . . . . . . . . . . . 789
13. AMENDMENTS XVI, XVII, AND XIX . . . . . . . . . . . . . . . . . . . . . . . . . . . 805
14. AMENDMENTS XVIII AND XXI .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 813
15. AMENDMENTS XX, XXII, XXIII, AND XXV . . . . . . . . . . . . . . . . . . . . . 824
16. AMENDMENTS XXIII, XXIV, AND XXVI . . . . . . . . . . . . . . . . . . . . . . . 833
17. THE CONSTITUTION IN THE TWENTY-FIRST CENTURY . . . . . . . . . 840
APPENDIX A: LETTERS EXCHANGED BY THOMAS JEFFERSON AND
JOHN ADAMS (1814) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 849APPENDIX B: THE CONFEDERATE CONSTITUTION (1861) . . . . . . . . . . 855
1. THE INTENTIONS OF THE FEDERAL CONVENTION OF 1787
I.
The greatest wars fought by the American people have been civil wars. The first was the struggle between Patriots and Loyalists from 1774 to 1781; the second was the struggle between Northerners and Southerners from 1857 to 1865.[1]
The victors in both wars suppressed far-reaching claims by their rivals. No later British monarch ever plausibly aspired to the power in the British Empire that George III was believed to exercise between 1774 and 1781. No later State government ever again aspired to the power in the American Union that the Confederate [Page 633] States tried to exercise between 1860 and 1865. In each case the aspirants were confronted by armed responses rooted in the constitutional history of a people.
Civil wars tend to be exceptionally traumatic, partly because the cost for each victory is paid twice over: the victor suffers not only his own casualties but those of his fraternal opponent as well. The Patriots could refer, as in the 1776 Declaration of Independence, to their "British Brethren." And in the 1863 Gettysburg Address, the reference to the "brave men, living and dead, who struggled here" unites the desperate enemies of that battlefield.[2]
Extreme circumstances are very much in evidence in civil wars, so much so that people are often obliged to resort to constitutional irregularities in making the supreme efforts to which they dedicate themselves. Rules tend to be flexible in such extremities, with war seeming to dictate a "logic" of its own. This may be seen even in military build-ups, short of war, in troubled times. Such magnification of the national power can be difficult to reverse, however much military forces may be trimmed from time to time.
In both of the great North American civil wars, the long-established principles of the victors asserted themselves, whatever the formal constitution and laws of the day provided. And in both cases formal constitutional developments thereafter ratified what had been achieved by war. These constitutional developments included a determination not to permit everyday life to be governed routinely by the measures that had had to be resorted to in extreme cases.
Two dramatic constitutional developments among the Americans [Page 634] have come in the aftermath of their great civil wars¾in the emergence of the Constitution and its Bill of Rights after the first civil war on this continent and in the emergence of the Thirteenth, Fourteenth, and Fifteenth Amendments after the second civil war. In neither case should these developments endure as disappointments for any of the parties engaged in those struggles: the people of Great Britain had their own liberties confirmed by the check placed upon ambitious royal power in North America; the people of the American South were liberated from crippling institutions that they had been saddled with by their imprudent ancestors more than a century before.
II.
We must set aside until Lecture No. 10 what happened, and did not happen, after 1857 in this Country. It is what happened, and did not happen, after 1774 that is our immediate concern.
The traditional, as well as the natural, rights and liberties of Englishmen were regularly invoked on this side of the Atlantic by the men and women who made the American Revolution. Those prerogatives of a self-governing people were enshrined in such constitutional testimonials as Magna Carta (in 1215), the Petition of Right (in 1628), and the English Bill of Rights (in 1689).[3] In this sense, then, the American Revolution was a deeply conservative movement, however radical it has since been in its effects upon the rest of the world. The Declaration of Independence could be invoked by Vietnamese patriots against French colonialists in the [Page 635] 1940s and by the students in Tiananmen Square against Chinese tyrants in the 1980s.
We can, for our immediate purposes, begin the story of the Constitution of 1787 and its amendment with standard accounts of what happened in the 1770s and thereafter. "On September 5, 1774," we are told,
delegates from the [American] colonies convened in Philadelphia in a "Continental" Congress, so called to differentiate it from local or provincial congresses. The First Continental Congress adopted a Declaration and Resolves to protest British measures and promote American rights; it also adopted the [Continental] Association.[4]
The Continental Association was the agreement "created by the First Continental Congress on October 18, 1774":
It was "a non-importation, non-consumption, and non-exportation agreement" undertaken to obtain redress of American grievances against the British Crown and Parliament. The Articles of Association were signed on October 20 by the representatives of twelve colonies, solemnly binding themselves and their constituents to its terms.
The Articles listed the most pressing American grievances (taxation without representation, extension of admiralty court jurisdiction, denial of trial by jury in tax cases), enumerated the measures to be taken (cessation of commercial ties to Britain), prescribed the penalty for noncompliance (a total breaking off of communication with offenders), and established the machinery for enforcement (through committees of correspondence).[5]
A knowledgeable scholar recently observed,
The Association was a major step toward the creation of a federal union of American states. It was the first prescriptive act of a national Congress to be binding directly on individuals, and the efforts at enforcement of or compliance with its terms certainly contributed to the formation of a national identity.[6]
This scholar concluded, "With but little exaggeration [it has been said], 'The signature of the Association [in 1774] may be considered as the commencement of the American union."[7]
The First Continental Congress dissolved four days after the signing of the Articles of Association, "having decided that the col-[Page 636]onies should meet again if necessary on May 10, 1775. By that time, the colonies and Great Britain were at war."[8] We conclude our reliance upon standard accounts of the Continental Congress with this report:
The Second Continental Congress adopted a Declaration of the Causes and Necessity of Taking Up Arms on July 6, 1775 and the Declaration of Independence a year later. The Congress appointed George Washington as commander-in-chief of its armies, directed the war, managed foreign affairs, and adopted a plan of union designated as the Articles of Confederation. After the thirteenth state ratified the Articles in 1781, the official governing body of the United States became known as "the Congress of the Confederation," but it was a continuation of the Continental Congress and was not reconstituted until 1789, when a Congress elected under the Constitution of the United States took office.[9]
Voting in the Continental Congress, as later in the Confederation Congress, was by Colonies (or States), with each of the thirteen having one vote.
III.
It is difficult to exaggerate the constitutional implications of the Declaration of Independence, which has long been set forth in the United States Statutes as the first of "the organic laws of the United States of America." Indicative of the fundamental character of this document is the practice of dating official papers from July 4, 1776. [10] This mode of dating may be seen as well in the opening line of the Gettysburg Address, "Four score and seven years ago," with a Nation or Country (not a mere alliance, association, or confederation) having firmly taken root in July 1776.
Much of the constitutional system that we have long been accustomed to is already taken for granted in the Declaration of Independence, where grievances and remedies are routinely put in terms of the principles and history of the English-speaking peoples. The ends of government are indicated and the significance of the consent of the governed is affirmed. Various of the rights and liberties protected in our Constitution and its Bill of Rights are drawn upon in the grievances collected in the Continental Association, in the Declaration of Independence, and elsewhere.
The form of government implied in the Declaration of Independence [Page 637] assumes a qualified separation of powers, reliance on representative assemblies, and access to independent courts. An executive power is recognized as legitimate, but only if kept within constitutional bounds which respect the prerogatives of legislatures in the making of laws. The supervisory authority of a national government is also recognized, but again only if kept within constitutional bounds which respect the prerogatives of local governments and ultimately of the people.
It should again be noticed that the Declaration of Independence does not purport to devise or invent new principles and forms. Rather, it uses long- established principles in identifying accumulated grievances and in responding to intolerable conditions.
The Declaration of Independence also leaves various questions open, such as the character that a people should have in order to make the best use of the rights and liberties invoked in the Declaration. Another way of putting this is to say that the Declaration of Independence does not address, in a systematic way, the perennial question of the political, social, and other arrangements that are most likely to secure the enduring happiness that human beings are naturally bound to pursue.[11]
IV.
Vital to the affirmations of the Declaration of Independence is the self- evident truth that "all Men are created equal." The meaning and application of this principle have been major concerns of the American people for more than two centuries now. Precisely how the equality principle should be applied depends on circumstances, so much so that at times it can mean that all States (as the agents of diverse communities of men) should be treated the same and at other times it can mean that all persons should be treated the same.
That aspect of the equality of "all Men" which is expressed through the States may be seen in the Articles of Confederation in which the States had equal votes. It may still be seen in, among other places, the Senate of the United States under the Constitution [Page 638] of 1787. This expression of equality through the States is further seen in the uniformity of constitutional obligations and restrictions imposed upon both the United States and the States in dealing with one another. That aspect of the equality of "all Men" which is expressed on behalf of persons may be seen, for example, in the extension of the vote to eighteen-year-olds by the Twenty-sixth Amendment. It may be seen as well in the divergent efforts made to extend constitutional protection both to fetuses virtually from the moment of conception and to pregnant women desiring abortions. It should be evident that the contending applications of the powerful equality principle have to be accommodated on the basis of an even- higher principle, a principle of excellence grounded in liberty that finds just expression through the dictates of prudence. Prudence, with its dependence on nature, is an underlying concern of these Lectures as it is of my Lectures on the Constitution of 1787.[12]
Prudence may be seen in the practices that a people resorts to as well as in the principles that it is guided by. Although the Articles of Confederation (first drafted by the Continental Congress in 1777) were not fully ratified until 1781, the Country was governed and a war was fought pursuant to the Articles well before their ratification. In fact, the Articles of Confederation themselves formalized, from 1777 on, what had been the practice of the Continental Congress even before Independence. The Articles, as the name suggests, had various features of a treaty relationship, with the law of nations influential in guiding the States in providing for their dealings with one another.
But the Articles of Confederation were somewhat irregular: they were never in conformity with the best constitutional thought of the day. The Constitution of 1787 is much closer to what a natural constitutionalism called for. This is testified to by what was done by the Confederation Congress sitting in New York while the Federal Convention was sitting in Philadelphia. That Congress produced the Northwest Ordinance which provides, for a territory comparable in size to the original thirteen States, a constitutional system much closer in form and in spirit to that found in the Constitution of 1787 than to that found in the Articles of Confederation.
The Confederation Congress was better able in the Northwest [Page 639] Ordinance than the Federal Convention proved to be in the Constitution to apply the equality principle to a critical issue of that day, slavery. Congress provided in its Ordinance of '87 that there should be "neither slavery nor involuntary servitude in [the Northwest Territory] otherwise than in punishment of crimes whereof the party shall have been duly convicted."
