The Bill of Rights Revisited
The Bill of Rights largely embodied uncontroversial traditional rights of Englishmen.
Drawing on work by historian Gordon S. Wood, I recently suggested that we see the U.S. Constitution not as a landmark in the struggle for liberty, but rather as a move to introduce elements of monarchy and aristocracy into an American political system that had become too democratic for America's upper crust. As Wood wrote in Empire of Liberty: A History of the Early Republic: 1789-1815, "Benjamin Rush [a signer of the Declaration of Independence] described the new government in 1790 as one 'which unites with the vigor of monarchy and the stability of aristocracy all the freedom of a simple republic.'" But is that union actually coherent?
Rush's invocation of "the freedom of a simple republic" was no mere lip service to satisfy ordinary Americans. The new country's patricians also valued personal liberty; no one wanted the arbitrary rule of a dictatorship. But it is important to understand that the framers of the second U.S. constitution—the successor to the Articles of Confederation—did not intend for the complex governmental structure devised at the federal convention of 1787 to protect Americans' liberty directly. Rather, the ultimate protector was to be the ruling elite, the gentlemen of leisure who, free of the daily care of laboring in the marketplace, could referee clashing particular interests and thereby effect the general welfare. The purpose of the political process established in 1789 was to assure that the right sort of people would be selected to govern and the wrong sort would be weeded out, as alas they had not been in the various states since the Revolution.
In light of this interpretation of constitutional history, we may now inquire into the nature and purpose of the Bill of Rights, the 10 amendments adopted immediately after the new government was put into operation.
As Wood notes, Americans were surprised that the proposed Constitution had no bill of rights. Furthermore, most of those who had participated in the convention were apparently surprised that everyone else was surprised. In fact, no one even mentioned a bill of rights during the convention until the closing days, when George Mason raised the matter.
"It was voted down by every state delegation," Wood wrote. Bear in mind that some state constitutions had bills of rights, so including one would have blazed no new ground. (The lack of interest in a bill of rights reminds me that when Alexander Hamilton was asked why God was not mentioned in the Constitution, he reportedly said, "We forgot.")
Anti-Federalists like Mason made the lack of a bill of rights the top talking point against the Constitution (a fatal strategic error, as we'll see), and the issue came up repeatedly in state ratifying conventions. While no state convention conditioned ratification on addition of a bill of rights, Wood wrote, "many of the states had ratified the Constitution on the understanding that some changes would be made in order to protect people's rights, and popular expectation was high that amendments would be added as soon as possible."
This made the Federalists unhappy. The last thing they wanted was to tamper with their handiwork before it had a chance to work. Besides, they said, no bill was needed. "The Constitution had been drafted in part to protect the rights of Americans," Wood wrote. "But the Constitution was designed to protect the Americans' rights from the abusive power of the state legislatures." Alexander Hamilton argued further that if the national government could exercise only those powers spelled out, then the document itself was a bill of rights. (The Anti-Federalists did not believe this talking point about enumerated powers, not should they have. After all, the power of eminent domain is not spelled out, but we know from the subsequently added Fifth Amendment that the framers viewed the power as an inherent possession of the government.)
After enough states ratified, all but one Federalist was willing to ignore the demand for a bill of rights: James Madison. At first he was also willing to let the matter go, but his sense of honor (and pressure from Thomas Jefferson) prevailed, and he strove to keep his promise when he was elected to the first Congress as a member of the House of Representatives. (He had lost out on the Senate when the Virginia state legislature selected two Anti-Federalists.) "Besides," Wood wrote, "as he [Madison] told a friend, a bill of rights would 'kill the opposition everywhere, and by putting an end to the disaffection to the Govt. itself, enable the administration to venture on measures not otherwise safe.'"
Thus did Madison make a virtue of expediency.
Nearly 200 amendments had been recommended by the state ratifying conventions, and so Madison sorted through them. "Yet Madison was determined that his bill of rights would be mainly limited to the protection of personal rights," Wood wrote, "and would not harm 'the structure & stamina of the Government.'"
