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Correcting the CONSTITUTION Was the Bill of Rights Necessary?

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Correcting the CONSTITUTION Was the Bill of Rights Necessary? S v . pulM^n!ptU«»on™tiog»fO»,BtriIbM^p«l|^rMttomilti»iy l*«tiog»rn», fa-ritt l* W C i.t iu S ! : T H. ■?, "v* I -5J Xo IbUicnKall, m tune of. , , nohow ibe omlm of ihc pwscf, our in » of *ar. but In xf to bo pfefcribcrf by bur- ARTICLE ENT H. 's 5 r___ ' ulitttl, ami_fii no n itM (hall__ tfttf, botsasai_ upon probable caufc *5 k hippoereil by oatb or aHtnoerirri, ecd panieulariv ^(bribing the ^ v O place u> be Sbareberi. and ibe petKJGi or tbingi to [>r (eried. ^ y U' ," M U7 .w xoperfa.* * % VfA& nUliSJft#- ■ M111 < -7 fhirll be compelled In aafei*a«wl cafe, to be a nitnef* agaitdl bun- ulafi,. Or. „ it.* Or., V Out »;airafflpwiBEK,'3ffas (ltd - . .TlJK'nC.in XI. f* ^ In all i riminri ptotrcutwii", die xculed Oyll enjoy- tlte right to ...— p IjJCetlr and public triai. In be infolioal of the nature and canlc of if. eolation, to be. conboctCduilJi ihc taitnelln agajtldbim, to baaceonifiolfufy [reocelafor obtaining Yfitnttia art [lit favor, and to bdnethe-alhfianeeofoonoM&nhuddbiee. A R T I C L E fit* T E N T H . cimKiiOa. thertflfclw^Benge, and other aecottotrrd irattfliftti «Lnnf^th, .'. -H>~- t-”j lo anfuer (dr a cipnsl, nr .Hhrtwuyi or indximrrt! by a Grand flWl in thepodelboa of Correcting the CONSTITUTION Was the Bill of Rights necessary? by Richard Brookhiser On September 12,1787, in the home stretch of the Constitutional Convention— the delegates would finish their work five days later—George Mason, a self-educat ed Virginia planter, brilliant and gruff, raised an important point: The document they had been working on since May had no bill of rights. By the late 18th century such bills had The king’s subjects were to be the judges of become a fixture of Anglo-American politi each other’s guilt or innocence, and the king cal thought. The first example was said to be had to listen to their grievances (at least the Magna Carta, the list of pledges that rebel grievances of the powerful). lious barons extorted from an unpopular King The Glorious Revolution of 1688 drove John in 1215. But claiming Magna Carta as another unpopular king, James II, from his a bill of rights was a stretch. Most of it con throne. The following year Parliament passed a cerned strictly medieval matters—forestry law, true English Bill of Rights. It extended the right how to treat England’s Welsh neighbors—and the entire document was meant to secure the privileges of the upper nobility, not rights for everybody. Above: The proposed Yet some of its provisions anticipated ele amendments, marked up by the Senate, 1789. Opposite: ments of the United States’ Bill of Rights—trial Benjamin Franklin (center) and by jury (“no freemen shall be taken or impris George Washington (right) oned.. .except by the lawful judgment of his are warmly greeted at the peers”) and the right to petition (barons could Constitutional Convention. “petition to have.. ,transgression[s] redressed”). TOP: RECORDS OF THE U.S. SENATE/NATIONAL ARCHIVES: OPPOSITE: 36 AMERICAN HISTORY JEAN LEON GEROME FERRIS/PRIVATE COLLECTION/BRIDGEMAN IMAGES wit m r^9MP 3 3 . r m «i3Sfe*C' - . Hy ^ jr •>• wT' i.ru Jll Kfl ili 1 § § 1 .. 1 IP- - i~, ■ of petition beyond barons and reaffirmed trial b O 8 T O N, IVednejday, January 30. by jury, especially in trials for high treason. It Extra ft of a 'ester fror. a gentleman of eminence, in also guaranteed “freedom of speech” in Parlia the city of Philadelphia, to a gentleman in this ment and the right of Protestants to have “arms town, dated Jan 14, rj88. for their defence.” (England’s Protestants, the “ You will, no donbr, fee by the paper?, that oar majority in the country, believed that James II, a Catholic convert, had staffed the army with antUederaliib—from th? defpair which their Catholic officers in preparation for a religious weakaefi has thrown them into, like an expiring coup.) One provision would reappear almost taper, are tnaking another ftruggle in order 10 dil- word for word in the U.S. Bill of Rights: “Exces aOfeA the people of theUnitedStates againft the new sive bail ought not to be required, nor excessive ConOitution. Under the mock appearance of ex- fines imposed, nor cruel and unusual punish tra£b from a Carlifle paper, Judge B, has given ments inflicted.” The justice system should not the publiek a long account of the dtjlraftion which torture Englishmen or crush them financially. prevails in that phica : But on the authority of a Similar bills of rights were passed by .Rev, Clergyman src m that country, I alfuie you, American states as soon as they declared their that it was a