By David Azerrad
Wednesday, December 28, 2016
Our cherished Bill of Rights, which turned 225 years old
this month, is one of the great oddities of American constitutional history.
What began as a mere afterthought to the Constitution ended up saving the
Constitution from its Anti-Federalist critics, and today looms larger in the
American mind than the Constitution itself.
Until the twentieth century, the Supreme Court rarely
invoked it. Its rise to prominence since then is largely due to a series of
landmark cases in which it was applied, contrary to the intent of its framers,
to the state governments. In a curious twist of history, a bill of rights
designed to placate Anti-Federalist opposition to the Constitution in the
states has become one of the great checks on state power. It’s quite a story.
Were it not for James Madison, who opposed the Bill of
Rights before supporting it, we would probably have neither the Constitution
nor the Bill of Rights. By rechanneling public opposition to the Constitution
into acceptance for a Bill of Rights, he staved off the Anti-Federalist
attempts to rewrite the Constitution. Madison is therefore rightly viewed as
both the father of Constitution and the father of the Bill of Rights.
Ratifying the
Constitution
The idea of a bill of rights didn’t come up until the
very last week of the Constitutional Convention. During that summer in
Philadelphia, the delegates had discussed many specific rights, some of which
found their way into the Constitution (see sections 9 and 10 of Article I), but
not a Bill of Rights.
It was George Mason of Virginia who first proposed one.
“It would give great quiet to the people,” he argued, “and with the aid of the
State declarations, a bill might be prepared in a few hours.” The other
delegates, wary of getting bogged down in debates after four months of contentious
deliberations, shot down his proposal 10-0. Five days later, the Constitution
was signed (although not by Mason) and sent to the states for ratification.
Anti-Federalist opposition to ratification in the states
went well beyond the absence of a Bill of a Rights. The Anti-Federalists were
highly critical of the Constitution itself. They thought it granted Congress
too much power, thereby threatening the states.
“The Constitution is radically defective,” inveighed the
great Anti-Federalist essayist Brutus. It vests in Congress “great and
uncountroulable powers” that it will use “to annihilate all the state
governments, and reduce this country to one single government.”
Another Anti-Federalist, in an essay entitled “Adoption
of the Constitution Will Lead to Civil War,” went further and warned: “The new
constitution in its present form is calculated to produce despotism, thraldom
and confusion, and if the United States do swallow it, they will find it a
bolus, that will create convulsions to their utmost extremities.”
What was needed, according to the Anti-Federalists,
wasn’t just a Bill of Rights, but a second constitutional convention to amend
all the defects of the current Constitution. Elbridge Gerry of Massachusetts
had first proposed the idea during the 1787 Constitutional Convention, and it
resurfaced during the contentious ratification debates in his home state.
Massachusetts eventually ratified the Constitution, but
not without enjoining its future representatives in Congress “to exert all
their influence, and use all reasonable and legal methods, to obtain a
ratification” of nine proposed amendments to the Constitution. These amendments
for the most part aimed to curtail the powers of Congress and the federal
judiciary. Only two dealt with rights (both relating to juries, none relating
to conscience, the press, or arms).
The idea caught on. Whereas the five states that had
ratified the Constitution before Massachusetts did so without recommending any
amendments, all but one of the other states followed the Massachusetts model.
New York proposed 31 amendments, North Carolina 26, and Virginia 20. The
Anti-Federalists had failed to prevent ratification, but they had succeeded in
discrediting the Constitution for many and in creating a climate of opinion
favorable to fundamentally revising it.
Madison’s Bill of
Rights
When the first Congress convened in New York in 1789, it
had to address the numerous proposals to overhaul the Constitution. Virginia
and New York, two of the most important states in the union, had already sent
applications calling for an Article V convention of the states to consider “the
defects of this constitution.”
Enter Congressman James Madison of Virginia. Madison had played an important role in
drafting the Constitution at the convention and in pushing for its ratification
as co-author of “The Federalist” papers with Alexander Hamilton and John Jay.
Although skeptical of some of the Constitution’s arrangements, he thought it
the best Americans could expect and was even more skeptical that a second
convention would succeed.