It was this recourse to the equality principle in the Northwest Ordinance that may have been decisive to the fate of the Nation in the Civil War seven decades later. Because of that dramatic military vindication of the equality principle, on which the rule of law and hence our personal liberties and our rights to property depend, there were only victors, and no permanent losers, in the American Civil War.
V.
Problems with the Articles of Confederation were recognized from the outset, but the need to get on with the Revolutionary War precluded the political efforts and extended deliberation needed to move beyond this treaty-like arrangement. That something would have to be done eventually was implicitly recognized by the insistence in the Articles that the Union being provided for was "perpetual." It must have been obvious to most thoughtful observers, from 1777 on, that however "perpetual" the Union itself might be, the cumbersome constitutional arrangements that had to be resorted to during the war could not last long.
The complaints that accumulated about the Articles of Confederation began to rival in scope, although not in moral intensity, those that had been collected in the Declaration of Independence about how difficult it had become for the American people to be governed properly. The National Government, under the Articles, had no direct control over citizens, no source of revenues of its own, no independent executive, only one house in its legislature, no national judicial system, limited legislative powers (especially with respect to the commerce, or economy, of the Country), and no way of formally amending the Articles of Confederation without the unanimous consent of the thirteen States. Repeated efforts to make modest changes in the Articles of Confederation fell afoul of this unanimity rule. That led in turn to the 1787 Federal Convention with its proposal of a comprehensive reworking of the form of government so as to make it conform to generally-recognized principles, not least with respect to the mode of ratification and thereafter of amendment. [Page 640]
One of the things that the fettered Confederation Congress could manage to do was to call a Federal Convention to consider changes for the Articles of Confederation. This call led to that grand meeting in Philadelphia between May and September of 1787 which produced the Constitution we now have.
VI.
To speak as we sometimes do of the "intentions of the Federal Convention" suggests that that body had an overall purpose or plan. An overall plan tends to be lost sight of by those who emphasize the compromise, if not even the chance, aspects in the drafting of the Constitution of 1787.
Whether or not one considers the Constitution well-crafted affects how one attempts to read it and, indeed, whether it makes sense to try to read it at all. My own efforts to read the Constitution have been described as "based primarily on analysis of the original text of the Constitution."[13]
What, then, were the intentions of the Federal Convention? If the Framers knew what they were doing, and if they were pretty much able to get their way, then their intentions were to produce [Page 641] substantially the document that came out of the Convention on September 17, 1787. Three departments, or branches, of government are set forth, with the Congress clearly in charge; plenary powers are provided the National Government with respect to commerce, war, and the foreign affairs of the Country; adequate revenue powers are also provided; significant restraints are placed upon the States, with a supervisory power entrusted to the General Government with respect to both the conduct and the creation of States.
The Framers were particularly concerned that there be a pervasive rule of law in the United States. This concern is reflected not only in the superiority assigned by them to the legislative branch, but even more in the serious reliance by a people upon a constitution. Congress itself is restrained in critical respects, especially with a view to insuring that it is primarily by laws that Congress exerts itself, as may be seen in the detailed provisions about how a law is enacted and in the prohibitions upon ex post facto laws and bills of attainder.
Does not my approach to the Constitution look to an overall constitutional development that should continue to work its way out, if things go well, until the promises of the Declaration of Independence are substantially realized for the "new nation" there "set forth"? We will be obliged to consider, as we review the twenty-six Amendments that have been added to the Constitution of 1787, what remains to be changed either informally through adaptations in practices or formally through the amendatory processes set forth in Article V of the Constitution.
VII.
Before we turn to the background and development of the Amendments to the Constitution known as the Bill of Rights, it is important to recognize that the talented men who arranged for and finally controlled the Federal Convention of 1787 managed thereafter to get the Constitution ratified in the States. They then managed to secure control not only of the Presidency but also of the First Congress in which the Bill of Rights was drafted. It should not surprise us, therefore, that the Bill of Rights of 1789-1791 accepted both the understanding of the Union and the extent of the government evident in the Constitution of 1787.
It is generally known that the First Congress refused, in the Amendment now known as the Tenth, to limit the Government of the United States only to powers that had been "expressly delegated" [Page 642] to it. That amendment reads, "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 term expressly had been used in like circumstances in Article II of the Articles of Confederation, where it is provided, "Each State retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled." Instead of such a limitation, the Constitution of 1787 provides that Congress should have power to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof." The efforts made by a lively minority in the First Congress to curtail the implied powers of Congress were soundly defeated. This, as I have said, is generally known.
What is not generally known is that although the Articles of Confederation had presented the powers of the National Government as coming from the States, the Constitution of 1787 assumes that those powers come not from separate and somehow independent States, but rather from the People of the United States, the "perpetual union" of which is made "more perfect" by that constitution. We shall see in Lecture No. 8 that the authority of the "one People," recognized both at the outset of the Declaration of Independence and at the outset of the Preamble to the Constitution of 1787, is further recognized in the Tenth Amendment, something that comes as a surprise to the typical States' Rights advocate.
In these matters, however, the major surprises lie not in the information that is made use of by students of the Constitution, but rather (if at all) in how that information is interpreted. After all, the documents and other materials from which relevant information about the Constitution is drawn have long been known to students of American constitutional developments. Also once known, but largely lost sight of these days, is how much can be gotten from a proper assessment of the information long available about our remarkable constitutional system.
2. THE FEDERAL CONVENTION AND A BILL OF RIGHTS
I.
Proposals were made from time to time during the Federal Convention of 1787 for a systematic protection of rights to be included in the instrument that was being prepared. Some individual rights [Page 643] are provided for in the Constitution that came out of that Convention on September 17, 1787.
Those rights are usually dealt with in the Constitution of 1787 because of powers granted to the Government of the United States. Thus, in Article I, limitations are placed upon the power that the Congress might otherwise have (naturally?) had to suspend the privilege of the writ of habeas corpus. Also, in Article III, limitations are placed upon the power that the Courts had traditionally had to punish the crime of treason.
It was argued, however, that there was no need to provide various other guarantees, because the powers of Congress did not extend to putting those rights in jeopardy. For example, it was said during the Ratification Campaign that there was no need to provide for liberty of the press because Congress was not given any power to regulate the press.[14]
Even so, there are numerous rights recognized in the Constitution of 1787, in addition to the habeas corpus and treason guarantees. These include assurances with respect to elections, the subordination of the military to civilian control, bills of attainder, ex post facto laws, legislative immunity, impeachment of civil officers, trial by jury in criminal cases, and life tenure for judges. Overarching all of these may be said to be the guarantee by the National Government of a Republican Form of Government in each State.
II.
There was considerable demand during the Ratification Campaign of 1787-1788 for a Bill of Rights. Perhaps the demand would have been moderated if the dozen or so guarantees in the body of the Constitution had been collected by the Convention in one place rather than left scattered throughout the document. But this would have obscured the instructive organization of the Constitution, an organization that is reflected in the placement therein of various rights.
The demand for a Bill of Rights was anticipated, although rather casually, during the Convention itself. There were only three occasions, so far as we know, on which something substantial was said about including a bill of rights in the constitution that was being prepared that summer. These occasions were on August 20, Sep- [Page 644] tember 12, and September 15, 1787.[15]
The most systematic effort recorded with respect to a bill of rights was that made by Charles Pinckney of South Carolina on August 20. Bill-of-rights proposals were included by him among the dozen propositions he submitted to the Convention on that occasion.[16] Or, as Madison first put it in his Notes for that date: [Page 645]
Mr. Pinkney submitted sundry propositions¾1. authorizing the Legislature to imprison for insult. 2. to require opinion of the Judges. 3. securing the benefit of the habeas corpus. 4. preserving the liberty of the press. 5. guarding agst billeting of soldiers. 6. agst. raising troops without the consent of the Legislature. 7. rendering the great officers of the Union incapable of other offices either under the Genl Govt. or the State Govts. 8. forbidding religious tests. 9. declaring the U. States to be a body politic and corporate. 10. providing a great seal to be affixed to laws &c. 11. extending the jurisdiction of the Judiciary to controversies between the United States & States or individuals. [17]
Madison adds that "these were referred to the Committee of detail for consideration & report." [18] Various of these propositions, such as the habeas corpus guarantee, found their way into the Constitution, but the Pinckney collection as such was not reported back to the Convention by the Committee of Detail. Elsewhere, Pinckney refers to three rights (two of them in his list of August 20) as "essential in Free Governments": "the privilege of the Writ of Habeas Corpus¾The Trial by Jury in all cases, Criminal as well as Civil¾The Freedom of the Press." [19] A fourth provision (also in his list), "the prevention of Religious Tests, as qualifications to Offices of Trust or Emolument," he speaks of as "a provision the world will expect from [the Federal Convention], in the establishment of a System founded on Republican Principles, and in an age so liberal and enlightened as the present."[20]
There is no discussion of the Pinckney propositions recorded in the entry for August 20 or any other time during the life of the Convention.
III.
Not mentioned by Pinckney on August 20, but mentioned on September 12, is the right to trial by jury in civil cases (that is, in suits at Common Law). By this time, the Constitution included a guarantee of trial by jury in criminal cases.
Madison's Notes for September 12 include this exchange prompted by the suggestion that civil juries be guaranteed:
Mr. Williamson, observed to the House that no provision was yet made for juries in Civil cases and suggested the necessity of it. [Page 646]
Mr. Gorham. It is not possible to discriminate equity cases from those in which juries are proper. The Representatives of the people may be safely trusted in this matter.
Mr. Gerry urged the necessity of Juries to guard agst corrupt Judges. He proposed that the Committee last appointed should be directed to provide a clause for securing the trial by Juries.
Col. Mason perceived the difficulty mentioned by Mr. Gorham. The jury cases cannot be specified. A general principle laid down on this and some other points would be sufficient. He wishes the plan [the Constitution] had been prefaced with a Bill of Rights, & would second a Motion if made for the purpose¾It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours.
Mr. Gerry concurred in the idea & moved for a Committee to prepare a Bill of Rights. Col: Mason 2ded the motion.[21]
Thereafter, the Bill of Rights proposal was voted down, 10-0, with Gerry's Massachusetts delegation abstaining.[22]
Juries were looked to in civil as well as criminal cases as a guard against corrupt judges. The people, acting through the juries that they make up, were depended on to help keep the judges in line. George Washington, in a letter to the Marquis La Fayette the following April, recalled this reason why the civil jury guarantee was not provided by the Convention:
[I]t was only the difficulty of establishing a mode which should not interfere with the fixed modes of any of the States, that induced the Convention to leave it, as a matter of future adjustment [that is, by the Legislature]. [23]
What is the significance of variations from State to State in these matters? It seems that what some rights included had always depended, in part, on local practice, whether in North America or in Great Britain. It was not exclusively a natural right or something developed by reason alone. What people are accustomed to does [Page 647] matter, and that can vary from place to place, especially if there are no supervisory legislatures and courts to sort out local variations. It seems to have been agreed that variations with respect to civil trial practice made it prudent to leave this matter to the new government to experiment with, rather than to settle permanently upon a single mode in the Constitution.
