Following the American Revolutionary War the thirteen individual and separate British colonies in North America found themselves to be thirteen individual and independents states – the word “state” being synonymous with the word “nation” or “country”. Following the Declaration of Independence each had formed a representative government derived from the colonial legislatures and by the end of the war all but two had written constitutions, nine within a year of the Declaration of Independence. These nations had wisely allied themselves with one another in a confederation for the purpose of fighting for independence and for mutual protection beyond that conflict; they had defined this confederation in a document called The Articles of Confederation that established a congress made up of representatives of each of the states with each state having one vote. Said congress had very limited power because the citizens of each of the states recognized the value of an allegiance called the United States, but they were reluctant to grant significant political power to any entity beyond the borders of their home state.
The United States under the Articles of Confederation were analogous to the modern European Union, individual nations allied together by mutual agreement. There were important exceptions to this comparison: The states had just banded together to win a major war, they had never fought a war amongst themselves, they shared a common heritage, and all spoke a common language. All of the ingredients existed to form a united nation, but regional and home-state loyalties persisted among a large percentage of the citizens of the various states. However, within a few years some prominent citizens realized that the extremely weak central government under the Articles of Confederation was too impotent to hold the confederation together. Near chaos and the very real possibility of war among the States became, for some, a fear greater than the fear of central government. The most prominent, revered citizen of all was George Washington who had witnessed the deprivation suffered by the Continental Army during the Revolutionary War due to the inability of Congress to levy taxes, so when he was approached by James Madison and Alexander Hamilton, the principle early advocates for a new constitution, he agreed to preside over a convention to address the inadequacies of the Articles of Confederation. His participation, along with that of an aging Benjamin Franklin in what became known as the Constitutional Convention legitimized the proceedings in public opinion. Every State except Rhode Island sent delegates to the convention, but the delegates from many of the States were authorized only to patch up the Articles of Confederation as necessary, and were specifically instructed by the legislative bodies that delegated them NOT to create a new document giving the central government additional powers. Nevertheless the Convention gave up on the Articles and slowly hammered out a Constitution that bound the States more tightly together and defined greater authority for the central government while retaining a large measure of sovereignty in the individual States. The scope and purpose of the Constitution was to define the branches of the central government, the authority of that government, the relationship between it and the States, and place some limitations on the authority of the States. It was assumed at the Constitutional Convention and later explicitly stated in the Tenth Amendment that any powers not specifically granted to the central government in the Constitution would remain with the States unless specifically denied the States. This point is worthy of clarification: The central government was only to have the powers specifically granted it by the Constitution; the States were to retain all powers not specifically denied them by the Constitution, subject to the individual State constitutions.
Most of the Constitutional delegates were lawyers and when lawyers create a written document they habitually use very precise language so that the meaning cannot be questioned, yet we find passage after passage in the Constitution that is vague and subject to interpretation because precise language could not be agreed upon. During the summer of the Constitutional Convention the delegates became determined to succeed in creating a Constitution that nearly all of them could sign. They would compromise as necessary to make that happen, and where necessary use vague language to allow for agreement - leaving it to later generations to clarify. (Almost immediately following ratification of the Constitution legislators, administrators, and the Supreme Court began the two century long process of clarifying on the side of more power for the central government.)
It was agreed at the Convention that ratification by nine of the thirteen States would be enough to consider the Constitution as being adopted, but it was also understood that the bigger, richer States like Virginia , New York, Pennsylvania, and Massachusetts must be among those in agreement or the Constitution would fail, and that universal ratification was highly desirable. James Madison and Alexander Hamilton, the same two men who had lobbied for the Constitutional Convention, now led the effort for ratification – especially in their respective States, Virginia and New York. This effort produced the series of essays supporting ratification known as The Federalist Papers published in New York newspapers, and indirectly to the Bill of Rights (the first 10 amendments to the Constitution).
