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14

Rights



CHAPTER 14

Introduction

From the beginning, it seems, the language of America has been the language of rights. Whether conceived as the rights of "any naturall born subject of England" (no. 1), or as "the natural, inherent, divinely hereditary and indefeasible rights" of British subjects (see ch. 3, no. 4), or as "those rights which god and the laws have given equally and independently to all" (no. 10), a statement of rights is a claim, not a request. The language of rights is not that of supplication.

That language, too, presupposes a particular kind of speaker and audience. Claimants must be mindful of what is due them; governors must be reminded that they govern a people who know what is due them. The public speech about rights, then, serves the double purpose of exhorting the bearers of those rights--"Let those flatter, who fear: it is not an American art" (Jefferson, no. 10)--and of warning the would-be transgressors of those rights. If the claim is writ bold and the threat subdued, it is nonetheless a claim coupled with a threat.

The dignity or urgency of the claim of those irreducible and inalienable rights is mirrored in the gravity and dreadfulness of the threat--a recourse to first principles, and beyond that an appeal to heaven, in short, revolution. Neither the claim nor the threat is to be taken lightly. A prudent people jealous of their rights, a prudent magistrate jealous of his office (or his head), would alike cherish that "great Charter of fundamentalls." They would equally welcome those solemn prescribed occasions when all members of the body politic are reminded of the distinctive prescriptions and prohibitions that define their collective life (no. 4). Much like the kings of Israel who were enjoined to write a copy of the Law and keep it by them that they might veer neither to the left nor to the right (Deut. 17:18--20), so too ought a free people to have their rights "Expressed in the fullest and most unequivocall terms" (no. 16). The conditions on which man agrees to enter into society ought to be marked out "with perspecuity and plainness . . . so as to admit of no Prevarication" (no. 17).

In this context the agitation over a bill of rights that distinguished many of the critical fights in the state ratifying conventions takes on a somewhat different appearance. However much the opponents of the Constitution may have used the issue of a bill of rights as a tactical device (hoping thereby to secure a second convention that might undo some of the more odious features of the proposed new government), they also intended something more. There is a deeper meaning to their discontent. The debate over the need for a bill of rights stirs fundamental questions of American constitutionalism, for much of that debate expresses the people's continuing and conflicting need for, and fear of, a government that could truly govern.

With the continuing influence of the English legal tradition and popular writings on the Englishman's liberties (nos. 3, 5), and with the spread and popularization of Locke's teaching by the readers of authors as diverse as John Trenchard, William Blackstone, and Samuel Adams (see ch. 3), the language of rights became the common tongue. With the revolutionary productions of lawyer Jefferson's pen (no. 10; see also ch. 1, no. 5), the language of rights become eloquent. The right of a people was derived from the natural rights of individuals. Indeed, individuals had constituted themselves a people by acting on their own behalf: "For themselves they fought, for themselves they conquered, and for themselves alone they have right to hold." In this the ancestors of the Americans had acted as any might in exercising "a right, which nature has given to all men." But because their peoplehood is a consequence of this exercise of individual right, that people have a collective right to safeguard and "hold undisturbed the rights thus acquired at the hazard of their lives and loss of their fortunes." The burden of the Americans' grievance was not that their natural rights had been abridged--for example, "the exercise of a free trade with all parts of the world"--but that they had had no voice or hand in the matter. This was a situation inviting abuse and injury, the arbitrary sacrifice of American rights and interests to those of others. Jefferson was not being carried away by hyperbole when he denounced an act of 5 Geo. 2 forbidding an American subject from making "a hat for himself of the fur which he has taken perhaps on his own soil [as] An instance of despotism to which no parrallel can be produced in the most arbitrary ages of British history." In the face of such arbitrary high-handedness no individual rights could be secure. An individual's possession and free use of his head was hardly safer than that of his hat.