Madison also didn’t place much trust in enumerations of
rights, or in any other mere “parchment barriers” to government encroachments
on liberty. Instead, he trusted the structural arrangements of the
Constitution—like separation of powers, legislative checks and balances, and
enumerated congressional powers—to secure the rights of the people.
The challenge he faced was to win broader public support
for the Constitution while sidelining the Anti-Federalists and preserving the
structural integrity of the Constitution. His brilliant solution was to propose
amendments that for the most part did not actually amend the Constitution (some
of his original 17 proposed Amendments did, but none of the 10 that were
ratified did).
We today tend to overlook this somewhat obvious feature
of the Bill of Rights: not a single one of its 10 amendments is, strictly
speaking, an amendment. The Bill of Rights’ provisions clarify. They draw out
inferences from the text. They specify certain vital components of liberty
established in the Anglo-American legal traditions. But they do not amend, alter,
or modify. The first real modification of the Constitution was brought about by
the Eleventh Amendment, which restricted the scope of judicial power enunciated
in Article III.
In large part thanks to Madison, none of the structural
amendments favored by the Anti-Federalists made its way into the Bill of
Rights. As the political theorist Herbert Storing observed: “the primary
significance of the Bill of Rights is seen most clearly in what it does not
include.”
The Anti-Federalists were obviously displeased.
Congressman Samuel Livermore complained that Madison’s amendments were “no more
than a pinch of snuff; they went to secure rights never in danger.” Aedanus
Burke, a fellow Congressman from South Carolina, captured the Anti-Federalist
sentiment best when he said: “They are not those solid and substantial
amendments which the people expect. They are little better than whip-syllabub,
frothy and full of wind, formed only to please the palate; or they are like a
tub thrown out to a whale to secure the freight of the ship and its peaceable
voyage.”
The people, it turns out, thought otherwise. Their main
concern had always been the protection of individual rights. Madison used the
Bill of Rights to win them over while definitively undercutting the
Anti-Federalists. The Constitution was safe.
Our Bill of Rights
Although the amendments in the Bill of Rights did not
amend the Constitution, they have not been useless. As Madison expected, they
have played an important civic function in reminding Americans of their rights.
The average American may not know all that much about the Constitution—one in
three cannot name any of the three branches of government—but they definitely
know they’ve got rights.
Just as importantly, the Bill of Rights reminds the
government that the people possess these rights. For while it is true, as
Hamilton points out in “Federalist 84,” that Congress only has those powers
specifically granted to it, zealous legislators have been known to encroach
upon certain rights in the exercise of their enumerated powers (as have
presidents and judges, for that matter).
The Bill of Rights has also certainly played a part in
preserving some of America’s exceptional character. Although America suffers
from almost all the pathologies afflicting developed nations, it remains an
outlier in its religiosity, refusal to criminalize hate speech, and widespread
lawful gun ownership. It would be hard not to thank the Bill of Rights in part
for this.
The Bill of Rights
and the States
Given its Anti-Federalist origins, the Bill of Rights
was, of course, never intended to apply to the states. For the longest time, it
didn’t. Not that it was applied to the national government all that much,
either. Prior to 1925, the courts ruled in only 15 cases that the national
government had violated the Bill of Rights (then again, the pre-New Deal
government was rather constrained compared to today).
Nineteen twenty-five was the year the Supreme Court
ruled, in Gitlow v. New York, that
the protections of the Bill of Rights could be applied to the states via the
Fourteenth Amendment. Since then, most of the provisions of the Bill of Rights
have been made applicable to the states, and most civil liberty cases relating
to the Bill of Rights have involved the states (though by no means all of them,
e.g. Citizens United v. Federal Election
Commission).
The Anti-Federalists, whose desire to better protect the
power of the states indirectly led to the Bill of Rights, would no doubt be
mystified at this outcome. But in an age in which our First and Second
Amendment rights in particular are in the crosshairs of the states no less than
the federal government, Americans can be grateful for the protections the Bill
of Rights affords. Today, perhaps more than ever, we need our Bill of Rights,
and a citizenry that understands the sacred liberties inscribed on this piece
of worn parchment.
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