The lack of a Bill of Rights in the Constitution was thought by many to be a major omission. The English Bill of Rights had been considered a sacred document by many of these recent British subjects, so in spite of misgivings on Hamilton’s and Madison’s part, those in favor of ratification, known as Federalists, agreed in principle to the addition of a Bill of Rights following ratification. It’s worth noting why such lovers of liberty as Madison and Hamilton* opposed an American Bill of Rights while other patriots pointed to the British Bill of Rights as a sacred document. The difference is one of both philosophy and history. In England all power and prerogative had once been held in the hands of the King and individual rights and liberties had been wrested from him bit by bit, document by document over centuries, and were still considered to have come from the monarch. In America, as stated in the Declaration of Independence, individual rights were assumed to be endowed upon men by their Creator or, synonymously, be “natural” - belonging to every human by the nature of being human, and subject to no man’s whim. In the minds of such philosophical Founders and Framers, it was not necessary to specifically protect any rights in the Constitution because the central government had no power over individual’s rights except as specifically stated in the Constitution and agreed to by representatives of the people in the ratification process. It was feared that picking out certain rights to be specifically protected by the Constitution would weaken this concept of God Given or Natural Rights, and put all rights not specifically mentioned in jeopardy and those mentioned open to debate. (See the Ninth Amendment for Madison’s attempt to alleviate these concerns)
Nevertheless, once the new government was in place Congressman James Madison, being true to his word, introduced 12 Amendments to the Constitution into Congress. Ten of these were ultimately adopted and ratified by the States and are called the Bill of Rights. Subject to less time pressure, less compromise, and no doubt due to the brilliance of the author, the language of the Bill of Rights is more concise than much of the main body of the Constitution, and while the wording was somewhat edited by Congress, the text can primarily be credited to Madison who was considered to be the foremost authority on the Constitution by all except his political enemies, with Hamilton moving to the top of that list while he was Secretary of the Treasury and virtual leader of the Federalist Party.
So if we are to respect Madison’s scholarship, his abilities, and his knowledge of the Constitution, it’s a worthy exercise to analyze his wording in the Bill of Rights. For example, the First Amendment places specific restrictions on a specific entity, the central government: “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.”; the word “Congress” clearly referring to the Congress of the United States. Note that this language places no restrictions on the States.
But the language in the Second Amendment is all encompassing: “A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.” It doesn’t specify any particular entity or list of entities that may not infringe on the right to bear arms; instead it appears to state that the right to bear arms “shall not be infringed” in the United States of America. ** Similar blanket language can be found in the other Amendments in the Bill of Rights; only the First Amendment uses language exclusive to the central government.
At the time, however, no thought was given to these nuances of language; instead it was assumed that The Bill of Rights only restricted the central government and had no authority over the States. States were free to stifle free speech, control firearms, or sponsor religion. *** This is not to say that the Framers believed that free speech or the right to bear arms should be usurped by the State governments, but it was left to State constitutions and laws to protect the rights of citizens from the State governments while the Bill of Rights protected them from the central government. This assumption was accepted without concern at the time because people were not afraid of their State governments; the central government was the entity of suspicion. We find no objection in Madison’s writings to a lack of adherence to his language in the Bill of Rights. If we assume that the differences in language were intentional on his part then perhaps he was content with an interpretation that gave maximum power to the States and maximum restriction on the central government. We know that as the Federalists evolved from a group supporting the Constitution into a political party that favored more central power, Madison became a champion for States Rights and a staunch Jeffersonian Republican.
The Bill of Rights applied only to the central government until 1925 when the Supreme Court, again ignoring the precise language of the First Amendment stating that it only applies to “Congress”, decided that the guarantee of Freedom of Speech applied to the States as well as the central government by virtue of Section 1 of the Fourteenth Amendment which was ratified 57 years earlier and had not previously been interpreted that way. History ignores the irony that made the one Amendment that by its language applies only to the central government be the first to be interpreted by the Supreme Court as applying to the States as well. (The entire Bill of Rights and the Fourteenth Amendment are included below for reference)
Since that decision in 1925 nearly every Amendment in the Bill of Rights has been applied to the State governments by court decisions referencing the Fourteenth Amendment and the 1925 precedent in a process called “Incorporation of the Bill of Rights”. These decisions have had both positive and negative ramifications for American liberty: they have prevented State governments from usurping the rights of their citizens, but they have also blurred and dimmed the lines between the federal and State governments and helped to eliminate the concept of State soverency so important to the Founders and Framers, and to the citizens of the post Revolutionary era. One result of “incorporation” is that religious expression within State institutions has been deemed unconstitutional; another is that no State can infringe on a citizen’s right to bear arms.