The Continental Congress put the matter as clearly as can be in its Declaration of Rights (see ch. 1, no. 1). The enjoyment of rights is inseparable from self-governance, and that means actual representation of those being governed. Those rights might be abridged or qualified in a number of ways, but the only legitimate manner of so doing would be to secure the consent of the holders of those rights. The notion that the people of America might be "virtually" represented by individuals neither chosen by nor accountable to themselves was altogether preposterous. Or, as Congress put it in its primer of rights produced for the enlightenment of the Quebecois (no. 12): "to live by the will of one man, or sett of men, is the production of misery to all men."

In defending their rights against British (and even their own) authorities, Americans could justify taking severe measures against the Tories. Along with Governor Jefferson (see ch. 3, no. 6), they recognized that securing one's own rights may necessitate denying rights to one's enemies. Yet even in the midst of revolutionary exertions against external threats, Americans were wary of internal threats to their rights. Behind a debate over the Continental Congress's power to arrange for the apprehension of army deserters lay questions of federalism, constitutionalism, and the security of the people's rights (no. 14). Those concerns peaked whenever the construction of new governmental forms came under discussion (no. 17; see also ch. 4, no. 8). Always implicit and usually explicit was the understanding that allegiance and protection are reciprocal. Thus it made sense to precede a frame of government with a declaration of rights (no. 16; see ch. 1, no. 6).

The Bill of Rights

It is customary to view the first ten amendments to the Constitution as the lasting legacy of the Anti-Federalist critics of 1787--88. After all, it was the Anti-Federalists who repeatedly remarked upon the absence from the proposed Constitution of a distinct list of guaranteed rights. It was they who clamored unceasingly for revision of the Constitution so as to remedy that omission. In comparison, the leading supporters of the Constitution, including Madison, appear as at best tardy and tepid proponents of a bill of rights.

Closer examination of the documents complicates this account considerably. For although it was indeed the critics who most visibly and audibly demanded a bill of rights, the amendments that finally were ratified were not of their making--nor most to their liking. It took Madison's persistence as floor manager in the House to get Congress to act on amendments as promptly as it did. And in the end it was not the critics' proposed amendments effecting structural changes or enshrining general republican maxims that were submitted to the states for ratification. Madison's successful strategy was to exclude these kinds of amendments (with the broad exception of the Tenth Amendment), while embracing the proposal of a "bill of rights." But even then it was not the critics' language that came before Congress for consideration but that of their most knowing and patient opponent. It is at least arguable that the voice of Patrick Henry and the pen of Richard Henry Lee finally were overcome by the parliamentary skills of James Madison.

The documents also invite some reflection on the passionate insistence of the Anti-Federalists and the dogged resistance (and occasional disdain) of the Federalists. What one regarded as having almost talismanic powers, the other viewed as mere surplusage or worse. From today's perspective each position seems strange, almost inexplicable. That sense of strangeness may bespeak a gulf between our understanding of the character and function of a bill of rights and theirs.

The urgent call for a bill of rights arose in the Philadelphia Convention only days before it brought its business to a close. Notwithstanding George Mason's insistence that the matter "might be prepared in a few hours," the weary delegates overwhelmingly rejected a motion so pregnant with difficulties and controversy (no. 20). The difficulties did not stem from a lack of models; eight state constitutions (plus that of not-yet-admitted Vermont) were prefaced by a declaration of rights. The difficulties had rather to do with need, effectiveness, and consequences. Did a government established by "We the people" and constituted as one of enumerated powers stand in need of a device that owed its origins to earlier struggles against monarchic pretensions? Were such prefatory declarations really part of a constitution or only admonitions that would suffer the fate of other "parchment barriers"? And if indeed parts of a fundamental law, how and by whom were they to be enforced? Did the record of evasions and transgressions of the state constitutions' bills of rights recommend reliance on so slender a reed? Would a preoccupation with the limits of the exercise of power weaken popular support for a government of sufficient energy and decisiveness--sufficient, that is, to protect the enjoyment of those rights?

