THE CATHOLIC UNIVERSITY OF AMERICA The Bill of Rights and Federalism: An Interpretation in Light of the Unwritten Constitution A DISSERTATION Submitted to the Faculty of the Department of Politics School of Arts and Sciences Of The Catholic University of America In Partial Fulfillment of the Requirements For the Degree Doctor of Philosophy © Copyright All Rights Reserved By Joseph S. Devaney Washington, D.C. 2010 The Bill of Rights and Federalism: An Interpretation in Light of the Unwritten Constitution Joseph S. Devaney, Ph.D. Director: Claes G. Ryn, Ph.D. According to conventional understanding, the primary purpose behind the framing and ratification of the Constitution was to preserve liberty through a form of government that provided for a highly structured system of federalism and separation of powers. The primary purpose behind the framing and ratification of the Bill of Rights was to allay Anti-Federalist fears that the Constitution did not sufficiently secure individual rights. For that reason, the original Constitution is frequently contrasted with the Bill of Rights. Yet distinguishing between the Constitution and the Bill of Rights obscures more about the nature of the Bill of Rights than it discloses. It is agreed that one of the primary Anti-Federalist objections to the Constitution was the absence of a bill of rights. A close examination of the debate over the absence of a bill of rights reveals that the first ten amendments to the Constitution occupy a much more complex place in the constitutional scheme than is commonly assumed. While individual rights did constitute an important theme during the ensuing debate concerning the importance of a bill of rights, they were not the only theme or even the prevailing theme. A historically, philosophically, and textually informed examination of the Bill of Rights reveals that it was attentive to constitutional structure and intended to reinforce the commitment to federalism in the original Constitution. The Federal government could not intrude upon the subtle and often fragile social and legal arrangements pertaining to such matters which evolved over a long period of time at the state level. These prerogatives were protected by the several state constitutions, state statutes, and the unwritten common law. This dissertation by Joseph S. Devaney fulfills the dissertation requirement for the doctoral degree in Politics approved by Claes G. Ryn, Ph.D., as Director, and by Dennis Coyle, Ph.D., and Robert Destro, J.D. as Readers. ________________________________ Claes G. Ryn, Ph.D., Director ________________________________ Dennis Coyle, Ph.D., Reader ________________________________ Robert Destro, J.D., Reader ii DEDICATION This dissertation is dedicated, with great love, to my mother Rosemarie A. Devaney, my grandparents, Joseph and Josephine Devaney, and in memory of my aunt and uncle, Steven and Kathleen Jemo. iii ACKNOWLEDGMENTS “People will not look forward to posterity,” Edmund Burke wrote, “who never look backward to their ancestors.” This dissertation is not the result of my own unaided thought, but the qualities of character I acquired, despite my own moral failings, from my family and friends. I am very grateful to the most important person in my life, my mom, Rosemarie A. Devaney. Every great accomplishment in my life, I owe to my mom. My mom taught me, through example, during the darkest moments of her life; the sin of despair can never triumph over the virtue of hope. Sometimes, it is only in the after a great period of moral reflection and personal maturity that we really begin to appreciate the great gifts in our lives. I am very grateful for the love of my sister, Rosanne, and my brother James. My cousin Cynthia Jemo, who is more like a sister, has been a source of strength and support during many difficult times. My aunt and uncle, Richard and Jacqueline Zions, have supported my family in incomparable ways. As my godmother, my Aunt Jacqueline taught me the virtue of faith. Richard Viechec has been, in more ways than he knows, like a father to me. I love them all very much. My grandparents were never afforded the opportunities I have had. My grandmother, Josephine Devaney, is one of the most important people in my life. She left school in the eighth grade, to support her family. My grandfather, Joseph Devaney, who passed away on January 1, 1963, prior to my birth, was a coal miner in the anthracite region of iv northeastern Pennsylvania. The credit for this dissertation belongs to them more than it belongs to me. My aunt and uncle, Steven and Kathleen Jemo, who were like parents to me, were among the two most charitable people I ever knew. More than they ever knew, they carried me through the most difficult times in my life. As my godfather, my Uncle Steven taught me the virtue of charity. My Uncle Steven and Aunt Kathleen passed