There were those who preferred to allow local variations to develop as they would, altogether free from any interference by the National Government. The courts provided for by the Constitution threatened to interfere so much with State judicial practices that George Mason could protest in the Convention on September 15:
The Judiciary of the United States is so constructed and extended, as to absorb and destroy the judiciaries of the several States; thereby rendering law as tedious, intricate and expensive, and justice as unattainable, by a great part of the community, as in England, and enabling the rich to oppress and ruin the poor. [24]
Even so, the Convention (but not Mason) went on, two days later, to sign the proposed Constitution, imperial judiciary and all.
IV.
We have seen that the raising of the civil jury issue on September 12 led to George Mason's expressing the wish for a bill of rights. We have also seen that Elbridge Gerry concurred and moved that a committee be assigned to prepare a bill of rights. We have seen as well that not a single State delegation voted to establish such a committee. So far along were the proceedings by this time that a draft of the Constitution was reported that day by the Committee of Style, a draft that looks much like the Constitution that was finally approved. (These futile efforts to get a bill of rights were by two of the three delegates who were to refuse their signatures to the Constitution the following week). This September 12th action seems to have been the only direct vote in the Convention on the question of a bill of rights.
Roger Sherman, arguing against recourse to a bill of rights, said that he "was for securing the rights of the people where requisite." But he added, "The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient." Mason replied to Sherman, "The Laws of the U.S. are to be paramount to State Bills of Rights." [25] [Page 648]
It was again and again insisted upon, even more during the Ratification Campaign than during the Convention, that the rights of the people were not in jeopardy and hence no bill of rights was needed. What are we to make of Sherman's suggestion that the States' recognition of these rights sufficed? He seemed to believe that the State bills of rights were not to be treated as laws; if that is what they were, then Mason's response would have been decisive. Rather, the Sherman approach indicates, the States' declarations served to recall the rights that the English-speaking peoples had long had and were still developing. It was also pointed out during the Ratification Campaign that the security of these rights in the States themselves did not depend on bills of rights, since half of the States had no such bills in their own constitutions.
We have noticed that the great rights of the English-speaking peoples are not simply natural rights. They depend, for their precise forms and effects, on historical (or accidental) developments from place to place. This suggests that these rights, except for those directing judicial proceedings, do not necessarily depend on the Courts for their enforcement against the Legislature and the Executive.
The important thing here, Sherman seems to say, is that these rights be recognized by the American people, not that they should be added to the Constitution of the United States. In fact, it can be argued, their being added to the Constitution in the Bill of Rights in 1791 may have tended to eclipse the State bills of rights, obscuring from view some of the rights found there but not in the 1791 Bill of Rights.
V.
On September 15, the next-to-last meeting of the Convention, various odds and ends were dealt with by the delegates. Gouverneur Morris, for example, was concerned that the pardoning power not be lodged with the legislature.
Pinckney and Gerry took the opportunity of this final review of the draft to suggest that the following provision be added to the Judiciary Article, "And a trial by jury shall be preserved as usual in civil cases." But it was again argued in response, "The constitution of Juries is different in different States and the trial is usual in different cases in different States." [26] The proposal was voted down once again. But this proposed addition did bear fruit eventually, [Page 649] since it was used, but without the "usual," in the Seventh Amendment.
Further on, Madison warned that if special provisos were permitted at that final stage of the proceedings, "every State will insist on them, for their boundaries, exports &c." [27] The three dissenters (Elbridge Gerry, George Mason, and Edmund Randolph) made a last-ditch effort to have a second convention called at which delegates could review the responses of the people to the constitution that had been prepared. The last major comment recorded on that occasion was that made by one of the three holdouts, a delegate from Massachusetts:
Mr. Gerry, stated the objections which determined him to withhold his name from the Constitution. 1. the duration and reeligibility of the Senate. 2. the power of the House of Representatives to conceal their journals. 3.¾the power of Congress over the places of election. 4. the unlimited power of Congress over their own compensations. 5. Massachusetts has not a due share of Representatives allotted to her. 6. 3/5 of the Blacks are to be represented as if they were freemen. 7. Under the power over commerce, monopolies may be established. 8. The vice president being made head of the Senate. He could however he said get over all these, if the rights of the Citizens were not rendered insecure 1. by the general power of the Legislature to make what laws they may please to call necessary and proper. 2. raise armies and money without limit. 3. to establish a tribunal without juries, which will be a Star-chamber as to Civil cases. Under such a view of the Constitution, the best that could be done he conceived was to provide for a second general Convention.[28]
Gerry expresses a concern about the lack of protection for "the rights of the Citizens." The problem of no bill of rights is again alluded to, even though only three matters are listed thereafter, concluding with the lack of a guarantee of trial by jury in civil cases, which Gerry saw as permitting "a Star-chamber as to Civil cases."
We should notice another concern, expressed again and again not only by those who lamented the lack of a bill of rights, the concern lest the military (or the Executive as commander-in-chief) get out of control. Several provisions in the Constitution, including the grant to Congress of the power to declare war, speak to this [Page 650] concern. This problem is still with us today, as we can see in the free hand the President insisted upon in the Persian Gulf despite constitutional provisions which seem to provide for his ultimate subordination in such matters to Congress. The traditional concern about proper political supervision of the military may be seen in how our Persian Gulf allies took all this: they insisted upon directions from the United Nations Security Council before force was resorted to by the United States against Iraq. Thus, a political or legislative judgment was to be relied upon more than the President was inclined to recognize. It was a curious state of affairs which found the Russians and others providing us with models of moderation.
VI.
One of the changes proposed and accepted on September 15, 1787 was with respect to the sensitive issue of slavery. The Fugitive Slave provision in Article IV now reads:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall in consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on claim of the party to whom such Service or Labour may be due.
We are told by Madison that on September 15 "the term 'legally' was struck out, and 'under the laws thereof' inserted after the word 'State,' in compliance with the wish of some who thought the term 'legal' equivocal, and favoring the idea that slavery was legal in a moral view."[29]
We can see here, as elsewhere, an awareness of the moral principles on which the proposed constitutional system depends. This is reflected in, among other places, the Common Law which serves as the foundation of the system. However important morality was taken to be, certain proposed efforts on its behalf were more drastic than the Convention wished to write into the Constitution. Consider the concern about the kind of character that republican institutions require. Plutarch, for example, tells us that Mark Antony was criticized, in a troubled Rome which still had republican aspirations, for his "impudent luxury."[30] It is in this spirit, perhaps, that Mason proposed (on August 20) that Congress be empowered [Page 651] to enact sumptuary laws. Three State delegations (Delaware, Maryland, and Georgia) supported him after a discussion which is recorded in this fashion:
Mr. Mason moved to enable Congress "to enact sumptuary laws." No Government can be maintained unless the manners be made consonant to it. Such a discretionary power may do good and can do no harm. A proper regulation of excises & of trade may do a great deal but it is best to have an express provision. It was objected to sumptuary laws that they were contrary to nature. This was a vulgar error. The love of distinction it is true is natural; but the object of sumptuary laws is not to extinguish this principle but to give it a proper direction.
Mr. Elseworth, The best remedy is to enforce taxes & debts. As far as the regulation of eating & drinking can be reasonable, it is provided for in the power of taxation.
Mr. Govr. Morris argued that sumptuary laws tended to create a landed Nobility, by fixing in the great-landholders and their posterity their present possessions.
Mr. Gerry, the law of necessity is the best sumptuary law.[31]
This issue was returned to by Mason on September 13:
Col. Mason¾He had [on August 20] moved without success for a power to make sumptuary regulations. He had not yet lost sight of his object. After descanting on the extravagance of our manners, the excessive consumption of foreign superfluities, and the necessity of restricting it, as well with oeconomical as republican views, he moved that a Committee be appointed to report articles of Association for encouraging by the advice the influence and the example of the members of the Convention, economy frugality and american manufactures.
Docr. Johnson 2ded the motion which was without debate agreed to, nem: con: and a Committee appointed, consisting of Col: Mason, Docr. Franklin, Mr. Dickenson, Docr. Johnson, and Mr. Livingston.[32]
The committee of the more elderly delegates to which the Mason proposal was assigned is not recorded as ever having returned to the Convention with a report. Perhaps we should consider the question still open, especially as today we see among us more and more luxury and a perhaps related increasing privatization of everyday life. [Page 652]
It seems to have been recognized in the exchange on August 20 that the commerce power and the taxation power could properly be used to advance ends having to do with the moral character of the people, something to be kept in mind when we hear it argued either that moral standards are "relative" or that morality cannot (perhaps should not) be legislated. Whatever the reservations the Convention may have had about the more rigorous Mason approach, it evidently did not believe that moral training was beyond either the scope or the competence of American legislatures, especially if the people were to be able to use sensibly the rights to which they had long been entitled.
VII.
We must wonder, then, what moral character is required to make the Constitution work, especially if enforcement of and respect for rights depend on the people's vigilance (but not the people's hysteria). What the people can do in such matters may be seen in the recent experience in Great Britain with the "poll tax." The anti-poll tax measures resorted to there were political, not judicial: something old and feared, or detested, could be conjured up, and a formidable resistance developed, whether or not justified.
Another initiative of August 20 with respect to morality came from Pinckney and the hardheaded Morris. It was suggested by them that the duties of the Chief Justice include recommending "such alterations of and additions to the laws of the U.S. as may in his opinion be necessary to the due administration of Justice, and such as may promote useful learning and inculcate sound morality throughout the Union."[33] Thus, morality was not considered only a State-by-State concern but rather was national in scope.
Fundamental to a proper inculcation and preservation of morality, the Framers obviously believed, was the establishment and perpetuation of a proper national government for the people of the United States. Effective government means, by the way, that ex post facto laws might have to be resorted to in civil matters, something which Mason was concerned that the Constitution not forbid, lest the impossibility of complying with such an absolute prohibition lead to the habit of disregarding the Constitution.[34]
Proper government means, among other things, an enduring rule of law, which in turn depends on (and promotes) liberty and the rights of citizens, such rights as are sought to be protected by bills [Page 653] of rights. So it could be insisted, during the Ratification Campaign of 1787-1788, that the Constitution itself was a bill of rights. Proper government also presupposes a general understanding of what constitutes the Country with which a government should be concerned. The American Civil War attempt at redefinition of the extent of the Country began, it will be recalled, in South Carolina. It should also be recalled that the bill of rights and other propositions submitted to the Convention on August 20 by a South Carolinian, Pinckney, included this provision: "The U.S. shall be for ever considered as one Body corporate and politic in law, and entitled to all the rights privileges, and immunities, which to Bodies corporate do or ought to appertain." [35] We hear echoes here of the opening and closing lines of the Declaration of Independence. We hear also a reaffirmation, as in the Declaration, of the people from whom all powers flow and to whom various rights belong, whether or not those powers and rights happen to be acknowledged by any particular document.