tifere fracas, fimilar to which have independence, as George Mason knew from happened there, ever fmce the Conrtituticn of this personal experience. In May 1776 the Virginia State was adopted—between the Republicans and Convention, the colony’s revolutionary legis lature, appointed him to a committee charged Con(litutiona!ifts-~I no not know what to compare with producing a declaration of rights. Mason them to bet er than your Pope-mohs before the did most of the work, copying the English Bill revolution.” of Rights’ language on bail, fines and punish I ED ERA L S UPERS TR UCTURE. ments. He called for “speedy” trials by juries in criminal cases and for juries in civil suits. He condemned “general warrants” allowing searches "without evidence” of particular of fenses. He praised “freedom of the press,” mi litias “composed of the body of the people, trained to arms” and "the fullest toleration” of religion. One of Mason's colleagues on the committee, young James Madison, amended this last clause to state that "all men are equally entitled to the free exercise” of religion. “Tol __ ■ — ■ —- - - - — • •• - From obfervation, and good information, wc eration" implied that religious liberty was a venture to allure the world, that the m assac hu gift. Instead Madison made it an inherent right. 5et^ nsian PILLAR of the great FEDERAL Virginia’s declaration, with Madison’s change, EDIFICE riles daily-*Thanks to the candour of was approved June 12,1776, three weeks before thole gentlemen who at lirlf were oppofed to its e the Declaration of Independence. region — and thanks to the unremitted exertions of In Philadelphia in 1787 Mason said that the thofe who have affilled in raifin? it. Constitutional Convention could add a bill of rights to its handiwork “in a few hours,” using The General Afiembiy of New-York, now in state bills as guides. But he found almost no feffion at i oughkeepfie, we are affured by good an- takers. Elbridge Gerry, a quirky delegate from thorny, have refolved that a Convention be call ed, for tne purpole of ailenting to, and ratifying the Federal Coniiitution—■-to meet at a fhort day— and that the Coniiitution will be adopted by chat Sta-e by two again!! one—which God grant. O---- \\ e are tola—-and feriouily too—that Mr. Bacon, has On January 30, 1788, changed his political fentiments once more, and that he the Massachusetts now believes the Oonllitution muff go down. Centinel expressed MARRIED] At Dedham 'Monf. NICHOLAS DU. uncertainty over R 1VAGR; to Mils NANCY Ba KER. whether the state DIED, la(l Sunday morning, Capt. RICHARD CHAP- would ratify the MAN, aged 27. His funeral wfJl be thi; afternoon, at half paa three Constitution. ~-*-3 ’* ir. Charleftown. 38 AMERICAN HISTORY Patrick Henry feared Alexander Hamilton George Mason refused James Madison came that a strong central argued against a bill of to sign the C onstitution to accept that a bill o f government would rights, claim ing it w ould because it did not rights was necessary to usurp individual and tempt government to include a bill of rights or assure ratification o f the states' rights. test its limits. restrict the slave trade. Constitution. Massachusetts, moved for a committee to do as Mason had suggested. ferson, who was in Paris at the time, serving There was a quick vote, with every state delegation rejecting the idea. as minister to France. Despite being an ocean The Constitution makers were tired. They had spent an entire Phila away, he helped change Madison’s mind: “A delphia summer cooped up in Independence Hall, orating, nitpicking bill of rights,” wrote Jefferson, “is what the peo and forging an elaborate web of compromises. They wanted to go home. ple are entitled to against every government But why had they not thought of drafting a bill of rights in all the on earth.” months they had been together? Once the Constitution went before the Madison was hearing the same thing from American people for ratification, its authors offered various excuses for the people of Virginia. The state’s Baptists, a min their omission. During the ratification debate in Pennsylvania, James ority sect, feared the lack of a guarantee of reli Wilson, a learned, Scottish-born lawyer, argued that the rights en gious liberty. And Patrick Henry, whom Madison shrined in Magna Carta and England’s Bill of Rights had been carved disdained as a demagogue but could not ignore from a background of royal power. In the United States, he said, power as an effective one, harped on the issue. A “bill of should remain “in the people at large, and by this Constitution they do rights maybe summed up in a few words," Henry not part with it." There was no reason to guard against the abuse of pow said.
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