Here Federalist misgivings ran head-on into Anti-Federalist fears. "Universal experience" confirmed the necessity for "the most express declarations and reservations." Precisely because great powers had to be given, great restraints had to be placed on the exercise of those powers. How else "protect the just rights and liberty of Mankind from the silent powerful and ever active conspiracy of those who govern"? When Lee (no. 21) spoke of the urgent need for the proposed Constitution to be "bottomed upon a declaration, or Bill of Rights," he indeed had in view a foundation. Only on such bedrock could a people safely erect a framework of government allocating offices and powers. It was not enough to say, as did James Wilson (no. 23), that whatever was not given up was presumed to be retained. Indeed, the reach of the powers granted and the very generality of some of the Constitution's language argued decisively against such a presumption and for the most explicit affirmation of "that Residuum of natural rights, which is not intended to be given up to Society" (no. 22; see also no. 25; Impartial Examiner, no. 1, 20 Feb., 5 Mar. 1788). Moreover, on Wilson's premise, how was one to understand those few instances--as in Art. 1, sec. 9, and Art. 6, sec. 3--where the Constitution does impose limits, limits on power nowhere expressly granted? (Nos. 26, 44; but see no. 40.)

Wilson argued (no. 27) that a bill of rights was not only superfluous in a government of enumerated powers founded on popular sovereignty, but "preposterous and dangerous," "improper." Would not such a declaration be tantamount to an enumeration of reserved powers? And would not such an enumeration support the detested presumption that all that was not reserved was granted? Who would entrust the enjoyment of his liberties to some body's overweening claim to having made a complete enumeration? (See also no. 34.)

Logical and powerful as these arguments were, they could not dispose of the deep root of Anti-Federalist disquiet and declamation. A bill of rights was "a plain, strong, and accurate criterion by which the people might at once determine when, and in what instance their rights were violated." Without "a test of that kind" a people was disarmed before an aspiring tyranny that would have the effrontery and sophistication to face down any and all complaints (nos. 28, 29; see also Impartial Examiner, no. 1, 5 Mar. 1788). With so much at stake, Jefferson concluded (reaching for a universal): "a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference" (no. 30). The utility or danger of incomplete enumerations might be argued one way or the other, the Federal Farmer thought, but that did not dispose of the deep, continuous, and lasting value of a declaration of rights: establishing "in the minds of the people truths and principles which they might never otherwise have thought of, or soon forgot. If a nation means its systems, religious or political, shall have duration, it ought to recognize the leading principles of them in the front page of every family book." Freedom depended not on ancient concessions painfully extracted, not on legal documents confirming those concessions, but on each generation's "constantly keeping in view . . . the particular principles on which our freedom must always depend" (no. 32; see also Sentiments of Many, 18 June 1788; Edmund Randolph, 1809). In this respect, at least, the Anti-Federalist argument was unanswerable.

In the face of these persistent, if shifting, adverse arguments, some Federalists beat to windward and took a more favorable tack. Earlier arguments were not simply abandoned, but the stress was now on the sense in which "the whole Constitution is a declaration of rights" (James Bowdoin, 23 Jan. 1788). In the very Preamble of the Constitution was to be found "a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bill of rights, and which would sound much better in a treatise of ethics than in a constitution of government" (Hamilton, no. 38). All in all, a government of limited enumerated powers, following policies determined and executed by popularly accountable "representatives and servants," was itself the best guarantor of individual rights. To ask for more was to mistake form for substance or, what was worse, to risk substance for the sake of form. (See also no. 45, and Benjamin Rush to David Ramsay, Spring 1788.)