away before the completion of this dissertation. I am deeply saddened that they are not here to see this day. I miss them very much. I am certain they would be very proud of me, as I was always proud of them. I take consolation in the words of T.S. Eliot: “The communication of the dead is tongued with fire beyond the language of the living.” I am grateful for the support of friends and colleagues, especially Kristen Jones, Dominick Lombardo, and Dr. Anna Maria R. Francis. It has been almost twenty-five years since I graduated from high school. Yet, after the passage of time, one teacher stands out as a man who made a difference in my life, Mr. Gerald Grink. I have been very fortunate to have as a mentor Dr. Claes G. Ryn. Without Dr. Ryn’s support, encouragement, and advise, this dissertation would not have been completed. I am also greatly indebted to Dr. Dennis Coyle, Dr. David Walsh, Professor Robert Destro, Professor Raymond Marcin, Professor William Wagner, and Professor William Wagner, and Dr. Bruce Frohnen. Finally, I would like to thank Mrs. Annette Kirk. v TABLE OF CONTENTS Introduction: Federalism and the Bill of Rights . 1 Chapter One: The American War of Independence: A Revolution Prevented . 19 Chapter Two: The Tenth Amendment as a Bill of Rights . 48 Chapter Three: The Ninth Amendment as Protection for the Unwritten Constitution . 113 Chapter Four: Constructing the Bill of Rights: Civil Liberties in the First Congress . 165 Chapter Five: James Madison’s Fourteenth Amendment . 193 Conclusion . 219 Bibliography . 224 vi INTRODUCTION FEDERALISM AND THE BILL OF RIGHTS On September 17, 1787, the delegates to the Philadelphia Convention finished their work of the preceding summer, and prepared to submit the newly proposed Constitution to the states for ratification. The Confederation Congress originally authorized the delegates to the Philadelphia Convention to revise and improve the Articles of Confederation. It soon became clear, however, that the delegates went beyond their original mandate during the course of the proceedings. The document emerging from the Philadelphia Convention proposed to divide authority between a more powerful national government and the several states. The departure of the Philadelphia Convention from its original mandate was not entirely unexpected, at least by Patrick Henry, who refused to attend the Philadelphia Convention because, in his words, “I smelt a rat.” 1 One of the principal objections to the Constitution, which emerged during the ensuing debate over ratification, was the absence of a bill of rights. 2 The importance of a bill of rights was not foremost in the minds of many of the delegates to the Philadelphia Convention. “I cannot say,” James Wilson later recalled, what were the reasons of every member of that Convention for not adding a bill of 1 Although it is frequently attributed to Patrick Henry, the quote is almost certainly apocryphal. 2 For a general discussion of the proceedings of the Philadelphia Convention see Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, Kans.: University Press of Kansas, 1986), 225-260. 1 2 rights.” 3 “[T]he truth is,” Wilson supposed, “that such an idea never entered the mind of many of them . .” 4 At least until George Mason broached the matter, “almost as an afterthought,” during the waning days of the Philadelphia Convention. 5 Mason “wished the plan had been prefaced with a Bill of Rights” because “[i]t would give great quiet to the people . .” Mason believed a bill of rights could be prepared in a matter of hours with the state bills of rights as a guide. 6 On September 12, 1787, Elbridge Gerry moved for a committee to draft a declaration of rights, and the motion was seconded by Mason. Roger Sherman supported “securing the rights of the people where requisite,” but objected to a bill of rights on the basis that “[t]he State Declarations of Rights are not 3 James Wilson, “Pennsylvania Ratifying Convention” in The Roots of the Bill of Rights , ed. Bernard Schwartz, vol. 3 (New York: Chelsea House, 1980), 631. 4 James Wilson, “Pennsylvania Ratifying Convention,” 631. “I do not recollect,” Wilson states, “to have heard the subject mentioned till within about three days of the time of our rising . .” James Wilson, “Pennsylvania Ratifying Convention,” 631. He was certainly in error, however, when he recalled, “[E]ven then, there was no direct motion offered for any thing of the kind. I may be mistaken in this; but as far as my memory serves me, I believe it was the case.” “I have stated, according to the best of my recollection,” Wilson further adds, “all that passed in Convention relating to that business. Since that time, I have spoken with a gentleman, who has not only his memory, but full notes that he had taken in that body, and he assures me that, upon this subject, no direct motion was ever made at all .