In other words, most of the proposed amendments and the most serious objections of the Anti-Federalists would be ignored. Revealingly, Madison favored an amendment, in Wood's words, "to protect certain rights from the states," which shows that the Federalists were actually nationalists. It failed, just as Madison's proposal at the federal convention to empower Congress to veto state legislation failed. (The states were seen as obstacles to a consolidated political system. For more on this, see "James Madison: Father of the Implied-Powers Doctrine," in which I describe how Madison watered down what would become the 10th Amendment by arguing for "powers by implication.")
"By then," Wood added, "many Federalists had come to see that a bill of rights might be a good thing after all. Not only was it the best way of undercutting the strength of Anti-Federalism in the country, but the Bill of Rights that emerged, as Hamilton pointed out, left 'the structure of the government and the mass and distribution of its powers where they were.'"
In the end, Americans got a government with nearly comprehensive power to tax and potential blank checks in the form of the general-welfare, necessary-and-proper, and supremacy clauses, and more.
But what of the Bill of Rights?
"Madison's amendments, as opponents of the Constitution angrily came to realize, were 'good for nothing' and were 'calculated merely to amuse, or rather to deceive,'" Wood wrote. "They affected 'personal liberty alone, leaving the great points of the Judiciary & direct taxation & c. to stand as they are.'"
Aedanus Burke, Representative from South Carolina, said Madison's amendments "are little better than whip-syllabub, frothy and full of wind, formed only to please the palate.… I think it will be found that we have done nothing but lose our time, and that it will be better to drop the subject now and proceed to the organization of the government."
But since the Anti-Federalists had put so much emphasis on the lack of a bill of rights, once the amendments were ratified, the critics appeared to be unable to take yes for an answer. Further complaints against the Constitution looked obstructionist. Meanwhile, "Anti-Federalists in the Congress," Wood wrote, "began to realize that Madison's rights-based amendments weakened the desire for a second convention and thus actually worked against their cause of fundamentally altering the Constitution."
Actually, the Bill of Rights largely embodied uncontroversial traditional rights of Englishmen. Indeed, in sorting through the amendments, Wood wrote, "Madison … extracted mainly those concerned with personal rights that he thought no one could argue with."
"Unlike the French Declaration of Rights of Man and Citizen issued by the National Assembly in 1789," Wood noted, "the American Bill of Rights of 1791 was less a creative document than a defensive one. It made no universal claims but was rooted solely in the Americans' particular history. It did not invent human rights that had not existed before, but mainly reiterated long-standing English common law rights."
To see this point clearly, recall that in 1798 the Federalist Congress passed the Sedition Act, which prohibited one to "write, print, utter or publish … any false, scandalous, and malicious writing or writings against the Government of the United States, or either House of the Congress of the United States, with intent to defame the said government, or either house of the said Congress, or the President, or to bring them … into contempt or disrepute, or to excite against them, or either or any of them, the hatred of the good people of the United States."
Little good the First Amendment did to stop it. "Americans believed in freedom of the press and had written that freedom into their Bill of Rights," Wood wrote,
But they believed in it as Englishmen did. Indeed, the English had celebrated freedom of the press since the seventeenth century, but they meant by it, in contrast with the French, no prior restraint or censorship of what was published. Under English law, people were nevertheless held responsible for what they published. If a person's publications were slanderous and calumnious enough to bring public officials into disrespect, then under the common law the publisher could be prosecuted for seditious libel. The truth of what was published was no defense; indeed, it even aggravated the offense" (emphasis added)
Bad as it was, the Sedition Act was more liberal than the common law because it permitted truth as a defense.
Wood summed up the story of the Bill of Rights thus: "Under the circumstances the states ratified the first ten amendments slowly and without much enthusiasm between 1789 and 1791; several of the original states—Massachusetts, Connecticut, and Georgia—did not even bother. After ratification, most Americans promptly forgot about the first ten amendments to the Constitution. The Bill of Rights remained judicially dormant until the twentieth century."
This does not mean the Bill of Rights was worthless. To the extent it has worked to restrain government power, we should be grateful. But its presence eventually shifted attention from asking where in the Constitution a claimed power was specified to asking where in the Bill of Rights a claimed right was specified. And the effort to procure the Bill of Rights distracted from weightier matters and left the national government with its frighteningly broad powers largely intact. I submit that the government would have been less threatening to our liberties had the Constitution been rejected or at least radically altered.
This piece originally appeared at Richman's "Free Association" blog.