James Iredell writing as "Marcus" (no. 36) was able to suggest how the enthusiasms of '76 had misled the framers of state constitutions into a hasty and ill-considered adoption of English safeguards against the abuses of royal prerogative. This was understandable--"the minds of men being so warmed with their exertions in the cause of liberty as to lean too much perhaps toward a jealousy of power to repose a proper confidence in their own government"--but it was for all that an error. Iredell could show not only that English precedents were inappropriate in an American republic, but that the typically admonitory or prohibitory language of a bill of rights could easily be sophisticated into mere babble. (See also no. 38.) Rather than rely on the magical properties of fine-sounding declarations, a sensible people would find its security in a properly constituted government and in a public opinion that kept that government to its charge.

The Politics of Ratification and Amendment

Yet the opposition obstinately kept up the cry for amendments to correct the excesses and supply the defects of the proposed Constitution. Massachusetts set a pattern for subsequent ratifications by appending a list of recommended "alterations and provisions" (no. 33). The Federalists' timely, if reluctant, acceptance of this form of ratification averted what they most dreaded: outright rejection of the Constitution, or diversely conditional ratifications by the several states, or a reopening of the matter at a second constitutional convention. Equally important is that in publicly accepting the need for amendments, the Federalists put themselves in a position to manage the whole process. It was one thing, of course, for Virginia Baptists searching for "some one Caperble of the Task" of safeguarding religious liberty to turn to James Madison, Jr., of Orange County (Joseph Spencer, 28 Feb. 1788). His public credentials in this respect ran at least as far back as 1776 with his small but significant alteration of Mason's last article in the Virginia Declaration of Rights, and there could be no question of his adherence to the principle that made rights the end of government. But it was a far different thing to have in Madison's shaping and guiding hands such proposals as: Massachusetts' desire to reinstitute the Confederation's reservation to the several states of "all powers not expressly delegated" (cf. no. 33, Resolution no. 1, with Articles of Confederation, art. 2); or Jefferson's desire for unequivocal and unqualified prohibitions of standing armies, monopolies, and suspension of habeas corpus laws (no. 30); or Virginia's desire to have direct taxes raised by means of the state legislatures, or to require extraordinary legislative majorities in order to exercise the national commerce power (no. 43). No more inveterate opponent of such proposals could have been found in the United States.

Political necessity and cunning strategy thus recommended the same course: accede to the widespread popular call for a bill of rights. There was no denying an argument of this sort: "A Bill of Rights may be summed up in a few words. What do they tell us?--That our rights are reserved.--Why not say so? Is it because it will consume too much paper?" (Henry, no. 39; see also Mason, no. 42, and A Delegate Who Has Catched Cold, 25 June 1788.) If that was what was wanted, well and good. Iredell (North Carolina Ratifying Convention, 24 June 1788) could hardly object to "the most explicit declaration that all power depends upon the people; because, though it will not strengthen their rights, it may be the means of fixing them on a plainer foundation." But Iredell (no. 45) rejected as "a snare rather than a protection" anything purporting to be an exhaustive list of reserved rights, to say nothing of back-door efforts to reintroduce distinctive federal features of the Confederation. Thus the satisfaction some leading Federalists were prepared to give was guaranteed to be unsatisfying to those who had clamored loudest (no. 41). Nor was Madison's measured explanation of the sense in which he had "always been in favor of a bill of rights," while simultaneously never thinking its omission "a material defect" (no. 47), likely to have gratified his correspondent. For Jefferson (no. 46), like many critics of the Constitution, was intent on "guard[ing] the people against the federal government, as they are already guarded against their state governments in most instances." For Madison, however, the real danger, like "the real power," lay elsewhere.

Madison, to be sure, was not alone in seeing the dark side of majority rule. While his formulation of the problem remains a classic (see ch. 4, no. 19, and ch. 10, no. 16), the concern it bespeaks was hardly limited to Federalists. Nor was his solution the inevitable one. Thus the Anti-Federalist Agrippa in Massachusetts, starting from Madisonian ground, could make a case for a bill of rights as the proper remedy for majority misrule. It is precisely in "a government by ourselves" that additional bulwarks are needed against the wanton exercise of power. A bill of rights setting forth the purposes of the social compact would help "to secure the minority against the usurpation and tyranny of the majority" and help to defend "the sober and industrious part of the community . . . from the rapacity and violence of the vicious and idle" (no. 16, 5 Feb. 1788). Agrippa's fears and sentiments were echoed by A [Maryland] Farmer (no. 35). A proper governmental structure was indeed important (as James Wilson and others had argued), but insufficient. Given the frequent opposition between the rights of individuals and "the apparent interests of the majority," a democratic government especially stood in need of a bill of rights; "if these rights are not clearly and expressly ascertained, the individual must be lost."

If, then, Madison and Jefferson saw the great danger as coming from different quarters, it was (Madison tactfully suggested) because they were in a sense looking at different worlds (no. 47). Here and now, in post-Revolutionary America, the most likely source of oppression was "not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents. This is a truth of great importance, but not yet sufficiently attended to. . . ." A bill of rights would be of no use in countering "the tyrannical will" of a sovereign majority; it would be worse than foolish to place one's hopes on that. Madison was prepared to concede that a case could be made for adding a bill of rights, but only as a precaution. A solemn declaration might lead to its being viewed as fundamental and to its becoming "incorporated with the national sentiment." To that extent a bill of rights might "counteract the impulses of interest and passion." Here was an argument not far removed from the Federal Farmer. Furthermore, Madison granted, acts of governmental usurpation were hardly precluded by the republican form; to that extent, at least, Jefferson's fears and Jefferson's remedy were in point.

With the ratification of the Constitution assured, Madison could safely turn to the business of amendments. He was even obligated to do so, having been pushed, by the charges of opponents to his election to Congress, into making public promises to seek amendments of the right sort. And to ensure that the business would indeed be "pursued with a proper moderation and in a proper mode" (no. 48), he took charge of it himself. It is clear that from the outset he had resolved in his mind and to his own satisfaction all the whats, hows, and whys of amendment. As was the case in the Philadelphia Convention, so too in the House debates, the advantages of prior homework and calm reflection showed at every turn.

In raising and pressing the issue of amendment and in seeing the amendments through Congress, Madison kept two goals in the foreground of deliberation: "to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the constitution" (no. 50). He had to steer the proposed amendments between those who wanted no part of the business and those who had very different amendments in view. In this he fully succeeded.

He did not, however, succeed in incorporating the amendments in the body of the original Constitution. Here Madison had a double purpose in view. Drawing special attention to the amendments by mounting them as it were on the prow invited and reinforced the habit of considering a bill of rights and a constitution proper as very different things. It invited and reinforced the habit of easy and frequent recurrence to large, abstract first principles, a habit deeply at odds (Madison thought) with society's continuing need for regular, stable expectations. Tying the amendments onto the stern like a dinghy in tow might have an opposite bad effect, inviting people to consider the amendments as mere afterthoughts inferior in dignity to the great instrument itself. Blending the amendments into the body of the Constitution would avoid both dangers. Nor did Madison succeed in extending the reach of the Bill of Rights to the states, in keeping with his--as distinguished from the Anti-Federalists'--view of the main source of danger to rights. A decade later, however, as co-leader with Jefferson of the Republican opposition to the Alien and Sedition Acts, Madison found effective ways to use the Bill of Rights as a curb on the federal government, and in the process gave expanded meaning to its free speech provision. (See Report on the Virginia Resolutions, Jan. 1800.)

When, finally, "the nauseous project" (no. 53) was over, Madison had got more than he feared he might and less than he wished. But, most important, by his maneuverings he had seen to it that the continuing disgruntlement of some leading Anti-Federalists would no longer be mirrored in their followers. The general desire for a bill of rights had been satisfied, and the business of governing could proceed.


The Founders' Constitution
Volume 1, Chapter 14, Introduction
http://press-pubs.uchicago.edu/founders/documents/v1ch14I.html
The University of Chicago Press

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