We can point to many sources of controversy in the Constitution. The “Commerce” clause, the “Necessary and Proper” clause, and the lacking of a definition of “Natural born citizen” in the list of requirements for the Presidency are just three obvious examples. Even those two great architects of the Constitution, Hamilton and Madison, argued over the meaning of the Necessary and Proper clause, a vague, catch-all passage that seems designed for abuse. How then can moderns be expected to know what was in the minds of those who created the Constitution, or more fundamentally, should we even care what all of those old, rich, chauvinistic, white men thought so long ago?
If we desire that the Constitution continue to be a defining document for the United States of America, then we should indeed care about the thoughts and opinions of those that created it. And in order to gather such information we can study other things that they wrote or helped write – letters, State constitutions, resolutions and laws, legal briefs, and all other written works that are available. In the case of Madison and Hamilton we can also study the Federalist Papers, once considered the primary written authority on the Constitution. But more important than any of this, we can read and study the Constitution itself, and understand that the language there is as precise as was possible under the circumstances, and we can accept that what is written there is what was agreed upon, even if that included uncomfortable compromises, rather than contorting our minds and their words to make those words mean what we’d like. If we owe the Founders of the nation and the Framers of the Constitution nothing else, we owe them that.
* Giving Hamilton the benefit of the doubt here; his subsequent efforts as Washington’s Secretary of the Treasury and virtual leader of the Federalist Party to accumulate power for the central government suggest the possibility of less innocent motives for opposing a Bill of Rights.
** For “Thoughts on the Second Amendment” see: http://thoughtofasecularconservative.blogspot.com/2010/10/thoughts-on-second-amendment.html
*** For elaboration on the First Amendment and the separation of church and state see: http://thoughtofasecularconservative.blogspot.com/2011/12/on-constitutionality-of-religious.html
The lack of a Bill of Rights in the Constitution was thought by many to be a major omission. The English Bill of Rights had been considered a sacred document by many of these recent British subjects, so in spite of misgivings on Hamilton’s and Madison’s part, those in favor of ratification, known as Federalists, agreed in principle to the addition of a Bill of Rights following ratification. It’s worth noting why such lovers of liberty as Madison and Hamilton* opposed an American Bill of Rights while other patriots pointed to the British Bill of Rights as a sacred document. The difference is one of both philosophy and history. In England all power and prerogative had once been held in the hands of the King and individual rights and liberties had been wrested from him bit by bit, document by document over centuries, and were still considered to have come from the monarch. In America, as stated in the Declaration of Independence, individual rights were assumed to be endowed upon men by their Creator or, synonymously, be “natural” - belonging to every human by the nature of being human, and subject to no man’s whim. In the minds of such philosophical Founders and Framers, it was not necessary to specifically protect any rights in the Constitution because the central government had no power over individual’s rights except as specifically stated in the Constitution and agreed to by representatives of the people in the ratification process. It was feared that picking out certain rights to be specifically protected by the Constitution would weaken this concept of God Given or Natural Rights, and put all rights not specifically mentioned in jeopardy and those mentioned open to debate. (See the Ninth Amendment for Madison’s attempt to alleviate these concerns)
Nevertheless, once the new government was in place Congressman James Madison, being true to his word, introduced 12 Amendments to the Constitution into Congress. Ten of these were ultimately adopted and ratified by the States and are called the Bill of Rights. Subject to less time pressure, less compromise, and no doubt due to the brilliance of the author, the language of the Bill of Rights is more concise than much of the main body of the Constitution, and while the wording was somewhat edited by Congress, the text can primarily be credited to Madison who was considered to be the foremost authority on the Constitution by all except his political enemies, with Hamilton moving to the top of that list while he was Secretary of the Treasury and virtual leader of the Federalist Party.
So if we are to respect Madison’s scholarship, his abilities, and his knowledge of the Constitution, it’s a worthy exercise to analyze his wording in the Bill of Rights. For example, the First Amendment places specific restrictions on a specific entity, the central government: “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.”; the word “Congress” clearly referring to the Congress of the United States. Note that this language places no restrictions on the States.
But the language in the Second Amendment is all encompassing: “A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.” It doesn’t specify any particular entity or list of entities that may not infringe on the right to bear arms; instead it appears to state that the right to bear arms “shall not be infringed” in the United States of America. ** Similar blanket language can be found in the other Amendments in the Bill of Rights; only the First Amendment uses language exclusive to the central government.