3. PREDECESSORS TO THE AMERICAN BILL OF RIGHTS
I.
The Bill of Rights of 1791 does not come out of nothing. For one thing, it is vital, for an effective bill of rights, that the rule of law already be established in a community. A bill of rights may guide and refine that rule of law; it cannot create or do without it.
This rule-of-law background bears on what can be done with declarations of rights in a variety of regimes all over the world. Without a proper, and reliable, rule of law, there is not likely to be either the secure civil liberties a people yearn for or the reliable economic development that stable government depends on. All this bears upon whether our civil liberties can be exported and whether the many economic and social bills of rights of the Twentieth Century make much sense.
If there is an established rule of law it is awkward for a government to be oppressive towards minorities. A rule of law tends toward a respect for general principles, which means that a government cannot easily harm a minority without running the risk of at least inconveniencing the majority as well. This is not to [Page 654] deny that affirmative action on behalf of a minority may have to be considered to remedy old abuses.
Underlying the rule of law in the United States is the Common Law of England which was established here in Colonial days. The Common Law, in its broadest sense, is critical to the rule of law for the English-speaking peoples, reflecting and reinforcing as it does a general constitutional system.[36]
The Common Law, with its application of reason to the implementation of generally-accepted moral standards in a variety of circumstances, provides the legal underpinnings of the Constitution of 1787. Most of the guarantees found in the Bill of Rights of 1791 had been developed by and incorporated in the Common Law process in England long before American independence, a process which was grounded in a natural-right tradition.
The people who demanded a bill of rights for the Constitution of 1787 drew upon an approach to these matters that had been established for centuries. These demands began, as we have seen, in the Federal Convention that drafted the Constitution. Thus, it will be instructive to review, however briefly, some of the predecessors to the bill of rights that was drafted by Congress in 1789 and ratified by the States in 1791.
II.
A good place to begin with any inventory of predecessors to the Bill of Rights is Magna Carta, the Great Charter exacted from King John in 1215 by the barons at Runnymede, "sword in hand." This charter, revised on several occasions during subsequent reigns, stands for an affirmation of the principle that even the King is bound by the law of the land.
It is obvious that a number of rights, especially with respect to property, were already familiar enough to be invoked in 1215. This particular charter was preceded by such instruments as the Constitutions of Clarendon.[37] The fourth version of Magna Carta, issued in 1225 during the reign of Henry III, is said to be still the law of England, except as it has been repealed.[38] We are told that "it now stands on the statute books of common law jurisdiction [as] a sober, practical, and highly technical document."[39] [Page 655]
This instrument (called, in the 1628 Petition of Rights, "The Great Charter of the Liberties of England") began its glorious career as an effort on the part of the barons to assert their rights. But it is hard to state principles on one's own behalf without allowing them to be extended to others eventually. This may be a natural tendency, reflecting a sense of natural justice among a people. Positions advanced only for partisan purposes have a way of meaning more than was originally anticipated. This can be seen closer to home by Americans who appreciate how the "created equal" language subscribed to by slave-holders in the Declaration of Independence eventually helped to undermine the long-established system of slavery in this Country.
Fundamental to Magna Carta is the respect seen throughout that instrument for family relations. Much of the property of the day was linked to inherited establishments; changes in the allocations or uses of property often followed upon changes in family circumstances. The King, in licensing the barons to take corrective measures against him in the event of default on his part, exempts in Magna Carta his family from their measures: "saving our person and that of our queen, and those of our children."
It has been said that "the whole of English constitutional history is a commentary upon the Great Charter."[40] It is also said that there may be something mythical, however salutary, in the place now accorded to the Great Charter. But it is no myth that the Great Charter taught people how important such documents can be. Nor is it a myth that there are provisions in the Great Charter of 1215 that have come ringing down across the seven centuries since, such as the famous assurance: "No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land."[41]
III.
The next great document in our inventory appeared four centuries later in the form of the Petition of Right issued by Parliament in 1628. In the meantime, of course, the Common Law of England [Page 656] had been steadily developed by the judges in collaboration with Parliament.
Various long-familiar rights of the English people were reaffirmed in the Petition of Right, including the potent "law of the land" guarantee from Magna Carta. It is important to notice that these rights were, for the most part, already well established by 1628.
Among the complaints registered in the 1628 Petition of Right were those that spoke of royal usurpations with respect to the mode of taxation, the basis for imprisonment, the quartering of soldiers in private homes, and the use of martial law against civilians. These and other complaints are reflected in the summary prayers by Parliament with which this petition ends:
X. They do therefore humbly pray your most excellent Majesty, That no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such-like charge, without common consent by act of parliament; (2) and that none be called to make answer, or take such oath, or to give attendance, or be confined, or otherwise molested or disquieted concerning the same, or for refusal thereof; (3) and that no freeman, in any such manner as is before- mentioned, be imprisoned or detained; (4) and that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burthened in time to come; (5) and that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty's subjects be destroyed, or put to death contrary to the laws and franchise of the land.
XI. All which they most humbly pray of your most excellent Majesty as their rights and liberties, according to the laws and statutes of this realm; and that your Majesty would also vouchsafe to declare, That the awards, doings and proceedings, to the prejudice of your people in any of the premisses, shall not be drawn hereafter into consequence or example; (2) and that your Majesty would be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, That in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honour of your Majesty, and the prosperity of this kingdom.
It was important on that occasion in 1628 that there be an insistence that the writ of habeas corpus be respected by the King, his subordinates, and the courts. Habeas corpus means that government, [Page 657] among others, has to justify holding someone: an explanation grounded in some law is required whenever a challenge is made in an appropriate court to any detention. Here is how this complaint reads in the Petition of Right:
III. And where also by the statute called The great charter of the liberties of England, it is declared and enacted, That no freeman may be taken or imprisoned, be disseised of his freehold or liberties, or his free customs, or be outlawed or exiled, or in manner destroyed, but by the lawful judgment of his peers, or by the law of the land.
IV. And in the eight and twentieth year of the reign of King Edward the Third, it was declared and enacted by authority of parliament, That no man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned, nor disherited, nor put to death without being brought to answer by due process of law:
V. Nevertheless against the tenor of the said statutes, and other the good laws and statutes of your realm to that end provided, divers of your subjects have of late been imprisoned without any cause shewed; (2) and when for their deliverance they were brought before your justices by your Majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your Majesty's special command, signified by the lords of your privy council, and yet were returned back to several prisons, without being charged with any thing to which they might make answer according to the law . . . .
The right of habeas corpus was reinforced by the Habeas Corpus Act of 1679, [42] confirming what the judges had developed and what the Petition of Right and other statements had insisted upon.[43]
In the meantime, however, England had undergone a bloody revolution. Charles I, only three years on the throne in 1628 (he was born in 1600), had been obliged to consent to the Petition of Right. But from 1629 to 1640, he contrived to rule without calling a Parliament. This eventually led to the Civil War, the climax of which was the execution of Charles I in 1649. There were then eleven years of Republican rule, ending with the Restoration and Charles II in 1660. But things were never to be the same thereafter [Page 658] in the constitutional arrangements in England.[44]
IV.
Here is how one legal historian describes what happened after the restoration of the monarchy in 1660:
The reign of Charles II saw the re-establishment in a harsher form of the Church of England, and the short reign of James II witnessed a rapid crisis. The determination of that monarch to pursue a religious policy which was contrary to that solemnly laid down by Parliament in a long series of statutes was the immediate cause of his fall. It may have been that his project of complete toleration for Roman Catholics as well as Dissenters was intrinsically an advance upon the partisanship of the Church as represented in Parliament. But it is impossible to discuss the merits of the policy when the methods of its promotion were so drastic and so completely contrary to the spirit of contemporary institutions. James II claimed that by his prerogative he could dispense individual cases from the operation of a statute; more than that, he even endeavoured to suspend entirely the operation of certain of the religious laws. Upon this clear issue the conflict was fought out. After an ineffective show of military force James II retired to France, William III of Holland was invited by Parliament to become joint ruler with his wife, Mary II, James's daughter, and so "the great and glorious revolution" was accomplished. The terms of the settlement were embodied in the last great constitutional documents in English history, the Bill of Rights (1689) and the Act of Settlement (1701).[45]
We shall consider the Bill of Rights of 1689 after this brief notice of the Act of Settlement of 1701:[46]
After the death of Queen Mary (1694), William III ruled alone, until he in turn was succeeded by her sister, Anne (1702-1714), who was therefore the last of the reigning Stuarts; in order to secure the succession, the Act of Settlement was passed . . . which not only limited the descent of the Crown (in accordance with which the present royal family reigns) but also added a few constitutional provisions supplementary to those of the Bill of Rights.[47] [Page 659]
The English speak of "the great and glorious revolution" which culminated in the "abdication" of James II and the installation of William and Mary according to the terms of the Bill of Rights of 1689. That Bill of Rights is not simply a collection of guarantees of rights, which is how Americans understand bills of rights today. Rather, it is even more important in confirming the rule of law and the general constitutional system by which the English are to be governed. And so the 1689 Bill of Rights came to be regarded as the "second Magna Carta."
The demand for a bill of rights to be added to the Constitution, which was heard in the United States during the 1787-1788 Ratification Campaign, was in some ways curious. The Constitution of 1787, which included (as we have seen) various guarantees of rights, was itself similar in critical respects to the English Bill of Rights of 1689 in that both documents defined a new constitutional order. But the very name, Bill of Rights, had become potent by this time, and so a separate document was called for, something that had already been supplied (as a list of rights guaranteed) for some of the State Constitutions before 1787. The demand for a bill of rights depended, at least in part, on a misunderstanding in this Country of what the English Bill of Rights was and did. Today calls can be heard in Great Britain for an American- style bill of rights, which are calls for a more elaborate collection of guarantees of rights than are found in the 1689 Bill of Rights. In political matters, we should thereby be reminded, opinion can be decisive or at least has to be reckoned with, even when it is not fully informed.
V.
When the First Congress came to draft a national bill of rights in 1789, it had not only various English predecessors to draw upon but also innumerable American instruments and the experience of the Federal Convention of 1787. I have already referred to various State bills of rights, which had been preceded by Colonial guarantees in charters and statutes. Perhaps the most illustrious of the State bills of rights at that time was the Virginia Declaration of Rights of 1776.
Innumerable speeches had also helped shape American opinion about the liberties of citizens. In 1761, James Otis had stirred up New England against writs of assistance (general search warrants); later, Patrick Henry had proclaimed to a receptive Virginia, "Give me liberty, or give me death!" Authoritative statements on behalf of American prerogatives were issued by the Continental Congress. [Page 660] Consider, for example, the Declaration and Resolves of the First Continental Congress (of October 14, 1774).
The complaints in the Declaration and Resolves do not speak of misconduct by the King (which was the thrust of the Declaration of Independence two years later) but rather of misconduct by Parliament. It was still assumed in 1774 that Americans would continue to be, and to enjoy the privileges of, Englishmen, with an allegiance running to the King, not to a Parliament that could not properly govern them since Americans could not be properly represented there.
Perhaps the most critical constitutional issue of that day, related to the claims of Parliament, may be seen in the fourth resolution agreed to by the Continental Congress in this 1774 document:
Resolved, 4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of the sovereign, in such manner as has been heretofore used and accustomed: But, from the necessity of the case, and a regard to the mutual interest of both countries, we cheerfully consent to the operation of such acts of the British parliament, as are bona fide, restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members; excluding every idea of taxation internal or external, for raising a revenue on the subjects, in America, without their consent.
The following two 1774 resolutions remind us of what Americans had to build upon in their own constitutional development:
That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.
That they are entitled to the benefit of such of the English statutes, as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.
The emphasis throughout the 1774 document seems to be far more on the political rights (if not power) of a community or people than on the personal rights of individuals. [Page 661]
Political rights, going back to the Glorious Revolution in England a century before, are reaffirmed in the third article of the Virginia Declaration of Rights (of June 12, 1776):
That Government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community;¾of all the various modes and forms of Government that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of mal-administration;¾and that, whenever any Government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conducive to the publick weal.
The following month the Continental Congress issued the Declaration of Independence.
VI.
The Declaration of Independence, still another of the predecessors to the Bill of Rights of 1791, is to the American system what Magna Carta has been to the English system. Winston Churchill could even describe the Declaration of Independence as a restatement of the principals of the Whig Constitution developed in England since Magna Carta.[48]
The Declaration of Independence restates general principles which found expression in particular rights that were, we have seen, so settled and known that they could be readily invoked in the long array of grievances collected in the Declaration. Guarantees with respect to various of these rights may be found both in the Constitution of 1787 and in the Bill of Rights of 1791. But, it must be said again and again, those rights were not created by the Declaration of Independence, the Constitution, or the Bill of Rights.
If there is any major constitutional principle that is somewhat distinctive to the American development, it would be found in the radical implementation of the insistence in the Declaration of Independence that all men are created equal. Equality before the law is also important in English constitutional history, not least in the famous assurance in Magna Carta that no free man should be acted against by government "except by the legal judgment of his peers or by the law of the land." But it is liberty that seems critical to [Page 662] the British constitutional development, a liberty that is grounded in the rule of law.
Implementation of the equality principle seems to go further in this Country than in Great Britain, and not only in that it nullifies the hereditary distinctions that remain important in the British constitutional system. The equality principle was vital to the American Civil War and to the three Amendments (the Thirteenth, Fourteenth, and Fifteenth) which confirmed in the Constitution what had been done on the battlefields of that war. That principle may be seen as well in the provision in the Constitution for the exercise of ultimate authority by the people and in the provisions in various amendments (among others) for women's suffrage, against the poll taxes, and for the vote of eighteen year olds.
A particularly significant expression of the equality principle may be found in the concluding article of the Northwest Ordinance of 1787, where it is laid down that there would be no slavery in the Northwest Territory. This article, it bears repeating, proved to be critical to the development of the United States and to the outcome of the Civil War.
That this article in the Northwest Ordinance also included a fugitive-slave provision should remind us of the necessity for community and hence mutual accommodation on which an eventual full realization of a high principle can depend.
VII.
Our final great predecessor to the Bill of Rights of 1791 is the Constitution of 1787. This was preceded by the Articles of Confederation of 1777-1781. The American constitutional system evident from 1777 on is, in its pervasiveness, something like the Common Law in England.
We have seen that the Constitution of 1787 does recognize various rights in the body of the original instrument, such rights as those to the privilege of the writ of habeas corpus, the right of trial by jury, and the right of the people in every State to a Republican Form of Government. Restrictions are placed upon the control of the armed forces, the declaration of war, ex post facto laws, bills of attainder, and treason trials. Assurances are given about the revenue powers of the House of Representatives, about the suffrage of the people, about life tenure for judges, and about the ultimate subordination of both the President and the Courts to the Congress. These rights may be more important than most, if not all, of the rights collected in the Bill of Rights of 1791. [Page 663]
Perhaps most important for the origins of the Bill of Rights was the Constitution's reinforcement of the rule of law, with the supreme power recognized to be that of the people. The people ordain through the Constitution what government may do and how it may do it. The emphasis there is on what is needed to make good governance most likely, with the protection of individual rights a secondary concern.
I have suggested the background against which the Bill of Rights should be read, a background that unfortunately is not available to most peoples on this earth. We have noticed that, however important a formal recognition of rights and liberties may be, they do depend for their preservation and effective realization on a well-ordered community.
This in turn depends on a disciplined people. Such discipline is manifested in the craftsmanship with which the Constitution of 1787 was drafted, a discipline that is required in turn of every citizen who wants to understand and hence truly defend that remarkable document.
Only a disciplined people¾a people that has been habituated to moderation in word as well as in deed¾is apt to be able to make fruitful use, year in and year out, of the great guarantees enshrined in the Constitution of 1787 and its Bill of Rights.
4. THE PURPOSES AND EFFECTS OF THE BILL OF RIGHTS OF 1791
I.
The Bill of Rights, which is the name by which we know the first ten Amendments to the Constitution of 1787, was drafted in the very first Congress that met pursuant to the Constitution. The role of James Madison of Virginia in the development of these Amendments in the First Session of the First Congress is generally recognized. Madison is often called "The Father of the Constitution"; he could much more accurately be called "The Father of the Bill of Rights."
The records we have of Congressional deliberations and actions with respect to the drafting of the Bill of Rights are incomplete. We get some idea of what happened in the House of Representatives, where Madison introduced his Bill of Rights resolution on June 8, 1789. But, we have only the sketchiest notion of what happened in the Senate before the Bill of Rights resolution was returned to the House of Representatives for House acceptance of [Page 664] the changes made by the Senate. No records were made of the discussion, but only of the actions taken, in the Senate, which sat in executive session in the first decade of its existence.
We are reminded, by the sketchiness of the records here, of the limited record we also have of the framing of the Constitution at Philadelphia in 1787. In both cases, then, we are obliged to address the text itself¾the Constitution, on one hand, the Bill of Rights, on the other hand¾in order to understand what was said and done. One advantage we have in reading the Constitution of 1787 is that it is a remarkably well-crafted text which does invite thinking about it. The Bill of Rights is more "episodic" and hence less obviously coherent in character, but even so it does draw upon assertions of rights taken from that Anglo-American constitutional history which had been refined over the centuries by the English-speaking peoples. About the Bill of Rights, too, we are obliged to think if we are to figure out what was intended and not intended, what was done and not done.
The resolution setting forth the amendments proposed by Congress was completed by the House of Representatives on September 24, 1789 and sent to the States for ratification by their legislatures. All of the amendments proposed by Congress during the past two centuries, except one, have been sent to the State legislatures for ratification. Whatever the mode of ratification, the assent of three-fourths of the States is required.
Virginia completed ratification of the Bill of Rights on December 15, 1791. [49] Twelve amendments had been proposed by Congress in 1789. The first two of these failed to get enough State legislatures to ratify them: one addressed the ratio of representation in the House of Representatives, the other the compensation of Members of Congress.[50]
Ratification of the Constitution of 1787 by the original States had taken less than two years (except for North Carolina, which ratified the Constitution in November 1789 after the Bill of Rights was proposed by Congress and, Rhode Island, which ratified in 1790 after it became apparent that things could go on quite well [Page 665] without her). Ratification of the Bill of Rights took more than two years. The fact that it took longer to ratify these Amendments than it did to ratify the Constitution itself suggests that there was less of a pressing need perceived for a bill of rights. In part this was, as we have seen, because it was generally recognized that American governments could be depended on to continue to respect, as they had for some time, the rights and liberties of citizens.[51]
We shall see that what was done in providing for the Bill of Rights of 1791 was far less of a departure from established institutions, and hence far less controversial, than what had been done in providing for the Constitution of 1787. We shall also see that the generally-accepted account of the way that the Bill of Rights came about is something of a myth, albeit (as in the case of Magna Carta also) perhaps a somewhat salutary myth.
II.
If the Bill of Rights was indeed less controversial than the Constitution, one might again wonder, why was there not a bill of rights provided by the Federal Convention with the original text of the Constitution it produced in 1787? One obvious answer is that the Convention was too busy devising what almost all of the delegates believed was needed in fundamental constitutional reform to take time also to devise what was not perceived by most of them to be needed. Besides, as we have seen, a bill of rights was regarded by many of the delegates to the Federal Convention as doing little more than reaffirming rights long secured and daily being exercised all over the Country.
Since what the form of the new national government should be, and how powers should be allocated among the departments of that government, had been controversial for some time before 1787, it was no surprise that the Federal Convention devoted most of its time to these issues. The effect of demands, upon an assembly, of other matters than the cause of civil liberty could later be seen as well in the First Congress, where Madison tried repeatedly to get the House of Representatives to set aside what it considered [Page 666] more pressing business (particularly provisions for taxes and for executive departments) in order to frame a Bill of Rights proposal.
This is not to deny, however, that if the Framers of the Constitution had anticipated how much some opponents of the proposed Constitution would make of its lack of a bill of rights during the Ratification Campaign, they probably would have found time to draft a plausible declaration of rights. Even so, it seemed to many friends of the Constitution that much of the talk about such a lack came from critics who were far more troubled by the new allocations of powers by the proposed Constitution than by the lack of a bill of rights. It must have been evident to many of these critics that attacks on the proposed form of government itself were not likely to be popular, especially considering sponsors of it such as George Washington and Benjamin Franklin. Accordingly, there was a shift by these critics in the second half of the Ratification Campaign to the bill-of-rights theme as the major objection to the proposed constitution. On its merits alone, the proposed Constitution was quickly ratified in one State after another in the early months of its being considered. The demand for a bill of rights was dramatized, perhaps deliberately if not cynically, as a way of sidetracking further consideration of the document on its merits. This was countered by friends of the Constitution with promises that a bill of rights would be taken up during the First Congress. The sincere advocates of a bill of rights tended to be reassured by these promises, while the opponents of the Constitution recognized that this would leave them unsatisfied with respect to the one issue they were really troubled by, the radical restructuring of government under the new Constitution.
Half of the State Ratifying Conventions in 1787-1788 proposed amendments to be considered by the First Congress. The preamble provided with the Bill of Rights proposal when it was sent by Congress to the States began by reciting that "[t]he conventions of a Number of the States ha[d], at the Time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added" to the new Constitution. It was then intimated that the amendments prepared by Congress were being submitted to the States because it was truly believed that "extending the ground of public confidence in the government [would] best insure the beneficent ends of its institution."[52] We shall see that the only [Page 667] truly "restrictive clauses" among the twelve amendments proposed by Congress in 1789 may have been in the two amendments not ratified by the States.
III.
Madison pressed for amendments in the First Congress in large part because he had promised his Virginia constituency that he would do so, a constituency in which there were (as elsewhere) sincere advocates of a bill of rights as well as some who were merely using this issue as a respectable way of resisting the empowerment of a new national government. In his First Inaugural Address, President Washington had recognized a demand among the public at large for a bill of rights. [53]
A bill of rights was drafted in the First Congress in part to head off demands heard in some quarters during the Ratification Campaign for another Federal Convention, which would put the Country at risk of wide-ranging changes to the body of the Constitution as well. We can be reminded of this concern when we notice the warnings today that any assembly called on demand by the States to consider, say, a balanced-budget amendment might turn into a "runaway" convention which would consider much more than that.[54]
Dozens of amendment-suggestions had come out of the State Ratifying Conventions, suggestions that were usually collected in those conventions by the minorities that had opposed ratification of the Constitution. But Madison assured the First Congress that the amendments he was proposing would "make such alterations in the Constitution as will give satisfaction, without injuring or destroying any of its vital principles."[55] The rigorous sifting of the proposed amendments by Congress in 1789 shows that there was to be, at least by way of formal constitutional amendments, no fundamental change in relations between the United States and the States or in the powers of the Government of the United States.[Page 668]
We have also noticed the frustrations endured by those who tried to get the term expressly into what is now the Tenth Amendment. It soon became apparent to opponents of the new Constitution in the First Congress that they were not going to get what they really wanted, so much so that they had to be urged by Madison to take any interest at all in the development of the bill of rights they had once made so much of. What the opponents of the Constitution were interested in, instead, is suggested by one of the amendments proposed by Anti-Federalists in the First Congress:
That the General Government of the United States ought never to impose direct taxes, but where the moneys arising from the duties of impost and excise are insufficient for the public exigencies, nor then, until Congress shall have made a requisition upon the States to assess, levy, and pay their respective portions of such requisitions; and in case any State shall neglect or refuse to pay its proportion, pursuant to such requisition, then Congress may assess and levy such State's proportion, together with interest thereon, at the rate of six per cent, per annum, from the time of payment prescribed by such requisition.[56]
This proposal, representative of many that had come from opponents of the Constitution in the State Ratifying Conventions, was soundly rejected in the House of Representatives. No doubt, it smacked too much of the Articles of Confederation which the Nationalists who controlled the First Congress had been determined to change radically in the Federal Convention.
A persistent desire of the opponents of the Constitution was that the States not be controlled very much, if at all, either by the Constitution of 1787 or by the National Government established by that Constitution. Those States' Rights advocates recognized, more than many judges and legal scholars since then, the significant restraints placed upon the States by the Privileges and Immunities Clause and the Republican Form of Government Guaranty in Article IV and by the Supremacy Clause in Article VI of the Constitution. All of this is reinforced by the Necessary and Proper Clause of Article I.
Still, we have noticed, none of the amendments proposed by the First Congress and ratified by the States cuts down any of the substantive powers of the Government of the United States provided by the Constitution of 1787. We should further notice that no amendment to the Constitution since the Bill of Rights has ever [Page 669] taken away from the Government of the United States any power that the Framers intended it to have. In fact, we may also wonder whether any amendment has ever given to that Government any power that the Framers of 1787 did not want it to have. Some will argue that there has been an extra- constitutional, if not unconstitutional, growth of powers in the National Government as a result of legislative and judicial interpretations. But this argument may depend, in large part, on a failure to see how broad the original powers are that were established by the Federal Convention for Congress under the Constitution. It may well be that what the Courts have done in the Twentieth Century is to recognize for Congress much of the power originally intended by the Framers of the Constitution.
Does not the absence, from the twenty-six Amendments we have had thus far to the Constitution, of any major curtailments in the powers of the National Government testify to the remarkable work done by the Federal Convention in 1787? It may also testify to the shaping of the American people and of their political life to conform to the Constitution, so much so that fundamental changes have become almost unthinkable.
IV.
All kinds of arguments by proponents of the proposed Constitution had been used during the Ratification Campaign of 1787-1788 as to why no national bill of rights was needed. Of these arguments, some were spurious, some had merit. (Much the same can be said about the arguments for why a bill of rights was needed.) A case was made against a bill of rights, I have indicated, partly because advocates of the Constitution believed that they could not afford to make concessions during the Ratification Campaign, but only promises as to what the First Congress might do.
I have also suggested that if the Framers of the Constitution had anticipated the objections that were made about the lack of a bill of rights, they probably would have drafted something appropriate in the Federal Convention. Or were the Framers so shrewd as to figure that it would be safer to have the opponents of the Constitution complain about the lack of a bill of rights than to have them conjure up other "defects" of the proposed Constitution? If those opponents could be busied with the bill of rights problem, they would be diverted from other problems. Also, this "defect" could be much more easily remedied thereafter without damaging the Cons-[Page 670]titution that the Framers wanted and without compromising the reasons why they had wanted it.
Furthermore, friends of the Constitution might have sensed that critics who made much of the lack of a national bill of rights could not be taken too seriously by the people at large who knew that various of their rights were safe, whether or not the United States or a State had a bill of rights. Friends of the Constitution pointed out that critics of the proposed Constitution were not disturbed that half of the States had no bill of rights in their State Constitutions, even though the domestic powers of those State governments had been considered virtually unlimited under the Articles of Confederation while those of the National Government could be said to be limited to what had been "enumerated."
The genuine popular demand there happened to be for a bill of rights was lent support by the august place in British constitutional history of the 1689 Bill of Rights. We have seen that that constitutional document, one of several written parts of the British Constitution, had defined and limited the prerogatives of the Crown, had insisted upon the prerogatives of the Parliament, and had affirmed various other rights of the people. In this sense, it was pointed out, the entire Constitution of 1787 served the purpose of the 1689 Bill of Rights. But until there was something on paper which could be separately identified (however misleadingly) as a Bill of Rights, reservations would persist about the new Constitutional system, and this the friends of the Constitution undertook to provide in the First Congress under Madison's leadership.
Just as the name of a document could matter, so had the name of the party advocating ratification of the Constitution in 1787-1788, which took for itself the name of Federalists, even though the opponents of the Constitution (the "anti-Federalists") may have had the better claim to that evidently attractive name. The Federalists in the First Congress, we have seen, did not want the powers of the National Government reduced or hampered by any amendments (certainly none of a "federalizing" character) to the Constitution of 1787.
The more thoughtful of the Federalists might have been concerned as well about any shift from a primary concern with the powers and ends of government to a primary concern with the rights of individuals. The Constitution of 1787 looks in one direction, the Bill of Rights of 1791 looks somewhat more in another direction. The shift which we have in part seen since 1787 is from a concern principally with political interests to a concern with indi-[Page 671]viduality, a shift from the primacy of the citizen to the primacy of the private person, even while the National Government has reinforced its constitutional powers vis-à-vis the States.
Whatever the limitations in 1787-1789 of the case for a bill of rights, it is now salutary to consider the Bill of Rights of 1791 as the virtual completion of the constitutional framing that had begun in 1776. [57] Certainly, the Bill of Rights cannot now be eliminated without ominous implications and without an unhealthy effect on citizen morale in this Country. Even tampering with it, as in response to such unfortunate provocations as the Flag Burning cases, should be approached with the greatest caution.
Thus, because of the powerful rhetorical presence and considerable political as well as judicial effects of the Bill of Rights, it is needed much more now than it was in 1789-1791. Or, put another way, one consequence of adding the first ten Amendments to the Constitution, even though they may not have been needed, was to make the Bill of Rights necessary ever since.
V.
I have several times suggested that the Bill of Rights of 1791 does not change anything essential. The Government of the United States could still concern itself after the Bill of Rights with the vital matters that it could concern itself with before the Bill of Rights, and could do so with its substantive powers unimpaired.
On the other hand, the Framers of the Constitution of 1787 did not establish the new government they did in order to abridge various long-recognized rights of the American people. In fact, they argued, only a national government with adequate powers could promote the stability and prosperity necessary for a sustained flourishing of those rights.
Just as no recognized rights of the American people were subverted by the Constitution of 1787, no rights were created by the Bill of Rights of 1791, however much some of them were adapted to republican circumstances and to the diversity among American States (as we shall see when we examine the First Amendment in my next lecture). Consider, as illustrative of the republican character of the American people well before Independence, what could be said to have made the farmers fight in 1775. One of those [Page 672] men answered this question, years later, in this fashion: "We always had governed ourselves, and we always meant to. They [the British] didn't mean we should."[58] A more personal if not individualistic, or less political, way of putting this position can be seen in the militia man who went with his musket to confront the British, saying, "We'll see who's goin' t'own this farm!"[59]
It is not generally appreciated that the American Constitution, including its Bill of Rights, has worked as well as it has from the beginning in large part because so much of it was already being used, among the States if not nationally, when it was formally adopted in the late Eighteenth Century.[60] Nor is it generally appreciated that the Bill of Rights, in declaring and reaffirming those rights in 1791, does not in any way suggest that any new remedy is available to secure these rights.
The notion that courts would be looked to in order to enforce the Bill of Rights (and all other rights in the Constitution of 1787) did not take firm hold until well into the Nineteenth Century. This notion spilled over into the use of courts to police applications of various provisions of the Constitution as well. In fact, the first act of Congress declared unconstitutional by the Supreme Court, in Marbury v. Madison, [61] did not run afoul of the Bill of Rights but rather of a technical jurisdiction-allocation provision in Article III of the Constitution. It is far from clear that this kind of judicial supervision of Congress was intended by the Framers with respect to either the Constitution or the Bill of Rights. This is not to deny, as we shall see in Lecture No. 7, that many of the guarantees in the Bill of Rights were meant to be binding on the courts.
VI.
That few, if any, of the rights listed in the Bill of Rights of 1791 were new, however much some of them (such as the freedom of speech and of the press provisions in the First Amendment) took [Page 673] on new dimensions in the United States, is further testified to by the lack of difficulty in the First Congress in understanding what most of the proposed amendments meant.
It did not matter, in how citizens generally conducted themselves, what State they were in or whether that State had a bill of rights in its own State constitution. Americans tended to act the same wherever they were, so far as they were concerned about the responses of government to their conduct, just as today most Americans do not stop to notice what State they happen to be in before they do what they do, for example, in their treatment of children, in their business transactions, or in their sexual practices, however much the rules on the books may vary from State to State with respect to these matters.
An enterprising student of American constitutionalism could illuminate these matters further by investigating whether the States that had no bill of rights in their State constitutions conducted themselves differently on various occasions from the States that did: in the Federal Convention, in the State Ratifying Conventions, or in the First Congress when a bill of rights was being considered. The mobility of the American people from one State to another, a mobility taken for granted in the Federal Convention, makes it unlikely that things would be done or thought of differently from one part of the Country to another, except perhaps when such a controversial institution as slavery intervened to color everything that was thought, said, and done.
It is useful to ask, in order to appreciate the sources of political liberty in the modern world, why various of the rights we deem important have been long protected in Canada and Great Britain without the kind of bill of rights we have, whatever is being done now in both countries to develop additional written guarantees. Have not many of those rights been protected there for the same reasons that all of the States were equally respectful of rights in 1789, whether or not they had a bill of rights in their State Constitutions? The invocation of such rights in the Declaration of Independence testifies to how well-established these rights were independent of a formal bill of rights. Even outside the immediate influence of the English-speaking tradition, considerable respect for such rights may be seen, as in France and the Scandinavian countries, and this despite somewhat different constitutional systems. On the other hand, there are all too many countries in the world today that have fancy bills of rights (and even copies of ours) that do little to prevent tyranny. [Page 674]
Although the Bill of Rights might have done little to secure the long-established rights it enumerated, it may well have jeopardized somewhat the standing of other long-established rights that it ignored. Had this already been done, for the rights later listed in the Bill of Rights, by the Framers' mentioning so few rights in the Constitution of 1787, unless it could be shown that there were reasons for listing those rights there? We shall see, in Lecture No. 8, how the Ninth Amendment was used to try to head off the unwelcome implications of such neglect.
There is, in Article IV of the Constitution of 1787, a Privileges and Immunities Clause, which could (on its face) be taken to assure, or at least to remind, citizens of the United States about long-established fundamental rights to which they were entitled, no matter where they happen to be in this Country. Did the listing of so many rights in the Bill of Rights tend to diminish the importance of the Privileges and Immunities Clause, especially with respect to the States, something that was attempted to be remedied in the Fourteenth Amendment?
Still another possible effect of enumerating so many rights in the Bill of Rights should be noticed: did enumeration of rights in this fashion make more of enumeration as well of the powers of Congress in Section 8 of Article I? Just as only those rights which are expressly enumerated have been made much of over the years by the courts and others, so only those powers which are expressly enumerated have been assigned to Congress without question. In both cases, the general spirit of the constitutional arrangement sometimes tends to be lost sight of. This too can mean a shift from politics and the common good to legality and individualism as the prevailing mode of our common life.
VII.
To emphasize legalism is to encourage a positivistic approach to law and to constitutional determinations. Law thus can come to be seen as the product of a sovereign, not as the emanation from some enduring standard of right and wrong. For example, a preference for authority instead of reason may be seen in disparagements in some circles today of the significance of international law, which does depend on longstanding traditions and a body of reasoning about the proper relations between nations in the civilized world.
One consequence of positivistic developments in the United States is the steady depreciation of the status of the Common Law, which traditionally included an awareness of the spirit and ends of [Page 675] law for the English- speaking peoples. Thus, the Common Law could once be depended on, emerging through the discoveries of judges under the guidance of the legislature, to develop (in a sound and generally-acceptable way) various relations and rights implicit in the prevailing political and social system. When the Common Law discipline comes to be neglected, the interventions of judges become suspect, as may be seen in responses to the uses of the Ninth and Fourteenth Amendments in developing the right to privacy. The political repercussions here can be serious, especially if the development is seen to take on the appearance of judicial usurpation.
It is not generally appreciated how much most of the guarantees in the Bill of Rights were imbedded in the Common Law. This makes it difficult for us to appreciate the arguments of those in 1787-1789 who insisted that the most critical rights of Americans were already fully protected without a bill of rights, and this without any substantial experience of reliance theretofore upon courts to assess legislative acts for their constitutionality.
Most constitutional law scholars do not seem even to be aware of the problems posed by what has been happening to the Common Law in this Country. To the extent that the Bill of Rights contributed to a more positivistic mode in the law, one can doubt whether the first ten Amendments were in fact amendments, that is, improvements.[62]
To become more positivistic in our approach to law tends to affect the status of natural right and reliance upon enduring standards. This in turn tends to encourage individuality, or "doing one's own thing," and other forms of hedonism. We can see positivistic assumptions in the arguments put forward from time to time by United States Supreme Court Justices and others to the effect that only enumerated fundamental rights, made explicitly applicable to State government, can be brought to bear upon what is done by State governments. [Page 676]
An emphasis upon making things explicit tends to undermine reliance on, if not the majesty of, the Common Law. Does an explicit Bill of Rights tend to make the Common Law process seem less important? Does it shift the attention of judges away from what is right to what is legal (or laid down)? And does it tend to make judicial review more likely, if only because it can help obliterate the natural difference between legislation and adjudication?
But however positivistic we become, and however much the demands of nature are disparaged, some standard beyond law and Constitution is implied in a provision for amendments such as that found in Article V. Some enduring standard is implied as well by the distinctively American assumption that a choice should be made by the people as to what constitution they want. A people cannot select or correct, to say nothing of being able to understand, their institutions without some awareness of nature and the truth about things. Intimations of the best possible regime, to which natural right looks, have to be drawn upon if the people are to be properly trained and sensibly guided.
Natural right means, among other things, that in the greatest emergencies even the most venerable constitutional arrangements can be temporarily suspended, as was done between 1774-1781 and between 1861-1865. A sensitivity to the demands of natural right also means, however, that far less threatening circumstances can be recognized and assessed for what they are, allowing our constitutional processes to work. This leaves the people free to make prudent use of their prerogatives in governing themselves.
When all is said and done, the Bill of Rights we happen to have may now be good for our political morale, if only because it can take the place of other creeds or institutions in countries with a longer and deeper history than our own, institutions which also suggest enduring standards and encourage a fitting political restraint. Besides, people sometimes need to have available for veneration physical manifestations of their most elevated aspirations, and these the Constitution of 1787 and its Bill of Rights seem to provide for many. The Bill of Rights, properly understood, promotes restraint (or civilization), liberty, and equal justice under law.
5. AMENDMENT I
I.
The amendments to the Constitution of 1787 that we know as the Bill of Rights were first proposed in the House of Representa-[Page 677]tives on June 8, 1789. At that time, and for two months thereafter, while the proposals were being debated and revised, the amendments we now have were slated for insertion at specified places in the original Constitution. If the ratified amendments had remained scattered in the body of the Constitution at the places originally designated for them, it would have been obvious that all of the restrictions set forth in these amendments were directed against the Government of the United States, not against the States.
Some have argued, however, that the generality of the language of the restrictions in most of the Bill of Rights amendments, especially now that they stand alone in the collection of amendments appended to the Constitution, mean that they should be applicable to all governments in the United States, not just to the National Government. But it is difficult to find evidence to support the proposition that the shift in placement of the proposed amendments was intended to include the States within the sweep of these amendments, especially since there remained at one stage, even after the shift in placement, a proposed amendment that was clearly directed against State governments. This separate proposed amendment, which was approved by the House of Representatives on August 24 but eliminated thereafter by the Senate, would not have been resorted to if the other proposed amendments had been thought of as having a comprehensive application.
It can be argued that putting most of the amendments in general terms, treating them as an appendix to the Constitution, and eliminating the one amendment explicitly designed for the States had the (perhaps unintended) effect of making most of the amendments comprehensive in their effects, restraining thereby the States as well as the National Government. But that would ignore the evident intentions and widely-known understanding of the people involved in the shaping and ratification of these amendments. In such matters, common sense should be given its due.[63]
Very little is said in the available records as to why it was decided by the House of Representatives not to insert amendments into the body of the Constitution. The placement issue had been raised early in the amendment- preparation process in the summer [Page 678] of 1789, with concern expressed about changing in any way the text of the document from what it had been when its distinguished Framers had affixed their names to it. No change was made at that stage of the deliberations in the House of Representatives. Then, two months later, as the process was drawing to a close in that House, which was before any draft was sent to the Senate for its initial consideration of amendments, the shift in placement was made without much debate or explanation.
One effect of appending all amendments to the Constitution then and since has been to keep the 1787 document intact, preserving down to our day the integrity of its original appearance. This should have been particularly welcomed by those who did not regard the Constitution to have been amended in any critical respect by the Bill of Rights.
Another effect of the shift in position for the amendments drafted in 1789 is that it made the Bill of Rights, ratified in 1791, seem like a separate instrument, even like a kind of constitution itself. We can still see reproduced and displayed the Congressional resolution on twelve proposed amendments that was sent to the States for ratification, a document with its own preamble and signatures. This instrument has been invested with a special mystique as it stands somewhat in collaboration and somewhat in tension with the Constitution of 1787. The Constitution reflects more what can be called natural sociability and the need for sound government; the Bill of Rights, with a somewhat different approach to perhaps the same ends or principles as the Constitution itself, reflects more the natural rights and civil liberties of a people.
The Bill of Rights of 1791 as a separate document invites study of its organization, just as does the Constitution of 1787. It is evident in each case that care was taken in determining the arrangement settled upon. I have suggested in my Commentary on the Constitution of 1787 how that instrument is put together. I suggest, at the outset of my next Lecture, how the Bill of Rights is put together. Such a study of the Bill of Rights should be useful as well for the light it can shed on the Constitution as a whole.
II.
In a sense, virtually all of the Bill of Rights provisions represent restraints upon Congress. Of the twelve amendments proposed to the States by Congress in September 1789, ten of them were originally intended to be placed in Article I of the Constitution, with the other two intended to be placed in Article III. [Page 679]
Of the ten amendments originally designated for placement in Article I (the Legislative Article), the first two were to have been put where Congress is provided for (in Sections 2 and 6 of Article I), the other eight were to have been put where Congress is restrained in various ways (in Section 9 of Article I). The two amendments originally intended for Article III (the Judicial Article) are probably there because they modified provisions already in Article III with respect to jury trials.
It seemed natural to the statesmen of 1789 to consider restraints upon Congress to be restraints as well upon the rest of the National Government. Most of what that Government does still depends on Congress. Congress must make the laws that the President executes and that the Courts interpret and apply. Also, Congress must create and finance the Executive Departments and the military and provide for the Courts and their jurisdictions.
In short, Congress determines who the Executive and the Courts are to be and much of what they are to do. President Washington had little to do during his first nine months in office and the Supreme Court did not convene for the first time until February 1790. Both the President and the Court had to wait until Congress provided for them and gave them something to do.
This means that to control Congress is pretty much to control all of the Government of the United States, which helps explain why most of the amendments were originally intended for the Legislative Article. Still, three of the twelve amendments proposed in 1789 obviously deal more with Congress than do the others: the first is concerned with the composition of the House of Representatives; the second is concerned with the compensation of Members of Congress; and the third, which we now know as the First Amendment, is explicitly directed at Congress.
III.
The first two of the twelve amendments proposed by Congress in September 1789 failed of ratification by the State legislatures. They were, we have noticed, originally to have been placed in those parts of the Constitution (Sections 2 and 6, respectively, of Article I) that deal with the matters addressed in these two proposed Amendments.
The text of the two proposed amendments that failed to be ratified was this:
Article I. After the first enumeration required by the first article of the Constitution, there shall be one Representative for every [Page 680] thirty thousand, until the number shall amount to one hundred; after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
Article II. No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.
Why did these proposed amendments fail to secure ratification? Was it sensed that these two provisions were not of the dignity of the others? Are they inappropriate for a bill of rights and hence better reserved for separate amendments or even for statutes?[64]
Still, it is significant what has happened to the two rejected amendments. The first was made obsolete, so to speak, by steady population growth in the United States. Concern had been expressed during the Ratification Campaign that the House of Representatives would not be large enough to be truly representative, with only sixty-five members of the House provided by the Constitution for the First Congress. It soon became evident, however, that there was no need to worry about having a large enough House of Representatives, but perhaps just the opposite.
The second failed amendment-proposal, regulating the timing of changes in the compensation of Members of Congress, is adhered to in practice. Congress routinely makes changes in its own compensation take effect only after an intervening Congressional election.
The American experience with these two rejected amendments, as well as with several others, reminds us that constitutional amendments in this Country are rarely controversial. They usually deal with matters that either have been settled by events, such as [Page 681] the Civil War, or are already widely accepted. Even the Equal Rights Amendment proposed in 1972 has virtually been put into practice despite its having failed of ratification, a failure that may have been in large part due to accidents in timing.
I have noticed in my earlier Lectures that few, if any, of the Amendments to the Constitution during the past two centuries have cut down any substantive power of Congress. The two Congressionally-proposed amendments rejected in 1789-1791 by the States, however, would have placed restraints upon powers that Congress was given: the power to determine the composition of the House of Representatives, and the power to determine the compensation of Congress. The Federal Convention had considered various ways of hedging in both of these powers, including even by setting a permanent size for the House of Representatives and by keying Congressional compensation to the price of specified commodities. The Convention decided that it had to rely, here as elsewhere, upon the integrity of the Members of Congress and upon the vigilance of the people who selected them, which is how matters still stand with respect to these and like determinations.
IV.
I have suggested that three of the twelve Congressionally-proposed amendments of 1789 deal more with Congress than do the other nine. I have discussed, however briefly, the two proposals which failed to be ratified by the State legislatures. The last of these three did secure ratification, the proposal we now know as the First Amendment. The text of that proposal 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.
It is, because of the way that the State legislatures happened to respond to the twelve proposed amendments, something of an accident that this should have become the First Amendment, a designation that people generally sense to be appropriate.[65]
The First Amendment is the only one of the first eight Amendments [Page 682] that is somewhat innovative. All of the others are copies of, or derivative from, respectable English prototypes. That is, Amendments II through VIII are reaffirmations of long-established rights of the English-speaking peoples, including those in North America.
There are two principal sets of concerns addressed in the First Amendment: a concern with religious freedom and religious establishments and a concern with freedom of speech and of the press. A distinctively American response is given in each case, but perhaps necessarily in such a way as to leave questions for us to this day.
Freedom of the press does have, even in this Country, some traditional features to it. English constitutional principles may be seen in the insistence among us that there can be no previous (or prior) restraint of the press (that is, no system of censorship). These principles find their most dramatic advocacy in John Milton's Areopagitica of 1644.
Our freedom of speech provision, although perhaps more characteristic of the United States, also draws upon English constitutional history. For centuries Members of Parliament had been assured immunity for whatever they said in the exercise of their duties. For example, the 1689 Bill of Rights (in England) declared that "the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament." Similarly, the Constitution of 1787 provides in Section 6 of Article I that Senators and Representatives
shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
The recognition in the First Amendment of the freedom of discourse of the people at large, explicitly nationalizing thereby the traditional immunity of "freedom of speech, and debates or proceedings in Parliament," testifies to what any truly self-governing body requires. The American people were already exercising this right by 1789, whether or not their States had bills of rights or guarantees in them of freedom of speech or of the press. These were rights that were confirmed, not created, by the speech, press, assembly, and petition provisions of the First Amendment. [Page 683]
The entire constitutional system in this Country very much depends on a self-governing people that exercises popular control not only over what its governments do, but also over what the Constitution itself provides. The primary emphasis of the First Amendment here is upon a free and open discussion of public affairs, as distinguished from what is now called freedom of expression. Freedom of speech and the press, as distinguished from a much broader freedom of expression, may be necessary for effective self-government. On the other hand, an unregulated freedom of expression can, in some circumstances, undermine the character and education needed for sustained self- government. Freedom of expression, such as in artistic activity, can itself be something that a people should want to see protected to a considerable extent, but there is not for it the absolute protection that is guaranteed by the First Amendment for freedom of speech and of the press (that is, for unfettered public discussion of the public business). Freedom of expression is protected more by our rights to property and liberty, interests of which persons can be deprived, or have regulated, by due process of law. The constitutional provisions that protect property and liberty, such as the Fifth Amendment, are more individualistic and less civic-minded (or public-spirited) in orientation than are the Speech and Press Clauses of the First Amendment.
A truly new way may be seen in the insistence in American constitutions (State as well as National) that the people are entitled, as the source of all governmental authority in this Country, to the right to discuss the public business as much as they wish, including not only the selection and doings of officers of government but also the framing and amending of forms of government.[66]
V.
We can be reminded of the federalist character of the American constitutional system by noticing that it is explicitly Congress (and, by implication, the National Government) that is restrained by the First Amendment from abridging the freedom of speech or of the press. The States are not addressed on this issue by the First Amendment.
But, we should also notice, Congress is not kept by the First Amendment from regulating State abridgments of freedom of [Page 684] speech or of the press. Such Congressional interventions on behalf of freedom of speech and of the press can be in the service of the National Government's Article IV obligation to guarantee each State in the Union a republican form of government, especially where State suppressions threaten the ability of the people to govern themselves.
We should immediately add, however, that self-government need not be subverted¾indeed, it may even be enhanced¾by prudent State efforts to control publications that threaten to undermine morality. The United States is more apt to try to regulate expression in the interest of national security (by acting against sedition, treason, or more loosely speaking, subversion), while the States are more apt to try to regulate expression in the interest of morality (by acting against corruption, licentiousness, and dissoluteness). But whatever government purports to do, and for whatever ends, freedom of speech and of the press protects those who want to examine what is being done and why.
Strictly speaking, then, it is not freedom of speech and of the press that the States are most apt to suppress but rather certain aspects of freedom of expression. Freedom of expression, I have suggested, is more of a property interest that can be legitimately regulated by law for the sake of common morality and the general welfare than an absolutely privileged free-speech interest, however much it does resemble freedom of speech in some respects.
Is not freedom of expression critical to the appeal of religious freedom as well? Human beings, at least in the Western World, are considered to be (in principle, at least) radically on their own with respect to spiritual matters, however much is made of religious communities. The appeal of freedom of expression, as well as a pervasive dedication to self-government, can seem to provide a connection between the two kinds of freedom guaranteed by the First Amendment. There is a primacy to the freedoms guaranteed by the First Amendment, as may be seen in the one amendment-proposal developed in the House of Representatives for the States: "No State shall infringe the right of trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press." [67] Thus, in addition to the traditional "right of trial by jury in criminal cases," the only other great rights nominated by the [Page 685] House of Representatives for protection against State infringement in the Bill of Rights are those found in the First Amendment.
VI.
The Religion Clauses of the First Amendment oblige Congress to stand clear of religious establishments, which means that Congress can neither provide for religious establishments of its own nor interfere with any State religious establishments then existing or later to be developed. The United States, in short, is to keep its hands off completely here. This means that all State establishments of religion are to be left alone by the National Government. State concerns here, as with the policing of freedom of expression already referred to, reflect the police power of the State, especially with respect to curbing corruption and promoting morality.
Although Congress cannot interfere at all with State religious establishment, it is evidently left free by the First Amendment to regulate State prohibitions of the free exercise of religion: Congress is kept from prohibiting the free exercise of religion; but it is not kept from correcting State interferences with the free exercise of religion. In this field, unlike that of religious establishments, the States need not be left alone by Congress to develop their local preferences in whatever way they may choose. [68]
I do not attempt in these Lectures to recapitulate systematically how the Courts have interpreted the two dozen Amendments we are reviewing. Still, it can help us appreciate what the First Amendment does and does not provide by noticing that the Establishment Clause has been distorted in its interpretation by the Courts. That clause is now interpreted virtually to mean that governments cannot cooperate at all with religious institutions, for example, with respect to the public funding of church-sponsored schools. This seems to me a misreading of the First Amendment, because the forbidden "establishment" does not refer to official cooperation with religion but rather to official preference for one or a few religious sects at the expense of all the others in the community. [69] Extensive, almost natural, collaboration between Church [Page 686] and State may be seen again and again in Eighteenth-Century America. Consider, for example, the concluding article of the Virginia Declaration of Rights (June 12, 1776) which declares that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience." But it also adds that "it is the mutual duty of all to practice Christian forbearance, love, and charity" towards each other.
Whatever problems there may be in interpreting the Religion Clauses, they are compounded when the First Amendment is made applicable, by means of the Fourteenth Amendment, against the States. For one thing, it is difficult to figure out how the Establishment Clause, with its obvious protection of the States from any Congressional interference with State religious establishments, can be made applicable against the States as well. Is there not something awkward about this particular transformation of the coverage of the First Amendment?
Now that the First Amendment is considered applicable to the States, it remains to be seen what the States, in collaboration with religious institutions, may continue to do against general corruption and in the service of common decency.
VII.
We have already noticed that the First Amendmen