At the time, however, no thought was given to these nuances of language; instead it was assumed that The Bill of Rights only restricted the central government and had no authority over the States. States were free to stifle free speech, control firearms, or sponsor religion. *** This is not to say that the Framers believed that free speech or the right to bear arms should be usurped by the State governments, but it was left to State constitutions and laws to protect the rights of citizens from the State governments while the Bill of Rights protected them from the central government. This assumption was accepted without concern at the time because people were not afraid of their State governments; the central government was the entity of suspicion. We find no objection in Madison’s writings to a lack of adherence to his language in the Bill of Rights. If we assume that the differences in language were intentional on his part then perhaps he was content with an interpretation that gave maximum power to the States and maximum restriction on the central government. We know that as the Federalists evolved from a group supporting the Constitution into a political party that favored more central power, Madison became a champion for States Rights and a staunch Jeffersonian Republican.
The Bill of Rights applied only to the central government until 1925 when the Supreme Court, again ignoring the precise language of the First Amendment stating that it only applies to “Congress”, decided that the guarantee of Freedom of Speech applied to the States as well as the central government by virtue of Section 1 of the Fourteenth Amendment which was ratified 57 years earlier and had not previously been interpreted that way. History ignores the irony that made the one Amendment that by its language applies only to the central government be the first to be interpreted by the Supreme Court as applying to the States as well. (The entire Bill of Rights and the Fourteenth Amendment are included below for reference)
Since that decision in 1925 nearly every Amendment in the Bill of Rights has been applied to the State governments by court decisions referencing the Fourteenth Amendment and the 1925 precedent in a process called “Incorporation of the Bill of Rights”. These decisions have had both positive and negative ramifications for American liberty: they have prevented State governments from usurping the rights of their citizens, but they have also blurred and dimmed the lines between the federal and State governments and helped to eliminate the concept of State soverency so important to the Founders and Framers, and to the citizens of the post Revolutionary era. One result of “incorporation” is that religious expression within State institutions has been deemed unconstitutional; another is that no State can infringe on a citizen’s right to bear arms.
We can point to many sources of controversy in the Constitution. The “Commerce” clause, the “Necessary and Proper” clause, and the lacking of a definition of “Natural born citizen” in the list of requirements for the Presidency are just three obvious examples. Even those two great architects of the Constitution, Hamilton and Madison, argued over the meaning of the Necessary and Proper clause, a vague, catch-all passage that seems designed for abuse. How then can moderns be expected to know what was in the minds of those who created the Constitution, or more fundamentally, should we even care what all of those old, rich, chauvinistic, white men thought so long ago?
If we desire that the Constitution continue to be a defining document for the United States of America, then we should indeed care about the thoughts and opinions of those that created it. And in order to gather such information we can study other things that they wrote or helped write – letters, State constitutions, resolutions and laws, legal briefs, and all other written works that are available. In the case of Madison and Hamilton we can also study the Federalist Papers, once considered the primary written authority on the Constitution. But more important than any of this, we can read and study the Constitution itself, and understand that the language there is as precise as was possible under the circumstances, and we can accept that what is written there is what was agreed upon, even if that included uncomfortable compromises, rather than contorting our minds and their words to make those words mean what we’d like. If we owe the Founders of the nation and the Framers of the Constitution nothing else, we owe them that.
* Giving Hamilton the benefit of the doubt here; his subsequent efforts as Washington’s Secretary of the Treasury and virtual leader of the Federalist Party to accumulate power for the central government suggest the possibility of less innocent motives for opposing a Bill of Rights.
** For “Thoughts on the Second Amendment” see: http://thoughtofasecularconservative.blogspot.com/2010/10/thoughts-on-second-amendment.html
*** For elaboration on the First Amendment and the separation of church and state see: http://thoughtofasecularconservative.blogspot.com/2011/12/on-constitutionality-of-religious.html
******************************* The Bill of Rights ****************************
First Amendment: 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.
Second Amendment: A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
Third Amendment: No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Seventh Amendment: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Tenth Amendment: 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 Fourteenth Amendment:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
References:
“Two Treatises on Government” by John Locke (second treatise)
“The Radicalism of the American Revolution” by Gordon S. Wood
“Founding Brothers” by Joseph J. Ellis
“Alexander Hamilton, American” by Richard Brookhiser
“Young Patriots” by Charles Cerami
“Alexander Hamilton” by Ron Chernow
“The Federalist Papers” Hamilton, Madison, Jay
The Articles of Confederation of the United States of America
The Constitution of the United States of America
http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights
